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Chapter 4, Part 3 – A Ponzi Scheme of Torture
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.
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...)
The court would later comment,
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
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.
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.
- 1. CSRT Summary of Evidence available at http://projects.nytimes.com/guantanamo/detainees/1458-binyam-mohamed
- 2. Personal Representative Notes available at http://projects.nytimes.com/guantanamo/detainees/1458-binyam-mohamed, 3
- 3. http://www.defense.gov/news/Sep2005/d20050908process.pdf
- 4. Clive Stafford Smith, Eight O'Clock Ferry to the Windward Side, Nation Books, 2007, 51
- 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. 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. Binyam Mohamed's November 4, 2005 Military Commission Charge Sheet available at http://www.defense.gov/news/Nov2005/d20051104muhammad.pdf
- 8. Referral available at http://www.globalsecurity.org/military/library/news/2005/12/d20051215muh...
- 9. Reuters, “Prosecutor likens Guantanamo defendants to vampires,” March 1, 2006, available at http://www.abc.net.au/news/newsitems/200603/s1580824.htm
- 10. Clive Stafford Smith, Eight O'Clock Ferry to the Windward Side , 96-97, 101
- 11. Stafford Smith, 106-107
- 12. Stafford Smith, 106-116]
- 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. Stevens opinion, Hamdan v. Rumsfeld , 548 U.S. 557 (2006), available at www.law.cornell.edu/supct/html/05-184.ZS.html
- 15. Stevens opinion, Hamdan v. Rumsfeld
- 16. Stevens opinion, Hamdan v. Rumsfeld
- 17. Notice available at www.pegc.us/archive/DC_Gitmo.../gov_MCA_notice_20061018.pdf
- 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. 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. Unclassified Summary of Evidence
- 21. Leigh Day & Co. letter available at www.cageprisoners.com/download.php?download=732
- 22. Leigh Day & Co. letter
- 23. Leigh Day & Co. letter
- 24. 2008 Charge Sheet available at www.defense.gov/news/Mohamed%20-%20sworn0603.pdf
- 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. June 18, 2008 Stafford Smith – Bradley letter
- 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 ,  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. R (Mohamed) ,  EWHC 2048 at ¶87
- 29. R (Mohamed ),  EWHC 2048 at ¶147x
- 30. R (Mohamed),  EWHC 2048 at ¶147xi-xii
- 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. Declaration of Darrel J. Vandeveld, January 12, 2009, at ¶¶18-20, available at http://www.aclu.org/files/pdfs/safefree/vandeveld_declaration.pdf
- 33. January 12, 2009 Vandeveld declaration at ¶32
- 34. R (Mohamed) v. Sec'y of State for Foreign & Commonwealth Affairs ,  EWHC 2519 at ¶17(vi), available at http://www.judiciary.gov.uk/docs/judgments_guidance/mohamed_judgment3_22...
- 35. Carol J Williams, “Charges dropped in terror cases,” Los Angeles Times, October 22, 2008; R (Mohamed ),  EWHC 2519 at ¶147xi-xii
- 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. Documents available at http://www.scribd.com/doc/8615476/Habashi-v-Gates-Doc-1032
- 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. R (Mohamed) v. Sec'y of State for Foreign & Commonwealth Affairs ,  EWHC 2519 at ¶40, available at http://www.judiciary.gov.uk/docs/judgments_guidance/mohamed_judgment3_22...
- 40. R (Mohamed) ,  EWHC 2519 at ¶54-55
- 41. R (Mohamed) ,  EWHC 2519 at ¶27
- 42. R (Mohamed) v. Sec'y of State for Foreign & Commonwealth Affairs ,  EWHC 571 at 5, available at http://www.judiciary.gov.uk/docs/judgments_guidance/mohamed-judgment3-an...
- 43. R (Mohamed ),  EWHC 571 at ¶6, 10
- 44. R (Mohamed) ,  EWHC 571 at ¶15-17
- 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. 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. Binyam Mohamed's full statement is available at http://www.guardian.co.uk/world/2009/feb/23/binyam-mohamed-statement-gua...
- 48. R (Mohamed) v. Sec'y of State for Foreign & Commonwealth Affairs ,  EWHC 2549 at ¶ 10, available at http://www.judiciary.gov.uk/docs/judgments_guidance/mohammed-revised-red...
- 49. R (Mohamed ),  EWHC 2549 at ¶13-14
- 50. R (Mohamed) ,  EWHC 2549 at ¶66iv
- 51. see R (Mohamed) v. Sec'y of State for Foreign & Commonwealth Affairs ,  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. 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. 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. “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. 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. 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