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Guantánamo Bay has fewer detainees in the Trump Administration than it did during his predecessors’ tenure –at least, until such time as the President makes good on his promise to “load it up with some bad dudes”.  Despite this, it has never been more sinister, or at least more Kafkaesque.  Camp Justice, where the military commissions sit, is gearing up for more mockery.

The executive branch has worked hard to get to this stage, against significant resistance.  In 2006, the Supreme Court ruled that Salim Hamdan’s trial by military commission could not proceed, owing in part to its failure to conform to the Geneva Conventions.  Accordingly, if the Bush Administration had proceeded under the existing regime, it might have been guilty of war crimes.  However, Congress stepped in twice to attempt to provide a legal basis for these tribunals, and President Obama signed the Military Commissions Act of 2009, which revived the charges against such detainees as Omar Khadr, a Canadian who had been arrested as a fifteen year old, brought to Afghanistan by his father. 

Khadr was put on trial for his life under conditions that were repeatedly denounced by international observers: he was denied exculpatory evidence and access to the evidence against him (such as it was: the tribunal explicitly allowed the introduction of hearsay evidence and anonymous witnesses for the prosecution).  A number of military officials were barred from participating after attempting to exercise undue command influence, and prosecution witnesses were withdrawn in order to keep details of the torture program secret, despite the fact that evidence obtained under “enhanced interrogation” is explicitly permitted.

After numerous failures of this sort, the Pentagon is determined to proceed against its most hated detainees, the same men that they subjected to the worst forms of torture, including mock execution, a month of confinement in a coffin-sized box, and sodomy.  Unfortunately, it appears that this torture had destroyed these detainees’ minds: one of those alleged “masterminds” of terrorists attacks about to be tried was described as “the dumbest terrorist I ever met” by the CIA’s Director of Operations, while the FBI’s leading al-Qaeda specialist said another was “insane, certifiable, split personality.” Dr. Sondra Crosby described another high value detainee (Abd al Rashim al Nashiri) as having been “irreversibly damaged by torture that was unusually cruel and designed to break him”, while Abu Zubaydah, who lost an eye and suffered brain damage under torture, “cannot picture his mother’s face or recall his father’s name.”

Numerous American politicians have argued that prisoners cannot be released—even if they were factually innocent—because they have been radicalized by their treatment at GITMO; they hate America owing to being tortured by Americans.  One Republican staffer said that “whether they were radicals before they got to Guantánamo or they were radicalized while they were there doesn’t really matter.”  But there is substantial evidence that many detainees were not radicals when they got there.  In addition to clear cases of mistaken identity (including Afghans who happened to have the same name as terrorism suspects) there were numerous teenagers and even children among the detained.  Mohammed el Gharani was fourteen when he arrived at GITMO; Mohamed Jawad may have been as young as twelve at the time of his detention. 

There is also no compelling evidence that innocent detainees nurse burning hatred towards their captors.  Mohamedou Slahi endured the worst forms of torture during his fourteen year detention without charge; after his release he noted that “Anger is very painful in the heart.  So why should I be angry? Why should I pay twice?” He and his lawyers told 60 Minutes that he “forgives” and he “loves Americans”, as many--including his dauntless lawyer--supported him for years.  It is impossible to read The Guantanamo Diaries or see his smiling face and believe that he has become the racist caricature that sustains the belief that the detainees are too dangerous to release.  The same is true of Omar Khadr, who demonstrated his moral superiority to his torturers in Guantanamo’s Child, a remarkably moving documentary film.

It is possible that the flood of sympathy towards Slahi, Khadr and others has motivated the Administration and the Pentagon to stage a travesty of justice involving prisoners it tortured past the point of madness.  These are not only “show trials” in the sense of being designed to produce propaganda; they are also not true trials because they are heads-I-win-tails-you-lose propositions.  The detainees will likely be executed if found guilty, but if found not guilty, they will not be released.  This is the reason why they have been labelled “forever prisoners.”

In 2011, the Obama Administration transferred Khalid Sheikh Mohammed from the civilian justice system back to the GITMO military commissions.  When the alleged mastermind of the 9/11 attacks was arrested in Pakistan, he was photographed wearing western clothing and a short mustache.  When he appeared before the military commission in 2012, on his head he wore a shemagh wound like a turban and a white bisht worn like a hooded cloak.  The commission later gave him the right to wear a camouflage vest.  This, in combination with his flowing salt-and-pepper beard, created a striking similarity to the iconic depiction of Osama bin Laden. Kangaroo court convictions of detainees tortured into insanity because they resemble hate figures would be a new low for the United States.  Brigadier General John G. Baker—chief defense counsel for the detainees facing military commissions, provided this apt analysis:

“Justice Jackson said in his opening argument at Nuremberg: ‘We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.’ Instead of respecting the Constitution and ensuring equal protection under the law, the U.S. Government is choosing to drink from a poisoned chalice.” 

It appears that the poison is now spreading through the veins of the American body politic.  When the symptoms manifest, they may prove lethal to its constitution.  


 
 
Lawyers from the Department of Justice filed motions last week to prevent CIA Deputy Director Gina Haspel and other top officials from being forced to testify about the development of torture programs at Guantánamo Bay and various black sites. 

The lawsuit brought by the next of kin of a man killed in a CIA secret prison and others who were tortured was brought against two military psychologists, James Earl Mitchell and James “Bruce” Jessen.  This was compensation for developing a program described by the former acting General Counsel of the CIA as “sadistic and terrifying”, and which violated the laws of war and the Convention Against Torture. 

Mitchell Jessen & Associates received $81 million to develop the program, which was reverse-engineered for the military’s Survival, Evasion, Resistance, and Escape training, where pilots and others learned to resist interrogation under torture, primarily in the forms administered by America’s enemies during the Cold War and the Second World War. 

Any interrogation program developed from these techniques was certain to produce false confessions; numerous Americans--including Senator John McCain—said so.  Conversely, in the early days of GITMO, FBI interrogators complained that every time they were successful in building rapport with detainees (a process that is critical to obtaining truthful confessions) “the military would step in” and derail that process. 

Leaked memoranda confirmed that this was because Vice President Cheney and Secretary of Defense Donald Rumsfeld were determined to obtain confessions that implicated Iraq in the 9/11 attacks –which was entirely false.  This justified the creation of an interrogation that annulled any possibility of true confessions, since they were swamped by the false confessions that detainees would constantly produce in attempts to stop the torture.  It led to numerous wild goose chases that depleted the limited resources of the FBI.

Mohamedou Slahi, who was held for fourteen years at GITMO recently recounted on 60 Minutes that “they broke me. I told . . . the boss of my team, ‘You write anything and I sign it.” On that basis, Slahi confessed to a nonexistent plan to blow up the CN Tower in Toronto.  This was so blatantly untrue that the man charged with prosecuting Slahi before a military tribunal chose instead to resign.

While Slahi was later released, “high-value” detainees who will never see the light of day were subjected to considerably worse treatment.  Abu Zubayadah was subjected to waterboarding 83 times in a single month at black sites in Thailand supervised by Gina Haspel.  This technique, which involves actual asphyxiation and not merely simulated drowning, was the basis for the prosecution of numerous Japanese war criminals tried by the American authorities after the Second World War.  Zubaydah was later deemed not to have any useful intelligence. 

President Bush used the outlandish confessions obtained by torture (including that an Al-Qaeda sleeper cell would detonate a nuclear bomb in Europe were Osama bin Laden to be captured) to justify the torture program that Mitchell and Jessen sold to the Pentagon. Their work was also essential to sustaining the drive for war that allowed the United States to justify the spending of trillions of dollars (the Iraq War alone cost $2.7 trillion, which is almost three million expenditures of a million dollars) and the loss of hundreds of thousands of lives. 

The lawsuit brought against them is essential to ensuring that this will not happen again.  Mitchell and Jessen have never served a day in prison, nor have they been forced to return the $81 million the Pentagon paid them.  The CIA officials who provided the top-level oversight of torture were brought back into the Trump Administration.   Haspel was also responsible for the destruction of evidence of the CIA torture program, an action condemned by the Senate Intelligence Committee.

In attempting to stop Haspel from being deposed in the lawsuit, the Trump Administration has asserted the State Secret Privilege.  In effect, this is an admission that she possesses information that would put the national security of the United States at risk.  Is this because she was appointed in order to revive a program designed to produce false confessions?  Trump has floated the possibility of reviving torture programs, although he has yet to do so. 

Trump’s appointment of Haspel to a position of great responsibility (which pleased hardliners on Syrian intervention, such as Clinton partisan and former Deputy CIA Director Michael Morell), which occurred even as her testimony was sought in the torture lawsuits, is the clearest indication yet of the possibility that the Trump Administration will continue the path of endless war on false premises in the Middle East, which led Bush to a quagmire (in Iraq) and Obama to create devastation (in Libya).  Nothing would be more dangerous to the rule of law, and potentially more useful to the erection of a durable Perónist regime in the United States.