pssst…do something!

Gitmo Detainee’s Lawyer ‘Not Allowed To Tell Him’ He’s No Longer An ‘Enemy Combatant’»

Nearly two weeks after the U.S. Supreme Court ruled that detainees held at Guantánamo Bay have the right to habeas corpus and can thus challenge their detention in civilian courts, a U.S. Court of Appeals dealt another blow to the Bush administration’s detention policy.

The appeals court ruled that the Pentagon improperly designated Huzaifa Parhat, an ethnic Uighur Chinese national, an “enemy combatant” after being swept up by the U.S. military in Afghanistan in 2001 and then sent to Guantánamo Bay, where he has been held since.

Despite the ruling, Parhat has yet to see any of its benefits. In fact, he doesn’t even know about it. Parhat’s lawyer told CBC radio’s As It Happens last night that Parhat is currently being held in solitary confinement and “has no idea” the appeals court ruled in his favor because, he added, “I’m not allowed to tell him”:

DEREK STOFFEL, CBC HOST: Mr. Willett, what’s your client’s reaction to this ruling?

SABIN WILLETT (PARHAT’S LAWYER): Boy what a great question that is because my client doesn’t know about this ruling because I’m not allowed to tell him. […] He’s sitting in solitary confinement today. He has no idea what’s happened as far as I know.

 

Indeed, it is unclear what the appeals court’s ruling actually means for Parhat. The New York Times noted that the U.S. “said it will not return Uighur detainees to China because of concerns about their treatment at the hands of the Chinese government, which views them as terrorists.” Thus, as another one of Parhat’s lawyers noted, the “court victory may not mean freedom for him.”

For now, Willett said that “we’re going to file a motion with a judge to order them to let us call him on the phone and take him out of solitary confinement.” He added, “We’ve got a man in solitary confinement that they’ve got no authority to hold at all. Its unbelievable.”

Transcript:

DEREK STOFFEL, CBC HOST: Mr. Willett, what’s your client’s reaction to this ruling?

SABIN WILLETT (Parhat’s Lawyer): Boy what a great question that is because my client doesn’t know about this ruling because I’m not allowed to tell him.

STOFFEL: He doesn’t know?

WILLETT: We’ve asked — the first thing we did was ask the government for permission to make a phone call and they haven’t given it to us. Now we have a way to send him a letter that goes through clearence and we’ve sent it and maybe in three weeks he’ll get it.

He’s sitting in solitary confinement today. He has no idea what’s happened as far as I know.

STOFFEL: Well let me ask you then, what’s your reaction to this ruling?

WILLETT: Well I’m thrilled except for the constant vexation of the inablitiy to bring this thing to a real and human close. Huzaifa Parhat
has now been determined by about as conservative a court as there is not to be an enemy combatant — this is what we’ve been saying for years — and yet I can’t get him out of solitary confinement in the hands of my own government. So it is a frustrating but somewhat thrilling moment for us. […]

STOFFEL: I suppose the next thing you need to do is to let your client know what’s happened.

WILLETT: Thats what we’re trying to do. I mean, we’ve sent him a letter. We’re going to file a motion with a judge to order them to let us call him on the phone and take him out of solitary confinement. I mean we’ve got a man in solitary confinement that they’ve got no authority to hold at all. Its unbelievable. So we’ll be in court pretty soon, trying to get some more relief but it was a good day to get that notice.

Report: Scalia’s Claim That Released Gitmo Prisoners Have Killed Americans Is An ‘Urban Legend’»

A new report from the Seton Hall University School of Law explodes the myth that some 30 detainees released from Guantanamo Bay prison have “returned to the battlefield” against American forces.

This conservative urban legend was recently parroted by Supreme Court Justice Antonin Scalia in his dissent from the Court’s Boumediene decision. Scalia wrote that granting habeas corpus rights to Gitmo detainees “will almost certainly cause more Americans to be killed,” and supported this view by asserting that “at least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield.”

The new Seton Hall report (pdf) states that “Justice Scalia’s claim of 30 recidivist detainees is belied by all reliable data” :

Despite being repeatedly debunked, this statement has been reflexively accepted as true by Members of Congress and much of the American public. Justice Scalia is only the most recent disseminator of an urban legend that refuses to die. […]

[Scalia’s] source was a year-old Senate Minority Report, which in turn was based on misinformation provided by the Department of Defense.

Justice Scalia’s reliance on these sources would have been more justifiable had the urban legend he perpetuated not been (one would have thought) permanently interred by later developments, including a 2007 Department of Defense Press Release and hearings before the House Foreign Relations Committee less than two weeks before Justice Scalia’s dissent was released.

Among the report’s conclusions:

– According to the Department of Defense’s published and unpublished data and reports, not a single released Guantánamo detainee has ever attacked any Americans.

– Despite national security concerns, the Department of Defense does not have a system for tracking the conduct or even the whereabouts of released detainees.

While there is little evidence that fighters interred at Guantanamo Bay — that is, those who were fighters before they got there — have attacked Americans, there is quite a bit of evidence that, for those falsely imprisoned there and for many young Muslims watching around the world, Guantanamo has a politically radicalizing effect. Maintaining Guantanamo and other illegal detention sites hurts America’s image abroad, and calls into question America’s support for human rights and the rule of law. There is no good argument against closing it down.

Taguba: ‘The current administration has committed war crimes’ and needs to ‘be held to account.’»

In the preface to a report by Physicians for Human Rights on the “medical evidence of torture by the U.S.,” former Abu Ghraib investigator ret. Army Maj. Gen. Antonio Taguba writes that President Bush “authorized a systematic regime of torture” that has stained “our national honor.” Taguba, who first spoke out publicly in June 2007, bluntly accuses the Bush administration of committing war crimes:

After years of disclosures by government investigations, media accounts, and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.

The report found that medical examinations of 11 former detainees revealed “scars and other injuries consistent with their accounts of beatings, electric shocks, shackling and, in at least one case, sodomy.”

Documents confirm U.S. hid detainees from Red Cross

WASHINGTON — The U.S. military hid the locations of suspected terrorist detainees and concealed harsh treatment to avoid the scrutiny of the International Committee of the Red Cross, according to documents that a Senate committee released Tuesday.

“We may need to curb the harsher operations while ICRC is around. It is better not to expose them to any controversial techniques,” Lt. Col. Diane Beaver, a military lawyer who’s since retired, said during an October 2002 meeting at the Guantanamo Bay prison to discuss employing interrogation techniques that some have equated with torture. Her comments were recorded in minutes of the meeting that were made public Tuesday. At that same meeting, Beaver also appeared to confirm that U.S. officials at another detention facility — Bagram Air Base in Afghanistan — were using sleep deprivation to “break” detainees well before then-Defense Secretary Donald H. Rumsfeld approved that technique. “True, but officially it is not happening,” she is quoted as having said.

A third person at the meeting, Jonathan Fredman, the chief counsel for the CIA’s Counterterrorism Center, disclosed that detainees were moved routinely to avoid the scrutiny of the ICRC, which keeps tabs on prisoners in conflicts around the world.

“In the past when the ICRC has made a big deal about certain detainees, the DOD (Defense Department) has ‘moved’ them away from the attention of the ICRC,” Fredman said, according to the minutes.

The document, along with two dozen others, shows that top administration officials pushed relentlessly for tougher interrogation methods in the belief that terrorism suspects were resisting interrogation.

It’s unclear from the documents whether the Pentagon moved the detainees from one place to another or merely told the ICRC they were no longer present at a facility.

Fredman of the CIA also appeared to be advocating the use of techniques harsher than those authorized by military field guides “If the detainee dies, you’re doing it wrong,” the minutes report Fredman saying at one point.

Beaver testified that she didn’t recall making the comment about avoiding “harsher operations” while ICRC representatives were around, but she said she probably was referring to the need to conduct extended periods of interrogations of detainees without disruption.

The minutes of the Guantanamo meeting were among 25 documents released Tuesday by Sen. Carl Levin, D-Mich., who chairs the Senate Armed Services Committee and is leading a probe of the origins of cruel treatment of detainees in President Bush’s “war on terrorism.”

The administration overrode or ignored objections from all four military services and from criminal investigators, who warned that the practices would imperil their ability to prosecute the suspects. In one prophetic e-mail on Oct. 28, 2002, Mark Fallon, then the deputy commander of the Pentagon’s Criminal Investigation Task Force, wrote a colleague: “This looks like the kind of stuff Congressional hearings are made of. … Someone needs to be considering how history will look back at this.” The objections from the Army, Navy, Air Force and Marines prompted Navy Capt. Jane Dalton, legal adviser to the then-chairman of the Joint Chiefs of Staff, Gen. Richard Myers, to begin a review of the proposed techniques.

But Dalton, who’s now retired, told the hearing Tuesday that the review was aborted quickly. Myers, she said, took her aside and told her that then-Defense Department general counsel William Haynes “does not want this … to proceed.” Haynes testified that he didn’t recall the objections of the four uniformed services.

Officials in Rumsfeld’s office and at Guantanamo developed the techniques they sought by reverse-engineering a long-standing military program designed to train U.S. soldiers and aviators to resist interrogation if they’re captured.

The program, known as Survival, Evasion, Resistance and Escape, was never meant to guide U.S. interrogation of foreign detainees.

An official in Haynes’ office sought information about SERE as early as July 2002, the documents show. Two months later, a delegation from Guantanamo attended SERE training at Fort Bragg, N.C. Levin said, “The truth is that senior officials in the United States government sought information on aggressive techniques, twisted the law to create the appearance of their legality and authorized their use against detainees.” The documents confirm that a delegation of senior administration lawyers visited Guantanamo in September 2002 for briefings on intelligence-gathering there. The delegation included David Addington, a top aide to Vice President Dick Cheney; Haynes; acting CIA counsel John Rizzo; and Michael Chertoff, then the head of the Justice Department’s Criminal Division and now the homeland security secretary. Few of the Republicans at Tuesday’s hearing defended the Bush administration’s detainee programs. Guidance provided by administration lawyers “will go down in history as some of the most irresponsible and shortsighted legal analysis ever provided to our nation’s military intelligence communities,” said Sen. Lindsey Graham, R-S.C..

Regarding the ICRC, the United States long has complained that other countries such as China or the old Soviet Union prevented independent access to prisoners or made their conditions look better when outsiders were inspecting. The Bush administration appears to have engaged in similar practices, however.

Bernard Barrett, the ICRC’s Washington spokesman, said, “We knew that we did not always have full access to all detainees. It was a fairly serious issue.” “It’s been addressed,” he said. “We are confident we now have access to all detainees at Guantanamo.”

US official on interrogation: ‘If the detainee dies, you’re doing it wrong.’

Military officials tasked with training U.S. troops to evade enemy interrogations provided Pentagon lawyers a list of abusive tactics that could be used in prisons like Guantanamo Bay, a top Senate Democrat disclosed Tuesday.

Sen. Carl Levin, chairman of the Armed Services Committee, said the harsh techniques were then pursued despite strong objections in November 2002 by the military’s uniformed lawyers.

“If we use those same techniques offensively against detainees, it says to the world that they have America’s stamp of approval,” said Levin, D-Mich., at the onset of a committee hearing.

“That puts our troops at greater risk of being abused if they’re captured. It also weakens our moral authority and harms our efforts to attract allies to our side in the fight against terrorism.”

The hearing is the committee’s first look at the origins of the harsher methods used in Guantanamo Bay prison in Cuba and Abu Ghraib in Iraq and how policy decisions on interrogations were vetted across the Defense Department. Its review fits into a broader picture of the government’s handling of detainees, which includes FBI and CIA interrogations in secret prisons.

Sen. Lindsey Graham, R-S.C., said the administration’s legal analysis on detainees and interrogations following the the Sept. 11 attacks will “go down in history as some of the most irresponsible and shortsighted legal analysis ever provided to our nation’s military and intelligence communities.”

The Pentagon’s top civilian lawyer at the time, chief counsel William “Jim” Haynes, was expected to testify. Also present were Richard Shiffrin, Haynes’ former deputy on intelligence matters, as well as legal advisers at the time to the chairman of the Joint Chiefs of Staff and the Guantanamo Bay prison.

According to the Senate committee’s findings, Haynes became interested in using harsher interrogation methods as early as July 2002 when his office inquired into a military program that trained Army soldiers on how to survive enemy interrogations and deny foes valuable intelligence.

Haynes and other officials wanted to know if the program — known as “Survival Evasion Resistance and Escape” training — could be used used to develop more effective interrogation methods.

Shiffrin said his interest was not so much in trying reverse engineer the tactics to be used against the enemy but rather tapping military expertise in interrogations.

In response, the head of the Joint Personnel Recovery Agency, which ran the SERE program, offered that resistance training included sensory deprivation, sleep disruption, stress positions, waterboarding and slapping.

Several of those techniques, including stress positions, were later approved by Defense Secretary Donald Rumsfeld in a December 2002 memo.

Levin said these techniques were approved despite fierce objections a month earlier by the military services’ lawyers. In separate memos, the lawyers told the Joint Chiefs of Staff that the techniques warranted further study and could be illegal.

The committee also released previously secret and privately held memos dating from the 2002 inception of the harsh interrogation program at Guantanamo.

In one of them, the top military lawyer at Guantanamo, Lt. Col. Diane Beaver, explains that the Defense Department had made a practice of hiding prisoners who were being treated harshly, even abusively, from the International Committee of the Red Cross, a non-governmental body empowered to monitor compliance with Geneva Convention rules for the treatment of military prisoners.

Beaver also confirmed that the military was secretly using previously forbidden techniques, such as sleep deprivation, but hiding them so as not to draw “negative attention,” according to minutes of the meeting.

“Officially it is not happening,” Beaver said, according to minutes from the meeting. “It is not being reported officially. The ICRC is a serious concern. They will be in and out, scrutinizing our operations, unless they are displeased and decide to protest and leave. This would draw a lot of negative attention.”

Beaver said interrogators should “curb the harsher operations while ICRC is around.”

Beaver was speaking at an Oct. 2, 2002 meeting between CIA and military lawyers and military intelligence officials on how to counter the resistance of Guantanamo detainees to military interrogation.

Beaver’s comments suggest that the CIA’s practice of hiding unregistered “ghost detainees” from the ICRC at military jails may have been as much in service to the Pentagon’s interrogation program as it was to the CIA’s.

A senior CIA lawyer at the meeting, John Fredman, explained that whether harsh interrogation amount to torture “is a matter of perception.” The only sure test for torture is if the detainee died.

“If the detainees dies you’re doing it wrong,” Fredman said.

America’s prison for terrorists often held the wrong men

GARDEZ, Afghanistan — The militants crept up behind Mohammed Akhtiar as he squatted at the spigot to wash his hands before evening prayers at the Guantanamo Bay detention camp.

They shouted “Allahu Akbar” — God is great — as one of them hefted a metal mop squeezer into the air, slammed it into Akhtiar’s head and sent thick streams of blood running down his face.

Akhtiar was among the more than 770 terrorism suspects imprisoned at the U.S. naval base at Guantanamo Bay, Cuba, after the Sept. 11, 2001, terrorist attacks. They are the men the Bush administration described as “the worst of the worst.”

But Akhtiar was no terrorist. American troops had dragged him out of his Afghanistan home in 2003 and held him in Guantanamo for three years in the belief that he was an insurgent involved in rocket attacks on U.S. forces. The Islamic radicals in Guantanamo’s Camp Four who hissed “infidel” and spat at Akhtiar, however, knew something his captors didn’t: The U.S. government had the wrong guy.

“He was not an enemy of the government, he was a friend of the government,” a senior Afghan intelligence officer told McClatchy. Akhtiar was imprisoned at Guantanamo on the basis of false information that local anti-government insurgents fed to U.S. troops, he said.

An eight-month McClatchy investigation in 11 countries on three continents has found that Akhtiar was one of dozens of men — and, according to several officials, perhaps hundreds — whom the U.S. has wrongfully imprisoned in Afghanistan, Cuba and elsewhere on the basis of flimsy or fabricated evidence, old personal scores or bounty payments.

McClatchy interviewed 66 released detainees, more than a dozen local officials — primarily in Afghanistan — and U.S. officials with intimate knowledge of the detention program. The investigation also reviewed thousands of pages of U.S. military tribunal documents and other records.

This unprecedented compilation shows that most of the 66 were low-level Taliban grunts, innocent Afghan villagers or ordinary criminals. At least seven had been working for the U.S.-backed Afghan government and had no ties to militants, according to Afghan local officials. In effect, many of the detainees posed no danger to the United States or its allies.

The investigation also found that despite the uncertainty about whom they were holding, U.S. soldiers beat and abused many prisoners.

Prisoner mistreatment became a regular feature in cellblocks and interrogation rooms at Bagram and Kandahar air bases, the two main way stations in Afghanistan en route to Guantanamo.

While he was held at Afghanistan’s Bagram Air Base, Akhtiar said, “When I had a dispute with the interrogator, when I asked, ‘What is my crime?’ the soldiers who took me back to my cell would throw me down the stairs.”

The McClatchy reporting also documented how U.S. detention policies fueled support for extremist Islamist groups. For some detainees who went home far more militant than when they arrived, Guantanamo became a school for jihad, or Islamic holy war.

Of course, Guantanamo also houses Khalid Sheikh Mohammed, the alleged mastermind of the Sept. 11 attacks, who along with four other high-profile detainees faces military commission charges. Cases also have been opened against 15 other detainees for assorted offenses, such as attending al Qaida training camps.

But because the Bush administration set up Guantanamo under special rules that allowed indefinite detention without charges or federal court challenge, it’s impossible to know how many of the 770 men who’ve been held there were terrorists.

A series of White House directives placed “suspected enemy combatants” beyond the reach of U.S. law or the 1949 Geneva Conventions’ protections for prisoners of war. President Bush and Congress then passed legislation that protected those detention rules.

However, the administration’s attempts to keep the detainees beyond the law came crashing down last week.

The Supreme Court ruled Thursday that detainees have the right to contest their cases in federal courts, and that a 2006 act of Congress forbidding them from doing so was unconstitutional. “Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention,” the court said in its 5-4 decision, overturning Bush administration policy and two acts of Congress that codified it.

One former administration official said the White House’s initial policy and legal decisions “probably made instances of abuse more likely. … My sense is that decisions taken at the top probably sent a signal that the old rules don’t apply … certainly some people read what was coming out of Washington: The gloves are off, this isn’t a Geneva world anymore.”

Like many others who previously worked in the White House or Defense Department, the official spoke on the condition of anonymity because of the legal and political sensitivities of the issue.

McClatchy’s interviews are the most ever conducted with former Guantanamo detainees by a U.S. news organization. The issue of detainee backgrounds has previously been reported on by other media outlets, but not as comprehensively.

McClatchy also in many cases did more research than either the U.S. military at Guantanamo, which often relied on secondhand accounts, or the detainees’ lawyers, who relied mainly on the detainees’ accounts.

The Pentagon declined to discuss the findings. It issued a statement Friday saying that military policy always has been to treat detainees humanely, to investigate credible complaints of abuse and to hold people accountable. The statement says that an al Qaida manual urges detainees to lie about prison conditions once they’re released. “We typically do not respond to each and every allegation of abuse made by past and present detainees,” the statement said.

LITTLE INTELLIGENCE VALUE

The McClatchy investigation found that top Bush administration officials knew within months of opening the Guantanamo detention center that many of the prisoners there weren’t “the worst of the worst.” From the moment that Guantanamo opened in early 2002, former Secretary of the Army Thomas White said, it was obvious that at least a third of the population didn’t belong there.

Of the 66 detainees whom McClatchy interviewed, the evidence indicates that 34 of them, about 52 percent, had connections with militant groups or activities. At least 23 of those 34, however, were Taliban foot soldiers, conscripts, low-level volunteers or adventure-seekers who knew nothing about global terrorism.

Only seven of the 66 were in positions to have had any ties to al Qaida’s leadership, and it isn’t clear that any of them knew any terrorists of consequence.

If the former detainees whom McClatchy interviewed are any indication — and several former high-ranking U.S. administration and defense officials said in interviews that they are — most of the prisoners at Guantanamo weren’t terrorist masterminds but men who were of no intelligence value in the war on terrorism.

Far from being an ally of the Taliban, Mohammed Akhtiar had fled to Pakistan shortly after the puritanical Islamist group took power in 1996, the senior Afghan intelligence officer told McClatchy. The Taliban burned down Akhtiar’s house after he refused to ally his tribe with their government.

The Americans detained Akhtiar, the intelligence officer said, because they were given bad information by another Afghan who’d harbored a personal vendetta against Akhtiar going back to his time as a commander against the Soviet military during the 1980s.

“In some of these cases, tribal feuds and political feuds have played a big role” in people getting sent to Guantanamo, the intelligence officer said.

He didn’t want his name used, partly because he didn’t want to offend the Western officials he works with and partly because Afghan intelligence officers are assassinated regularly.

“There were Afghans being sent to Guantanamo because of bad intelligence,” said Helaluddin Helal, Afghanistan’s deputy interior minister for security from 2002 to early 2004. “In the beginning, everyone was trying to give intelligence to the Americans … the Americans were taking action without checking this information.”

Nusrat Khan was in his 70s when American troops shoved him into an isolation cell at Bagram in the spring of 2003. They blindfolded him, put earphones on his head and tied his hands behind his back for almost four weeks straight, Khan said.

By the time he was taken out of the cell, Khan — who’d had at least two strokes years before he was arrested and was barely able to walk — was half-mad and couldn’t stand without help. Khan said that he was taken to Guantanamo on a stretcher.

Several Afghan officials, including the country’s attorney general, later said that Khan, who spent more than three years at Guantanamo, wasn’t a threat to anyone; he’d been turned in as an insurgent leader because of decades-old rivalries with competing Afghan militias.

Ghalib Hassan was an Interior Ministry-appointed district commander in Afghanistan’s Nangarhar province, a man who’d risked his life to help the U.S.-backed government. Din Mohammed, the former governor of that province and now the governor of Kabul, said there was no question that local tribal leaders, offended by Hassan’s brusque style, fed false information about him to local informants used by American troops.

The Pentagon declined requests to make top officials, including the secretary of defense, available to respond to McClatchy’s findings. The defense official in charge of detainee affairs, Sandra Hodgkinson, refused to speak with McClatchy.

The Pentagon’s only response to a series of written questions from McClatchy, and to a list of 63 of the 66 former detainees interviewed for this story, was a three-paragraph statement.

“These unlawful combatants have provided valuable information in the struggle to protect the U.S. public from an enemy bent on murder of innocent civilians,” Col. Gary Keck said in the statement. He provided no examples.

Rear Adm. Mark H. Buzby, until recently the commanding officer at Guantanamo, said that detainees had supplied crucial information about al Qaida, the Taliban and other terrorist groups.

“Included with the folks that were brought here in 2002 were, by and large, the main leadership of al Qaida and the Taliban,” he said in a phone interview.

Buzby agreed, however, that some detainees were from the bottom rung.

“It’s all about developing the mosaic … there’s value to both ends of the spectrum,” he said.

Former senior U.S. defense and intelligence officials, however, said McClatchy’s conclusions squared with their own observations.

“As far as intelligence value from those in Gitmo, I got tired of telling the people writing reports based on their interrogations that their material was essentially worthless,” a U.S. intelligence officer said in an e-mail, using the military’s slang for Guantanamo.

Guantanamo authorities periodically sent analysts at the U.S. Central Command “rap sheets on various prisoners and asked our assessment whether they merited continued confinement,” said the analyst, who spoke on the condition of anonymity because of the sensitivity of the subject. “Over about three years, I assessed around 40 of these individuals, mostly Afghans. … I only can remember recommending that ONE should be kept at GITMO.”

‘WAR COUNCIL’ REWRITES DETAINEE LAW

At a Pentagon briefing in the spring of 2002, a senior Army intelligence officer expressed doubt about the entire intelligence-gathering process.

“He said that we’re not getting anything, and his thought was that we’re not getting anything because there might not be anything to get,” said Donald J. Guter, a retired rear admiral who was the head of the Navy’s Judge Advocate General’s Corps at the time.

Many detainees were “swept up in the pot” by large operations conducted by Afghan troops allied with the Americans, said former Army Secretary White, who’s now a partner at DKRW Energy, an energy company in Houston.

One of the Afghan detainees at Guantanamo, White recalled, was more than 80 years old.

Army Spc. Eric Barclais, who was a military intelligence interrogator at Bagram Air Base in Afghanistan from September 2002 through January 2003, told military investigators in sworn testimony that “We recommended lots of folks be released from (Bagram), but they were not. I believe some people ended up at (Guantanamo) that had no business being sent there.”

“You have to understand some folks were detained because they got turned in by neighbors or family members who were feuding with them,” Barclais said. “Yes, they had weapons. Everyone had weapons. Some were Soviet-era and could not even be fired.”

A former Pentagon official told McClatchy that he was shocked at times by the backgrounds of men held at Guantanamo.

” ‘Captured with weapon near the Pakistan border?’ ” the official said. “Are you kidding me?”

“The screening, the understanding of who we had was horrible,” he said. “That’s why we had so many useless people at Gitmo.”

In 2002, a CIA analyst interviewed several dozen detainees at Guantanamo and reported to senior National Security Council officials that many of them didn’t belong there, a former White House official said.

Despite the analyst’s findings, the administration made no further review of the Guantanamo detainees. The White House had determined that all of them were enemy combatants, the former official said.

Rather than taking a closer look at whom they were holding, a group of five White House, Justice Department and Pentagon lawyers who called themselves the “War Council” devised a legal framework that enabled the administration to detain suspected “enemy combatants” indefinitely with few legal rights.

The threat of new terrorist attacks, the War Council argued, allowed President Bush to disregard or rewrite American law, international treaties and the Uniform Code of Military Justice to permit unlimited detentions and harsh interrogations.

The group further argued that detainees had no legal right to defend themselves, and that American soldiers — along with the War Council members, their bosses and Bush — should be shielded from prosecution for actions that many experts argue are war crimes.

With the support of Bush, Cheney and then-Defense Secretary Donald H. Rumsfeld, the group shunted aside the military justice system, and in February 2002, Bush suspended the legal protection for detainees spelled out in Common Article Three of the 1949 Geneva Convention on prisoners of war, which outlaws degrading treatment and torture.

The Bush administration didn’t launch a formal review of the detentions until a 2004 Supreme Court decision forced it to begin holding military tribunals at Guantanamo. The Supreme Court ruling last week said that the tribunals were deeply flawed, but it didn’t close them down.

In late 2004, Pentagon officials decided to restrict further interrogations at Guantanamo to detainees who were considered “high value” for their suspected knowledge of terrorist groups or their potential of returning to the battlefield, according to Matthew Waxman, who was the deputy assistant secretary of defense for detainee affairs, the Defense Department’s head official for detainee matters, from August 2004 to December 2005.

“Maybe three-quarters of the detainees by 2005 were no longer regularly interrogated,” said Waxman, who’s now a law professor at Columbia University.

At that time, about 500 men were still being held at Guantanamo.

So far, the military commissions have publicly charged only six detainees — less than 1 percent of the more than 770 who’ve been at Guantanamo — with direct involvement in the 9-11 terrorist attacks; they dropped the charges in one case. Those few cases are now in question after the high court’s ruling Thursday.

About 500 detainees — nearly two out of three — have been released.

During a military review board hearing at Guantanamo, Mohammed Akhtiar had some advice for the U.S. officers seated before him.

“I wish,” he said, “that the United States would realize who the bad guys are and who the good guys are.”

HOW FOOT SOLDIERS, FARMERS GOT SWEPT UP

How did the United States come to hold so many farmers and goat herders among the real terrorists at Guantanamo? Among the reasons:

After conceding control of the country to U.S.-backed Afghan forces in late 2001, top Taliban and al Qaida leaders escaped to Pakistan, leaving the battlefield filled with ragtag groups of volunteers and conscripts who knew nothing about global terrorism.

The majority of the detainees taken to Guantanamo came into U.S. custody indirectly, from Afghan troops, warlords, mercenaries and Pakistani police who often were paid cash by the number and alleged importance of the men they handed over. Foot soldiers brought in hundreds of dollars, but commanders were worth thousands. Because of the bounties — advertised in fliers that U.S. planes dropped all over Afghanistan in late 2001 — there was financial incentive for locals to lie about the detainees’ backgrounds. Only 33 percent of the former detainees — 22 out of 66 — whom McClatchy interviewed were detained initially by U.S. forces. Of those 22, 17 were Afghans who’d been captured around mid-2002 or later as part of the peacekeeping mission in Afghanistan, a fight that had more to do with counter-insurgency than terrorism.

American soldiers and interrogators were susceptible to false reports passed along by informants and officials looking to settle old grudges in Afghanistan, a nation that had experienced more than two decades of occupation and civil war before U.S. troops arrived. This meant that Americans were likely to arrest Afghans who had no significant connections to militant groups. For example, of those 17 Afghans whom the U.S. captured in mid-2002 or later, at least 12 of them were innocent of the allegations against them, according to interviews with Afghan intelligence and security officials.

Detainees at Guantanamo had no legal venue in which to challenge their detentions. The only mechanism set up to evaluate their status, an internal tribunal in the late summer of 2004, rested on the decisions of rotating panels of three U.S. military officers. The tribunals made little effort to find witnesses who weren’t present at Guantanamo, and detainees were in no position to challenge the allegations against them.

McCain And Graham Plan To Introduce Legislation Undermining Supreme Court Decision On Guantanamo

 

Last week, the Supreme Court ruled that Guantanamo Bay detainees have the right to challenge their detention in civilian courts. Sens. John McCain (R-AZ) and Lindsey Graham (R-SC) wasted no time in publicly blasting the decision, saying they were “disappointed” in “one of the worst decisions in the history of this country.”

This ruling will inevitably lead to a “flood of new litigation” challenging the Bush administration’s right to hold these detainees, only one of whom has received a verdict. Detainees will then finally get a decision as to their status.

Today on Fox News Sunday, Weekly Standard editor Bill Kristol revealed that “very soon” — likely as early as next week — McCain and Graham will be introducing legislation to undermine the Supreme Court decision by setting up a “national security court”:

And I think you will see Senator Graham, accompanied by Senator McCain, come to the floor of the Senate very soon, like next week, and say, We cannot let chaos obtain here. We can’t let 200 different federal district judges on their own whim call this CIA agent here, say, ‘I don’t believe this soldier here who said this guy was doing this,’ you have to release someone,’ or, ‘Let’s build up — let’s compromise sources and methods with a bunch of trials. I mean, it’s ridiculous.

 

A national security court would envision a scenario “in which sitting federal judges would preside over proceedings in which prosecutors would make the case that a person should be detained.” But as Michael Hoffman and Ken Gude note in a paper for the Center for American Progress, this scenario is problematic and underestimates the U.S. criminal justice system:

Adopting a national security court system would send the United States down another unproven path prone to repeat the same mistakes. It would not further justice or American legitimacy. Rather, it would risk creating American courts that more resemble the tribunals of dictators than those of democracies. And that would be a strategic victory for Al Qaeda, not for Americans. […]

The criminal justice system, coupled with standard military trials when necessary, has and can further law enforcement, intelligence, and prevention efforts without undermining our fundamental liberties or our long-term efforts to combat terrorism. It is time to let it fully do that crucial work.

As ThinkProgress reported on Friday, at one time, McCain and Graham advocated a solution similar to the Supreme Court ruling. In 2003, they called on then-Defense Secretary Rumsfeld to “formally treat and process the detainees as war criminals or to return them to their countries for appropriate judicial action.” Clearly, things change when you’re running for a third Bush term.

Some detainees can’t go home

Whatever orders civilian judges might issue under the latest U.S. Supreme Court ruling, the United States is struggling with how to send away some of the detainees at Guantánamo who the Defense Department has already decided to let go.

 

By some measures, Mammar Ameur seems an unlikely candidate to be among the 270 war-on-terror detainees held at the U.S. detention center at Guantánamo Bay..

He has a white beard and bad feet. He has a wife and four kids. And 2 ½ years ago, the Pentagon decided he could go home. Yet he passes his days in Camp 4, a communal Hogan’s Heroes-style compound for the most cooperative of captives.

That’s because Ameur has the misfortune of being Algerian.

Despite years of talks, the North African nation has so far refused to take home a single one of its citizens held in war-on-terror custody at the U.S. base in southeast Cuba.

Meantime, Ameur is an example of the men for whom Thursday’s Supreme Court ruling — that they can take their cases to U.S. courts — is likely a hollow victory.

NOWHERE TO GO

Even if a civilian court were to order Ameur’s release, he has no place to go. The Pentagon says there are about 70 detainees in a similar predicament.

”[The Algerians] simply decided that they do not want to accept back any of the detainees from the United States,” said Sandra L. Hodgkinson, the Defense Department deputy in charge of detainee affairs. She called it “discouraging.”

Last summer, she said, Washington and Algiers agreed on repatriation of a number of Algerians she would not quantify. Then the North African nation reversed course. Its diplomats say that perhaps the men should go back to the countries where they were taken into custody — locations from South Asia to Sarajevo, but none inside their home countries.

Ameur’s may be a typical tale. He says he was a charity worker in Pakistan, a good Muslim who fled a bloody Islamic insurgency in Algeria in the 1990s and ultimately got U.N. refugee status in Pakistan.

In Pakistan, he said, U.S. intelligence officers mistook the home where he and his family lived for an al Qaeda safe house — and labeled him a terrorist because he had once been trained by al Ittihad al Islami, a Kuwaiti aid group that President Bush listed as a terror organization after the Sept. 11, 2001, attacks.

FATHERLESS FAMILY

After that, his wife and kids moved back to Algeria, and the children have grown up without him, says his attorney, Ramzi Kassem, a teaching fellow at the Yale Law School.

”He wants to be back home with his family. That’s what he’s always wanted. It’s really not much more complicated than that,” said Kassem.

But where to go? Back to Pakistan, whose security forces helped the United States round up the Guantánamo-bound suspects in the first place? To a third country?

The military has gradually thinned the ranks of prisoners at Guantánamo by getting their home governments to take them. Nearly 100 Saudi Arabians have been sent home to state-run rehabilitation programs designed to rid them of any vestiges of radical Islam.

The U.S. is likewise negotiating the return of many of the 100 or so detained Yemenis.

”I think the brutally frank answer is that we’re stuck,” Defense Secretary Robert Gates told a Senate committee May 20, when asked how the various agencies of the Bush administration were handling the task of moving toward closure of the prison camps at Guantánamo Bay.

OPPOSITION

There are also 25 detainees whose opposition to their home governments makes them likely subjects of political retribution.

Chief among them are the 17 Uighurs — Chinese citizens from an ethnic Islamic minority who fled their homeland for Afghanistan long before the 9/11 attacks. The U.S. government now agrees that they would suffer religious oppression as devout Muslims if returned to China, a communist country.

Puppy-Killing Marine to be Booted

HONOLULU – The Marine Corps is expelling one Marine and disciplining another for their roles in a video showing a Marine throwing a puppy off a cliff while on patrol in Iraq.

The 17-second video posted on YouTube drew sharp condemnation from animal rights groups when it came to light in March.

The clip shows two Marines joking before one hurls the puppy into a rocky gully. A yelping sound is heard as it flips through the air.

Marine Corps Base Hawaii said in a news release Wednesday that Lance Cpl. David Motari received unspecified “non-judicial punishment” and “is being processed for separation” from the Marine Corps.

The second Marine, Sgt. Crismarvin Banez Encarnacion also received unspecified “non-judicial” punishment.