So a closely guarded secret -- that a tortured man was offered a plea bargain in exchange for his silence, in a kangaroo court dreamt up by powerful men with utter contempt for the law -- is finally out of the bag.
The tortured man is, of course, Binyam Mohamed, the British resident whose 18-month ordeal in Morocco, at the hands of the CIA’s proxy torturers, and subsequent stay in the CIA’s “Dark Prison” near Kabul, made him one of the better-known torture victims of the Bush administration over the last year, as his case was heard in court rooms on both sides of the Atlantic.
The powerful men are former US Vice President Dick Cheney, and his chief of staff, David Addington -- the prime architects of Guantánamo’s irresponsibly novel Military Commission trial system -- and the proposed plea bargain (PDF), formulated last September and October, was, for a while, regarded by Binyam himself, and by his lawyers, as the only means whereby he could escape from being imprisoned indefinitely in Guantánamo as an “enemy combatant.” Binyam would have pleaded guilty “to being the Pope himself” if it would have ended his ordeal, Clive Stafford Smith, the director of the legal action charity Reprieve, said on Monday.
This was in spite of the fact that the deal itself was a shady bit of horse-trading in which torture was placed on one side of justice’s scales, and weighed up against a carefully calibrated package involving a supposedly lenient sentence, an end to Binyam’s claims that he was tortured, a partial confession to charges extracted through the use of torture, and a pledge that he would remain silent about what happened to him for the rest of his life.
The British judges -- Lord Justice Thomas and Mr. Justice Lloyd Jones -- were drawn into Binyam’s case last summer, in a judicial review that was triggered after his lawyers asked the British government to provide whatever information ministers were holding regarding British knowledge of Binyam’s rendition and torture, and sued them when they refused. In an extraordinary ruling in August, the judges were severely critical of the role of the British intelligence services in the first eleven months after Binyam was seized by Pakistani police at Karachi airport in April 2002 -- particularly because MI5 had sent agents to interrogate him in May 2002, even though it was clear that he was being held illegally in Pakistan, and because the intelligence services had provided and received intelligence about him from July 2002 until February 2003, even though they had not been told where he was being held, and should not have been involved without receiving solid assurances about his welfare. “[B]y seeking to interview BM [Binyam] in the circumstances found and supplying information and questions for his interviews,” the judges wrote, “the relationship between the United Kingdom Government and the United States authorities went far beyond that of a bystander or witness to the alleged wrongdoing.”
The judges also indicated that they thought that information contained in 42 documents in the possession of the British government, which related to this period, should be made available to the public, but they bowed to pressure from the Foreign Secretary, David Miliband, who argued that it was not in the interests of national security to release the documents, and that their disclosure would damage the relationship between the British and American intelligence agencies.
However, the judges were reluctant to let go of the issue, and as further hearings followed -- in response to developments in the United States, where Binyam’s habeas corpus claim was finally reviewed, following a significant Supreme Court ruling in June -- they kept returning to the documents, and, in particular, to a brief summary of their contents, written by the judges themselves, which had been withheld from their initial ruling at David Miliband’s request, but which they regarded as being “of considerable importance in the context of open justice.”
In October, after Judge Emmet Sullivan, in the US, pressed for the release of the 42 documents to Binyam’s lawyers, the Justice Department responded by handing over just seven of the documents, heavily censored, and then proceeded to drop the main charge against Binyam: that he had been involved in a plot to detonate a radioactive “dirty bomb” in New York. As the case unravelled, the British judges met again, and it was at this ruling -- just two days after the charges against Binyam were also dropped for his trial by Military Commission -- that they wrote the annex about the proposed plea bargain that was finally released on Monday.
The plea bargain unveiled
In the annex, the judges explained that, in late August, when Clive Stafford Smith and Binyam’s military defense attorney. Lt. Col. Yvonne Bradley, had been asked if Binyam was “open to a plea agreement,” they responded by outlining the terms under which they were prepared to agree to a plea; essentially, that Binyam would enter a nolo contendere plea (literally, “no contest,” a peculiar arrangement whereby the accused neither confirms nor denies his guilt, but is sentenced anyway), and that the sentence should be no more than three years, and should grant him “credit for the time served since he was originally charged on 4 November 2005” (in the Commissions’ first incarnation, which was ruled illegal by the US Supreme Court the following year). The lawyers also requested that Binyam’s return to the UK would be guaranteed, and that he would not, under any circumstances, be required to “remain in GuantánamoBay to be a witness against others.”
In response, the prosecutor, Lt. Col. Darrel Vandeveld, explained that the only arrangement available involved a sentence of three years, with no credit for time served, and also Binyam’s agreement that he would testify against others. He added, “This agreement will give [BM] a date certain for his release of course, and he avoids the possibility of an even harsher sentence with no guarantee that at the end of which, he will not continue to be held until the end of hostilities.”
This email was one of the last that Lt. Col. Vandeveld sent in connection with his role as a prosecutor. Soon after, he asked his superiors “to be permitted to leave the Commissions,” as a result of concluding, through his experiences in the case of an Afghan prisoner, Mohamed Jawad, that the prosecution office was irredeemably chaotic, that “potentially exculpatory evidence” had “not been provided” to Jawad’s defense team, so that it was “impossible for anyone in good conscience to stand up and say he or she is provided all the discovery in a case,” and that his accidental discovery of information relating to Jawad’s abuse in US custody had converted him from a “true believer to someone who felt truly deceived.”
Lt. Col. Vandeveld speaks
In a conversation on Tuesday, Lt. Col. Vandeveld confirmed the account presented by the judges, but added that his plan was rejected by the Chief Prosecutor, Col. Lawrence Morris, who insisted that he would settle for nothing less than a “double-digit sentence.” This also corresponds with the information presented to the British judges, who noted that discussions of a plea bargain for Binyam had first arisen in an atmosphere in which the US government “had not indicated whether it would seek the death penalty, but had made it clear that they would seek at least a term of imprisonment of 30 years,” and that, “even if he were acquitted he would still be detained as an ‘enemy combatant’ until the ‘war on terror’ was over.
This was clearly intolerable to the judges, who noted, with a typical restraint that failed entirely to mask their incredulity,
It is uncertain to us when the “war on terror” will be over, but we note in the dissenting opinion of Justice Scalia in Boumediene v. Bush [the ruling establishing the prisoners’ habeas corpus rights], that Justice Scalia considers the war began when “the enemy began by killing Americans and American allies abroad.” The first event he recites is the death of 241 at the Marine barracks in Lebanon. That was over 20 years ago.
On September 5, just four days before Lt. Col. Vandeveld was “removed” from his role as prosecutor (as he described it to me), he sent another email, this time explaining that “an additional year would be supported by the Chief Prosecutor,” rather than the three-year sentence initially proposed, but this arrangement faltered over plans for Binyam to serve this one-year sentence in the UK, because, as the judges explained, “the United Kindgom would not accept that BM could serve the balance of his sentence in the United Kingdom if a plea agreement was reached.”
The judges also noted that Lt. Col. Vandeveld concluded his email by “stating that the claims BM made about torture could be disproved and that BM knew his claims were false.” In my discussion with Vandeveld, I asked him about this statement, and about how it squared with his belief, stated last September,
that he was “highly concerned, to the point that I believe I can no longer serve as a prosecutor at the Commissions, about the slipshod, uncertain ‘procedure’ for affording defense counsel discovery,” which “deprive the accused of basic due process and subject the well-intentioned prosecutor to claims of ethical misconduct.”
Lt. Col. Vandeveld explained that he was unable to discuss Binyam’s case or even the facts of the case in general, for reasons related to national security. He did note, however, that he strongly stood by the statements he made in emails released by the High Court. As a result of the restrictions on what he is able to discuss, Vandeveld refused even to confirm that Binyam had been held in Morocco. However, given his statements in another Commission case -- that of Mohamed Jawad -- it seems probable that he made the emailed comments because he had not been presented with any evidence proving that Binyam had been mistreated in US custody from January 2004 onwards, when he was flown to Afghanistan from Morocco (or, as the US authorities would have it, from the undisclosed and unacknowledged location where he was held for 18 months).
When confronted with this scenario, Lt. Col. Vandeveld again declined to comment, but it is worth noting, in this context, that, in a submission for Mohamed Jawad’s habeas corpus case in January, Vandeveld declared that, because it was impossible to certify that discovery had been made in a case as simple as Jawad’s, “no Commissions prosecutor could make such representations accurately and honestly” in any other case. At the time, he also added:
The chaotic state of evidence, overly broad and unnecessary restrictions imposed under the guise of national security, and the absence of any systematic, reliable method of preserving and cataloguing evidence, all of which have plagued the Tribunals and Commissions since their inception … make it impossible for anyone involved (the prosecutors) or caught up (the detainees) in the Commissions to harbor even the remotest hope that justice is an achievable goal.
Speaking to me on Tuesday, Lt. Col. Vandeveld reiterated that these fundamental problems ran through the entire system, and that there was, to his knowledge, not a single case that was uncontaminated. However, he specifically refused to attribute these travails to any party involved in the Commissions process, stating only that “the goal of achieving criminal justice sometimes conflicted with an equally important element of national security -- intelligence gathering.”
Third time unlucky
A third attempt at arranging a plea bargain took place on October 20, after Lt. Col. Vandeveld’s departure, and, as the judges noted, “at the same time as the Convening Authority [Susan Crawford, a retired judge and protégée of Dick Cheney, who was responsible for deciding which cases should go to trial] dismissed the charges.” Again, the judges found the terms so shocking that they presented a detailed analysis.
In exchange for pleading guilty to two charges, and on the understanding that “the maximum statutory penalty, should his pleas of guilty be accepted for each charge, was confinement for life,” Binyam was assured that “the maximum period of confinement that would be adjudged and approved would be ten years, but the Convening Authority would order the suspension of the balance of the sentence over one year.”
However, in exchange for this one-year sentence, he had to “agree and accept as true an attachment setting out the facts supporting the charges.” This was not presented to the judges, so they had no idea what it contained. Moreover, he had to “agree to submit to interviews and to appear before courts or Military Commissions to testify” if requested by the US government, and it was left to the discretion of the Convening Authority to “decide that if BM failed to comply” with the provisions relating to his role as a witness, she “could vacate the suspended portion of the sentence and order it to be served in full.”
Moreover, Binyam was also required to agree “not to participate in or support in any manner any litigation or challenge, in any forum, against the Untied States or any other nation … with regard to [his] capture, detention, prosecution, post conviction confinement and detainee combatant status,” and was also required to dismiss any claims -- either ongoing or in the future -- challenging any of the above, and to assign to the US government “all legal rights” to implement these provisions on his behalf.
In other words, he would receive a one-year sentence, but only if he stayed silent about what happened to him, and was prepared to be a witness in whatever cases the US government proposed for the rest of his life. As the judges noted,
It was submitted to us that the effect … of the proposed agreement is that BM is being asked by the US military prosecutors to abandon his claim before this Court to obtain disclosure and not to bring any further actions in respect of his rendition and torture. It is also submitted that BM is being asked to agree this plea in circumstances where there are no pending charges against him, where he has no idea how any new charges against him will be framed and where he is not to receive sight of the 42 documents.
In addition, the judges noted that Clive Stafford Smith had stated,
There are other conditions being imposed by the prosecution. Mr. Mohamed must sign a statement saying he has not been tortured, which would be false. And he must agree not to make any public statement about what he has been through, which in my opinion would be an illegal restraint, contrary to public policy -- how can anyone agree to remain silent about criminal offences committed against him, and how can any criminal prosecutor, acting properly, seek to impose such a condition?
A shocking corollary
This was extraordinary enough, but an even more shocking corollary was added on Tuesday, when Reprieve reported that, in early January this year -- just six weeks before Binyam’s release -- “the US military was still desperately trying to get Mr. Mohamed to plead guilty to something -- anything -- in order to save face.”
The final “offer,” as Reprieve explained, was that Binyam “should plead guilty and receive a sentence of only ten days in prison, less than one might expect for many driving offences.” Clare Algar, Reprieve’s executive director, added, “Mr. Mohamed rejected this offer, as he continued to insist that he was not guilty. Offering a man who is protesting his innocence freedom on the condition that he pleads guilty to something and serves a ten-day sentence is face-saving on an horrific scale.”
Lt. Col. Vandeveld was, however, less critical of the eleventh-hour offer. When I spoke to him, he said, “To offer a ten-day sentence in exchange for a suspect’s supervening human rights would be such a transparent ploy to silence a suspect, that to do so would be not only morally incorrect, but asinine, so I find it hard to believe that there was any nefarious purpose behind the final offer.” He said that he could ascribe no motive for the final plea offer, but as he explained so eloquently in the Jawad case, the Commissions were “incapable of delivering justice,” and it is, I believe, more appropriate to regard Col. Morris’s desperate, last-ditch attempt to salvage some credibility for the Commissions as symptomatic of what happens when military officials -- however well-intentioned -- find themselves caught up in a fatally flawed system that fails to live up to the high standards required by both the US legal system and the US military’s Uniform Code of Military Justice.
In an email, Col. Morris responded to a request for background information about the story. Noting that, in the Commissions process, “a prosecutor can only make a recommendation regarding terms of a plea, but all terms must be approved by the independent convening authority,” he stated,
Of course I couldn't and haven't commented on plea negotiations, as I owe the assurance to the system, including future persons we might negotiate with, that our candid and confidential discussions will remain that way, regardless of what's reported and what might be inaccurate in that reporting. So I will bear that cost in this incident as well.
It is unremarkable that there were negotiations; the fact of negotiations, which we all know and I know especially well from my years as an Army public defender, is not necessarily an indicator of guilt, and a range of terms discussed does not necessarily represent either side's commitment.
So who’s to blame?
With this response, I believe Col. Morris confirmed that the murky world in which he, Binyam Mohamed and Binyam’s lawyers found themselves was not one of his own making, and those of us searching to understand how a recognized component of US legal processes became used to trade allegations of torture in exchange for freedom and silence need to follow the chain of command from the prosecutors -- via the ambiguous figure of Susan Crawford (who, as Col. Morris noted, had the final say over all plea negotiations) -- to Dick Cheney and David Addington, the architects of the arrogant and counter-productive Commissions process, and also to the politicians who voted to revive the Commissions, after the Supreme Court killed them off in June 2006.
For Cheney and Addington, of course, the reins of power have now been removed from their vice-like grip, but the politicians who voted for the Military Commissions Act in the fall of 2006 ought not only to be ashamed of what they did, but also to be told, in no uncertain terms, that the next time some bright spark turns up suggesting that a modified version of the Commissions needs to be implemented for the two dozen prisoners at Guantánamo who are regarded as genuinely dangerous, they should atone for their previous negligence by refusing to have anything to do with it.
As Barack Obama declared in August 2007 (and as I will repeat until he fulfills his promises), “Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists … The separation of powers works. Our Constitution works. We will again set an example to the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.”