Chapter 4, Part 3 – A Ponzi Scheme of Torture

Printer-friendly versionPrinter-friendly version

Binyam Mohamed

On November 10, 2004, two months after Binyam Mohamed was delivered to Guantánamo and about two weeks after “Special Agent 3” had him identify the photographs of Farhi Saeed Bin Mohammed and 11 others, the Combatant Status Review Board sent a memo to his appointed “Personal Representative” summarizing the evidence against him. It read:

1. Under the provisions of the Secretary of the Navy Memorandum, dated 29 July 2004, Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at Guantanamo Bay Naval Base Cuba, a Tribunal has been appointed to review the detainee's designation as an enemy combatant.

2. An enemy combatant has been defined as “an individual who was part of or supporting the Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

3. The United States Government has previously determined that the detainee is an enemy combatant. This determination is based on information possessed by the United States that indicates that the detainee is associated with al Qaida or the Taliban.

A. The detainee is associated with al Qaida or the Taliban.
1. The detainee is an Ethiopian who lived in the United States from 1992 to 1994, and in London, United Kingdom, until he departed for Pakistan in 2001.

2. The detainee arrived in Islamabad, Pakistan, in June 2001, and traveled to the al Faruq training camp in Afghanistan , to receive paramilitary training.

3. At the al Faruq camp, the detainee received 40 days of training in light arms handling, explosives, and principles of topography.

4. The detainee was taught to falsify documents, and received instruction from a senior al Qaida operative on how to encode telephone numbers before passing them to another individual.

5. The detainee proposed, to senior al Qaida leaders, the idea of attacking subway trains in the United States .

6. The detainee was extracted from Afghanistan to Karachi, Pakistan, where he received explosives and remote-controlled-detonator training from an al Qaida operative.

7. The detainee met with an al Qaida operative and was directed to travel to the United States to assist in terrorist operations.

8. The detainee attempted to leave Pakistan for the United States but was detained and interrogated by Pakistani authorities, revealing his membership in al Qaida, the identities of Mujahidins he knew, and his plan to use a “dirty bomb” to carry out a terrorist attack in the United States.

4. The detainee has the opportunity to contest his designation as an enemy combatant. The Tribunal will endeavor to arrange for the presence of any reasonably available witnesses or evidence that the detainee desires to call or introduce to prove that he is not an enemy combatant. The Tribunal President will determine the reasonable availability of evidence of witnesses.1

A week later, the U.S. Air Force major assigned to be his Personal Representative met with him for an hour and twenty minutes, and afterwards recorded these notes:

During the initial interview on 18 Nov 04, detainee elected to NOT participate in the Tribunal. He had no witnesses or documentary evidence but requested that his Personal Representative provide statements made during the interview. Those statements follow:
Detainee informed PR that the interrogators told him that the tribunals were a “pass by” to get to the courts. He stated that he had no evidence on him (plans, materials, weapons, etc.) when captured and was interrogated by the British Secret Service (M6) who said that he was not accused of anything. He told me he made statements while being (mentally and physically) tortured while in Pakistani jails. Detainee admitted items 3A1-4 on the UNCLASS summary of evidence, but stated he went for training to fight in Chechnya, which was not illegal. The detainee stated that the other items were rubbish or made under duress. He further stated that he traveled before 11 Sep 2001, which means he had different plans other than going to fight America. After 9/11, there was no way out of AF other than the groups who could get him out of AF, through PK, and back to Britain (namely al Qaida). Finally, detainee stated that his plane ticket at time of capture was a ticket from Karachi to Zurich to England, so how could he have plans to carry out attacks in the United States.2

The Combatant Status Review Tribunals were a new feature at Guantánamo, created that summer following the Supreme Court's Hamdi decision and its 6-3 ruling in June in Rasul v. Bush that detainees at the U.S. naval prison in Cuba, too, had a right to pursue habeas corpus petitions in U.S. courts. The Pentagon described the CSRTs as a “formal review of all the information related to a detainee to determine whether each person meets the criteria to be designated as an enemy combatant”; they were meant to satisfy Justice O’Connor’s admonition that those the administration was detaining were entitled to a “fact-finding before a neutral decision maker.”3 But Mohamed was having none of it. Instead, he managed to get word to Clive Stafford Smith, a British lawyer already representing several other U.K.-based detainees, that he wanted Stafford Smith to take his case as well. Stafford Smith immediately filed a habeas corpus petition for Mohamed, and met him for the first time in person on May 2, 2005. Stafford Smith recalled that first meeting in his 2007 book Eight O'clock Ferry to the Windward Side:

Binyam was twenty-seven. He was tall and gangling, dark-skinned, originally from Ethiopia. He smiled and immediately told me how glad he was to see me. He spoke quietly, with a particular dignity. Some prisoners would take many hours of convincing that I was not from the CIA, but Binyam immediately opened up. I explained what we needed to do, and he started talking. He barely paused for breath during the three consecutive days we met. I have become so used to typing that the effort of handwriting notes was exhausting. Absorbing what he told me about being tortured would be far more difficult.4

At that time, Binyam Mohamed was one of around 540 alleged enemy combatants in Guantánamo. Not one of them had yet been brought before the problem-plagued military tribunals, the bodies President Bush had created by presidential order in October 2001 to prosecute detainees accused of acts of terrorism or war crimes, and a recent push toward prosecutions had prompted an embarrassing round of resignations of military prosecutors who were preparing cases for the tribunals. In their resignation letters to chief prosecutor Colonel Fred Borch, one of them, Air Force Captain John Carr, called the tribunal system “a half hearted and disorganized effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged”; another, Air Force Major Robert Preston, observed simply, “writing a motion saying that the process will be full and fair when you don't really believe it is kind of hard—particularly when you want to call yourself an officer and a lawyer.”5

Matthew Alexander 04/08/10: It's been a consitent sign of the failure of the system when numerous military JAGs have resigned over the rules and processes of the military tribunals. If only the interrogators and detention facility commanders had acted with the same dedication to our oaths of office and principles, then perhaps we would have never disgraced our institution by engaging in the torture and abuse of detainees.

Testifying in Congress after the Supreme Court struck down this first version of the military tribunal proceedings as unconstitutional in 2006, Lt. Commander Charles Swift raised the critical question of “whether military commissions can ever actually deliver the full and fair trials promised by the President's Order. Based on the past five years the inescapable conclusion is that the commission consistently failed to meet the President's mandate for full and fair trials.” The system's “many shortcomings” ranged from the fact that all of the personnel involved, including the officers serving as jurors, were handpicked by the Appointing Authority, the same official who approved the charges, to the fact that the defense had limited power to call witnesses and that defense counsel, when they were granted access to secret government documents, could not share them with their clients. Most outrageously, Swift told the Senate, “the military commission system had no rule preventing the admissibility of statements obtained by coercion,” and “had inadequate rules to ensure that the Defense would receive exculpatory evidence in the government's possession”—including evidence that the information relied upon by the prosecutors was the fruit of torture. This was especially true, Swift made clear, if the source of that information was the CIA.

Providing the defense with exculpatory evidence in the government's possession promotes not only a tribunal's fairness, but also the accuracy of its results. That is why the Supreme Court has held that an “individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police.” Yet in the military commission system, the Prosecution had no obligation to give the Defense exculpatory evidence in the possession of other government agencies. This was significant because, according to one former military commission prosecutor, government agencies intended to deliberately exploit this gap in discovery obligations to keep the defense from obtaining exculpatory evidence. Commission prosecutor Captain John Carr wrote to the commission system's Chief Prosecutor, “In our meeting with [a government agency], they told us that the exculpatory information, if it existed, would be in the 10% that we will not get with our agreed upon searches. I again brought up the problem that this presents to us in the car on the way back from the meeting, and you told me that the rules were written in such a way as to not require that we conduct such thorough searches, and that we weren't going to worry about it.”6

That was the situation Mohamed and Stafford Smith were facing on November 4, 2005, when the Appointing Authority for Military Commissions approved charges against Mohamed for conspiring with “Usama Bin Laden (a/k/a Abu Abdullah), Saif al Adel, Dr. Ayman al Zawahiri (a/k/a “the Doctor”), Mohammad Atef (a/k/a Abu Hafs al Masri), Abd al Hadi al Iraq, Zayn al Abidin Muammad Husayn (a/k/a Abu Zubayda hereinafter “Abu Zubayda”), Jose Padilla, and Khalid Sheikh Mohammad” to commit acts of terrorism. The charge sheet is a compendium of alleged plots connecting Mohamed to this who's who of alleged terrorist leaders:

14. In furtherance of this enterprise and conspiracy, Binyam Muhammad [sic] and other members or associates of al Qaida committed the following overt acts:
•  On or about May 2001, after a recent conversion to Islam, Binyam Muhammad, a trained electrical engineer, traveled to Afghanistan and attended al Qaida's al Farouq training camp, where he received training in light weapons such as the Kalishnikov, Simonov, PKA, rocket-propelled grenades (RPGs) and crew-served weapons.

•  In early summer 2001, which Binyam Muhammad was at al Farouq, Usama Bin Laden visited the camp several times and lectured Binyam Muhammad and other trainees about the importance of conducting operations against the United States, Europe, and Israel. During one of these lectures Usama bin Laden told the group “something big is going to happen in the future” and to “get ready” or words to that effect.

•  During August 2001, after completing his training at al Farouq, Binyam Muhammad attended a city warfare course in Kabul where he was to receive ten days of pistol training, ten days of training on the AK-47, and ten days of “room to room” combat. Due to lack of ammunition, Binyam Muhammed only received training on the AK-47 assault rifle.

•  In September 2001, after completing his abbreviated city warfare course, Binyam Muhammad moved to the front lines in Bagram to experience fighting between the Taliban and the Northern Alliance. While on the front lines, Binyam Muhammad took a course in firing mortars, map reading, targeting and firing.

•  After a short time on the front lines in Bagram, Binyam Muhammad attended an explosives training camp in Kabul where he received training on explosives and “homemade” bomb-making. Also in attendance at this camp was Richard Reid.

•  After traveling from Kabul to Khandahar, Binyam Muhammed was directed to go to Zormat, Afghanistan where he met with Abd al Hadi al Iraqi. While in Zormat, Binyam Muhammad was told al Qaida had a “mission” for him.

•  Binyam Muhammad then traveled to Birmel, Afghanistan, and was introduced to Abu Zubayda. Abu Zubayda promised him training in Pakistan building remote-control-detonation devices for explosives that were to be used against American forces. After his training was complete, Binyam Muhammad was to return to Afghanistan to make detonation devices and teach others how to construct them.

•  Binyam Muhammad traveled with Abu Zubayda from Khowst into Pakistan, stopping at several guesthouses and a madrassa (religious school) where he first met Jose Padilla, Ghassan al Sharbi and Jabran Said al Qahtani. Abd al Hadi al Iraqi and Abu Zubayda directed Binyam Muhammad (along with al Sharbi and al Qahtani) to receive training on building remote-controlled detonation devices for explosives.

•  From the madrassa in Khost Binyam Muhammad traveled to a guesthouse in Lahore, Pakistan, where he and Jose Padilla reviewed instructions on a computer in the guesthouse on how to make an improvised “dirty bomb.” Ghassan al Sharbi translated these instructions into Arabic and read them aloud to a group in the guest house.

•  After arriving in Lahore, Binyam Muhammad and Jose Padilla met with Abu Zubayda in private and discussed plans for attacks against the United States. Abu Zubayda stated that he preferred Binyam Muhammad conduct an “overseas” operation instead of going back to Afghanistan as originally planned. Binyam Muhammad agreed to carry out an operation in the United States.

•  While in Lahore, Binyam Muhammad, Jose Padilla and Abu Zubayda discussed the feasibility of constructing the improvised “dirty” bomb from the instructions they had read on the computer. Abu Zubayda also discussed other plans against the United States with Binyam Muhammad and Jose Padilla, such as blowing up gas tankers and spraying people with cyanide in nightclubs. Abu Zubayda told Binyam Muhammad that one of the purposes for the attacks on the United States was to help “free the prisoners in Cuba.”

•  After spending a few days in guest houses in Lahore and Faisalabad, Binyam Muhammad and Jose Padilla were sent to Karachi to meet Saif al Adel (the head of al Qaida's security committee) and Khalid Sheikh Mohammad (a top level al Qaida planner and leader). Saif al Adel and Khalid Sheikh Mohammad told Binyam Muhammad that their mission would involve targeting high-rise apartment buildings that utilized natural gas for its heat and also targeting gas stations. The apartment building plan called for renting an apartment and utilizing the natural gas in the buildings to detonate an explosion that would collapse all of the floors above. Binyam Muhammad and Jose Padilla agreed to conduct such an operation.

•  In early April 2002, Binyam Muhammad was given approximately $6,000 U.S. dollars and Jose Padilla was given approximately $10,000 U.S. dollars to get to the United States and met with Khalid Sheikh Mohammad for last minute briefings.

•  On of about April 4, 2002, Binyam Muhammad and Jose Padilla were both detained at passport control at the airport in Karachi (Binyam Muhammad for a forged passport and Jose Padilla due to visa violations), but were released the next morning. Khalid Skeikh Mohammad arranged to get Binyam Muhammad a different forged passport while Jose Padilla continued on to Chicago, Illinois.

15. On or about April 10, 2002, Binyam Muhammad was arrested at an airport in Karachi, Pakistan, attempting to get back to London using a forged passport.7

Just over two weeks after this charge sheet was issued, Attorney General Alberto Gonzales announced that Jose Padilla had been indicted in Florida and would be transferred from the military brig in Charleston, South Carolina to stand trial in Miami for conspiring to support violent jihad overseas. Speaking anonymously to reporters the next day, “current and former government officials” acknowledged that the decision to try Padilla on charges unrelated to the “dirty bomb” plot was connected to the fact that the “dirty bomb” case depended heavily on the testimony of Abu Zubaydah and Khalid Sheikh Mohammed—who were still being held in secret CIA black sites—and on Padilla's own self-incriminating statements in the brig. As Douglas Jehl and Eric Lightblau reported in The New York Times, “ Mr. Mohammed and Mr. Zubaydah could almost certainly not be used as witnesses, because that could expose classified information and could open up charges from defense lawyers that their earlier statements were a result of torture, officials said.” Without that testimony it would be “nearly impossible to prove the charges,” the administration sources officials told the reporters.

But in Guantánamo, unencumbered by such basic due process requirements as the right to confront one's accuser or to challenge testimony and confessions exacted through torture, the administration was pressing ahead against Binyam Mohamed. On December 12, 2005, Military Commissions Appointing Authority John Altenburg, Jr. signed an order referring the charges against Mohamed “as a non-capital case” to the Military Commission, ordering that “as soon as practicable, the Presiding Officer will conduct those sessions he deems appropriate to the expeditious conduct of the trial.”8 Nine other Guantánamo detainees had charges referred to the Military Commission for trial at about the same time; the charges against three of them, Ghassan Abdullah al Sharbi, Sufyian Barhoumi, and Jabrad Said bin Al-Qahtani also linked them with Abu Zubaydah. U.S. Marine Corps Colonel Ralph Kohlmann, the Presiding Officer named to try the cases, scheduled pre-trial hearings beginning in March, 2006. When attorneys for some of the detainees asked for more time to prepare their cases, Air Force Colonel Morris “Moe” Davis, the Chief Prosecutor for the Commissions, told reporters, “Remember if you dragged Dracula out into the sunlight he melted. Well that's kind of the way it is trying to drag a detainee into the courtroom. The facts are like the sunlight to Dracula. The last thing they want is to face the facts in the courtroom.”9

David Frakt 04/01/10: I believe it is a bit misleading to say that there was no right to challenge “confessions exacted through torture.” Statements extracted through torture are explicitly excluded from admissibility in military commissions, consistent with the United States’ obligation under the Convention Against Torture. Under the CAT, statements which are the product of torture are not admissible in any legal proceeding of any kind. State Department Legal Adviser John B. Bellinger III acknowledged this obligation in response to questions from the U.N. and asserted that the U.S. recognized that this ban also applied in Combatant Status Review Tribunals. Although there was, in theory, a ban on the use of statements produced by torture, the problem was in applying this rule. At the time of the initiation of the CSRTs and the first efforts at trying detainees in military commissions, the official position of the Bush Administration was that we never had tortured anyone. Since we hadn’t tortured anyone, there weren’t any statements produced by torture to exclude. In fairness to the officers who served on the CSRTs, it must be noted that the documents provided to them, typically summaries of statements produced in interrogation sessions, tended not to indicate the nature of the interrogation techniques used to extract the statements, so there was no reason for them to suspect that the statements were the product of torture. Furthermore, the evidence offered by the government in CSRTs, by regulation, was afforded a presumption of validity; this presumption was nearly impossible to overcome without the right to a defense lawyer (by regulation, the detainees “personal representatives” weren’t allowed to be lawyers), or any meaningful opportunity to call witnesses. Once defense lawyers were allowed to be involved, they were sometimes able to prove that a statement that had been considered by a CSRT actually was the product of torture. For example, in Mohammed Jawad’s case, his CSRT considered numerous summary interrogation reports as evidence that he was an enemy combatant. In Mr. Jawad’s habeas corpus litigation, counsel for Mr. Jawad (including myself) filed a motion to suppress these reports on the basis that the statements contained therein were the product of torture. After initially indicating to the court that the government intended to rely on these statements, the government changed course and conceded that the statements were the product of torture and the motion to suppress was granted. The government then informed the court that they no longer considered Mr. Jawad to be detainable, leading to Mr. Jawad’s release shortly thereafter.

Although statements obtained by torture were theoretically inadmissible, a major flaw of the military commissions was that statements which were merely the product of coercion were admissible. The admissibility of involuntary coerced statements is a fundamental due process violation.

For Binyam Mohamed, who had requested to see a lawyer the moment he was detained in Pakistan and who had been secretly detained literally thousands of miles away from any legal proceeding, the remark must have been especially galling. As Smith and Air Force Lieutenant Colonel Yvonne Bradley, his Commission-assigned defense attorney, prepared for his first hearing, Mohamed made some preparations of his own, telling his attorneys he planned to represent himself and requesting that they bring him a shirt dyed prisoner-orange and a notepad and marker on the day of the proceedings.10

At the hearing, Mohamed was irrepressible. After a scripted opening, which he interrupted to point out that they had spelled his name wrong and suggested they may therefore have the wrong person in court, Colonel Kohlmann read a long description of the defendant's rights and asked if he understood. “Am I allowed to answer this question now?” Assured that he was, Mohamed began,

You addressed me as Mr. Muhammad. I keep referring to this because this is a big issue. You have the wrong person on the seat. I mean, I don't understand what kind of system, after four years of torture and renditions, still gets the wrong person to be on the stand. I am not Mr. Muhammad, and if you are going by your books, I mean, how can you charge me with something and I am not the person. You got the wrong…the wrong man here.

Do you understand what I'm talking about? I think you're a reasonable person, that's why you're sitting over there. And to have in court a person who the cops put under interrogation for four years and then find out he's the wrong man, I mean, what kind of worthiness do these people have, man? Ask yourself, what kind of worthiness do they have bragging about Dracula and about this island that is getting them a lot of information, a gold mine? I'm innocent; I'm not—I'm not—I'm not supposed to be here. Mr. Muhammad, as you call him, is not here…is not present, so how can we go on ?

I don't know if Congress gave you the right to change names, I don't know. Sure. I mean, they give you the right to change laws and play around with them, but I don't know about names. And this is an issue. I can't call you Ralph Kallmann rather than Kohlmann, can I, and arrest you and put you in jail? Because that's not you? Four years of—what do you call it, enhanced torture techniques, and we have the wrong person in court. I mean, that bothers me; I don't know how it doesn't bother you.11

Kohlmann tried to steer the hearing back to question of Mohamed's rights.

BINYAM MOHAMED: I'm…maybe I'm mistaken about…could you explain what the rights are? I mean, maybe I…I don't want to look stupid in court.

COL. KOHLMANN: No, not at all.

BINYAM MOHAMED: What is this rights you're talking about? Because I have been four years without rights and now all of the sudden I got rights. I am surprised.

COL. KOHLMANN: If at any time during these proceedings you are confused, OK, you should ask for recess and then you can discuss things with your counsel. In this case I am going to explain them to you again because they are actually pretty concisely stated here in the trial guide. First, the one was—the right about a military—detailed military counsel, and I explained to you the right with regard to the Detailed Defense Counsel. And do you recall that explanation?

BINYAM MOHAMED: Yeah.

COL. KOHLMANN: OK. Do you want me to read it to you again?

BINYAM MOHAMED: I don't want to…to go too deep into this because my interest is I've had—I haven't had rights for four years. If I had rights, I don't think I would have been touring the world. Could you explain what is…what is…what is rights? I mean, she can't explain it because I've asked her.

When Kohlman turned to Lt. Col. Bradley, she elaborated. “The problem is I don't understand commission law,” she told the Colonel Kohlmann. “I mean, I don't think anyone understands commission law and …I have to go by seventeen years of experience of law, of legal cases, of precedents. There is nothing out there, so when you send me back to advise him on something, I can only tell him what has existed, not what is being formulated—created—in these commissions.” As Kohlmann lectured Bradley on tribunal decorum, Mohamed sat writing “CON-MISSION” on the notepad. “I don't consider this place as a commission,” he began again. holding up the sign for reporters.

So, I mean, I'll call it something else. I've been referring to this place as “the room.” I'm happy she stood up there and said she's confused, and I can understand why she's confused about these commissions because this is not a commission, this is a con-mission, is a mission to con the world, and that's what it is, you understand.

Mohamed concluded:

You said…there is a saying that says preach what you practice. You're preaching something and then practice something else. America preaches democracy and then creates a con-mission because it just wants certain non-citizens to be convicted. I didn't ask for a trial. You can kill me tomorrow; I don't really care. But then I have an obligation to the world that such crap cannot be accepted because of this, I have the right to say it.

If you think your war, you are going to win the war by convicting ten people here, that is very stupid. I am not saying you. I am saying your government.

I'll give you another example. Iran goes around saying, “I have to have a nuclear bomb.” America says, “You know what, you can't, because we are stronger than you are.” Iran says, “You have a bomb. Why can't I have a bomb?” So tomorrow you are going to have Australia saying, “You know what, you had a con-mission. Why can't I have a con-mission?” When are you going to stop this? This is not the way to deal with this issue.

That is why I don't want to call this place a courtroom, because I don't think it is a courtroom.

I'm sure you wouldn't agree with it because if you was arrested somewhere in Arabia and bin Laden says, “You know what, you are my enemy but I am going to force you to have a lawyer and I give you some bearded turban person,” I don't think you will agree with that. Forget the rules, regulations and crap…you wouldn't deal with that. That is where we are. This is a bad place. You are in charge of it. I don't know if you want to be a general. Because I can tell something, if you want to be a general you have to go along with this, but if you want to stay as colonel, like you are, you have to make real big decisions here.

I am done. You can stop looking at the watch.12

***

That hearing was as far as the government would get in its first attempt to try Mohamed before a military tribunal.

Three days after the conspiracy charge was entered against him at Guantánamo, the Supreme Court announced it would hear Salim Ahmed Hamdan's appeal challenging the legality of the military commissions. The following month, on December 30, 2005, Congress passed the Detainee Treatment Act of 2005, a schizophrenic piece of legislation that purportedly protected detainees from torture—which was already illegal—while also shielding U.S. personnel accused of abusive interrogations from liability and denying Guantánamo detainees the right to pursue habeas corpus petitions in U.S. courts. In February 2006, citing the DTA, the administration moved to have the Supreme Court dismiss the case, but the Justices heard oral arguments the following month, just as Colonel Kohlmann was presiding over preliminary hearings in Guantánamo.

Matthew Alexander 04/08/10: How ironic is it that we needed an Act of Congress to enforce acts of Congress that created the Military Justice system and gave us the authority to prosecute torture under federal statutes?

The Court rejected the administration's argument that the DTA's habeas-stripping provision meant the Supreme Court could no longer consider Hamdan's case, with a 5-3 majority finding that Congress had in fact exempted pending petitions.13 Asserting its power to review the way the administration proposed to try Hamdan, the Court went on to rule that the military commission created under President Bush's October 2001 order was not a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

To be legal, the Court ruled, the administration's military commissions either needed to comply with the Uniform Code of Military Justice, which codified the Geneva Conventions and international laws of war into U.S. law, or have specific Congressional authorization. The administration argued the 2001 Authorization for Use of Military Force granted the president power to create this new justice system, but Justice Stevens, writing for the majority, disagreed: “There is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ.” And the commissions the administration created clearly did not meet the due process requirements of the UCMJ or the “rules and precepts of the law of nations.” For instance, though defendants are entitled to see a copy of the charges against them and to a presumption of innocence, “[t]hese rights are subject, however, to one glaring condition:”

The accused and his civilian counsel may be excluded from, and precluded from ever learning, what evidence was presented during, any part of the proceeding that either the Appointing Authority or the presiding officer chooses to “close.” Grounds for such closure “include the protection of information classified or classifiable….intelligence and law enforcement sources, methods, or activities, and other national security interests.”14

Morever, Stevens wrote, “the accused and his civilian counsel may be denied access to evidence in the form of “protected information” (which includes classified information as well as…“information concerning other national security interests”) so long as the presiding officer concludes that the evidence is “probative” under §6(D)(1) and that its admission without the accused's knowledge would not “result in the denial of a full and fair trial.”15

For the military commissions to comply with both the UCMJ and Geneva Conventions—Common Article 3 of which, at a minimum, applies to the detainees—the Supreme Court held that the same procedural rules must apply for the commissions as for military courts martial “unless such uniformity proves impracticable.” The administration insisted that the danger posed by international terrorism made court-martial procedures impracticable, but Stevens disagreed, concluding, “Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan's trial, any variance from the rules that govern courts-martial.”16

The administration returned to Congress following its Hamdan defeat, and in the waning hours of the final legislative sessions before recessing for the 2006 midterm elections, Congress answered the Hamdan decision by passing the Military Commissions Act, which President Bush signed into law on October 17, 2006. The bill's announced purpose was “to authorize trial by military commission for violations of the law of war and other purposes”; it largely replicated the procedures the administration had previously prescribed for the commission and this time made clear it was stripping all detainees of habeas corpus rights, including those, like Binyam Mohamed, who had habeas cases pending in federal courts in the U.S. The MCA also included provisions retroactively narrowing the definition of what kinds of detainee mistreatment might violate the War Crimes Act, so that now U.S. officials could face prosecution only for “grave breaches” of Common Article 3 of the Geneva Conventions, and extending immunity to interrogators who relied in good faith on the administration's legal advice. The day after the Act was signed, the government served notice on 197 Guantánamo detainees that

Matthew Alexander 04/08/10: There is no grave breaches threshold in UCMJ or in federal statutes. There is only the law and in the case of UCMJ the elements of proof that define a crime. Immunity to interrogators who relied on good faith is a reversal of the Nuremberg trials and contrary to the military's own training which emphasizes a soldier's legal obligation not to follow unlawful orders.

The MCA, among other things, amends 28 U.S.C. § 2241 to provide that “no court, justice, or judge shall have jurisdiction” to consider either (1) habeas petitions “filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination” or (2) “any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States” as an enemy combatant…..Further, the new amendment to § 2241 takes effect on the date of enactment and applies specifically “to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.17

Three cases had been brought before these reconstituted military commissions at Guantánamo by the time Mohamed was recharged. Australian David Hicks was released under a plea bargain to serve a nine-month sentence in his home country. Two others, Salim Ahmed Hamdan and Omar Khadr, had the charges against them dismissed on technicalities. 18 Also by the time Mohamed was recharged, Jose Padilla had been convicted in Miami on the pre-9/11 conspiracy charges. The International Red Cross had delivered its report on the treatment of the 14 high-value detainees from the CIA black sites to the U.S. government; and though that report was not yet public, the general outlines of Abu Zubaydah's treatment were well known.

The January 15, 2008 Unclassified Summary of Evidence for the Administrative Review Board, prepared for a CSRT review of Binyam Mohamed's enemy combatant status, includes these references to the alleged U.S. bomb plots among the 36 “factors that favor continued detention”:

19) The detainee stated he met both a senior al Qaida lieutenant and Jose Padilla at a guest house in Bermil, Afghanistan. The detainee spoke privately with the al Qaida lieutenant, who told the detainee that the detainee's purpose was to train Afghans how to build explosive devices. If the Afghans did not build the device, the detainee was to assist in building them.

20) The detainee stated a senior al Qaida lieutenant promised him remote control explosives training in Pakistan. The detainee was then to return to Afghanistan to train Afghanis on how to build the devices. The detainee was told that the remote control would be used for booby traps, mines, and other improvised or homemade explosive devices.

21) The detainee stated he and the convicted al Qaida terrorist Jose Padilla traveled to meet with a senior al Qaida operative to discuss their plan. The detainee and Jose Padilla also met with one of Usama bin Laden's closest associates during the trip.

22) The detainee stated the senior al Qaida operative tasked the detainee and the convicted al Qaida terrorist with studying the feasibility of an alternative operation in which they would set fire to a hotel or gas station in the United States. The plan was dropped and the operative instead directed the convicted terrorist to devise a plan to destroy a building with explosives in the Central United States. The detainee was tasked to build the detonator. The plan initially involved blowing up 20 buildings simultaneously, but was scaled down to two or three buildings.19

The summary of evidence again makes no mention of the circumstances of his detention or the conditions under which he had made these statements, offering instead just two factors favoring release or transfer:

Marcy Wheeler 04/13/10: It might be useful to note that the training camps in Afghanistan were not all al Qaeda camps, and Khalden, which a number of the detainees have ties to, pointedly wasn't. Particularly given US funding of mujahadeen before the Russians withdrew, we ought to be having a discussion of what extent simple training at a camp can be used as evidence of involvement in terrorism, particularly if the camp did not have ties to al Qaeda and/or participants could avoid pledging bayat.

a) The detainee states he initially came to Afghanistan to leave his drug habit. The detainee had recently converted to Islam and saw leaving England as the only way to better himself.

b) The detainee claimed he did not swear bayat to Usama bin Laden because he did not fully understand the meaning of bayat and did not want to be under the control of al Qaida. The detainee stated that after he declined swearing bayat at al Farouq [training camp], the guards suspected the detainee was a spy.20

In March, the London law firm of Leigh Day and Company sent an “Extremely Urgent Letter Before Claim to British Foreign Secretary David Miliband” announcing “We act on behalf of Binyam Mohamed, a British resident currently held in U.S. custody in Guantanamo Bay, and who is facing the imminent probability of military commission proceedings.” Noting that Mohamed was facing a deadline of April 6, 2008 and that his attorney Clive Stafford Smith would file a lawsuit if necessary, the letter explained that its purpose was

to make an urgent request for access to the documents and evidence set out in the attached Appendix. Such documents and evidence are likely to be exculpatory in the likely forthcoming US military commission proceedings.

The context could scarcely be more important. The liberty (and possibly, the life) of Mr. Mohamed is at stake in US military commission proceedings, and there is a strong reason to believe that the UK holds exculpatory evidence that would assist in Mr. Mohamed's defence. As such, it is under a clear obligation to provide such material and assistance to Mr. Mohamed, to help ensure that he can challenge the serious allegations that are likely to be made against him. The public interest in the disclosure of such material is overwhelming.21

The letter's appendix provided a list of “the categories of exculpatory evidence in the possession of the U.K. government that would assist Mr. Mohamed in defending against charges before a U.S. Military Commission in Cuba.” Leading the list was “Any evidence of U.K. knowledge of Mr. Mohamed's upcoming rendition whilst he was held in Pakistan in April – July 2002, including any information known about the decision to render Mr. Mohamed to Morocco for torture.”

Evidence is required to counter this. In particular, we seek the identity of the US agents involved, so that they can be traced and interviewed or subpoenaed.

Indeed, the US continues to deny that anyone was rendered to a foreign country by US agents to be tortured. It is crucial that Mr Mohamed rebut this denial in order to establish that evidence obtained under or as a result of torture is inadmissible. Since the US practice of extraordinary rendition for torture is a crime of universal jurisdiction under UK law pursuant to section 134 of the Criminal Justice Act 1988, there can be no conceivable basis on which this information should not be provided to assist in Mr Mohamed's defence. Indeed, it is our view that failure to provide this information would amount to complicity in torture, contrary to Article 4 of the UN Convention Against Torture which the UK has ratified and is committed to upholding.22

The letter also demanded “all information provided to the U.S. by the U.K. about Mr. Mohamed (including the fact that he was a ‘nobody,' only a cleaner from London)”; the opportunity “to interview and take statements from the U.K. agents who (it was conceded) spoke to Mr Mohamed whilst he was detained in Pakistan”; “full details and copies of the information [U.K. authorities] either passed direct to Morocco of via US authorities”; and information concerning conditions in the “dark prison.” Finally,

Mr. Mohamed was subsequently transferred to Bagram Air Force Base, before being moved to Guantanamo Bay. Due to prohibitions imposed by the US government, Mr. Stafford Smith is unable to reveal the full nature of the case against Mr Mohamed to this firm. However, it is likely (based on the approach taken in other cases) that the US will seek to use so-called “clean team” interrogation evidence against Mr Mohamed. They will only seek to rely on evidence obtained from Mr Mohamed after his overt torture in Morocco and the Dark Prison. However, evidence of prior torture arranged or carried out by US agents is of course relevant to the admissibility and credibility of any such “clean team” interrogation evidence. In any event, we understand that British agents were often involved in the on-going interrogations at Bagram, and it is highly likely that the UK has plentiful evidence from multiple sources of allegations of coercion and abuse in Bagram (whether against Mr Mohamed or anyone else), or even of the homicides that were committed there by US forces. Please provide such evidence.23

Mohamed was formally recharged with conspiracy on May 28, 2008. The charge sheet is virtually identical to the one issued on November 4, 2005, except that Richard Reid's name has been removed from paragraph (e) and every reference to Abu Zubaydah has been purged from the document. Where before “Binyam Mohammad then traveled to Birmel, Afghanistan and was introduced to Abu Zubayda” and “Abu Zubayda promised him training in Pakistan building remote control devices for explosives,” for example, now “Binyam Mohamed then traveled to Birmel Afghanistan, and trained on building remote control devices.” “After arriving in Lahore, Binyam Mohammad and Jose Padilla met with Abu Zubayda in private and discussed plans for attacks against the United States” and “Abu Zubayda stated he preferred Binyam Mohamed conduct an ‘overseas' operation instead of going back to Afghanistan” became “After arriving in Lahore, Binyam Mohamed and Jose Padilla plotted attacks against the United States. After these discussions, Mohamed and Padilla agreed to be sent to the United States to conduct these operations rather than returning to Afghanistan.”24

Two days after the charges were filed, Clive Stafford Smith and Lt. Col. Yvonne Bradley wrote Susan Crawford, the Convening Authority for Military Commissions, asking the Convening Authority to investigate the evidence that the charges against Mohamed were based in part on evidence derived through torture, and that if her investigation confirmed that the charges were based at all on torture-derived evidence, the charges be dismissed. The Convening Authority answered first that “I will consider the information you provided before making a decision or the referral of charges in this case,” and then, five days later, “the issues raised in your letters are best resolved through the formal military commission process.”25

On June 12, 2008, the Supreme Court issued a decision in a case brought by Guantánamo detainee Lakhdar Boumediene challenging the MCA's habeas-stripping provision, ruling by a 5-4 majority that the Act “operated as an unconstitutional suspension of the writ” and that, because the United States exercises complete jurisdiction and control over the military base at Guantánamo, U.S. courts indeed have jurisdiction to hear habeas petitions of Guantánamo detainees. Stafford Smith and Bradley immediately wrote Crawford again, warning that “unless you inform us by 5:00 p.m. EST on Friday, June 20 that you agree to these reasonable requests, we will ask District Judge [Emmet] Sullivan, before whom Mr. Mohamed's habeas action is pending, to order the convening authority to take the requested actions.”26

Meanwhile, Mohamed's U.K. attorneys had made good on their warning to the foreign secretary by filing suit to compel the British government to turn over to Mohamed any evidence it had that corroborated his account of extraordinary rendition and torture. The Foreign Secretary's office refused to say whether it possessed any exculpatory material, claiming “summary grounds of resistance” to the suit and moving for dismissal without a hearing. The court declined to dismiss, and on June 6, Miliband told the court that the Foreign office did have exculpatory evidence but would not disclose it to Mohamed's attorneys unless compelled; rather, Miliband said he would turn the materials over to U.S. military prosecutors in Guantánamo and let them decide whether or not to share the materials with Stafford Smith and Lt. Col. Bradley. At a hearing on June 20, 2008, a British judge criticized Miliband's actions as “very, very disturbing.” Two days later, the U.S. reported to Miliband that it had reviewed the materials he sent, which included a description the CIA had sent to British intelligence describing Mohamed's interrogation in Afghanistan, and dismissed the allegations as “not credible.”27

Under a principle of British law defined in a case called Norwich Pharmacal , a party may be required to turn over documents or information to a plaintiff in a lawsuit if the party is “involved or mixed up,” even innocently, in the wrongdoing alleged in the suit; at issue before the U.K. court was whether the British government was involved or mixed up in Binyam Mohamed's incommunicado detention, abusive interrogation, or extraordinary rendition. In late August, after reviewing 42 documents British intelligence services had received from the CIA concerning Mohamed's detention and treatment and hearing testimony from “Witness B,” the secret service agent who interviewed Mohamed while he was being held in Pakistan, the court offered the following findings in support of its conclusion that British authorities were indeed mixed up in Mohamed's treatment at the hands of the Americans:

(iii) It was clear from reports that BM was held incommunicado from 10 April 2002 whilst a series of interviews was conducted by the United States authorities in April 2002 during which he had asked for a lawyer and had been refused.

(iv) In May 2002, the SyS and the SIS received reports containing information relating to BM's detention and treatment in Pakistan . The details of the reports are set out in the closed judgment.

(v) Our finding after the hearing was that the probability is that Witness B read the reports either before he left for Karachi or before he conducted the interview. Since the hearing we have been provided with the documents to which we have referred at paragraph 17 which show a briefing document was prepared for sending to him.

(vi) If, contrary to that finding we made after the hearing, Witness B had not read them prior to going to Karachi or after arrival at Karachi and prior to the interview, we have no doubt that other persons within the SyS, including persons more senior to Witness B, must have read the reports and must have appreciated what they said about BM's detention and treatment at Karachi. Those officers should have drawn to the attention of Witness B these matters either before or after the interview. It is now clear that the reports were studied by other desk officers.

(vii) In the light of Witness B's continued involvement with BM and the importance attached to BM by the SyS, it is inconceivable that he did not carefully read the materials after his return.

(viii) During the interview Witness B saw himself as having a role to play in conjunction with the United States authorities in inducing BM to cooperate by making it clear that the United Kingdom would not help unless BM cooperated. We can well understand why, given the exigencies of the time, Witness B put matters in such stark terms as he did. It is clear that what he said to BM was, in effect, that the United Kingdom would not attempt to assist him unless BM persuaded him that he was cooperating fully with the United States authorities.

(ix) By 30 September 2002, it was clear to the SyS that BM was being held at a covert location (either by the authorities of the United States or under the direct control of the United States ) which was not a United States military facility, such as Bagram. It is clear to us that they knew that he was not in a regular United States facility, that the facility in which he was being detained and questioned was that of a foreign government (other than Afghanistan) and that the United States authorities had direct access to information being obtained from him.

(x) The SyS were supplying information as well as questions which they knew were to be used in interviews of BM from the time of his arrest whilst he was held incommunicado and without access to a lawyer or review by a court or tribunal. They continued to supply information and questions after they knew of the circumstances of BM's detention and treatment as contained in the reports of the series of interviews in May 2002 and after September 2002 when they knew the circumstances related to his continued detention which we have described in subparagraph (ix).28

Subparagraph (iv)'s “information relating to Binyam's detention and treatment in Pakistan ” was the 42 CIA documents; the subparagraph itself was a placeholder marking the space where the court had redacted seven paragraphs summarizing their contents. It would be a year and a half before those paragraphs were restored to the public version of the court's judgment. As for the documents themselves, though, the court ruled that they were essential to Mohamed's defense, insisting “we can think of no good reason why the materials have not now been made available by the United States Government to Binyam Mohamed's lawyers.”29 Hinting that it was prepared to order the British government to turn the documents over to Mohamed, the court added,

It is of particular significance that the United States Government has refused to provide any information as to BM's location during the period between May 2002 and May 2004….It might have been thought self evident that the provision of information as to the whereabouts of a person in custody would cause no particular difficulty, given that it is a basic and long established value in any democracy that the location of those in custody is made known to the detainee's family and those representing him.

In these circumstances to leave the issue of disclosure to the processes of the Military commission at some future time would be to deny to BM a real chance of providing some support to a limited part of his account and other essential assistance to his defence. To deny him this at this time would be to deny him the opportunity of timely justice in respect of the charges against him, a principle dating back to at least the time of Magna Carta and which is so basic a part of our common law and of democratic values.30

The next day, John Bellinger, who was now serving as Legal Advisor to Secretary of State Condoleezza Rice, wrote the British Foreign office pledging that the 42 documents would be provided to the Convening Authority if the Convening Authority requested them, and that they would be produced to Lt. Col. Bradley if charges were referred to the military commission. A week later, the Foreign office told the court it had received a letter from the U.S. State Department confirming that the request had been received and the documents had been delivered to the Convening Authority. Satisfied for the moment that the materials would be available to Mohamed if his case went to trial, the court backed away from the threat to order their release.

But the British court's confidence in the Bush administration's assurances was short-lived, shaken by two events in the U.S. in September. First, Lt. Col. Darrel Vandeveld, the military prosecutor handling Mohamed's case, requested to resign from the Office of Military Commissions-Prosecution. Vandeveld was also prosecuting Mohammed Jawad, an Afghani youth facing attempted murder charges for allegedly throwing a grenade into a jeep in a passing military convoy in Afghanistan. In a sworn statement to the military commission dated September 22, 2008, Vandeveld declared,

I have divulged to [Jawad's military defender] Major Frakt those items of discovery that in my professional judgment the Rules for Professional Conduct, the Military Commissions Act, and the Manual for Military Commissions (MMC) have required me to relinquish, consistent with my ethical obligations as a prosecutor. In particular, I have forwarded to him immediately those items of evidence I considered to be exculpatory or in mitigation of the acts for which Mr. Jawad stands accused. Where I was unable to provide him with evidence that he requested, I attempted to give him an explanation for why I could not provide the evidence. In some cases, that has meant acknowledging that we have been unable to locate such evidence despite extensive searches. In other cases, that has meant identifying certain agencies, offices, individuals, or procedures which were preventing the disclosure, although I can swear under oath that I never revealed any classified information Major Frakt had not been entitled to receive; nor have I singled out any particular individual for condemnation….

My ethical qualms about continuing to serve as a prosecutor relate primarily to the procedures for affording defense counsel discovery. I am highly concerned, to the point that I believe I can no longer serve as a prosecutor at the Commissions, about the slipshod, uncertain “procedure” for affording defense counsel discovery. One would have thought that after six years since the Commissions had their fitful start that a functioning law office would have been set up and procedures and policies not only put into effect, but refined….

In my view, evidence we have an obligation as prosecutors and officers of the court has not been made available to the defense. Potentially exculpatory evidence has not been provided. My own practice has been to relinquish immediately any piece of evidence I have come across to the defense, even at the peril of the case against Mohammed Jawad, and even though I sympathize and identify with the victims in the case. To take one example, when I discovered that Mr. Jawad had been placed in the “frequent flyer” program, I notified the defense, sought an investigation, spoke to witnesses who had not been identified by the law enforcement agencies assisting us, and, in the end, conceded in a court filing that I had been wrong in denouncing Mr. Jawad when he complained of the conduct toward him in one of the first Commission proceedings. My personal practice of disclosing exculpatory or mitigating evidence is not universally practiced at OMC-P. 31

Vandeveld would later elaborate on his experiences in a declaration Jawad's attorneys submitted in his habeas corpus proceedings, a document remarkable both for the misconduct it details and for Vandeveld's account of his dawning awareness of the mistreatment Jawad had endured:

At some point during the hearing, Mr. Jawad erupted into a series of harsh complaints about his mistreatment at Guantanamo, in which he described having been moved repeatedly from cell to cell in order to deprive him of sleep. Have at that point seen no evidence substantiating this claim, and for which I could divine no legitimate purpose, I dismissed his speech as an exaggeration….

Over the next few weeks, I set about trying to gather the records in response to Major Frakt's discovery request. I obtained a copy of the Detainee Incident Management System (DIMS) records maintained by JTF-GTMO. The DIMS are the official prison logs of all actions and activities for each detainee. Every move, medical appointment, chaplain visit, interrogation, and disciplinary action is recorded, and much more. While reviewing the records, I noticed that they referred to a suicide attempt by Mohammed Jawad on December 25, 2003, which he sought to accomplish by banging his head repeatedly against one of his cell walls. I sent a copy of the records to Major Frakt. Shortly thereafter, Major Frakt contacted me with some follow-up questions about the records. The records reflected 112 unexplained moves from cell to cell over a two week period, an average of eight moves per day for 14 days. Upon further investigation, we were able to determine that Mr. Jawad had been subjected to a sleep deprivation program popularly referred to as the “frequent flyer” program. I realized that Mr. Jawad had been telling the truth at the last hearing. I lack the words to express the heartsickness I experienced when I came to understand the pointless, purely gratuitous mistreatment of Mr. Jawad by my fellow soldiers.

Over the course of the summer, my concerns and doubts about the strength of the case continued to mount. Despite a diligent search for the videotape of Mr. Jawad's original interrogation by U.S. personnel, a search that included a service-wide inquiry about the tape and where it might be located, I was never able to find the tape. I also failed to locate two alleged eyewitnesses to the attack who had allegedly told a U.S. investigator that they had personally witnessed Jawad throw the grenade. All I had were two paragraph summaries of interviews conducted through an interpreter of these witnesses several months after the attack. The information on these summaries identifying these two witnesses consisted solely of their names, both of which were common in Afghanistan.32

He concluded:

Ultimately, I decided that I could no longer ethically prosecute Mr. Jawad or, in good conscience, serve as a prosecutor at OMC-P. I have taken an oath to support and defend the Constitution of the United States, and I remain confident that I have done so, spending over four of the past seven years away from my family, my home, my civilian occupation—all without any expectation of or desire for any reward greater than the knowledge that I have remained true to my word and have done my level best to rise to our Nation's defense in its time of need. I did not “quit” the Commissions or resign; instead, I personally petitioned the Army's Judge Advocate General to allow me to serve the remaining six months of my two year voluntary obligation in Afghanistan or Iraq. In the exercise of his wisdom and discretion, he permitted me to be released from active duty. However, had I been returned to Afghanistan or Iraq, and had I encountered Mohammed Jawad in either of those hostile lands, where two of my friends have been killed in action and another one of my very best friends in the world had been terribly wounded, I have no doubt at all—none—that Mr. Jawad would pose no threat whatsoever to me, his former prosecutor and now-repentant persecutor. Six years is long enough for a boy of sixteen to serve in virtual solitary confinement, in a distant land, for reasons he may never fully understand. I respectfully ask this Court to find that Mr. Jawad's continued detention is unsupported by any credible evidence, any provision of the Detainee Treatment Act of 2005, the MCA, international law or our own Constitution. Mr. Jawad should be released to resume his life in a civil society, for his sake, and for our own sense of justice and perhaps to restore a measure of our basic humanity.33

Also on September 22, 2008, the same day Lt. Col. Vandeveld submitted his statement to the Military Commission, Judge Emmet Sullivan held a status conference on Binyam Mohamed's habeas corpus petition and ordered the U.S. government to turn over any exculpatory material held by any U.S. agencies by October 6, 2008.

On October 6, the government responded with a document that reiterated its assertions that Mohamed was a trained al Qaeda operative who had planned to detonate a dirty bomb, explode a gas tanker, and release cyanide in nightclubs. When the U.K. court reviewed that document, it saw that the allegations were supported almost entirely by two pieces of evidence: Criminal Investigation Task Force reports of his interviews shortly after arriving in Guantánamo, and the 21 page confession he had produced in Bagram between July 28 and July 31, 2004, two months after he had been transferred from the Dark Prison, parts of which he had handwritten and parts of which he'd initialed. That confession ended with this exchange:

Q. Have you made this statement of your own free will, without benefit, promise, or reward?

A. Yes.

Q. Has the interviewing agent promised you anything?

A. No.

Q. Has the interviewing agent treated you fairly, humanely, with respect and decency?

A. Yes.

Q. During your interviews with the interviewing agent have you been provided and/or offered food, beverage and toilet facilities?

A. Yes.

Q. Have you been treated well since you have been in U.S. military custody?

A. Yes.

Q. While in U.S Military custody have you been treated in any way that you would consider abusive?

A. No.

Q. Has your ability to practice your religious beliefs been prevented since you have been in U.S. Military custody?

A. No.

Q. What would you say is your current state of health?

A. I feel healthy.

Q. While in U.S. Military custody, have you had access to medical care?

A. Yes.

Q. Are you willing to assist the U.S. Government by providing co-operative testimony and/or information during judicial proceedings and/or other legal processes?

A. I still haven't made up my mind.

Q. Has your co-operation thus far been of your own free will without benefit, reward, or promise?

A. Yes.

Q. Is the information contained in this statement the truth?

A. Yes.34

But the administration also signaled it might be changing course. It notified Judge Sullivan that it had turned over 7 of the 42 documents, in the same heavily redacted form they had been released to the Convening Authority, to Mohamed's attorneys. It also announced that it was no longer relying on the allegations that Binyam Mohamed was plotting terrorist attacks in the United States to justify his detention as an enemy combatant.

Alarmed, Judge Sullivan ordered Mohamed's lawyers to make him aware of any documents they believed they needed for his defense, and scheduled another status conference for October 30, 2008. Equally troubled, the U.K. court notified the Foreign office and Mohamed's attorneys on October 21, 2008 that it would be handing down a judgment on releasing the 42 documents the following day.

That same day that the U.K. court issued this notice, the Pentagon announced it had dropped all charges against Binyam Mohamed and four other detainees whose original charge sheets had linked them to Abu Zubaydah. The day before, Convening Authority Susan Crawford had signed a directive declaring “The recommendation of the Legal Adviser in the Military Commission case of Binyam Mohamed is approved. All charges and specifications are dismissed without prejudice.” Similar directives were issued for Ghassan Abdullah Sharbi, Sufyiam Barhoumi, Jabran Said bin Qahtani, and Noor Uthman Muhammed. Crawford offered no explanation for dropping the cases, but Michael Chapman, the Convening Authority's Legal Advisor, suggested that prosecutors needed more time to prepare their cases following Vandeveld's resignation. Vandeveld's replacements told Lt. Col. Bradley that they would file new charges against Mohamed within 30 days.35

At his October 30, 2008 status hearing, Judge Sullivan openly questioned the administration's motives for abandoning the “dirty bomb” charges and then dismissing the case against Binyam Mohamed just when two courts were on the verge of ordering it to release exculpatory documents. “That raises serious questions in this court's mind about whether the allegations were ever true,” Sullivan declared.36

Judge Sullivan had before him a Notice of Service of Discovery that Mohamed's attorney had filed on October 27 asking the court for permission to depose Vandeveld and “Jane Payne,” the member of Mohamed's rendition crew who he said had photographed the cuts on his penis, a 17-page Request for Admissions asking the government to stipulate to the truth of 199 specific details of Mohamed's account, and a Request for Production of Documents and Tangible Things relating to his treatment and interrogations in Pakistan, Morocco, the Dark Prison, Bagram, and Guant ánamo.37 At the hearing, Judge Sullivan ordered the government to turn over all exculpatory evidence relating to the withdrawn allegations of planned terrorist attacks in the U.S. On December 1, he further ordered the government to release all exculpatory evidence “that would suggest that Petitioner should not be designated as an enemy combatant,” and a week later he followed this with an order that within three days “the United States agent(s) who conducted the interviews with the Petitioner since he was brought into custody upon which Respondent relies in its Amended Factual Return shall submit a sworn declaration describing the circumstances surrounding the interviews and the resulting statements by Petitioner,” and that the agent or agents must be made available for a deposition by Mohamed's attorneys before January 5, 2009. Meanwhile, he ordered Defense Secretary Robert Gates to provide a sworn affidavit under penalty of perjury that all exculpatory evidence had been turned over to Mohamed's lawyers.38

The U.K. court, meanwhile, had issued the ruling it promised in its October 22, 2008 opinion, a decision that essentially postponed ordering the release of the 42 CIA documents to Mohamed's attorneys in deference to the habeas proceedings before Judge Sullivan in the U.S. The court emphasized that it found in the documents not only passages “relevant to the allegation made by BM that his confession had been the result of conduct that amounts to torture or cruel inhuman or degrading treatment,” but also that it had publicly disclosed part of its finding on why the information in the documents was essential for Mohamed to receive a fair trial--not only relating to the dirty bomb plot charges, but to the allegations that he was an al Qaeda associate and an enemy combatant as well.39 But it would wait to see how Judge Sullivan ruled. "In light of his decision, this issue may become academic," the court wrote.

If not we will have the benefit of understanding the position of the United States Government and the benefit of Judge Sullivan's views when we proceed to determine the remaining issues in relation to the provision of the 42 documents. These issues include [Mohamed's attorneys] submission that the Government of the United States is deliberately seeking to avoid disclosure of the 42 documents.

We must record that we have found the events set out in this judgment deeply disturbing. This matter must be brought to a just conclusion as soon as possible, given the delays and unexplained changes of course which have taken place on the part of the United States Government.40

That October 22 judgment contained a cryptic paragraph that read,

We refer in an annex (which it is not possible to make public now but which we will make public as soon as we can) to other matters before the Convening Authority.41

On March 23, 2009, the court released that annex, an astonishing document detailing the U.S. government's last-ditch effort to secure a plea bargain from Binyam Mohamed.

In August, before Lt. Col. Vandeveld's resignation, Vandeveld had asked Stafford Smith and Lt. Col. Bradley if Mohamed was open to a plea agreement. Unsure whether this time around the prosecution might seek the death penalty, and informed that even if Mohamed were acquitted he would continue to be detained as an enemy combatant until the ill-defined “end of hostilities,” Stafford Smith and Bradley indicated that Mohamed was prepared to enter a nolo contendere plea to the May 28, 2008 charges in exchange for a sentence of no more than three years, with credit for time served since he was originally charged in 2005 and provided he was repatriated to the U.K. and not required to testify against others in Guant á namo. Vandeveld had countered with an offer of three years without credit for time served, during which Mohamed would agree to testify against other detainees. The negotiations ended there. But on October 20, 2008, the day the Convening Authority dismissed the charges against Mohamed and the four others whose charge sheets mentioned Abu Zubaydah, Mohamed's attorneys received a draft plea agreement. In the annex, the U.K. court said, “It is important, we think, to set out some of the provisions of the agreement”:

i) Clause 2 provided that BM agree to plead guilty to charge 1 and 2.

ii) Clause 5 provided that BM understood that the maximum statutory penalty, should his pleas of guilty be accepted for each charge, was confinement for life.

iii) Clause 7 provided as follows:

“The accused agrees not to participate in or support in any manner any litigation or challenge, in any forum, against the United States or any other nation or official of any nation, whether military or civilian, in their personal or official capacity with regard to the accused's capacity with regard to the accused's capture, detention, prosecution, post conviction confinement and detainee combatant status. The accused further agrees to move to dismiss with prejudice any presently pending direct or collateral attack challenging the accused's capture, detention, prosection and detainee combatant status. The accused assigns to the United States all legal rights to sign and submit any necessary documents, motions, or pleadings to implement this provision on behalf of the accused.”

iv) By Clause 10 BM agrees to submit to interviews and to appear before courts or Military commissions to testify if requested by the Government. By Clause 14, BM was to agree and accept as true an attachment setting out the facts supporting the charges. A copy of that was not provided to us.

v) By Clause 16, the maximum period of confinement that would be adjudged and approved would be 10 years, but the Convening Authority would order the suspension of the balance of the sentence over one year. A condition was imposed that the Convening Authority could decide that if BM failed to comply with the provisions of Clause 10 (assisting the prosecution) the Convening Authority could vacate the suspended portion of the sentence order it be served in full.42

If Mohamed accepted the agreement, he would be forced to abandon his claim before their court for disclosure of the documents, his attorneys told the U.K. justices; likewise, if he pressed the Military Commission for release of the materials, the deal would be rescinded. They pointed out that he was being asked to agree to the arrangement at a time when there were no pending charges against him but when he had been told new charges were forthcoming, that he did not know what those charges would be and he still had not seen the exculpatory documents, and that “the strategy of the United States Government was to take advantage of the short period of time in which [Binyam Mohamed's] defense lawyers could not see the materials to conclude a plea bargain that was to the benefit of the United States.”43

The court concluded:

We have provided these paragraphs in this annex to the parties on the understanding that these are not to be made public at this time. We do so on the basis that we have been told that these negotiations are at this stage confidential.

However, in the light of the indications that the United States Government would require in any plea bargain a confidentiality statement by BM, we expressly enquired whether BM wished to pursue this argument. We did so as we could not, consistently with our principles of open justice and the rule of law, entertain this argument, take it into account in our decision and then refuse to make it public at an appropriate time. We were told that, notwithstanding this consequence, BM wished this issue to be addressed by us. He wanted it to be made clear to the world what had happened and how he had been treated by the United States Government since April 2002.

Accordingly, at an appropriate time after the plea bargain discussions are finally resolved, one way or the other, we shall make public this annex. We should add no plea agreement will be effective to prevent the making public of this annex, even if the proceedings are subsequently discontinued on terms that include a provision similar to clause 7 (set out at paragraph 5 iii) above). This is because this annex is an integral part of our judgment given on 22 October, 2008.44

Binyam Mohamed rejected the offer, and by the time the court published the annex, he was a free man in London.

***

Two days after his inauguration on January 20, 2009, President Obama signed three executive orders, the first ordering that the Guant á namo detention facility be closed within a year, the second banning torture and requiring that all interrogations comply with the army field manual, and the third establishing a task force to examine detention policies and review all individual cases. By February, pressure was mounting on the new administration to release Mohamed. Clive Stafford Smith wrote President Obama asking him to review the secret evidence of Mohamed's torture. On February 11, 2009 the British government announced that foreign office officials and a Metropolitan Police doctor were on their way to visit Mohamed in Guant á namo; Foreign Secretary Miliband announced the U.K. was working “as fast and hard as we can to secure his return.”45 That same day, Lt. Col. Bradley was in London appealing for action on Mohamed's behalf. In an op-ed published that morning in the Guardian , Lt. Col. Bradley wrote,

I am a lawyer and a soldier, and I act for Binyam Mohamed, who is currently on a hunger strike in Guantánamo Bay. I came to England to ask everyone to work as hard as possible to get Binyam home. The new administration in the US has said that it wants to close Guantánamo. The UK government says that it has been asking for Binyam's return since August 2007. Despite that, and despite England being the US's closest ally, Binyam is still in a cell in Guantánamo Bay. I believe that now is the time to press the new administration.

Guards told Binyam that he was going home in December, and so he is on a hunger strike (together with 50 or so other prisoners). This means that he is tube-fed while strapped to a chair, twice a day. Binyam has lost so much weight that he speaks of the pain he suffers from being strapped to the chair for hours each day—he speaks of feeling his bones against the chair. I am really worried that if Binyam does not come home soon, he will leave Guantánamo Bay in a coffin.

She concluded,

I profoundly hope that he is not being kept in Guantánamo to avoid information surrounding his rendition and torture [from] coming out. Clive Stafford Smith and I are testifying at the All Party Parliamentary Group on Extraordinary Rendition in Portcullis House, Westminster today, which is open to members of the public. I understand that a number of intelligence agents and politicians will also speak in an attempt to get Binyam home. I am meeting with David Miliband this Thursday, and I hope that he will assure me that Binyam is coming home.46

Marcy Wheeler 04/13/10: There are a couple of things I might add (perhaps in a footnote) to the discussion of Obama's orders to end torture and close Gitmo. First, it'd be useful to include mention of Susan Crawford's admission that al-Qahtani was tortured (it is available at http://www.washingtonpost.com/wp-dyn/content/article/2009/01/13/AR200901...). While not a legal document, it is one of the most official admissions that the US did torture detainees.

Also, both the Executive Orders and the recent communications on the detainee task force limit the detainees "covered" by the orders to those DOD has named or treated as enemy combatants. It reads:

(c) “Individuals currently detained at Guantánamo” and “individuals covered by this order” mean individuals currently detained by the Department of Defense in facilities at the Guantánamo Bay Naval Base whom the Department of Defense has ever determined to be, or treated as, enemy combatants.

And the order allows SecDef to "dispose" of any detainees not covered by the order:

(a) Nothing in this order shall prejudice the authority of the Secretary of Defense to determine the disposition of any detainees not covered by this order.

This is a very curious loophole which, first of all, deliberately excludes anyone who got moved out of Gitmo, but also might suggest there are people not considered enemy combatants who got collected into the detention system. (For more on this, see http://www.fas.org/irp/offdocs/eo/eo-13492.htm and http://media.miamiherald.com/smedia/2010/03/19/09/Blair-Holder_letter_to...)

Twelve days later, Lt. Col. Bradley was among the group of family members and attorneys who welcomed Mohamed when a chartered Gulfstream jet landed at RAF Northolt airbase at 1:11 p.m. on February 23, 2010 following a 10-hour trip from Guantánamo. He was briefly detained under the Terrorism Act of 2000 and then set free. He said nothing to reporters, but shortly before the plane landed his attorneys released this statement on his behalf:

I hope you will understand that after everything I have been through I am neither physically nor mentally capable of facing the media on the moment of my arrival back to Britain. Please forgive me if I make a simple statement through my lawyer. I hope to be able to do better in days to come, when I am on the road to recovery.

I have been through an experience that I never thought to encounter in my darkest nightmares. Before this ordeal, “torture” was an abstract word to me. I could never have imagined that I would be its victim. It is still difficult for me to believe that I was abducted, hauled from one country to the next, and torture in medieval ways—all orchestrated by the United States government….

And I have to say, more in sadness that in anger, that many have been complicit in my own horrors over the past seven years. For myself, the very worst moment came when I realised in Morocco that the people who were torturing me were receiving questions and materials from British intelligence. I had met with British intelligence in Pakistan. I had been open with them. Yet the very people who I hoped would come to my rescue, I later realised, had allied themselves with my abusers.

I am not asking for vengeance; only that the truth should be made known, so that nobody in the future should have to endure what I have endured.47

Even with the change of administrations, though, the United States has continued to thwart efforts to bring documents corroborating Mohamed's ordeal to light. In the U.K. court, first the Bush administration and then the Obama administration threatened that merely releasing the seven redacted paragraphs that summarize the 42 secret documents could disrupt the intelligence sharing relationship between Britain and the United States. Foreign Secretary Miliband had successfully argued for the redaction from the court's August 2008 judgment by certifying to the court that

[D]isclosure of these documents by order of our courts or otherwise by United Kingdom authorities would seriously harm the existing intelligence sharing arrangements between the United Kingdom and the United States and cause considerable damage to national security. I have also assessed that it may damage international relations of the United Kingdom more generally in liaison arrangements with third parties.

In reaching my assessment I have taken into account the fact that the US administration on the basis of clear, consistent, and forceful communications, both written and oral, form senior officials, including at the highest national security levels from all of the departments and agencies concerned, have indicated that such damage is likely to occur.48

The court would later comment,

We characterized at several paragraphs in our fourth judgment that the reaction of the Bush Administration was a “threat.” After the handing down of our judgment, the Foreign Secretary made a number of public statements disagreeing with our assessment that the statement made by the Bush Administration of the consequences which would follow could be characterized as a threat. In our judgment that is a matter of semantics. Whether this is characterised as “a threat” or “as a statement of consequences which will follow,” what matters is substance.

On the evidence placed before us, it could not be disputed that the Bush Administration had made it clear that if the information in the redacted paragraphs was made public then reconsideration would be given to intelligence sharing arrangements. It was that specific matter, given the importance of intelligence sharing arrangements to the national security of the United Kingdom, that led us to conclude that the balance lay in favour of maintaining the redaction of the paragraphs from the first judgment.49

Persuaded by the Obama administration's strong public statements against torture and especially by the April 16, 2009 declassification and release of the four OLC memos—which, the court noted, publicly disclosed interrogations techniques which the 42 documents indicated had been applied to Mohamed in Pakistan—the court looked to the U.S. for signals that its position had changed on the release of the redacted paragraphs. But following an April 30, 2009 letter from CIA director Leon Panetta to the British secret service and face-to-face conversations with Secretary of State Hillary Clinton, Miliband again reported to the court,

She was fully aware of the issues and reiterated the US position on public disclosure in this case had not changed with the change in Administration, the protection of intelligence going beyond party politics. She indicated that the US remained opposed to the public disclosure of US intelligence information in this case. The US Secretary indicated further that public disclosure would affect intelligence sharing and would cause damage to the national security of both the US and the UK. Comment by those representing the National Security Council at the same meeting made it clear, if further clarification was needed, that this was also the position of the White House.50

This ban would likely have remained in place were it not for Judge Gladys Kessler's November 19, 2009 opinion in Farhi Saeed Bin Mohammed's habeas corpus case, where she ruled that the 48 year-old Algerian must be released because the evidence against him was derived through the torture of Binyam Mohamed. Because her opinion graphically detailed Mohamed's interrogations in Pakistan and his rendition and torture in Morocco and again in the Dark Prison, the U.K. court concluded it could no longer reasonably be expected to keep seven paragraphs summarizing a small part of this same information secret, nor could the United States reasonably retaliate against Britain for revealing information that its own courts had proclaimed to be true. So on February 10, 2010, an appeals court composed of three of Britain's most senior judges ordered the release of these seven redacted paragraphs:

It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2002 as part of a new strategy designed by an expert interviewer.

v) It was reported that at some stage during that further interview process by the United States authorities, BM had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.

vi) It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and "disappearing" were played upon.

vii) It was reported that the stress brought about by these deliberate tactics was increased by him being shackled in his interviews

viii) It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the interviews were having a marked effect upon him and causing him significant mental stress and suffering.

ix) We regret to have to conclude that the reports provided to the SyS [security services] made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.

x) The treatment reported, if [it] had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972. Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities.51

Because the U.K. court had already ruled that the fact that Mohamed no longer faces trial in the U.S. meant the question of releasing the documents themselves to his attorneys was essentially moot, the release of these paragraphs effectively ended Mohamed's suit to have the British government disclose what it knew about his treatment from 2002 through 2004. But in parallel civil lawsuits in the U.S. and the U.K., Binyam Mohamed is one of five plaintiffs suing Jeppesen Dataplan, Inc., a subsidiary of Boeing that handled the logistics of the CIA's rendition flights, for “participation in the forced disappearance, torture and inhuman treatment of Plaintiffs…by agents of the United States and other governments.” As the Complaint explains,

Flight records obtained by a European Parliamentary inquiry and a parallel investigation by the Council of Europe into CIA activities in Europe, together with other flight records obtained from national civil aviation authorities in Portugal, Spain, the Netherlands, and Italy in the course of criminal and journalistic investigations in those countries, reveal that over a four-year period, beginning on or around December 16, 2001, Jeppesen provided flight and logistical support to at least fifteen aircraft which made a total of seventy flights. The European Parliament and the Council of Europe concluded that all of these flights were made in the context of the extraordinary rendition program.

Among the fifteen aircraft serviced by Jeppesen are a Gulfstream V aircraft formerly registered with the Federal Aviation Administration (“FAA”) as N379P, and a Boeing-737 aircraft formerly registered with the FAA as N313P. On information and belief, Jeppesen provided flight and logistical services for all of the CIA flights for these two aircraft involving the rendition of terror suspects.

Among the flights Jeppesen facilitated are these:

On July 21, 2002, the Gulfstream V aircraft was used to transport Plaintiff Binyam Mohamed from Islamabad to Rabat.

and

On January 22, 2004, the Boeing-737 aircraft was used to transport Plaintiff Binyam Mohamed from Rabat, Morocco to a U.S. detention facility in Afghanistan.52

The U.S. lawsuit was filed on May 30, 2007 under the Aliens Tort Claims Act. Jeppesen has never responded to the Complaint; instead, the Bush administration petitioned to intervene and moved to have the case dismissed on the grounds that the “very subject matter” of the lawsuit—that the U.S. had flown captives to be detained and interrogated in both foreign and secret CIA prisons—is a state secret. Then CIA director Michael Hayden asserted the state secret privilege in a declaration that said,

First, this lawsuit puts at issue whether or not Jeppesen assisted the CIA with any of the alleged detention and interrogation…. Disclosure of information that would tend to confirm or deny whether or not Jeppesen provided such assistance – even if such confirmations or denial come from a private party alleged to have cooperated with the United States and not the United States itself – would cause exponentially grave damage to the national security by disclosing whether or not the CIA utilizes particular sources and methods and, thus, revealing to foreign adversaries information about the CIA's intelligence capabilities or lack thereof.

Second, this lawsuit puts at issues whether or not the CIA cooperated with particular foreign governments in the conduct of alleged clandestine intelligence activities. Adducing evidence that would tend to confirm or deny such allegations would result in extremely grave damage to the foreign relations and foreign activities of the United States.53

On February 13, 2008, U.S. District Judge James Ware granted the government's motion to dismiss, ruling that the administration's invocation of the state secrets privilege meant the court lacked jurisdiction to hear the lawsuit. The ACLU appealed, and on April 28, 2009, a three judge panel of the Ninth Circuit Court of Appeals reversed Judge Ware's decision, holding that the case must be allowed to proceed and the government could invoke state secrets only with respect to specific pieces of evidence. This time it was the Obama administration arguing the state secrets privilege—the hearing came less than three weeks after inauguration day. But if there were questions as to whether the new administration was perhaps just seeing a legal process through as it reviewed Bush era policies and developed new positions, those questions were laid to rest when the Justice Department appealed in June, 2009 for a rehearing en banc of the Ninth Circuit decision. An 11-judge panel of the Ninth Circuit heard arguments on the government's appeal on December 15, 2009, and a decision on whether the Jeppesen case can proceed is pending.

Meanwhile, in Britain a process is underway that could go father than any yet to address Mohamed's treatment, at least while he was held in Pakistan and Morocco. In July, 2009, at the invitation of Attorney General Baroness Patricia Scotland, British police announced they had launched a criminal investigation into whether individual secret service agents colluded in the rendition and torture of Binyam Mohamed. In referring the case to the Metropolitan Police, Baroness Scotland said she had reviewed the U.K. court's open and closed judgments, transcripts of the deposition of “Witness B,” and the Foreign Secretary's secret evidence, adding, “I have concluded that the appropriate course of action is to invite the commissioner of the Metropolitan Police to commence an investigation into the allegations that have been made in relation to Binyam Mohamed.”54

As that investigation continues, calls have also been mounting for an official investigation into the British government's involvement in Binyam Mohamed's case. Following the release in February of a U.N. report on secret detention which found the U.K. complicit in the forced disappearance of Mohamed and at least four other U.K.-based detainees and the publication that same week of the seven secret paragraphs, former Attorney General Lord Peter Goldsmith publicly demanded an official inquiry, saying “I believe [this issue] needs to be clarified in the interest of the public and the intelligence agencies.” “I'm very troubled by what actually happened,” he told reporters, “and that's why I've said yes, these are matters which ought to be investigated. If there was complicity, it's important that people are brought to book.”55

To date, there are no parallel criminal or official investigations in the United States into the participation of American officials and intelligence agency personnel in the treatment of Binyam Mohamed, and none on the horizon.

Matthew Alexander 04/08/10: And herein lies a tragedy as terrible as the actual torture and abuse -- the refusal to investigate clear violations of the law. It brings the entire validity of the U.S. justice systems, military and civilian, into question.

***

Abu Zubaydah

When Attorney General Eric Holder announced on November 14, 2009 that the Obama administration intended to try five of the most notorious Guant á namo detainees in federal court for planning the September 11, 2001 attacks and five more before military commissions, conspicuously absent from either list was Abu Zubaydah. Khalid Sheikh Mohammed was there, slated for trial in New York, and Abd al-Rahim al-Nashiri, who is to appear before a military commission in connection with the U.S.S. Cole bombing. But Abu Zubaydah, the man the Bush administration identified as the “third or fourth man in al Qaeda” and the ringleader of the Padilla-Binyam Mohamed “dirty bomb” and apartment bombing plots, was once again not scheduled for prosecution of any kind.

In fact, the only proceeding Abu Zubaydah has been afforded was a Combatant Status Review Tribunal hearing on March 27, 2007, a month after Jose Padilla was declared competent to stand trial on the conspiracy charge in Miami. At the closing unclassified session of that hearing, Abu Zubaydah's Personal Representative read the following statement:

In the name of God the Merciful. Mr. President and Members of the Tribunal, I would have liked to have spoken to you today on my own, but I have been having seizures lately which have temporarily affected my ability to speak and write without difficulty. Therefore, I asked my Personal Representative to speak on my behalf. I hope from you justice, and I know that is what you seek.

Do not make the mistake [redacted] when they first arrested me on 28 March 2002. After months of suffering and torture, physically and mentally, they did not care about my injuries that they inflicted to my eye, to my stomach, to my bladder, and my left thigh and reproductive organs. They didn't care that I almost died from these injuries. Doctors told me that I nearly died four times. Then they transferred me in a way that a normal, ordinary person would be embarrassed to be treated, [four line redaction]. They did this to me because they thought I was the number three leader in al Qaida and a partner of Usama Bin Laden, as is mentioned in the unclassified Summary of Evidence against me.

After a few months went by, during which I almost lost my mind and my life, they made sure I didn't die. Therefore, year after year, I am losing my masculinity. Even my beard is falling out, not from injuries but from the lack of treatment. [Redacted[ discovered after all of this that I am not Usama Bin Laden's partner, and that I am not number three in al Qaida, and that I'm not even in al Qaida.

After this, I started feeling the symptoms of my 1992 injury to my head, including the complete loss of my memory and an inability to speak, read, or write. But these abilities slowly came back to me although I still have shrapnel in my head. Also, another form of torture was when they wouldn't give me my diary, which caused me to have nearly 40 seizures. The mental anguish that came from broken promises in which they said that they would give me my diary back contributed to the seizures. Most importantly, my diary can refute the accusations against me and it can show that I am personally against the sort of acts that were committed.

Dear Members of the Tribunal, in saying all of this, I am not trying to gain your pity. I am only trying for you to see the big picture, the true picture not the picture depicted by the media, which the CIA found out too late. Therefore, I would like you to know this truth before you make your decision. I know this is not a criminal trial, as you say, but all I hope from you is that you try me for something that I am proud of having done, not something I didn't do or am against, nor something that would shame me before the world.

I am not here to lie to you, or cheat you, or to lie to myself by saying that I am not an enemy of your injustice. I have been an enemy of yours since I was a child because of your unjust acts against my people, the Palestinians, through your help and partnership with Israel in occupying our land and by killing our men and raping our women and kicking out our people and turning them into refugees for more than 60 years. Until now, half of my people are refugees in refugee camps. I cannot deny that, since back when I was a child, I liked a lot of things in your country and your history and your culture. I am not lying by saying that, but it is the truth.

My moral position is not against the American people or America, but against the government which I see as a partner in oppression. A partner of a killer is also a killer. I also resent the military that is used by this government to inflict this oppression. In other words, dear members of the military, I am against you. My words are not hypocrisy, and I do respect you. I believe that even my enemy should be respected.

I don't deny that I am an enemy of your injustice, but I deny that I am an enemy combatant. I never conducted nor financially supported, nor helped in any operation against America. Yes, I write poetry against America and, yes, I feel good when operations by others are conducted against America but only against military targets such as the U.S.S. Cole. But, I get angry if they target civilians, such as those in the World Trade Center. This I am completely against, [one line redaction] My diary will prove that some of our accusations were not in my plans. How can I plan for operations that I don't believe in? What you call plans about what Bin Laden did on 9/11, I wrote in my diary in response to Bin Laden's action, noting that he had many choices on how to conduct war which are wrong in Islam, such as race war, killing civilians, burning cities, and targeting civilians in markets. This is what people of war do, and I am sorry you are one of them. This is the truth. If someone reads my diary with a biased mind, he will misinterpret my meaning.

Dear Members, this is what I have for you. As you have noticed, it wasn't a defense that contained much evidence [one line redaction] I also do not have a lawyer to defend me in front of this Tribunal. Take notice that if a lawyer was present, he would not have allowed me to say what I said because I said the truth without reservation. And I am willing to be hung for it for something I have done. I am not a lawyer to defend myself. I can't even speak clearly, temporarily, God willing. It is only to demonstrate to you.

The Commission President asked Abu Zubaydah directly whether he had anything to add to the statement. “No,” Zubaydah answered. The President went on, “In your statement, you mentioned months of torture. Has anything that you provided us today regarding your written statements related to those that times that you have been tortured?”

ABU ZUBAYDAH: No. [conversation between Detainee and Language Analyst discussion the President's question] Actually, most of what they say I did in first months they take against me even for some things or like this they take I was—I was nearly half die plus what they do torture me—it—There I was not afraid from die because I do believe I will be shahid [Language Analyst translates] martyr, but as God make me as a human and I weak, so they say yes, I say okay, I do I do, but leave me. They say no, we don't want to. You to admit you do this, we want you to give us more information. This part I can't because I don't know. I say, “yes, I was partner of Bin Laden. I'm his number three in al Qaida and I'm his partner of [Ahmed] Ressam.” I say okay but leave me. So they write but they want what's after, more information about more operations, so I can't. They keep torturing me, tell my why them self they discover you are not torturing. So some, not all, some what you have here even me say of me here in the paper, it is from FBI. But I don't know of the dealing; I was in the hands of FBI or CIA. But FBI people when I met them in the last month, I [one line redaction] And they have my part—four part of my diary and the origin is with them. So who's torture me taking over information. Maybe they are FBI, maybe are CIA, I don't know, till now. So here they say FBI—FIB, they not talk about the CIA, so I don't know.

PRESIDENT: So did you make statements during that treatment?

ABU ZUBAYDAH: A lot.

PRESIDENT: And what you said, was it correct, was it incomplete or was it not correct or untrue in any way?

ABU ZUBAYDAH: They say “this in your diary.” They say “see you want to make operation against America.” I say no, the idea is different. They say no, torturing, torturing. I say, “okay, I do. I was decide to make operation.” This first part the second part, okay. What is the operation? I not have the specifics; I talk about open idea. So most of this here the CIA, they admitted that I admitted too. [two line redaction] They start asking again and again about this thing. I tell them no. [one line redaction] I was like this, I was like this, I want to finish this. And something they not believe all what I do, say in that time. Some they believe, some they not believe. I don't know what they need or not need. They only ask and I answer.

PRESIDENT: In your previous statement, you were saying specific treatments. Can you describe a little bit more about what those treatments were?

ABU ZUBAYDAH: [17 line redaction]

PRESIDENT: I understand.

ABU ZUBAYDAH: And they not give me chance all this. [68 line redaction] they start tell me the time for the pray and slowly, slowly circumstance became good. They told me sorry we discover that you are not number three, not a partner even not a fighter.

PRESIDENT: So I understand that during this treatment, you said things to make them stop and then those statements were actually untrue, is that correct?

ABY ZUBAYDAH: Yes.56

Matthew Alexander 04/08/10: Of course, this is no surprise. It has been written into the Army Field Manual on interrogations since at least 1949 that torture produces false confessions.

Marcy Wheeler 04/13/10: Zubaydah now does have an active habeas petition. The heavily redacted factual return is here: http://static1.firedoglake.com/28/files/2010/04/090729-Zubaydah-factual-...

And there's also this government response to his defense team's request for more information: http://truthout.org/files/memorandum.pdf

I've noted a few significant details about this, notably that they admit their thinking on AZ has changed, and they admit that he has cognitive impairments from his 1992 shrapnel head injury. See for example http://emptywheel.firedoglake.com/2010/04/01/government-admits-its-under... and
http://emptywheel.firedoglake.com/2010/04/01/government-admits-abu-zubay...

And they don't admit that they don't think he did have information on ongoing terrorist plots (aside from his own plots that seem to involve use of explosives against US military in Afghanistan), they now pointedly avoid claiming he knew of ongoing plots. (http://emptywheel.firedoglake.com/2010/04/02/the-government-makes-no-cla...)

They also use a squirmy way to tie him to al Qaeda, calling him an affiliate while pointedly backing off any claim that he was a member of al Qaeda. (They also acknowledge that Abu Zubaydah resisted an al Qaeda attempt to take over Khalden.)

Also note this article from Abu Zubaydah's lawyer, which tracks some of the way the government has purged other charge sheets of anything relying on Abu Zubaydah.

http://www.guardian.co.uk/commentisfree/cifamerica/2009/mar/30/guantanam...

Thus, taken together, Abu Zubaydah's case reinforces everything you've said about Binyam Mohamed, but to a greater degree: Even for some of the most notorious detainees, the government has dramatically backed off any claim that they were actually part of al Qaeda.

Also, if I remember correctly, you've got a long passage on al-Libi in the first chapters of this. Given his role at Khalden, it might be useful to tie him back into the discussion, if no other way than to note that he, like Abu Zubaydah, was primarily associated with a camp that did not have formal ties with al Qaeda.

    Footnotes
  1. 1. CSRT Summary of Evidence available at http://projects.nytimes.com/guantanamo/detainees/1458-binyam-mohamed
  2. 2. Personal Representative Notes available at http://projects.nytimes.com/guantanamo/detainees/1458-binyam-mohamed, 3
  3. 3. http://www.defense.gov/news/Sep2005/d20050908process.pdf
  4. 4. Clive Stafford Smith, Eight O'Clock Ferry to the Windward Side, Nation Books, 2007, 51
  5. 5. Emails from Captain John Carr and Robert Preston to Colonel Fred Borch, quoted in testimony of Lt. Commander Charles Swift before the Senate Judiciary Committee, July 11, 2006, available at http://fas.org/irp/congress/2006_hr/071106swift.html
  6. 6. Statement of Lieutenant Commander Charles D. Swift Before the Senate Committee on the Judiciary, July 11, 2006, available at http://fas.org/irp/congress/2006_hr/071106swift.html
  7. 7. Binyam Mohamed's November 4, 2005 Military Commission Charge Sheet available at http://www.defense.gov/news/Nov2005/d20051104muhammad.pdf
  8. 8. Referral available at http://www.globalsecurity.org/military/library/news/2005/12/d20051215muh...
  9. 9. Reuters, “Prosecutor likens Guantanamo defendants to vampires,” March 1, 2006, available at http://www.abc.net.au/news/newsitems/200603/s1580824.htm
  10. 10. Clive Stafford Smith, Eight O'Clock Ferry to the Windward Side , 96-97, 101
  11. 11. Stafford Smith, 106-107
  12. 12. Stafford Smith, 106-116]
  13. 13. Two Republican co-sponsors of the DTA, Senators Lindsey Graham and Jon Kyl, had filed an amicus curiae brief in the case asserting that Congress had intended to apply the law retroactively to detainees with pending cases. In a footnote that is one of the most contentious passages of the majority opinion, Justice Stevens suggested the Senators' claims bordered on dishonesty. “While statements attributed to the final bill's two other sponsors, Senators Graham and Kyl, arguably contradict Senator Levin's contention that the final version of the Act preserved jurisdiction over pending habeas cases, those statements appear to have been inserted into the Congressional Record after the Senate debate,” Stevens wrote. Stevens opinion, Hamdan v. Rumsfeld , 548 U.S. 557 (2006), available at www.law.cornell.edu/supct/html/05-184.ZS.html
  14. 14. Stevens opinion, Hamdan v. Rumsfeld , 548 U.S. 557 (2006), available at www.law.cornell.edu/supct/html/05-184.ZS.html
  15. 15. Stevens opinion, Hamdan v. Rumsfeld
  16. 16. Stevens opinion, Hamdan v. Rumsfeld
  17. 17. Notice available at www.pegc.us/archive/DC_Gitmo.../gov_MCA_notice_20061018.pdf
  18. 18. The charges against Hamdan and Khadr were refiled almost immediately, and Hamdan was eventually convicted and sentenced on August 7, 2008 to 66 months in prison with credit for 61 months time served. Khadr's military commission case is still pending.
  19. 19. Unclassified Summary of Evidence for Administrative Review Board in the Case of Mohammad, Binyam Ahmed, available at http://projects.nytimes.com/guantanamo/detainees/1458-binyam-mohamed
  20. 20. Unclassified Summary of Evidence
  21. 21. Leigh Day & Co. letter available at www.cageprisoners.com/download.php?download=732
  22. 22. Leigh Day & Co. letter
  23. 23. Leigh Day & Co. letter
  24. 24. 2008 Charge Sheet available at www.defense.gov/news/Mohamed%20-%20sworn0603.pdf
  25. 25. Clive Stafford Smith and Lt. Col. Yvonne Bradley May 30, 2008 letter to Susan Crawford and Convening authority responses cited in June 18, 2008 Stafford Smith – Bradley letter available at http://www.scotusblog.com/wp-content/uploads/2008/06/mohamed-letter-6-18...
  26. 26. June 18, 2008 Stafford Smith – Bradley letter
  27. 27. See Richard Stein, “The Foreign Office did try to conceal information from us,” The Guardian, March 18, 2009, available at http://www.guardian.co.uk/world/2009/mar/18/binyam-mohamed-david-miliband, and R (Mohamed) v. Sec'y of State for Foreign & Commonwealth Affairs , [2008] EWHC 2048 at ¶147x(4), available at http://www.bailii.org/ew/cases/EWHC/Admin/2008/2048.html. The UK court said of the U.S. reaction, “The unreasoned dismissal by the United States Government of BM's allegations as “not credible” as recorded in the letter of 22 July 2008 is, in our view, untenable, as it was made after consideration of almost all the material provided to us”
  28. 28. R (Mohamed) , [2008] EWHC 2048 at ¶87
  29. 29. R (Mohamed ), [2008] EWHC 2048 at ¶147x
  30. 30. R (Mohamed), [2008] EWHC 2048 at ¶147xi-xii
  31. 31. Declaration of Lieutenant Colonel Darrel J. Vandeveld, September 22, 2008, at ¶¶ 4, 7, and 10, available at http://humanrights.ucdavis.edu/projects/the-guantanamo-testimonials-proj...
  32. 32. Declaration of Darrel J. Vandeveld, January 12, 2009, at ¶¶18-20, available at http://www.aclu.org/files/pdfs/safefree/vandeveld_declaration.pdf
  33. 33. January 12, 2009 Vandeveld declaration at ¶32
  34. 34. R (Mohamed) v. Sec'y of State for Foreign & Commonwealth Affairs , [2008] EWHC 2519 at ¶17(vi), available at http://www.judiciary.gov.uk/docs/judgments_guidance/mohamed_judgment3_22...
  35. 35. Carol J Williams, “Charges dropped in terror cases,” Los Angeles Times, October 22, 2008; R (Mohamed ), [2008] EWHC 2519 at ¶147xi-xii
  36. 36. “Judge questions ‘dirty plot' allegations by U.S., Los Angeles Times , October 31, 2008, available at http://articles.latimes.com/2008/oct/31/nation/na-briefs31
  37. 37. Documents available at http://www.scribd.com/doc/8615476/Habashi-v-Gates-Doc-1032
  38. 38. Order, Habashi v. Bush , No. 05-CV-0765(EGS) (D.D.C. Dec. 8, 2008), available at http://www.aclu.org/national-security/al-habashi-v-bush-order
  39. 39. R (Mohamed) v. Sec'y of State for Foreign & Commonwealth Affairs , [2008] EWHC 2519 at ¶40, available at http://www.judiciary.gov.uk/docs/judgments_guidance/mohamed_judgment3_22...
  40. 40. R (Mohamed) , [2008] EWHC 2519 at ¶54-55
  41. 41. R (Mohamed) , [2008] EWHC 2519 at ¶27
  42. 42. R (Mohamed) v. Sec'y of State for Foreign & Commonwealth Affairs , [2009] EWHC 571 at 5, available at http://www.judiciary.gov.uk/docs/judgments_guidance/mohamed-judgment3-an...
  43. 43. R (Mohamed ), [2009] EWHC 571 at ¶6, 10
  44. 44. R (Mohamed) , [2009] EWHC 571 at ¶15-17
  45. 45. “UK visit to Guantanamo detainee,” BBC, February 11, 2009, available at http://news.bbc.co.uk/2/hi/uk_news/7884216.stm; Clive Stafford Smith's letter to President Obama is available at http://image.guardian.co.uk/sys-files/Guardian/documents/2009/02/11/CSSl...
  46. 46. Yvonne Bradley, “Bring Binyam Home, The Guardian, February 11, 2009, available at http://www.guardian.co.uk/commentisfree/2009/feb/11/binyam-mohamed-guant...
  47. 47. Binyam Mohamed's full statement is available at http://www.guardian.co.uk/world/2009/feb/23/binyam-mohamed-statement-gua...
  48. 48. R (Mohamed) v. Sec'y of State for Foreign & Commonwealth Affairs , [2009] EWHC 2549 at ¶ 10, available at http://www.judiciary.gov.uk/docs/judgments_guidance/mohammed-revised-red...
  49. 49. R (Mohamed ), [2009] EWHC 2549 at ¶13-14
  50. 50. R (Mohamed) , [2009] EWHC 2549 at ¶66iv
  51. 51. see R (Mohamed) v. Sec'y of State for Foreign & Commonwealth Affairs , [2010] EWCA Civ 65, available at http://www.reprieve.org.uk/static/downloads/2010_02_10_Binyam_Mohamed_Co... , and Foreign Office statement releasing the paragraphs, available at http://www.fas.org/irp/news/2010/02/binyam.html
  52. 52. First Amended Complaint at ¶8, Mohamed v. Jeppesen Dataplan, Inc., No. 5:07-CV-2798 (N.D. Ca. Aug. 1 2007), available at http://www.aclu.org/files/pdfs/safefree/mohamed_v_jeppesen_1stamendedcom....
  53. 53. Opinion, Mohamed et al. v. Jeppesen Dataplan, Inc. , No. 08-15693 (9th Cir. Apr. 28, 2009) at 8-9, available at http://www.aclu.org/files/pdfs/safefree/mohamedvjeppesen_districtcourtop...
  54. 54. “Binyam Mohamed: police to investigate claims British agents colluded in torture,” The Telegraph , July 10, 2009, available at http://www.telegraph.co.uk/news/newstopics/politics/lawandorder/5796601/...
  55. 55. Andrew Johnson, “Goldsmith calls for investigation into UK's role in torture,” The Independent , February 14, 2010, available at http://www.independent.co.uk/news/uk/home-news/goldsmith-calls-for-inves...
  56. 56. Verbatim Transcript of Combatant Status Review Tribunal Hearing for ISN 10016, Abu Zubaydah, Closing Unclassified Section, pp. 22-30, available at http://www.aclu.org/pdfs/safefree/csrt_abuzubaydah.pdf

Comments

We intend the comments portion of this blog to be a forum where you can freely express your views on blog postings and on comments made by other people. Given that, please understand that you are responsible for the material you post on the comments portion of this blog. The only postings that we ask that you refrain from posting and that we cannot permit on our website are requests for legal assistance and postings that could cause ACLU to incur legal liability.

One important law in that regard is the prohibition on politically partisan activity. Given our nonprofit status, we may not endorse or oppose candidates for elective office. That means we cannot host comments on our site that show a preference for one candidate or party. Although we in no way wish to discourage you from that activity elsewhere, we ask that you not engage in that activity on our website (or include links to other websites that do so). Additionally, given that we are subject to very specific rules concerning the collection of personally identifying information through our website (names, email addresses, home address, financial information, etc.), we ask that you not use the comments portion of this blog to solicit this information from users of our website. We also ask that you not use the comments portion for advertising or requests for legal assistance, and do not add to your comment links to other websites, as we cannot be responsible for the content on other websites.

We are not able to respond to unsolicited inquiries, complaints or requests for assistance sent to this blog. Please direct your complaint or request for assistance to the ACLU affiliate in your state. Requests for legal assistance left in the blog comments will not receive a response or be published.

Finally, the ACLU cannot guarantee the accuracy, completeness or usefulness of any information in the comment section and expressly disclaims any liability for any information in this section.


Post new comment

 

© ACLU, 125 Broad Street, 18th Floor, New York NY 10004

This is the website of the American Civil Liberties Union and the ACLU Foundation. Learn more about these two components of the ACLU.