by Clive Stafford Smith, Nation Books, October 1, 2007, 1568583745
Clive Stafford Smith is a lawyer for
Reprieve, which "provides frontline investigation and legal representation to
prisoners denied justice by powerful governments across the world,
especially those governments that should be upholding the highest
standards when it comes to fair trials."
The book is about Guantanamo, but Smith lets us know there are many
other secret prisons operated by the U.S., such as the one off the
island of Diego Garcia in the Indian Ocean. The U.S. Government is
operating these prisons without oversight and against the Geneva
Conventions to which the U.S. is a party. The prisons are holding
prisoners illegally and unquestionably torturing them.
There are even prisoners designated No Longer Enemy Combatants (NLECs)
by the U.S. Military itself are still being held, even though they
have acquitted by the military tribunals. These prisoners were branded
the "worst of the worst" and "bad men" by the highest levels of the
U.S. Government, but they aren't and never were. The majority were
sold by bounty hunters, like slaves at a market, for the princely sum
of $5,000 each, that's five or six years income for an ordinary
The majority of the Guantanamo prisoners are innocent and fortunately
many have been set free, but some of the most abused are now
psychotic, and are still prisoners Tortured into psychosis by the
U.S. Military, and now the U.S. has to figure out what to do with
them. No country will take them.
What's worse is that beyond Guantanamo, there are some 14,000
prisoners in U.S. custody or who have been transfered to 3rd parties
to be tortured. Are they are innocent? Were they arrested due to
some coerced confession by other prisoners? A mountain of lies
created by the misguided idea that torture is necessary and can
extract useful and true information.
Smith enters into the torture debate by interviewing various people,
some who have freely admitted to forceful interrogations. Others,
like Richard Perle & Alan Dershowitz, are academics who have never
tortured nor been interrogators, and approach the torture debate as a
theoretical exercise with the classic argument about the "ticking time
Smith demonstrates the ticking bomb theory is irrelevant, because it
has never happened, and none of the reasons the U.S. or their proxies
are torturing people today has even the remotest connection with a
ticking bomb. For the most part, it seems to me and Smith documents,
the torture has more to do with proving the guiltiness of those who
are being tortured or their non-compliance with irregular and brutally
enforced prison rules.
Needless to say that I'm horrified by Guantanamo. Fortunately, I
didn't write this book, Smith did. He writes well, clearly, and
unemotionally. Given his secret clearance from the U.S. Government
and his many visits to Guantanamo, he also has knowledge that I do not
have, nor would be able to get. I'm too emotional to be his position,
and I'm admire him greatly for fighting for justice for people who
have had all rights taken away from them.
[p4] I go outside, planning to walk down the road to find some kind of
dinner. The motel sign bears the base motto: 'Honor Bound to Defend
Freedom'. Freedom is a relative term. Iguanas are free enough on both
sides of the island and if a soldier accidentally runs one over it's a
$10,000 fine, since the US environmental laws apply in
Guantanamo. Meanwhile, several hundred prisoners are more than five
years into captivity. If a jailer feels the need to hit one of them,
it's called 'mild non-injurious contact' and there are no
consequences. For these prisoners it's a law-free zone. In 2004 we
argued in the Supreme Court that it would be a huge step for mankind
if they gave our clients the same rights as the animals on the
base. 'Equal rights with Iguanas!' became our clarion call.
[p28] 'Now translate the issue of innocence into the context of
interrogation; what proportion of people are we willing to torture
erroneously, because we just got it wrong, before that invalidates the
whole process of torture?' I asked.
'Well, I would think it would have to be a very small percentage, much
smaller than the death penalty,' [Michael Levin, inventor of the
ticking-time-bomb torture theory] said reflexively.
'So what you're saying is we're willing to torture fewer people who're
innocent than execute them?' I was intrigued. I wouldn't want to be
tortured, but I'd rather that than being tortured to death. I had
witnessed two clients die horribly in the electric chair.
'Many fewer, because torture's not a punishment, right? It's not a
punishment, it's to prevent harm. And so you really, in that case, you
have to be very, very sure that there's harm on the horizon.'
That seemed a strained distinction. He had said he would hesitate
before he would torture someone plotting to take thousands of
lives. He wanted to be more careful about inflicting pain under those
circumstances -- where innocent people suffer but they don't die --
than he would be when society was executing a human and where history
suggested society made plenty of mistakes. Perhaps he had a point,
though: far fewer people would agree with 'torture' as a proposition
than with the death penalty. But where did that leave us on Levin's
theory about the ticking time bomb, the cornerstone of his torture
'Can you identify, though, for me ...' I began. 'Can you identify one
instance, say, in the last fifty years where torture was a real
practical thing we could have done to avert a ... a massive disaster?'
'Well,' Levin pondered. 'I can't think of anywhere, with 20/20
hindsight, we might be able to say -- well, they suspected these guys
at the aeroplane gate, they were acting funny, if only we had known
and we'd squeezed the information out of them right then and there,
[p29] diverted the flights ... of course, you couldn't know that until
afterwards. Unless you've got a candidate, I can't think of one at the
So we had a theory, but it seemed to have no practical application.
Meanwhile I had what I had come for: a relatively coherent advocate
for the torture position. I found my discussion with him very
disturbing. Far from being my imaginary bogeyman of neocon extremism,
he had been pleasant and not totally unreasonable. I could see his
students lapping all this up.
[p48] Various people I had interviewed had noW made their case for
torture and sometimes against. The ticking-time-bomb hypothetical,
perhaps the most compelling argument in favour of torture, had been
rolled out by every torture apologist I had encountered. Mike Baker
denied that such an event ever took place during his time with the
CIA. Indeed, with each person I interviewed - Professor Levin,
Professor Dershowitz, Richard Perle and Big Bill Cowan - I gave them
500 years to come up with an example. Nobody could identify one
instance where a catastrophic bomb had been defused by torture.
It is this ticking-time-bomb myth that is used to justify the
nightmare of torture.
[p117] 'I am telling you that you need to put it down or it is going
to be put away.'
'So it is a new rule?' Binyam wanted Kohlmann to admit that these were
being made up as we went along.
'Mr Muhammad, there are rules of court, OK?' said Kohlmann, impatience
now showing through. 'I can establish additional rules of court for
the conduct of these proceedings, OK?'
'OK, so we have a new rule, "No more signs in the court"?' Binyam
said. 'Because I want to follow the rules. I don't want to be here and
you think, "Oh, look at this idiot." You said I have to obey the
rules. I asked about these rules. There is nowhere where it says that
I can't have a sign in the court. Now if there is, and if there is
not, just tell me, because I will not do it.'
'I am telling you as the Presiding Officer in charge of the proceeding
that we are not going to have signs held up.'
'OK, sir, that is a new rule,' Binyam concluded, obediently putting
down his sign on the desk, sensing that after waving it around for
almost ten minutes he had already won this skirmish.
Binyam turned the conversation to what he would, and would not, be
allowed to say, asking Kohlmann to give him some more guidance, since
the made-up rules were proving incomplete. Of course, this
incompleteness was inevitable. In Britain, lawyers have been arguing
about the law for 800 years since the Magna Carta, and they still
cannot agree what the rules are. The idea that someone in the Pentagon
cnuld create a new legal system out of the whole cloth, publish it on
30 April 2003, and expect there to be no challenges to it was risible.
Kohlmann lectured Binyam on how he would not be allowed to talk in
court all the time. The colonel had figured out that his earlier
effort to appear accommodating was backfiring, as Binyam was proving
far better prepared and more eloquent than the other prisoners who had
appeared in earlier commission hearings. Some of them came from Yemen
and Saudi Arabia, and barely spoke English. It was hard for them to
control a courtroom since they were dependent on translators.
'You are also going to have to be guided by appropriate standards of
civility.' Kohlmann said, laying down another rule about the times
Binyam could speak in public, 'which, in my view, would not include
... the use of words like "crap" or "shit", OK? That is impolite
[p118] Joe and I were still sitting in the audience and it was
difficult not to smile.
Binyam had used the word 'crap' more than once. 'That is impolite,'
Binyam repeated out loud, as if he were reflecting over the word. I
sensed that he was considering how he had been 'impolitely' tortured
for a couple of years.
'And you did all of those things just now and you need to stop doing
that. Otherwise, you are not going to be allowed the leave that I have
been granting you, OK? I will need to clamp down on that a little
'Let me have .. .' Binyam began, but Kohlmann was not going to let him
back in yet.
'Don't use bad language,' Kohlmann re-emphasised. 'You can make your
point, "I think the rules for the proceedings are absurd." OK, that
works just as well as "This is crap," OK?'
I almost choked. Here was a quote out of the mouth of the colonel in
charge of the tribunal -- 'I think the rules for the proceedings are
absurd.' Well put, I thought.
'And you seem like a rather articulate fellow to me and I think you
can probably make your points without bad language.'
'Actually, Islam teaches us not to use bad language, but .. .'
'I didn't hear you.'
'Islam teaches us not to use bad language but sometimes I can't
control, so it just comes out.'
'OK, well try.'
'I am trying to restrain myself as you are trying to restrain
yourself, but I just ... I want to understand,' said Binyam, thinking
he had allowed Kohlmann enough of the talking for a while. 'You say
"impolite" and I think it is impolite to have a person tell you that
people outside have lawyers who advise them and don't have to have
them in the courtroom. And you say, "You know what, I don't care." I
think that is impolite. I think you should say, "You know what, 1 have
to go and make an investigation on this.'
'I will give you one minute here.' Kohlmann looked at his
wrist. 'Because you are kind of starting up again, all right?'
'I don't need it.' Binyam looked down and started writing something,
pointedly ignoring the colonel.
[p150] Four years later the US had given up on the idea that Yusuf was
an al-Qaeda financier, but they still hadn't yet worked out his real
age. According to the unclassified allegations still pending against
him in 2005, Yusuf had been 'identified as belonging to a London,
United Kingdom cell led by Abu Qatada al-Masari, circa 1998'. Abu
Qatada may have become well known later, when the British government
detained him in Belmarsh for his allegedly extremist views, but at the
time Yusuf had never heard of him. In 1998 Yusuf would have been
eleven and he must have been beamed over to the al-Qaeda cell meetings
by the Starship Enterprise, since he had never left Saudi Arabia by
[p156] I only learned that Sami had been found innocent on my next
visit, two months later on 3 July, now eight months after his
CSRT. During our meeting Sami heaped scorn on his captors, telling me
how they had come to his cell with the good news. Because of his
previous 'noncompliance' they were holding him in an orange uniform,
without any of the' comfort items' that the Pentagon boasted were
available to the prisoners.
'So when I was found innocent, what did the US military do?' he
demanded, his voice becoming shrill, almost hysterical. 'They came to
Camp Five and offered me a white uniform instead of the orange
one. They gave me a water bottle and a comb for two days, and then
they took them away again. That is what it meant to be innocent. I
refused their white uniform. To me innocence means more than this. It
He was an [Not Enemy Combatant (NEC)] and, according to Navy Secretary
England's promise, he deserved immediate release. Yet even when Sami
told me what had happened I could not at once proclaim his right to be
sent home. According to the security rules, his status as an NEC was
When I was eventually able to petition a court for his release, the
Administration's response was bizarre: first their lawyers refused to
'admit or deny' that he had won his CSRT. Next they said that Sami was
not an NEC, as that designation had now been changed. He and the other
thirty-seven who had miraculously won their CSRTs were not NECs, but
had been redesignated as NLECs - 'no longer enemy combatants'. In
other words President Bush had been correct to designate Sami as an
enemy combatant, but the US had generously [p157] decided that he had
changed his wicked ways. Under the law, we were told, Sami had no
right to release, as an enemy combatant could still be held for the
duration of the conflict, even if he was no longer dangerous.
In August I complained loudly to the court about Sami, as he was still
being held in Camp Five. So the military moved him to Camp Iguana,
which had originally been constructed for the three Afghani juveniles,
where conditions were far better. I was relieved that at least he was
in a better place.
Sami was released from Guantanamo to Egypt on 30 September 2005, a
year after the CSRT cleared him, and I talked to him on the
telephone. It was only then that I learned the truth. The military had
apparently moved him to Camp Iguana so they could represent that he
had been transferred to better conditions. But a few hours later he
had been moved back to Camp Five, where he remained until he was
Sami al Laithi's case had been a rare one. He was one of just thirty
eight men to have been found innocent at a CSRT (or, at least, longer
guilty). This left more than ninety per cent of the prisoners in
Guantanamo as 'guilty' according to the wallaby courts that the
military had established. At the core of the debate regarding the
truth, what was going on in Guantanamo was whether the Bush
Administration had accurately identified the prisoners as enemy
combatants. Gradually it has become clear that Guantanamo was the
mother of mistakes -- an analysis of the allegations against the
prisoners reflectled that fifty-five per cent are not even alleged to
have ever taken part in hostilities.
From the beginning I had my doubts -- not because I mistrust, the
military's motives, but because I doubted their ability to work out
who among the billion Muslims in the world were the real
terrorists. Osama bin Laden would be easy to identify if only they
could catch him, since he kept making appearances on television. With
others it would not be so simple.
[p161] Some might say that the system is badly constructed, that the
'fittest' people for the job of prosecutor are not 'surviving' the
selection process. Yet the problem is that people disagree on the goal
of the prosecution function. American career prosecutors are uniquely
'fit' for the purpose of ensuring that people get locked up; they are
just not so good at ensuring that the right person gets locked up or,
equally important, that mistakes get rectified. Lawyers quote the
aphorism, 'Better that a hundred guilty go free than one innocent
person is imprisoned.' If we truly meant it, we would structure the
system very differently and press a person who is less comfortable
This flaw permeates every step of the American criminal justice
system. Wishy-washy former social workers rarely become police
officers. Those who doubt their ability to pass judgement on a fellow
human do not angle for judicial office.
The same is true of jurors. When faced with the awesome task of sitting
on a jury, someone who feels inadequate is given plenty of opportunity
under the American legal system to slide out of the courtroom. As a
result, those who end up on the jury tend to be confident in their
ability to condemn. Every time a Death Row prisoner has been
exonerated -- well over a hundred in the thirty years since America
reinstituted capital punishment -- twelve jurors have conferred and
decided he was guilty beyond a reasonable doubt, before going even
further: deciding he should die.
[p163] For four years, for the most part the military successfully
refused to disclose the names of the prisoners, let alone the basis
for their etention. As various people -- lawyers and journalists -- sued
and convinced the federal courts to order the release of documents about
Guantanamo Bay, our legal team divided them up for analysis. Prossor
Mark Denbaugh, at Seton Hall University Law School, had his students
analyse the allegations made against the prisoners in their CSRTs. These
represented the best case the military could make against each prisoner
and revealed that ninety-five per cent had not been been into custody
by US troops -- they had been turned over by the Pakistanis and the
anti-Taliban Northern Alliance, usually in exchange for large
bounties. Ninety-two per cent were not even accused of being al-Qaeda
fighters, let alone proven guilty.
Gradually American officials began to admit in public that the
prisoners were not all superterrorists.
'Only like ten per cent of the people at Guantanamo are really
dangerous, [and] should be there, and the rest are people that don't
havve anything to do with it,' said a CIA operative, speaking
anonymsly to a PBS television station in April 2004. They don't even
understand what they're doing here.' He had spent a year working at
base when he reached this conclusion.
'There are a large number of people at Guantanamo who shouldn't
there,' said another former interrogator to the
Wisconsin State Journal in August 2004. 'They have no meaningful
connection to al-Qaeda or the Taliban.'
'Sometimes we just didn't get the right folks,' said Major-General
Hood. This time it was the commander at Guantanamo acknowging the
possibility of error to the Wall Street Journal in January 5.
What was the reason those 'folks' were still in Guantanamo months
[p177] At the end of November 2001 the war had already peaked and Sami
[al-Haj, an al-Jazeera cameraman -- not same as Sami mentioned
earlier] went with the crew back to Pakistan. Yousef was recalled to
Qatar, but the station asked Sami to consider returning to Afghanistan
with a new correspondent, Abdulhat Sadah. This time Sami never made it
past the border.
It is not clear why he was initially stopped by the Pakistanis,
although piecing it together from his interrogations, the US
authorities seem to have requested his detention, thinking he had
filmed an al-Jazeera interview with Osama bin Laden. Presumably
they hoped that if they interrogated him they would learn clues as to
bin Laden's whereabouts. If this was true there would have been a
simple expedient: they could have asked politely to speak with Sami,
in which case he would have agreed, and they would have learned of
their mistake. The bin Laden interview had been done by another
Instead, Sami ended up in Guantanamo Bay.
[p179] There was significant circumstantial evidence that the
Admintration was waging a broad offensive against the [al-Jazeera]
television station, allenging the journalists' freedom of
expression. Four times the US authorities had searched the al-Jazeera
offices or hacked the website because of its criticism of the Iraq
war. Three al-Jazeera journalists were arrested by US forces.
Al-Jazeera offices were bombed in both Afghanistan and Iraq,
resulting, in Baghdad, in the death of one of their correspondents,
[p180] The missile seemed to have targeted the electric generator on
the roof to stop al-Jazeera from broadcasting. Whether this was true
or not, the US military certainly knew that this was al-Jazeera's
st the background of this campaign against al-Jazeera, what rned about Sami's ongoing interrogation in Guantanamo was
urbing. In the first hundred-plus sessions the US military never d a question about the allegations against him, as they were only 'ested in turning him into an informant against al-Jazeera. He had iask them to interrogate him about what he was supposed to have
Bizarrely, Osama bin Laden decided to come to Sami's defence in one of
his tapes. Bin Lad seemed rather put out by the 'amazing' fact that
some Guantana prisoners 'oppose al-Qaeda's methodology of calling for
war with America.' These people had no business being locked up.
Specifically, he singled out 'those working in the media, like Sami
It was the kiss of death for Sami, of course. If bin Laden
identified Sami as a member of al-Qaeda, the US military would have
viewed it as conclusive proof that Sami was guilty. As it was, the fact
[p183] that bin Laden asserted that Sami had nothing to do with
al-Qaeda was almost certainly viewed as ... conclusive proof that Sami
was guilty. Why else would bin Laden say such a thing?
[p188] Hunger strikes had been a part of prisoners' ongoing struggle
Guantanamo for most of the prison's history, though the military
authorities laboured hard to keep the details from the public. The
coordinated hunger strike began on 27 February 2002 and ran until the
last man was fed through a tube in his nose after a seventy-one-day
fast. The military did ultimately admit that some prisoners had been
refusing food, but conceded that it was because of their 'murky
future' and 'the fact that they don't know what is happening to them.'
But they did not accept that the terrible conditions at the prison
played a role.
Even in the early days of Guantanamo, journalist David Rose reported
an astonishing attitude on the part of the medical personnel who were
meant to be treating the prisoners. He described an [p189] exchange
with one of the camp doctors: in the camp's acute ward a young man lay
chained to his bed, being fed protein-and-vitamin mush through a tube
inserted in his nostril. 'He's refused to eat 148 consecutive meals,'
said Dr Louis Louk, a naval surgeon from Florida. 'In my opinion he's
a spoiled brat, like a small child who stomps his feet when he doesn't
get his way.'
[p224] Sean Baker, a member of the Kentucky National Guard, had
suffered the most significant injury inflicted on a guard during the
history of Guantanamo, and he wasn't injured by a homicidal Muslim but
his fellow soldiers.
[p225] 'Well, you know what's gonna happen when they come in there on
'Trust me, Specialist Baker,' Locke said more emphatically. 'You will
'Sir, you're going to tell that [Emergency Reaction Force (ERF)] team
that I'm a US soldier?' Baker said.
'Yes, you'll be fine, Specialist Baker. Trust me.'
They agreed on a code word ('Red!') that would instantly stop the
exercise if it got out of hand.
Locke wanted the training to seem real. Apparently he did not let the
ERF team know that Baker was play-acting. In their subsequent
statements each soldier swore he thought this was a real extraction.
As he was instructed, Baker refused the ERF team's orders and hid
under the bunk. They entered the cell, beat him, choked him and
slammed his head against the floor.
'Red!' Baker shouted.
The beating continued, particularly by the soldier on his back, a man
called Scott Sinclair. 'That individual slammed my head against the
floor and continued to choke me,' he said. 'Somehow I got enough air,
I muttered out, "I'm a US soldier, I'm a US soldier."'
Even this - said with an American accent - failed to stop the attack,
until one of the soldiers noticed something wrong. 'Whoa, whoa, whoa!'
the man shouted.
Baker started having seizures that morning. He was taken to the naval
hospital at Guantanamo.
'He'd had the crap beat out of him,' said Staff Sergeant Michael
Riley, the platoon leader. 'He had a concussion. I mean, it was
textbook - blank. You know, a dead stare, like he was seeing you, but
really looking through you.'
Baker suffered brain damage. A military medical board determined that
he suffered from mood and seizure disorders caused by a traumatic
brain injury he sustained while 'playing [the] role of detainee who
[was] non-cooperative and was being extracted from detention cell in
Guantanamo Bay, Cuba'.
'All I wanted to be is a soldier,' he said in the television
interview. 'I feel like I've been betrayed by my own troops because
... what happened to me. I don't want this to happen to anyone else,
what I'm living with daily.'
[p226] Baker was discharged from the military and is unemployed.
What would have happened if the subject had been a prisoner instead of
a soldier who ultimately shouted out with an American accent?
'I think they would have busted him up,' says Baker. 'I've seen
detainees come outta there with blood on 'em - if there wan't someone
to say, "I'm a US soldier," if you were speaking Arabic Pashto or
Urdu or some other language in the camp, we may never know what would
have happened to that individual.'
[p229] For a long time the Pentagon took the position that it should
not ve to identify anyone in US custody, because this would provide
ormation to the 'enemy' concerning who had been captured. Presumably
it did not take long for the' enemy' to figure this out and the
Pentagon's position was undermined by the glee with which the Bush
Administration would publicise the name of any significant member
al-Qaeda they seized.
[p238] We have hundreds of years of experience and the very reason we
have excluded such evidence from criminal trials is because it is
unreliable. Yet this debate is a moot one. In order to convict [Khalid
Sheikh Mohammed (KSM)] of the most reprehensible crime, there is no
need to use statements coerced out of him; the prosecution need
only play a videotape of his own volunteered statements. Likewise, bin
Laden has provided videotaped evidence of Ramzi bin al-Shibh actually
plotting the September 11 attack.
[p239] There are very unsavoury reasons why certain people in the Bush
Administration felt political pressure to neuter the right to a fair
trial. Abu Zubaydah, a Saudi brought up in Palestine, was another of
the men transferred to Guantanamo Bay. He was said to have inherited
the mantle of al-Qaeda military operations chief when Mohammed Atef
was killed by an American bomb in Afghanistan. More recent reports
suggested that he was suffering from a serious mental illness,
unsurprising given that he was badly wounded when captured and
mistreated as he was shuttled around the world.
Abu Zubaydah had been in US custody even longer than KSM, and there
may be even more embarrassing consequences to his appearance in a
military commission. In his book Why America Slept, Gerald Posner
describes how the US set up a fake Saudi detention centre in
Afghanistan, with two agents posing as Saudi intelligence, to pretend
[p240] that Abu Zubaydah had been flown to face the supposedly
barbaric justice of Saudi Arabia. They expected Abu Zubaydah to
tremble with fear when he discovered his 'rendition'.
However, when Abu Zubaydah was confronted by the false Saudis, 'his
reaction was not fear', Posner writes, 'but utter relief'. He reeled off
telephone numbers he had memorised for Prince Ahmed bin Salman bin
Abdul Aziz, a nephew of King Fahd (and a racehorse owner whose horse War
Emblem won the Kentucky Derby in 2002). To the amazement of the
Americans, the numbers proved valid.
'He'll tell you what to do,' said Abu Zubaydah, who described the
extensive assistance that Saudis had given to al-Qaeda, The final
chapter of Posner's book suggests that the Saudis (inevitably tip off
by the Americans, and possibly working with them) found a solution to
prevent the unwanted publicity that these revelation would have
entailed. Prince Ahmed and two other Saudi royals name by Abu Zubaydah
coincidentally died within days of each othe shortly after Abu
Zubaydah's intelligence was passed along to tb Saudi government. On 22
July 2002 Prince Ahmed died of a heart attack aged forty-three. The
next day Prince Sultan bin Faisal bin Turki al-Saud was killed in what
was called a high-speed car accident at the age of forty-one. The last
of the three, Prince Fahd bin Turki bin Saud al-Kabir, expired one
week later, officially dying 'of thirst' while travelling east of
[p269] The neocon three [Cheney-Rumsfeld-Wolfowitz] would pay lip
service to the possibility that the military might make mistakes, but
they would belittle the chance of errors on a large scale. After all,
these prisoners were Arabs, seized by the US military close to the
Afghan battlefield, far away from their Middle Eastern homes. They
could have no innocent reason for being there.
For someone in the office of vice president or secretary of defense
there would be an additional factor that would prevent them from
recognising the innocence of prisoners in Guantanamo. Most of us, when
we latch on to an improbable belief, are surrounded by reminders that
we might be mistaken. For a politician in the stratosphere of
government there is rarely anyone available to deliver the long brown
envelope of home truths on a regular basis. His acolytes are likely to
be sycophantic, and his tour of the Guantanamo prison will be
sterilised. It was therefore virtually inevitable that
Cheney-Rumsfeld-Wolfowitz would remain convinced that the chance of a
mistake in Guantanamo was infinitesimal.
[p272] There are various responses to Blair's position and the first
came from the British judges. Al-Qaeda was hardly 'without limit' in
2001the original al-Qaeda lunatic fringe consisted of bin Laden and a
very small band of associates. As Blair used their crimes as an excuse
to dismantle legal rights, the judiciary fought back.
The law lords declared illegal the Belmarsh experiment where the Blair
government locked up various perceived extremists without trial. 'This
is a nation which has been tested in adversity, which has survived
physical destruction and catastrophic loss of life,' wrote Lord
Bingham. 'I do not underestimate the ability of fanatical groups of
terrorists to kill and destroy, but they do not threaten the life of
the nation. Whether we would survive Hitler [p273] hung in the
balance, but there is no doubt that we shall survive al-Qaeda.'
Bingham went on to a broader question: what is it about the British
nation that we should be trying to protect?
'What is meant by "threatening the life of the nation"?' he
asked. 'The Armada threatened to destroy the life of the nation, not
by loss of life in battle, but by subjecting English institutions to
the rule of Spain and the Inquisition. The same was true of the threat
posed to the United Kingdom by Nazi Germany in the Second World
War. This country, more than any other in the world, has an unbroken
history of living for centuries under institutions and in accordance
with values which show a recognisable continuity.' Ultimately,
consistent application of the rule of law has been the basic right of
anyone living in Britain.
[p274] On the military side of the scale, the justification for
holding the prisoners was to extract intelligence and to prevent them
from committing crimes in the future. Successive generals and admirals
running the base have boasted about the 'very significant
intelligence' that has been obtained from the prisoners; I have seen
some of it and, while I cannot reveal what I have seen, I have yet to
see intelligence that is of any real value in protecting the US or the
UK. The unclassified evidence that I am permitted to discuss
illustrates the problem: Omar Deghayes was not a Chechen rebel -- he
has never been to Chechnya, and he is not the man brandishing the
Kalashnikov in the US military video. British prisoners Shafiq Rasul,
Asif Iqbal and Rhuhel Ahmed were not the three shady figures beside
bin Laden in another videotape -- at the time it was made in 2000, they
were in Birmingham. Yusuf el Gharani was not a twenty-year-old member
of the London al-Qaeda cell in 1998 -- he was eleven, and had never
left Saudi Arabia. Ahmed Errachidi was not The General of al-Qaeda in
Afghanistan in July 2001 -- he was a chef at the Westbury Hotel in
London. These are just examples from my own small group of
clients. Other prisoners probably have even more compelling stories,
but many have no lawyer to tell.
To be sure, there must be some intelligence of value that has come
from the base, but -- as former CIA Agent Mike Baker told me -- it is
[p274] probably impossible to sort the wheat from the chaff, because
so much coercion has been used. Foolish decisions made based on false
intelligence can cause immense harm, as when Bush marched to war in
Iraq relying on the coerced confession from Sheikh al-Libi, that
purported to link Saddam Hussein and al-Qaeda. Certainly, there is no
evidence that the prisoners, locked up for five years, have any
current knowledge of crimes planned for the future, so that whatever
value Guantanamo might once have had has surely dissolved by now. As
'Big Bill' Cowan said, if there is any excuse for torture, it has
evaporated 24 hours after the prisoner's capture.
[p297] if you have disposable income that you wish to give to this
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Thank you for what you have already done, and what you will do in the
Clive Stafford Smith