A Military Commissions Cheat Sheet
By JOANNE MARINER
|Wednesday, May. 21, 2008|
In the more than six years since President George Bush first announced the creation of military commissions to prosecute detainees allegedly responsible for terrorism, war crimes, and other misdeeds, there has not been a single full-blown military commission trial. (An Australian prisoner accepted a plea bargain last year and received a short sentence, which he served back in his home country.)
This should change in the next few months. The trial of Guantanamo detainee Salim Hamdan is now set to start on July 21, with motions hearings beginning on July 14. A few other detainees have already been arraigned; others are awaiting arraignment. In all, thirteen defendants are currently facing trial. (Charges had also been sworn against another defendant, Mohammed al-Qahtani, but he was so badly tortured while in US custody, tainting any statements that he made, that the Pentagon decided to drop his prosecution.)
Former chief military commissions prosecutor Moe Davis has testified to the political pressures that his office faced to push cases forward this year, particularly cases involving defendants implicated in the September 11 attacks. There was a strong feeling, he explained, "that if we didn't get this thing rolling before the election it was going to implode." Davis left the military commissions office last year.
Eight days ago, charges were referred against five detainees, including Khalid Sheikh Mohammed, who were among the group of 14 transferred to Guantanamo from CIA custody in September 2006. A sixth so-called high value detainee, Ahmed Khalfan Ghailani, is also facing charges for his alleged involvement in the 1998 bombing of the US embassy in Tanzania.
Below is a cheat sheet summarizing basic information about the defendants, the charges against them, and the key developments in their cases.
The First Cases
Hamdan was previously charged with conspiracy before a military commission in July 2004, under the original military commissions system established by President Bush. He challenged the legality of the commissions, and won in a landmark Supreme Court ruling in June 2006. Yet three months later, Congress passed the Military Commissions Act of 2006, which authorized a new system of military commissions, under which Hamdan and the other detainees listed here are now being tried.
New charges against Hamdan were referred on May 10, 2007, and he was arraigned on December 5, 2007. (He had been scheduled to be arraigned on June 4, 2007, but at that hearing the judge dismissed the charges against him and another detainee, Omar Khadr (discussed directly below), without prejudice.)
Even though Khadr was a juvenile at the time of his capture, the United States has refused to acknowledge his status as a minor, or to apply universally-recognized standards of juvenile justice in his case. Both US and international law allow for detention of juveniles only as a last resort, require juveniles to be provided educational opportunities and housed separately from adults, and mandate a prompt determination of all cases involving children. Yet Khadr has been incarcerated with adults, reportedly subjected to abusive interrogations, and not provided any educational opportunities. In addition, he was detained for more than two years before he was provided access to an attorney, and for more than three years before he was charged. He was initially charged in the first round of military commissions, which were struck down by the Supreme Court. Another two years passed before he was re-charged before the current military commissions.
New charges against Khadr were referred on April 24, 2007, and he was arraigned on November 8, 2007.
As with Omar Khadr, the US has ignored the fact that Jawad was a juvenile at the time of his alleged offense. Whereas other children detained at Guantanamo were given special housing and education programs, and were eventually released to rehabilitation programs in Afghanistan, Jawad was housed with adults, was not provided rehabilitation assistance, and was held for over six years prior to being charged. Jawad has told a panel of US military officers that he falsely confessed after being beaten and tortured by Afghan police when first taken into custody in 2002.
Charges against Jawad were referred on January 30, 2008, and he was arraigned on March 12. At his arraignment he told the judge, "I am innocent and I want justice and fairness."
Other Pending Cases
The issue of evidence obtained through abuse is likely to be a central concern in this case. Al-Darbi was held in the US detention center at Bagram, Afghanistan, for eight months in late 2002 and 2003, during the period when some of the worst abuses took place there. Al-Darbi has said that while at Bagram, US soldiers kicked him, beat him, dragged him around by his calves, and hung him by his wrists for days on end.
Charges against al-Darbi were referred on March 3, 2008, and he was arraigned on March 13. Further proceedings in his case are scheduled for late May.
Al-Qosi has alleged that he was subject to abuse at Guantanamo, including sexual humiliation and brutal interrogation. In a lawsuit filed in 2004, al-Qosi stated that female interrogators rubbed their bodies suggestively against detainees and that US soldiers or interrogators performed sex acts in front of prisoners and displayed hardcore pornography. He also said that detainees were strapped to an interrogation room floor, wrapped in an Israeli flag, and then subjected to "constant pounding of deafening music." An FBI agent in August 2004 reported in an email that he observed a detainee at Guantanamo sitting in an interview room "with an Israeli flag draped around him, loud music being played and a strobe light flashing."
Charges against al-Qosi were referred on March 5, 2008, and he was arraigned on April 20. At his arraignment, he read a statement describing his plans to boycott his trial, explaining that he viewed the proceedings as illegitimate and unjust. Further proceedings in his case are scheduled for late May.
During al-Bahlul's initial appearance before the first round of military commissions in 2005 he requested permission to choose a lawyer from Yemen, his home country, but the request was denied. When he appeared again a year later, he requested permission to represent himself, stating that he had no expectation of justice from a system created by his American enemies—that request was also denied.
The first case against him was thrown out when the Supreme Court declared the initial military commissions unlawful, but the US government referred new charges against him in the revamped military commissions on February 26, 2008, and was arraigned on May 7. At his arraignment, Bahlul declared that he would be boycotting his trial. He also indicated that he wanted to represent himself, but it was not clear whether he would participate in future proceedings in any way.
The Prosecutions for the September 11 Attacks
Charges of involvement in the September 11 terrorist attacks were referred against five defendants—all of them former CIA prisoners—a little more than a week ago. The five prisoners are currently scheduled to be arraigned on June 5. Given the enormous complexity of these cases, both factually and legally, the understaffing and lack of preparedness of military defense counsel—and the fact that all of the defendants face a possible sentence of death—it is unlikely that these cases will make great progress this year.
Abdul Aziz Ali was arrested in April 2003, but (like his co-defendants) he was not transferred to Guantanamo until September 2006.
Although bin 'Attash arrested and placed in US custody in April 2003, he was not transferred to Guantanamo until September 2006. In the interim he was held incommunicado in secret CIA detention facilities, where he was effectively "disappeared."
Although Bin al-Shibh was arrested in Pakistan in September 2002 and transferred to US custody, he was not sent to Guantanamo until four years later. In the interim he was believed to have been interrogated and held incommunicado in secret CIA detention facilities, where he was effectively "disappeared." A Jordanian former detainee, who claims that he spoke to Bin al-Shibh in detention, said that Bin al-Shibh was rendered to Jordan for some period of time, where he was badly tortured with electric shocks, sleep deprivation, and other abuse.
Al-Hawsawi was reportedly arrested and transferred to US custody in March 2003, but was not transferred to Guantanamo until September 2006. In the interim he was held incommunicado in secret CIA detention facilities, where he was effectively "disappeared."
Mohammed was indicted in New York in 1996 for his alleged involvement in a Philippines-based plot to blow up 12 US-bound commercial airliners in a 48-hour time period. The indictment, which was made public in 1998, and federal arrest warrant provide details of how he operated within al Qaeda.
Mohammed was arrested in March 2003 and held in secret CIA custody for more than three years. During his Combatant Status Review Tribunal (CSRT) hearing at Guantanamo, held on March 10, 2007, Mohammed claimed that he was tortured while in CIA custody and that as a result, he made false confessions about both himself and others. In addition, he alleged that his young children were detained and abused as well, a story that others have reported.
The details of Mohammed's allegations from the transcript of his CSRT hearing are redacted, but the CIA acknowledged on February 5, 2008, that the agency had subjected him and two other detainees to "waterboarding" in the period of 2002 to 2003. Waterboarding, a torture technique in which a prisoner is made to feel like he is drowning, violates both the federal anti-torture statute and the War Crimes Act. Although the CIA videotaped the interrogations in which terrorism suspects were waterboarded and subjected to other "severe interrogation techniques," the CIA confirmed that at least two videotapes documenting the interrogations had been destroyed in 2005. Several officials said that the tapes were destroyed in part because officers were concerned that the video could expose agency officials to legal liability.
The Embassy Bombing Prosecution
Ghailani was previously indicted by US federal prosecutors for his role in the embassy bombings. Four co-defendants were put on trial in federal court in 2001 and sentenced to life without parole, but Ghailani was a fugitive at the time. He was arrested in Pakistan in 2004, held incommunicado in secret CIA detention for two years, where he was essentially "disappeared," and transferred to Guantanamo in September 2006.
He is now slated for trial by military commission. The only new charge contained in the military commission indictment alleges that Ghailani continued to provide material support and resources to al-Qaeda from 1998 until 2004.
Charges were sworn against Ghailani on March 31, 2008, but they have not yet been referred against him (the convening authority of the military commissions has the option of amending or dropping the charges during this period).
Interested readers may also want to consult the Pentagon's military commissions page. – Ed.