Jesurgislac’s Journal

June 9, 2008

Guantanamo Bay: show trials are evil

I’ve written before on why it was clear from the very beginning that the US was in breach of the Geneva Convention when the first prisoners were sent to Guantanamo Bay – even though we know so much more now than we did then. (Such as the fact that many of the prisoners are innocent kidnap victims.)

Guantanamo Bay is the visible oubliette in the US’s gulag archipelago: there are other prison camps round the world, especially in Afghanistan and Iraq (over 24 thousand prisoners held without due process, including at least 513 children who have been classed as “imperative threats to security”).

(Nevertheless, if you’re a UK citizen, please sign the petition to close Guantanamo Bay. What we can do is worth doing.)

(And all I want to say, any more, about the other current event is that I agree with Julia.)

Right now, the Bush administration has put on show-trials for five of the extrajudicial prisoners held in Guantanamo Bay. (There were to be six, but apparently Mohammed al-Qahtani, who has been held in Guantanamo Bay since January 2002, has had charges dropped because, it seems, it would be too obvious in a courtroom, that after six years of torture and solitary confinement he’s completely insane.)

The five remaining show-trial prisoners are:

  • Khalid Sheikh Mohammed
  • Walid Bin Attash
  • Ramzi Binalshibh
  • Ali Abd al-Aziz Ali
  • Mustafa Ahmad al-Hawsawi

Khalid Sheikh Mohammed has been an extrajudicial prisoner of the US since the beginning of March 2003. In March 2007, after over three years being passed from one secret prison to another, and six months in Guantanamo Bay as an official extrajudicial prisoner, he confessed to a shopping list of terrorist crimes (read the full list here). He’s known to have been tortured which puts the entire confession out of court, though not, of course, out of consideration at a show trial determined on condemning “al-Qaeda terrorists” to death. And Khalid Sheikh Mohammed is also determined to be a martyr and has refused legal representation. (Shortly before his arrest, his children were kidnapped, and since his arrest they have been interrogated, held in extrajudicial detention, and made use of to get KSM to talk.)

Walid Bin Attash has been an extrajudicial prisoner of the US since April 2003. In September 2006, he was transferred to Guantanamo Bay. He presumably spent the intervening three years – over three years – in various secret detention centres. (His name appears in a HRW report from October 2004, “confirmed” as a prisoner of the US at an “undisclosed location”.) He too has confessed to a shopping list of crimes.

Ramzi Binalshibh has been an extrajudicial prisoner of the US since September 2002. In September 2006, he was transferred to Guantanamo Bay. A HRW report references evidence that he was tortured in a Jordan prison at least part of the time he was one of the US “disappeared”. He’s described as “uncooperative and unresponsive”, but apparently he too has confessed a list of crimes and been implicated by others in their confessions.

The above three all appear to have genuine connections with al-Qaeda – that is, they are implicated as involved in al-Qaeda by material evidence, not by confessions obtained under torture alone. Whether that makes them guilty of the charges brought against them is another question: whether they could be convicted in a court of law, after so long as extra-judicial prisoners and given the extreme likelihood that all confessed under torture, is still another.

Ali Abd al-Aziz Ali, or Ammar al-Baluchi, is Khalid Sheikh Mohammed’s maternal nephew. After KSM was captured, his nephew spent time with Walid Bin Attash, and when Walid was taken by the US, so was Ali. He too has been an extra-judicial prisoner of the US since April 2003. He’s listed as a ghost detainee in a HRW report from 2005: he too was transferred to Guantanamo Bay in September 2006. There is no evidence linking him with al-Qaeda apart from the family link: he is accused of wiring money to the 9/11 hijackers in the US.

Ahmed Adam al-Hawsawi is another peculiar case: he’s been an extra-judicial prisoner of the US since March 2003, in Guantanamo Bay since September 2006, and has been accused of sending money and credit cards and “Western clothing” to the 9/11 hijackers. But material evidence linking him to al-Qaeda appears to be either scant or non-existent.

Regardless of their actual guilt or innocence, the Bush administration’s determination to find them guilty and condemn them to death makes these proceedings a show trial, not justice. (Thanks to the treatment they received, no just trial may ever be possible.)

Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, and John Ashcroft – and if those five, then George W. Bush as well – are all directly implicated in the decision to torture American extra-judicial prisoners – as well as George Tenet, then head of the CIA.

So all of these five prisoners (and many others) have been tortured with the approval and advance knowledge of Bush, Cheney, Rice, Rumsfeld, Powell, Ashcroft, and Tenet. Should the next administration decide to investigate and prosecute the crimes of the previous administration (as we all hope will happen) it is very clear that these seven powerful people could, if justice prevailed, find themselves in court on very serious criminal charges.

The first thing I thought of, when I heard that these show trials had been announced, was that the Bush administration had taken an unspeakably horrible means of insuring themselves against any real investigation of their crimes with regard to the extra-judicial prisoners tortured with their knowledge and approval: they intended to time the show trials so that the prisoners would be found guilty as close as possible to the first Thursday in November. When found guilty, the prisoners would be condemned to death.

The Bush administration would then announce that they would pass responsibility for carrying out those executions to the next administration: a bold move, because if Obama is in the White House next January (let’s hope) he might just refuse the poisoned pawn and prosecute the investigation, despite all the media and the Republicans would have to say about how Obama’s refusal to execute these prisoners proves him “soft on terrorism”.

But if whoever’s President next January executes the prisoners, this execution implicates them in the Bush administration’s crimes: and if the President commutes the death sentences to life imprisonment, where else could they be held but in Guantanamo Bay? And if Guantanamo Bay remains as the US flagship oubliette, what of all the other secret detention centres where prisoners can be held? If the next President accepts the poisoned pawn, the next administration is forced into accepting these crimes of the last as a given.

Even if you don’t accept this particular theory, but think the Bush administration is just putting these five on “trial” with the intent of looking like they accomplished something with their thousands of extra-judicial prisoners, so that Bush can claim he finished his disastrous reign by convicting people supposedly “responsible” for the terrorist attack on 9/11, it is still very important that the prisoners’ trials should be completed and the prisoners condemned before Bush leaves office.

But in order to do so, the trials must proceed with extra-ordinary speed. The JAG lawyers ordered to defend these five have proved themselves professionally responsible and honourable, determined to do their best for their clients – a lawyer’s duty – even in these unpromising circumstances when it has become clear that their superiors in the military, and the civilian hierarchy commanding the military, do not want these lawyers to do their best for their clients: they want the accused to be found guilty.

Khalid Sheikh Mohammed had already refused a lawyer to defend him. Now so have the other four. While agreeing with KSM’s reasoning that the trial is a mockery and there is no point having a lawyer since the court will find him guilty, that’s not as important as the need for the trials not to be completed until – we all hope – McCain loses the election, and – we all should hope even harder – does not get into the White House. (McCain, I have no doubt, will execute the condemned prisoners and continue the extra-judicial detentions without a qualm: there’s room to hope that Barack Obama will put an end to it.)

Via Sideshow, I discover there’s a reason why all five have rejected their right to a defense lawyer: though all five have been held separately for years, none of them allowed to talk to each other, but then, just when it’s most convenient to the Bush administration and the other criminals implicated in the torture and illegal detention of prisoners:

(EmptyWheel) Doesn’t seem that earth shattering at first; however, think through the dynamics to date and the blaring significance sets in. The US has assiduously kept the detainees separated and isolated all this time so that they could not communicate and have structural control from the top down and, then, out of the blue, viola! Right in the middle of the courtroom, Khalid Sheikh Mohammed is blithely allowed to huddle them up like Favre does the Packers. When they break huddle, all of them, even the hesitant ones, suddenly want to dismiss their JAG/military lawyers that have been doing such commendable work under impossible conditions. Exactly at the point it is useful to help the US rid themselves of those meddlesome military lawyers that have been beating up their dog and pony shows.

First the Cheney Administration sacked the military judge that had the gall to allow even a shred of due process to the detainees, and now they have effectively sacked the military lawyers that had the temerity to seek it. This was a knowing and intentional play to deny counsel. The US Administration knew what Khalid Sheikh Mohammed would do, and they knew that, given the opportunity, he would command the other detainees to do the same. So the US made sure it happened, so as to suit their demented self serving convenience. In writing this post, I have found one other person (h/t to Siun) that has also realized what occurred, and it is none other than Anthony Romero, the Director of the ACLU; everybody should know and be ashamed of what has been done in our name.

This huge bit of legal depravity is of truly profound significance, I cannot emphasize that enough. It sure will go an awful long way to wedge out and marginalize the only lawyers actually doing their job in this whole mess, and will insure that a competent record of the torture will not be created (even if the detainees do mention it). It will also hasten the death penalty killing of these detainees that are prime evidence of the whole US torture scheme. Pretty much is one big eraser and obscurer of the legal hash the prosecution has made. Brilliant. But morally, ethically and legally craven and deplorable. This is the story from the Guantanamo arraignment last Thursday that should be being discussed and decried. This is the penultimate straw; the last straw will be the snuff films that have been facilitated and hastened by Thursday’s Gitmo arraignment shame.

Again I say: It is not a question of whether any of these five who have been put on show trial are in fact guilty or innocent. Nor is it entirely a question of whether my theory is correct, that the executions of these five will be handed to the next President to blood him with the crimes of the past regime, so that the chief criminals can relax without any worries that nasty questions may at some time be asked of them about their approval of torture and extra-judicial detention of terrorist suspects – or even about the decision to grossly violate the Geneva Convention for Prisoners of War, as long ago as November 2001.

These are show trials. Show trials are always profoundly wrong: they subvert and destroy justice. It is one of the nastiest ironies of the whole bloody business that Khalid Sheikh Mohammed may actually be guilty of some of the charges brought against him – may indeed be one of the co-conspirators behind September 11. But, thanks exclusively and entirely to the Bush administration’s treatment of him and other prisoners since he was captured, no court of law could possibly convict him. The train of evidence has been corrupted with torture, kidnapping, and long periods of extra-judicial detention. Khalid Sheikh Mohammed evidently thinks he serves the al-Qaeda cause best as a martyr, and he’s certainly right. The Bush administration may well provide him, because they want themselves to avoid prosecution, with the death he wants, and the martyr that al-Qaeda can use for a century.

This isn’t just wicked: it’s stupid.

June 8, 2008

Why the US is in breach of the Geneva Convention

Google orders the pages it pulls from the Internet for you to view by the number of times it is linked to. There was a time (in 2002, or earlier) where googling for “Geneva Convention” got me a set of pages I had to search through to find this page, but not any more: these days, four and a half years since the first prisoners were sent to Guantanamo Bay, google Geneva Convention (no quotes, even) and the Geneva Convention relative to the Treatment of Prisoners of War comes right to the top of the first googlepage.

I first read the text of this convention back in December 2001, or whenever the prison camp in Guantanamo Bay had been announced, with much relish about how uncomfortable it was going to be (I assume the Bush administration then were playing to their base: I know I got many Americans online saying that this was nothing more than these scum deserved). Later, as Red Cross and other international protests came in, official public talk about the Guantanamo Bay prison camp changed, and made it sound more comfortable.

It’s hard to believe now – now that we know that many of the people sent to Guantanamo Bay were simply sold to the Americans for bounties, and many were turned in for a grudge – but at the time, I believed that when the US said they were sending only “the worst of the worst”, the truly dangerous, to their prison camp in Cuba, they were probably telling the truth. In December 2001, we really knew so little about the Bush administration, and I honestly did not think that they were outright lying about this, as we know now they were.

I certainly believed – until the facts started filtering out – that all of them would have been taken “on the battlefield” – that is, by US soldiers, with reasonable surety that all of them had been taking part in the hostilities. As we know now, in fact any foreigner in Afghanistan could be said to be “al-Qaeda”, and any Afghan man could be said to be a “Taliban fighter” – and the Americans who were accepting prisoners turned in by any warlord with the sense to talk the right anti-Taliban stuff wouldn’t bother to check.

I can’t remember exactly when the truth sank in. Was it when the Americans kidnapped six people from Bosnia? Or when it turned out Moazzam Begg had been kidnapped from the house where he and his family were staying in Pakistan, by the Pakistani police? It was fairly early on in 2002, anyway, that it became clear that some at least of the prisoners were not “taken on the battlefield”, and that evidence that they were terrorists or Taliban was shaky.

But it was clear from the first read-through of the Geneva Convention that the US was in breach of it, and on a fairly basic issue: the prisoners had not had their status established by a competent tribunal. At the time – December 2001 – I did assume that, if they were “the worst of the worst”, that the US would most likely muster the competent tribunals in Guantanamo Bay. But by January or February 2002, it seemed clear that the US had no immediate plans to do so.

Article 4 of the Geneva Convention specifies who may be regarded a prisoner of war. It does so in some detail. Article 5 reads, in its entirety:

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

The US has claimed (still claims) that they doubt that their prisoners in Guantanamo Bay are covered by Article 4. Where the US is in breach of the Geneva Convention, is that at no time did they determine the status of those prisoners by a competent tribunal before removing their rights under the Geneva Convention relative to the Treatment of Prisoners of War. But that’s what the Geneva Convention says they must do, plain as print.

When I first pointed this out – over five and a half years ago – I got a succession of protests from Americans (and others, but mostly Americans) that their country couldn’t possibly be in breach of the Geneva Convention. The protests were originally quite varied, but have in time settled down to one straightforward argument:

Article 5 only says “should any doubt arise”. It doesn’t say what should happen if the detaining power is certain that the prisoners don’t belong under Article 4.

Remarkably, that argument has stayed consistent over the five years during which we have all seen what happens if the detaining power is so certain of its ability to decide, without doubt or justice, that a prisoner doesn’t deserve the protection of the Geneva Convention: the number of prisoners who have had to be released because there was no evidence (mostly the citizens of countries allied to the US), and the number who ought to be released but aren’t because it’s too embarrassing for the US government to admit it has no evidence (mostly the citizens of countries who have no power to put pressure on the US to try them or release them) has risen every year.

I wrote this post on 10th September 2006 and posted it on GJ: I’ve written other posts on this issue, but I think this one is the most recent and the most succinct. Below the fold, my inspiration for writing it at the time – which turned out to be mistaken – was a post by Andy Olmsted, which I’d read and misunderstood pre-coffee, then re-read and understood post-coffee. I wanted to take this opportunity to say that Andy Olmsted was a fine person, and our loss is immeasurable.


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