Dishonoring a Nation's History The US Prepares its First Guantanamo Trials

The Pentagon is launching its first trials of long-term detainees at Guantanamo. The trials will take place before military tribunals, which grant very few rights to defense attorneys. Ironically, it became clear long ago that the overwhelming majority of the prisoners at Guantanamo were not terrorists.

By Britta Sandberg in Washington


The Guantanamo prison for suspected terrorists: "We handle the matter appropriately."
AFP

The Guantanamo prison for suspected terrorists: "We handle the matter appropriately."

Lieutenant Colonel Thomas Bogar couldn't have been wearing clothes any worse than the outfit he had on the first time he traveled to Guantanamo. His uniform, which he had to keep on because removing it would have violated military protocol, was too hot for the tropics. Besides, he felt completely out of place the first time he met with his client in a small, sparse cell. Abdul Zahir, was wearing a thin brown prisoner's uniform. His feet were bare and in shackles.

American military prosecutors accuse Zahir, a prisoner at Guantanamo, of being an active al-Qaida collaborator. The Pentagon assigned Thomas Bogar, 43, a tax attorney by profession, to serve as Zahir's defense attorney. He had come to Guantanamo to speak with Zahir and earn his trust, a daunting task at the very least. Zahir, an Afghan, had spent four years being interrogated by Americans in uniform, and now he was suddenly expected to trust yet another American in uniform.

Zahir's shackles were removed, Bogar sat down at the only table in the room, and an interpreter sat down between the two men. The American had spent several weeks studying Zahir's file and was familiar with the charges against his new client: conspiracy, actively supporting the al-Qaida terrorist organization and assaulting a civilian automobile with a hand grenade.

Bogar had formed an entirely different picture of a man with this sort of history: He thought his client would be less polite, less reserved and more dangerous. Zahir and his attorney are part of a historically unparalleled legal case -- one that shines a harsh light on the inadequacies of a judicial system tailored to suit political requirements.

Legal limbo

For half a decade, the prisoners at Guantanamo have been in a state of legal limbo as they awaited their trial, but now the Americans are set to try the first of 385 prisoners still being held at the US military enclave on Cuba. The first group of prisoners arrived in Guantanamo in January 2002 dressed in orange overalls with hoods covering their heads. Former US Secretary of Defense Donald Rumsfeld called them "the worst of the worst," presenting the world with the pictures of men cowering on the ground as a victory in one stage of the war on terror.

The hooded figures were locked into cages and interrogated. It took a while, but eventually even the American specialists realized that many of the men they had imprisoned at Guantanamo were not ferocious terrorists. The wire cages were eventually replaced with concrete cellblocks.

A maximum-security cell block inside Guantanamo: Prisoners are being tried in cases that use anonymous testimony that would be banned in a civil court.
REUTERS

A maximum-security cell block inside Guantanamo: Prisoners are being tried in cases that use anonymous testimony that would be banned in a civil court.

Since establishing the camp in 2002, the Bush administration has released close to 300 of the roughly 770 prisoners with the explanation that they were "no longer enemy combatants" -- as if being imprisoned at Guantanamo had somehow had a cathartic effect on them. There have been many suicide attempts at the camp since then, three of them successful.

Although the indictment reads: "The United States of America versus Abdul Zahir," the prisoner will not face trial before a federal court or even an ordinary court-martial. Instead a ruling in his case will come from a military commission for which a separate set of laws has been invented -- a sort of Lex Guantanamo. The executive assigns the prosecutors, defense attorneys and judges. The jurors who will sit on the Guantanamo military tribunals are also exclusively members of the US military.

Zahir is one of the first ten prisoners to be indicted since the beginning of the year. The Pentagon claims it has selected the cases with the most solid evidence. The first group of prisoners to appear before the military tribunals will also include al-Qaida leader Osama bin Laden's driver, Salim Ahmed Hamdan, Australian Taliban fighter David Hicks and Canadian national Omar Khadr, the son of a high-ranking al-Qaida member.

Translator or terrorist?

Zahir is 35, but he looks 45. He was arrested in Logar province in eastern Afghanistan in the summer of 2002, allegedly on a tip the Americans received from members of an enemy clan. At the time there was a $5,000 bounty in Afghanistan and Pakistan -- a lot of money in this part of the world -- for information leading to the arrest of any al-Qaida supporter. Since then Zahir, a father of three children, has been held at Guantanamo as an "unlawful enemy combatant" as they are described in the Pentagon's parlance.

Zahir began working as a translator for the Taliban government in 1997. The current charges against him include conspiracy to commit war crimes, aiding the enemy (al-Qaida and the Taliban) and throwing a grenade at a civilian car. Zahir told Bogar that he had taken the job as a civil servant with the Taliban regime, after spending a long time looking for work, to keep his family fed. He claimed that he was unaware that some of the men he was working for were members of al-Qaida.

Bogar and his team have met with prisoner No. 753 dozens of times since that first visit in February 2006. They don't know if Zahir is telling them the truth, but they believe that the evidence against him is shaky. The classified Zahir file contains many unsigned witness accounts, making it impossible for the attorney to determine who the witnesses are. Anonymous evidence of this nature would not even be allowed in a case before a normal court-martial, but it is being permitted before the military tribunal.

"That's just the way it is. And there's nothing wrong with it, because the country is at war, even though there was never a formal declaration of war," says Brigadier General Thomas Hemingway. As the military commission's legal advisor, Hemingway authored the complicated procedural rules to be used in the trials. The 67-year-old, a highly decorated officer, was brought back from retirement to write the document.

The government has invested millions of dollars in the Guantanamo trials. The defense attorneys are permitted to travel halfway around the world to conduct their research -- to Afghanistan, Yemen, Pakistan -- and to find evidence to support their clients' cases, a difficult undertaking after so many years. "We handle the matter appropriately," says Hemingway.

But how long can "enemy combatants" continue to be held at Guantanamo? If the Pentagon has its way, only 60 to 80 of the 385 prisoners will be put on trial. But how dangerous are these men really, and who are the ones who are still being detained at Guantanamo?

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