The Outrage of the Bush-Obama Military Commissions

According to recent news reports, the Obama administration is getting ready to conduct a new series of Military Commissions trials for a number of prisoners being held at the U.S. torture camp at Guantánamo. These Military Commissions, begun under George W. Bush, basically deprive defendants of all rights, and have been part of the whole new level of fascistic repressive measures since 9/11. Revolution talked about the background and the new developments around the Military Commissions with Andy Worthington, author of The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison (published by Pluto Press, distributed by Macmillan in the U.S.). His website is www.andyworthington.co.uk

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Revolution: Before we get into the new developments, can you give us some background on the Military Commissions—what they are, their beginnings?

Andy Worthington: What they are, is a specific type of military trial that has been used throughout American history. It was most recently used in the Second World War, in the cases of certain Nazi saboteurs. And when the Bush administration was fishing around for new ways to deal with people it had captured, in the early days of the "war on terror," then it came across the Military Commissions, specifically as they were used in the Second World War. These were established through a "military order," which was passed with virtually no oversight from anyone, signed by President Bush on November 13, 2001.

The background story to that is that it was essentially hustled through a couple of departments in the White House without anybody really seeing what was going on. Former U.S. Secretary of State Colin Powell later said that he'd not even heard about this, that he saw it on TV. This was essentially the document that established the notion of "enemy combatants" and said these guys can only be tried by Military Commissions, and evidence that would not be permitted in normal courts will be able to be used. I think what was obvious from that document to people who were looking closely was that it was an attempt to set up show trials that would be able to draw on evidence derived from torture and then execute people the administration said were guilty.

It then took quite a while for the administration to be able to put the trials in place. Even before anything had gotten going, in 2003 and 2004, a number of prosecutors resigned because they realized this was a bent system. During 2004 and the following year, 10 people were charged. There were various pretrial hearings that were held, but they were all shambolic. Pretty much everything that has ever taken place in a Military Commission hearing as part of the "war on terror" has been shambolic because the rules are so ill-defined, there are so many holes in all the procedures. And this went on until June 2006 when the Supreme Court ruled that the military commissions were illegal. They actually ruled that they contravened the Military Code of Justice and the Geneva Conventions.

So having been thrown out, the Bush administration then went to Congress to revise them. And in that amended form, they have had a second phase of activity. I think it's quite important to note that at this point, Congress invented war crimes that were tryable by Military Commission. So although the initial idea of having Military Commissions for alleged terror suspects came from Dick Cheney and his chief legal advisor, David Addington, when it was revised by Congress, Congress specifically attempted to make war crimes out of crimes that are not recognized as war crimes, such as "murder by an unprivileged belligerent."

So at the start of 2007 the Military Commissions were back. From then until the end of the Bush administration, they again stumbled on from one disaster to another. Twenty-eight men were put forward for trials by Military Commissions, but only three ever went to trial. The first of those cases was David Hicks, the Australian, and a plea deal had been arranged between Dick Cheney and Prime Minister John Howard of Australia. Hicks had been picked up on the radar in Australia—there was a movement around the injustices against him. So there was a deal that was struck that was supposed to help get John Howard reelected. It failed. But Hicks was "encouraged" to file for a plea deal, whereby he spent another six months in prison back in Australia, in exchange for admitting to "material support for terrorism"—which is one of the key ingredients in federal court terrorism prosecutions, but is one of the invented "war crimes." It's not traditionally been viewed as a war crime.

The second case in the summer of 2007 was Salim Hamdan, who was one of a number of drivers who worked for Osama bin Laden, a Yemeni who had taken the job for money. The military jury in his case threw out the conspiracy charge, correctly understanding that one of the many guys who drove bin Laden around wasn't privy to any secrets, although they did find him guilty of "material support for terrorism." The jury gave him a five and a half year sentence but the judge back-dated that to the time of his capture. He was a free man five months after that.

The only other case under Bush—the week before the presidential election in November 2008—was Ali Hamza al-Bahlul, a Yemeni who had made a propaganda video for al-Qaida, which he admitted to. Al-Bahlul refused to take part in the process at all. As a result he was not represented legally, because lawyers are not allowed to represent an unwilling client, and even though the military was pushing his lawyer to do so, he refused to take part. So they had a trial for a week, which was a completely one-sided trial because he refused to mount a defense at all. And at the end of that, almost on the eve of the presidential elections, he was found guilty and sentenced to life—in Guantánamo, which he is serving. So that is the background under Bush.

Revolution: Stepping back a little, looking at the Military Commissions under Bush, wasn't this a significant departure from the legal "norms" in the U.S.? In the history of the U.S., there have been many instances of politically motivated cases and injustices, especially involving people who those in power see as threats, or oppressed people on a daily basis. But still, the Military Commissions represented a major leap in repressive measures—in throwing out basic rights, allowing torture, and so on.

Andy Worthington: Well when they were brought back by Congress, there was an attempt by Congress to say that the use of torture wouldn't be allowed. The fundamental problem with the Military Commissions is that terrorism is a crime, but the Bush administration, and now the Obama administration, were trying to prosecute people in military settings for crimes, which they were trying to turn into war crimes. And that's the fundamental misconception about the whole thing, why it doesn't fit together.

Revolution: Barack Obama campaigned with pledges to shut Guantánamo down and stop the Military Commissions, among other promises. So what has happened under Obama?

Andy Worthington: He suspended the Military Commissions on his first day in office in order to review them, and on his second day in office he also issued executive orders that promised to close Guantánamo within a year, upheld the absolute ban on torture, and promised humane interrogations of detainees in the future. However, in May 2009, he delivered a major national security speech at the National Archives, where he put Military Commissions back on the table. He also put the indefinite detention without charge or trial of some prisoners back on the table as well. And all the dreams and hopes that he was going to either charge or release prisoners, and if charged, try them in federal courts began to unravel at that point. So that's a simple answer, that on May 2009 he was told, or persuaded to change his mind.

Revolution: So what about these recent reports that Obama is planning to ramp up the Military Commissions again?

Andy Worthington: What's happened under President Obama is that very little was happening for the first 18 months—there were hearings still going on, but the plan was that the administration wanted to have both federal court trials and Military Commissions. In May 2009 the administration moved one man from Guantánamo, Ahmed Khalfan Ghailani to the U.S. mainland (and he was sentenced to life without parole in federal court last week). However, in November 2009, when U.S. Attorney General Eric Holder announced that Khalid Sheikh Mohammed and four other men accused in involvement in the 9/11 attacks would be brought to the U.S. mainland to face trial, the backlash against that meant that the administration shelved its plan.

That refusal to follow through on its initial statement meant that it gave Congress time to pass a law prohibiting it, which is what lawmakers did just before Christmas, when they passed legislation preventing President Obama from bringing prisoners to the U.S. mainland to face trial. So Obama's only option is Military Commissions, but their history, under Obama, has not been better than it was under Bush. Last summer, when I think they had been hoping that federal courts and Military Commissions would be coexisting, they reached the trial phase of Ibrahim al-Qosi, another peripheral figure in the al-Qaida picture, really, a man who from what I can see sometimes was a cook in the compound that was sometimes used by Osama bin Laden. So, you know, pretty tangential to everything. When the administration was faced with the prospect of actually going ahead with a trial, it pushed for a plea deal instead. We don't officially know how long he's going to serve but the rumor is that he'll serve two more years and then go back to Sudan.

And in autumn there was the trial of Omar Khadr, the former child prisoner from Canada, who also accepted a plea deal. And he's apparently serving eight years, one more year in Guantánamo and seven in Canada. That was a total disgrace because he was a child when he was captured after a battle in Afghanistan.

Revolution: He was also tortured in Bagram prison in Afghanistan and threatened with rape…

Andy Worthington: Absolutely. Was tortured. Was never treated as a juvenile prisoner should be treated according to the UN Conventions on the rights of a child in war time—which the U.S. signed after his capture, signed in January 2003, and which require the rehabilitation rather than punishment of juveniles who are under 18 when the alleged crime took place. Plus Khadr had to confess to invented war crimes, that he was an "alien unprivileged enemy belligerent" who was not allowed to be in a combat situation with U.S. forces. It was "illegal" for him to do so. That's just a complete disgrace. But, unperturbed [laughs] the administration has now announced—it hasn't been officially announced, but it has been indicated that they're revving up to hold more trials by Military Commissions at Guantánamo. There are four guys we've been told about, who are likely the ones who are going to be put on trial.

Revolution: One of them is Abd al-Rahim al-Nashiri, and it has been openly acknowledged that he is one of the detainees that the U.S. tortured with waterboarding. And one of the outrageous things about the Military Commissions is that so-called evidence obtained under torture and hearsay evidence can be used against the defendant, who has no way of challenging them.

Andy Worthington: Yeah, absolutely. And the administration has tried to fudge this. When in November 2009 Holder announced the apparently imminent prosecution of Khalid Sheikh Mohammed and four other men, he also said that the Military Commissions are officially back, and here are five guys that we're going to put on trial, and he tried to distinguish between the two systems by saying Military Commissions are more connected with activities that took place in the military context, claiming that, in al-Nashiri's case, which allegedly involved the attack on the USS Cole [in 2000], was a military target, whereas they were saying 9/11 was a civilian target. I don't think that really stands up to scrutiny because as you've indicated, what lies behind this are issues of evidence. And what they've actually done is decide what they think they can get away with in whatever forum. And it's part of the reason that, the more confident they are, then they'll go for a federal court trial, where torture evidence is definitely excluded, and hearsay evidence isn't going to wash. They've got more leeway in the Military Commissions.

And of course, beyond the federal courts and the Military Commissions, there is a third category of people—those they want to hold indefinitely without charge or trial, because they have said: we think these people are too dangerous, but we don't even have the evidence that would stand up in a Military Commission—i.e., they really don't have anything resembling evidence at all. So it would all have to be hearsay. And yes, it's troubling that they rely on hearsay because it's so much tied in with the torture program, essentially. Not just the "high-value detainee" program and extraordinary renditions and CIA secret prisons where torture was clearly central, but the fact is that torture permeates so much of the way in which the men were held and interrogated in Afghanistan before they went to Guantánamo. So in Kandahar and primarily in Bagram, as in Guantánamo itself, where there was a regime in place, certainly for two years, that was a version of the torture program that had been used by the CIA in their secret prisons. It didn't involve waterboarding, but it did involve torture.

Revolution: How many prisoners are there currently at Guantánamo, and what are their conditions of imprisonment?

Andy Worthington: There are 173 men being held at Guantánamo. In general, conditions improved under Obama. This doesn't apply to all of them. There are still some men held in solitary. In general though, they have been allowed to mingle more and to have some recreational facilities. Although recently we've heard from prisoners, who have unclassified phone calls with their lawyers, that there's something going on there, that they're actually moving people back into spending more time in isolation. But there has been in general an improvement, which I think has indicated that they're in it for the long haul.

After all, Guantánamo's purpose as an interrogation center is long gone. That was the whole point, really, about what the Bush administration wanted, was to hold people outside the law, so that it could do whatever it wanted to do to them, to get what it described as "actionable intelligence." It wasn't concerned with what the hell it was going to do with these people, and it wasn't concerned with prosecution. It was about intelligence. And sadly what happened was that when people didn't tell them what they thought they should be telling them, whether that was because they were withholding it or they were completely wrong people, then they introduced torture, having fooled themselves into thinking that torture was going to be a good way of getting the truth. But it doesn't necessarily get you anything even resembling the truth, or you can't separate the truth from fiction. You end up accusing someone falsely, kicking so many doors down in the middle of the night, and dragging off to dungeons other people whose name was divulged because someone's been tortured, not because they did anything. That web of where torture leads is absolutely horrible.

Revolution: There are still U.S. prisons, in Afghanistan for example, where people are still being held in conditions of torture…

Andy Worthington: There's the prison in Bagram. There are persistent stories of a secret prison that is part of Bagram. And I think it's very credible that, although there has been in general an effort to learn from a lot of the mistakes of the Bush administration, operationally there are certainly people who find it useful to have some leeway in how people can be treated. And I think more fundamentally the problem that is demonstrated by Afghanistan is that Bagram, which is the main prison for the ongoing U.S. operations in Afghanistan, is not a place that has been returned to the rule of the Geneva Conventions. It's a place where people are held for a significant amount of time without any adequate screening to determine whether they should be there and then are given a review which actually resembles the review process at Guantánamo, which the Supreme Court found inadequate in 2008. The military is not operating according to the Geneva Conventions. That's the kind of major change that happened, I think, that hasn't been addressed.

The more disturbing aspect is that around the edges of this amended military detention scenario are people that are kept off the books for a while completely so that they can be leaned on a bit. We're dealing definitely with torture. All the stories demonstrate that we're dealing with torture. The magic word for most people with torture is: were they waterboarded. Well that's not the issue here, really. It's people that have been subjected to prolonged solitary confinement and sleep deprivation, for example. That's a form of torture.

Revolution: Are there any other points about these reports of new Military Commission hearings we should be aware of?

Andy Worthington: What we know is that the administration initiated a Task Force when Obama came into office. They spent a year going through all the Guantánamo cases, deciding what to do with them. This involved officials and lawyers from government departments and agencies—I describe them as pretty sober set of career officials—who carefully went through what information they could about the men held to decide what should be done with them. Now I have a problem with that because there's already a legal process underway, which is their habeas corpus decisions. President Obama had set up essentially a kind of executive parallel review process. So I have a problem with that anyway, but this is their basis for deciding what to do with the men held.

And they said, of the 173 men held—and bear in mind three of the ones are held because of the results of their Military Commissions—they want to put 33 men on trial. They want to hold 48 indefinitely without charge or trial. And the rest ought to be released. And so clearly, there's a big problem—89 men recommended for release who are still held. Another big problem—48 men held indefinitely without charge or trial because any evidence against them you can't use, so it's not evidence. And that's a fundamental problem. Thirty-three men are supposed to be put on trial. So are they going to give up on holding federal court trials? Are they possibly going to, as has been suggested, use Justice Department funds to bypass Congressional ban on bringing prisoners to the U.S. mainland using the Defense budget and put them on trial?

The trial of Ghailani, which resulted in a jury convicting him of only one count out of 285, was portrayed by the supporters of the Military Commissions as a failure. I mean, if you have not been paying attention, you could think that the man was acquitted. He wasn't. That one charge carried a maximum of life without parole. And last week the judge sentenced him to life without parole. That also proved to Obama's critics that the federal courts are a safe venue for prosecuting terrorists. I think it's easy to say that actually it also demonstrated federal court trials are too successful because they deliver punitive sentences. Because if you survey the whole landscape of terrorism-related offenses prosecuted in federal courts, there are very, very worrying sentences being handed down for people doing virtually nothing, receiving enormous sentences.

But if they want to proceed with these trials, of Khalid Sheikh Mohammed, for example, and the four other men in a venue that will be internationally recognized, if they want to attempt to draw a line under the whole of this "war on terror," which started because of 9/11, and here are the guys who are supposed to have done the whole thing—are they going to do that? Or are they going to accept that, no it's too unpopular to do that, just leave them in Guantánamo, and we'll start picking away at people, one by one, and put them on trial in Military Commissions and see if that works? I don't quite know which course of action they're going to take. But first of all they're going to have to get through the trials of the men they've put forward.

We've spoken about al-Nashiri. But another of the three other men they've put forward—Ahmed al-Darbi, picked up in Azerbaijan—seems to also have a history that's replete with torture, particularly in Bagram, probably in the secret part of Bagram that was running under the Bush administration. One of them, to me, is completely pointless—a minor insurgent, if anything, in Afghanistan, an Afghan named Obaidullah. What on earth is going on here, with an attempt to prosecute him? We'll have to see how it goes. My feeling is that they will carry on trying to secure plea deals in these Military Commission trials, as it's the only venue where they can do trials at all at the moment. And it may be that, if you look on average at how the Commissions have worked out, they're actually working out better for the prisoners in terms of getting out of Guantánamo than any other way.

Revolution: Aside from the individual cases of these prisoners, there is the overall moral and legal implications of the continuing existence of Guantánamo, of indefinite detentions, and so on.

Andy Worthington: I don't know how it's possible to shift the discussion to where it should be. But all of this, whatever Obama has tried to do the last few years, has really failed to shift the structure of detention, from what was so falsely established by the Bush administration. This is a new kind of thing in history. We're not dealing with soldiers. We're not dealing with criminals. We're dealing with a new category of human beings who don't deserve to have any rights, the "enemy combatant." Now Obama dropped that terminology. But when they want to put the people in Guantánamo on trial in Military Commissions as we saw with Omar Khadr, they have to be declared by a judge to be "alien unprivileged enemy belligerents," which they think is more in spirit with the Geneva Conventions. But again, it's a legacy of this fundamental problem that hasn't been addressed, which is, there is not a third category of prisoners, there are only two types of people that you hold. They are either criminal suspects and you put them on trial—speedily, I believe, is an important aspect of that—or they're prisoners of war, they're soldiers who you've captured in wartime, whether they're wearing a regular uniform or not, and that's it.

There's an enormous resistance to going back to the world that existed before 9/11 in that sense. The Bush position is ferociously defended by numerous Republicans now. But it's also essentially, fundamentally defended by the Obama administration as well, however much they may try to dance around that—and if challenged, they would probably talk about how this isn't about projecting into the future, this is a legacy problem they're trying to deal with, and under the terms of this legacy problem, that detention situation exists. They could redefine people as prisoners of war protected by the Geneva Convention. Then we could all be debating about how long the war lasts and how long it's appropriate to hold these men.

So it's a disastrous confusion, really, the position we're in now, with all these different factions fighting their own corners, and the people in Guantánamo ultimately being the losers. If they're cleared for release, they're not going anywhere. If they were recommended to be put forward for trial, then one avenue for trial has been cut off, the other one doesn't look promising. Then behind that are men to be held indefinitely without charges or trial, which was exactly what the Bush administration intended in the first place. And however that's dressed up, that's not fundamentally any different either.

I hope that at some point we will be able to push the debate onto these issues of scrapping the whole terminology that underpins detentions in the war on terror and get back to an understanding that people are either criminals or soldiers, and that's the end of the story.

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