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Afghan Nobody Faces Trial by Military Commission
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08/01/2010

Yesterday evening, the Associated Press reported that, in court filings, Justice Department lawyers stated that Attorney General Eric Holder has decided that a sixth Guantánamo prisoner — an Afghan named Obaidullah — will be put forward for trial by Military Commission. On November 13, when Holder announced that five prisoners — including Khalid Sheikh Mohammed — would face federal court trials for their alleged involvement in the 9/11 attacks, he also announced that five other men, previously charged in the Bush administration’s Military Commissions, would be tried in a revamped version of the Commissions that the administration and Congress concocted over the summer.


Notwithstanding the weaknesses of the Military Commission trial system (some of which emerged in its first faltering outing last month), and the very real fear that it is being used by the Obama administration as a second-tier system of justice, the decision to charge Obaidullah is particularly dispiriting, as he is so clearly a peripheral character of such insignificance that putting him up for a war crimes trial risks ridicule.


As I explained in September 2008, when he became the 18th prisoner to be put forward for a trial by Military Commission, he was


charged with “conspiracy” and “providing material support to terrorism,” based on the thinnest set of allegations to date: essentially, a single claim that, “[o]n or about 22 July 2002,” he “stored and concealed anti-tank mines, other explosive devices, and related equipment”; that he “concealed on his person a notebook describing how to wire and detonate explosive devices”; and that he “knew or intended” that his “material support and resources were to be used in preparation for and in carrying out a terrorist attack.”


As I also explained:


It doesn’t take much reflection on these charges to realize that it is a depressingly clear example of the US administration’s disturbing, post-9/11 redefinition of “war crimes,” which apparently allows the US authorities to claim that they can equate minor acts of insurgency committed by a citizen of an occupied nation with terrorism.


This was not all. In his Combatant Status Review Tribunal and Administrative Review Boards at Guantánamo (the military review boards established to ascertain whether he had been correctly designated as an “enemy combatant,” and whether he still posed a threat to the US), he made it clear that he had made false allegations against himself and another Afghan prisoner still held — a shopkeeper named Bostan Karim — because of the abuse he had suffered, at the hands of US forces, in a forward operating base in Khost and in the main US prison in Afghanistan, at Bagram airbase.


The following exchange, from his ARB in 2005, when he explained that he had been “forced” to make false confessions about Karim while held in Bagram is particularly enlightening:


Board Member: Who forced you to say things?

Detainee: Americans.

Board Member: How did they force you?

Detainee: The first time when they captured me and brought me to Khost they put a knife to my throat and said if you don’t tell us the truth and you lie to us we are going to slaughter you.

Board Member: Were they wearing uniforms?

Detainee: Yes … They tied my hands and put a heavy bag of sand on my hands and made me walk all night in the Khost airport … In Bagram they gave me more trouble and would not let me sleep. They were standing me on the wall and my hands were hanging above my head. There were a lot of things they made me say.


Back in September 2008, I concluded my article by asking, “So tell me, after reading this: does charging Obaidullah for ‘war crimes’ look like justice?”


With the news that Obaidullah is to be charged again, when he is not actually accused of harming a single American, and when he may, in fact, have been tortured, through sleep deprivation and “Palestinian hanging,” to produce false confessions against himself and at least one other prisoner, leads me not only to repeat the question, but to actively call for the open mockery of Attorney General Eric Holder and the lawyers and bureaucrats in the Justice Department and the Pentagon who thought that reviving the charges against him was a good idea.


POSTSCRIPT: No one seems to be entirely sure if Obaidullah is the sixth or the seventh prisoner to be put forward for trial by Military Commission under Obama. On December 11, as Carol Rosenberg reported for the Miami Herald, the Pentagon withdrew charges “without prejudice” against Mohammed Kamin, an Afghan accused of “joining al-Qaeda and then conducting surveillance on US and allied troops.” As Rosenberg also explained, “The move by the prosecutor’s office averted a hearing next week” in Kamin’s case, “and derailed at least temporarily Kamin’s lawyers federal appeals court challenge in Washington, D.C., to the constitutionality of military commissions.” She added, however, “Pentagon officials have said they would refile charges against Kamin, who has been described as an ‘al Qaeda scout’ in his homeland, using new regulations approved by Congress in the Military Commissions Act of 2009.”


For information about Mohammed Kamin’s experiences of the Military Commission trial system under George W. Bush, see here (when, after he was first charged in March 2008, I described him as “an unworthy candidate for any kind of war crimes trial at all”), here and here, where he boycotted his hearings, see here for a report on his pre-trial hearing in September last year, and see this report by David Danzig of Human Rights First of his last pre-trial hearing on November 19, six days after Eric Holder announced that five men would face trials by Military Commission — but did not include Kamin. As Danzig explained:


Mohammed Kamin is, in the words of his defense attorney, “someone who almost no one in the western world has ever heard of.”


When Attorney General Eric Holder announced on Friday that the five men charged with conspiring to plan the 9/11 attacks would be moved to federal court, there was no mention of what would be done with Kamin.


It was unclear how — if at all — a Department of Justice-led review of detainees held at Guantanamo might impact the case against Kamin. No one had bothered to tell his lawyer.


“The fact that we are standing here in this courtroom today suggests that we are going to proceed to military commissions,” Navy Lt. Cmdr. Richard Federico, the military attorney charged with defending the Afghan detainee, said uncertainly at the beginning of the proceedings today. “That would be my assumption too,” chipped in Judge Thomas Cumbie.


Source  : Andy Worthington