The wheels of injustice grind so slowly at Guantánamo that it's probably a coincidence that charges were announced against another alleged terrorist just hours after the details were revealed of how comprehensively the government had been ridiculed for its "War on Terror" detention policy in the Court of Appeals in Washington. The public barely had time to register that, in throwing out the case against the innocent Chinese Muslim prisoner Huzaifa Parhat, the largely conservative court had compared the government's evidence to a nonsense poem by Lewis Carroll, before the charges against Abdul Rahim al-Nashiri unexpectedly surfaced to supplant the story in the headlines.
A Saudi who was held in secret CIA custody from November 2002, when he was captured in the United Arab Emirates, until September 2006, when he was transferred to Guantánamo with 13 other "high-value detainees," including Khalid Sheikh Mohammed, al-Nashiri is the 22nd prisoner to be put forward for trial by Military Commission at Guantánamo, and the seventh of the 14 "high-value detainees" to be charged.
In the charge sheet (PDF), al-Nashiri, who has previously been described as al-Qaeda's operations chief in the Arabian peninsula, is accused of conspiracy, murder in violation of the rules of war, using treachery or perfidy, destruction of property in violation of the law of war, intentionally causing serious bodily injury, and terrorism. The charges relate in particular to his alleged role in the attacks on the USS The Sullivans and the USS Cole in 2000, and the French tanker Limburg in 2002. To increase the impact the announcement, moreover, the Pentagon indicated that it would be seeking the death penalty if he is convicted.
The problem with this otherwise seemingly valid pursuit of justice against a genuine terrorist is that al-Nashiri is one of three prisoners whose torture at the hands of CIA operatives has been publicly admitted. In February, the CIA's director, Gen. Michael Hayden, told Congress that three "high-value detainees" were subjected to waterboarding in CIA custody: al-Nashiri, KSM (put forward for trial in February and arraigned last month), and Abu Zubaydah (who has not yet been charged, perhaps because of conflicts over his significance). Waterboarding is a form of controlled drowning, which the administration -- Gen. Hayden included -- refuses to acknowledge as torture, even though the torturers of the Spanish Inquisition had no hesitation in labeling it, unambiguously, as "tortura del agua."
Al-Nashiri may well be guilty of all the charges against him, but it's noticeable that, at his tribunal in Guantánamo last year, he was one of only three "high-value detainees" (KSM and Abu Zubaydah were the others) to claim that he had made false allegations because he was tortured. He said that he made up stories tying him to the bombing of the USS Cole and confessed to involvement in several other plots -- the attack on the Limburg, other plans to bomb American ships in the Gulf, a plan to hijack a plane and crash it into a ship, and claims that Osama bin Laden had a nuclear bomb -- in order to get his captors to stop torturing him. "From the time I was arrested five years ago," he said, "they have been torturing me. It happened during interviews. One time they tortured me one way, and another time they tortured me in a different way. I just said those things to make the people happy. They were very happy when I told them those things."
The administration seems confident that it can exclude all mention of torture from the planned trials at Guantánamo, either by using evidence obtained by "clean teams" of FBI agents, who politely asked the prisoners to repeat what they had previously confessed under torture, or by allowing the government-appointed judges to use their discretion to pretend that the CIA's secret prisons -- and the torture that took place there -- never existed.
In the real world, however, where evidence obtained through torture is inadmissible, it remains unclear whether the government's attempts to set up an offshore judicial system for alleged terrorists, which openly mocks America's core values, will ever be successful. It is now over six and a half years since the system of trials by Military Commission was introduced, which was conceived by Vice President Dick Cheney and his senior counsel (and now chief of staff) David Addington, and the government has yet to secure a clear victory.
The only verdict to date is in the case of the Australian David Hicks, who was repatriated to serve a nine-month sentence after accepting a plea bargain, in which he admitted providing "material support for terrorism," in March 2007. Conveniently for the administration, this involved Hicks renouncing well-documented claims that he was tortured and abused in US custody. It also, however, involved Hicks receiving a sentence far shorter than that which prosecutors had first mooted -- up to 20 years, according to some reports, which would have been comparable to the draconian sentence imposed on John Walker Lindh, the "American Taliban," in 2002 -- which did nothing to reinforce the government's long-cherished claims that Hicks was one of "the worst of the worst."
And elsewhere, of course, as the Court of Appeals reminds us, the quality of the administration's post-9/11 detention policies is most realistically compared to the nonsense spouted by an absurd character in a late nineteenth century English poem.
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