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'Corrupt and Rigged': 9/11 Defense Lawyer Say Austin Broke Rules by Blocking Plea Deals
"We have had an unprecedented act by a government official to pull back what was a valid agreement," said an attorney representing tortured 9/11 suspects imprisoned at Guantánamo Bay.
Aug 07, 2024
Attorneys representing alleged 9/11 planners imprisoned at Guantánamo Bay argued Wednesday that U.S. Defense Secretary Lloyd Austin's move to block plea deals for three defendants violated Pentagon rules and belied the corruption of the military commission system established during the George W. Bush administration.
"We have had an unprecedented act by a government official to pull back what was a valid agreement," Walter Ruiz, who represents defendant Mustafa al-Hawsawi, said at a hearing at Guantánamo, according toCNN.
"For us, it raises very serious questions about continuing to engage in a system that seems so obviously corrupt and rigged," Ruiz added.
Last week, the Department of Defense announced that Brig. Gen. Susan Escallier, the convening authority for the Guantánamo military commissions, "has entered into pretrial agreements" with al-Hawsawi, alleged 9/11 mastermind Khalid Sheikh Mohammed, and Walid bin Attash.
The long-anticipated agreement—under which the three men would be spared execution by pleading guilty—came amid years of stalled legal proceedings in a case complicated by the U.S.' torture of the defendants and government efforts to cover it up.
While welcomed by advocates of closing the prison and some victims' families, Escallier's move also sparked a firestorm of criticism from numerous U.S. lawmakers, 9/11 first responders, and victims' relatives.
Last Friday, Austin withdrew the plea agreements. Speaking at a press conference on Tuesday, he explained that he has "long believed that the families of the victims, our service members, and the American public deserves the opportunity to see military commission trials carried out in his case."
"I'm deeply mindful of my duty to all those whose lives were lost or changed forever on 9/11, and I fully understand that no measure of justice can ever make up for their loss," Austin added. "So this wasn't a decision that I took lightly."
Eugene Fidell, a military law professor at Yale University and co-founder of the National Institute of Military Justice, told CNN that Austin's move "was illegal."
According to the network:
One of the primary issues pointed to on Wednesday by defense counsel was a regulation laid out in the military's Manual for Military Commissions, which says the convening authority can withdraw a pretrial agreement before the accused begins "performance of promises" or if the accused does not hold up their end of the deal. Gary Sowards, a defense attorney for Mohammad, said in court that Austin did not have authority under that regulation because his client had "begun very important, substantive, specific performance.'"
Sowards acknowledged that motions for discovery on the issue of potential unlawful influence by Austin, which would "seek to explore how he was coerced and influenced," could take a year or two to litigate. But the issue of the Manual for Military Commissions regulation is "a simple reading of about 12 lines of text," he said, and a decision on it should be able to be expedited.
Prosecutor Clayton Trivett Jr. told the commission Wednesday that the government needed to "work through the issues raised in these motions" so that the prosecution's position can be "fully articulated."
Sowards retorted, "'We want to consult with people'—that sounds like, 'We want to get our stories together.'"
Some legal experts doubted whether the government would ever be able to try, let alone convict, the 9/11 suspects. Military judges and prosecutors have cited defendants' torture in declining to proceed with cases against them. Many men and boys were tortured at CIA "black sites," Guantánamo, and military prisons including Abu Ghraib. At least dozens of detainees died.
Wells Dixon, a lawyer with the Center for Constitutional Rights who represented convicted terrorist Majid Khan, told CNN that the prosecution's unwillingness "to allow evidence about the defendants' torture and abuse to be aired in court" will make it extremely difficult to secure death sentences for the men.
"If Secretary Austin says that a 9/11 case is going to proceed to trial, and a verdict, and possibly a sentencing, then he is either hopelessly ill-informed or is lying to victims' family members," he added.
Accusations of military commission corruption go back decades.
In 2004, three military prosecutors—Maj. Robert Preston, Capt. John Carr, and Capt. Carrie Wolf—requested transfers from the commissions after concluding they were rigged.
"They were told by the chief prosecutor at the time that they didn't need evidence to get convictions," Clive Stafford Smith, an attorney who represented more than 70 Guantánamo detainees, toldThe Nation in 2008.
That year, former Guantánamo chief prosecutor Col. Morris Davis said that then-Pentagon General Counsel William Haynes told him that "we can't have acquittals."
Atlantic staff writer Graeme Wood asserted this week that "there is a way to clean up this mess."
"Now that Austin has assumed the power of the convening authority, he can restore the agreement he tore up on Friday—to reverse the reversal and bring these sordid proceedings to the end they were until recently already destined for," he wrote. "If he instead wants to extend the life of the commissions, slouching toward a trial that will never happen, then the pointless sacrifice of money and time will continue."
"For the families in search of finality, each minute of delay is a minute stolen, and for the defendants, each is a minute gained," Wood added. "The defendants have already cheated the hangman. The best way to end their run is to take that bitter deal, and bring these commissions to a well-deserved end."
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Why Are Any of Us Paying for the Scam That is Medicare Advantage?
These plans are private health insurance provided by private corporations, who are then fully reimbursed by the Medicare trust fund regardless of how much their customers use their insurance.
May 29, 2024
They’re competing unfairly with Medicare, and you and I are paying for it. It’s obscene.
When former U.S. President George W. Bush and congressional Republicans (and a handful of bought-off Democrats) created Medicare Advantage in 2003, it was the fulfillment of half of Bush’s goal of privatizing Social Security and Medicare, dating all the way back to his unsuccessful run for Congress in 1978 and a main theme of his second term in office.
Medicare Advantage is not Medicare. These plans are private health insurance provided by private corporations, who are then fully reimbursed by the Medicare trust fund regardless of how much their customers use their insurance. Thus, the more they can screw their customers and us taxpayers by withholding healthcare, the more money they make.
These giant insurance companies ripped off our tax dollars last year to the tune of an estimated $140 billion over and above what it would’ve caused us if people had simply been on real Medicare.
With real Medicare, if your doctor says you need a test, procedure, scan, or any other medical intervention you simply get it done and real Medicare pays the bill. No muss, no fuss, no permission needed. Real Medicare always pays, and if they think something’s not kosher, they follow up after the payment’s been made so as not to slow down the delivery of your healthcare.
With Medicare Advantage, however, you’re subject to “pre-clearance,” meaning that the insurance company inserts itself between you and your doctor: You can’t get the medical help you need until or unless the insurance company pre-clears you for payment.
These companies thus make much of their profit by routinely denying claims—1.5 million, or 18% of all claims, were turned down in one year alone—leaving Advantage policy holders with the horrible choice of not getting the tests or procedures they need or paying for them out-of-pocket.
Given this, you’d think that most people would stay as far away from these private Medicare Advantage plans as they could. But Congress also authorized these plans to compete unfairly with real Medicare by offering things real Medicare can’t (yet). These include free or discounted dental, hearing, eyeglasses, gym memberships, groceries, rides to the doctor, and even cash rebates.
You and I pay for those freebies, but that’s only half of the horror story.
This year, as Matthew Cunningham-Cook pointed out in Wendell Potter’s brilliant Healthcare Un-covered Substack newsletter this week, we’re ponying up an additional $64 billion to give to these private insurance companies to reimburse them for the freebies they relentlessly advertise on television, online, and in print.
And here’s the most obscene part of the whole thing: The companies won’t tell the government how much of that $64 billion they’ve actually spent. They just take the money and say, “Thank you very much.” And then, presumably, throw a few extra million into the pockets of each of their already very-well-paid senior executives.
For example, the former CEO of the nation’s largest Medicare Advantage provider, UnitedHealth, walked away with over a billion dollars in total compensation. With a “B.” One guy. His successor made off with over a half-billion dollars in pay and stock.
Good work if you can get it: All you need do is buy off a hundred or so members of Congress, courtesy of Clarence Thomas’ tie-breaking vote on Citizens United, and threaten the rest with massive advertising campaigns for their opponents if they try to stop you.
Project 2025 and candidate Trump both promise to end real Medicare “immediately” if Trump or when another Republican becomes president.
And while the companies refuse to tell us how much of the $64 billion that we’re throwing at them this year to offer “free” dental, etc. is actually used, what we do know is that most of that money is not going to pay for the freebies they advertise. As Cunningham-Cook noted, in one study only 11% of Advantage policyholders who’d signed up with plans offering dental care used that benefit.
Another study showed over-the-counter-drug freebies were used only a third of the time, leaving $5 billion in the insurance companies’ money bins just for that goodie. A later study found that at least a quarter of all Advantage policyholders failed to use any of the freebies they’d been offered when they signed up.
That’s an enormous amount of what the industry calls “breakage;” benefits offered but not used. Billions of dollars left over every month. And, used or not, you and I sure paid for them.
In my book The Hidden History of American Healthcare: Why Sickness Bankrupts You and Makes Others Insanely Rich, I lay out the story of this scam and how badly so many American seniors—and all American taxpayers, regardless of age—get ripped off by it.
When he was president, Donald Trump substantially expanded Medicare Advantage, calling real Medicare “socialism.” Project 2025 and candidate Trump both promise to end real Medicare “immediately” if Trump or when another Republican becomes president.
These giant insurance companies ripped off our tax dollars last year to the tune of an estimated $140 billion over and above what it would’ve caused us if people had simply been on real Medicare, according to a report from Physicians for a National Health Program (PNHP). If there was no Medicare Advantage scam bleeding off all that cash to pay for executives’ private jets, real Medicare could be expanded to cover dental, vision, and hearing and even end the need for Medigap plans.
But for now, the privatization gravy train continues to roll along. The insurance giants use some of that money to buy legislators and some of it for expensive advertising to dupe seniors into joining their programs. The company (Benefytt) that hires Joe Namath to pitch Medicare Advantage, for example, was recently hit with huge fines by the Federal Trade Commission for deceptive advertising.
The FTC news release laid it out:
“Benefytt pocketed millions selling sham insurance to seniors and other consumers looking for health coverage,” said Samuel Levine, director of the FTC’s Bureau of Consumer Protection. “The company is being ordered to pay $100 million, and we’re holding its executives accountable for this fraud.”
And what was it that the Federal Trade Commission called “sham insurance”? Medicare Advantage. Nonetheless, the Centers for Medicare Services continues to let Benefytt and Namath market these products: Welcome to the power of organized money.
And it’s huge organized money. Medicare Advantage plans are massive cash cows for the companies that run them. As Cigna prepares for a merger, for example, they’re being forced to sell off their Medicare Advantage division: It’s scheduled to go for $3.7 billion. Nobody pays that kind of money unless they expect enormous returns.
Traditional Medicare has been serving Americans well since 1965: it’s one of the most efficient single-payer systems to fund healthcare that’s ever been devised. But nobody was making a buck off it, so nobody could share those profits with greedy politicians. Enter Medicare Advantage, courtesy of George W. Bush and the GOP.
While several bills have been offered in Congress to do something about this—including Reps. Mark Pocan’s (D-Wis.) and Ro Khanna’s (D-Calif.) Save Medicare Act that would end these companies’ ability to use the word “Medicare” in their policy names and advertising—the amounts of money sloshing around D.C. in the healthcare space now are almost unfathomable.
So far this year, according to opensecrets.org, the insurance industry has spent $45,173,132 showering gifts and persuasion on our federal lawmakers to keep their obscene profits flowing.
It’s all one more example of how five corrupt Republicans on the U.S. Supreme Court legalizing political bribery with Citizens Unitedhave screwed average Americans and made a handful of industry executives and investors fabulously rich.
Thus, here we are, handing billions of dollars a month to insurance industry executives so they can buy new Swiss chalets, private jets, and luxury yachts. And compete—unfairly—with Medicare itself, driving LBJ’s most proud achievement into debt and crisis.
Enough is enough. Let your members of Congress know it’s beyond time to fix the court and Medicare, so scams like Medicare Advantage can no longer rip off America’s seniors while making industry executives richer than Midas.
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How Should We Look at Abu Ghraib 20 Years Later?
Those unforgettable images of torture in the Iraqi prison serve as a continuous reminder of the nature of American brutality in the War on Terror that has not ended.
Apr 26, 2024
“To this day I feel humiliation for what was done to me… The time I spent in Abu Ghraib—it ended my life. I’m only half a human now.” That’s what Abu Ghraib survivor Talib al-Majli had to say about the 16 months he spent at that notorious prison in Iraq after being captured and detained by American troops on October 31, 2003. In the wake of his release, al-Majli has continued to suffer a myriad of difficulties, including an inability to hold a job thanks to physical and mental health deficits and a family life that remains in shambles.
He was never even charged with a crime—not exactly surprising, given the Red Cross’ estimate that 70% to 90% of those arrested and detained in Iraq after the 2003 American invasion of that country were guilty of nothing. But like other survivors, his time at Abu Ghraib continues to haunt him, even though, nearly 20 years later in America, the lack of justice and accountability for war crimes at that prison has been relegated to the distant past and is considered a long-closed chapter in this country’s War on Terror.
The Abu Ghraib “Scandal”
On April 28, 2004, CBS News’s “60 Minutes” aired a segment about Abu Ghraib prison, revealing for the first time photos of the kinds of torture that had happened there. Some of those now-infamous pictures included a black-hooded prisoner being made to stand on a box, his arms outstretched and electrical wires attached to his hands; naked prisoners piled on top of each other in a pyramid-like structure; and a prisoner in a jumpsuit on his knees being threatened with a dog. In addition to those disturbing images, several photos included American military personnel grinning or posing with thumbs-up signs, indications that they seemed to be taking pleasure in the humiliation and torture of those Iraqi prisoners and that the photos were meant to be seen.
Once those pictures were exposed, there was widespread outrage across the globe in what became known as the Abu Ghraib scandal. However, that word “scandal” still puts the focus on those photos rather than on the violence the victims suffered or the fact that, two decades later, there has been zero accountability when it comes to the government officials who sanctioned an atmosphere ripe for torture.
Thanks to the existence of the Federal Tort Claims Act, all claims against the federal government, when it came to Abu Ghraib, were dismissed. Nor did the government provide any compensation or redress to the Abu Ghraib survivors, even after, in 2022, the Pentagon released a plan to minimize harm to civilians in U.S. military operations. However, there is a civil suit filed in 2008—Al Shimari v. CACI—brought on behalf of three plaintiffs against military contractor CACI’s role in torture at Abu Ghraib. Though CACI tried 20 times to have the case dismissed, the trial—the first to address the abuse of Abu Ghraib detainees—finally began in mid-April in the Eastern District Court of Virginia. If the plaintiffs succeed with a ruling in their favor, it will be a welcome step toward some semblance of justice. However, for other survivors of Abu Ghraib, any prospect of justice remains unlikely at best.
The Road to Abu Ghraib
”My impression is that what has been charged thus far is abuse, which I believe technically is different from torture... And therefore, I’m not going to address the ‘torture’ word.” So said Secretary of Defense Donald Rumsfeld at a press conference in 2004. He failed, of course, to even mention that he and other members of President George W. Bush’s administration had gone to great lengths not only to sanction brutal torture techniques in their “Global War on Terror,” but to dramatically raise the threshold for what might even be considered torture.
As Vian Bakir argued in her book Torture, Intelligence and Sousveillance in the War on Terror: Agenda-Building Struggles, his comments were part of a three-pronged Bush administration strategy to reframe the abuses depicted in those photos, including providing “evidence” of the supposed legality of the basic interrogation techniques, framing such abuses as isolated rather than systemic events, and doing their best to destroy visual evidence of torture altogether.
Although top Bush officials claimed to know nothing about what happened at Abu Ghraib, the war on terror they launched was built to thoroughly dehumanize and deny any rights to those detained. As a 2004 Human Rights Watch report, “The Road to Abu Ghraib,” noted, a pattern of abuse globally resulted not from the actions of individual soldiers, but from administration policies that circumvented the law, deployed distinctly torture-like methods of interrogation to “soften up” detainees, and took a “see no evil, hear no evil,” approach to any allegations of prisoner abuse.
Revisiting Bush’s apologia so many years later is a vivid reminder that he and his top officials never had the slightest intention of truly addressing those acts of torture as systemic to America’s war on terror, especially because he was directly implicated in them.
In fact, the Bush administration actively sought out legal opinions about how to exclude war-on-terror prisoners from any legal framework whatsoever. A memorandum from Attorney General Alberto Gonzales to President Bush argued that the Geneva Conventions simply didn’t apply to members of the terror group al Qaeda or the Afghan Taliban. Regarding what would constitute torture, an infamous memo, drafted by Office of Legal Counsel attorney John Yoo, argued that “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Even after the Abu Ghraib photos became public, Rumsfeld and other Bush administration officials never relented when it came to their supposed inapplicability. As Rumsfeld put it in a television interview, they “did not apply precisely” in Iraq.
In January 2004, Major General Anthony Taguba was appointed to conduct an Army investigation into the military unit, the 800th Military Police Brigade, which ran Abu Ghraib, where abuses had been reported from October through December 2003. His report was unequivocal about the systematic nature of torture there: “Between October and December 2003, at the Abu Ghraib Confinement Facility (BCCF), numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees. This systemic and illegal abuse of detainees was intentionally perpetrated by several members of the military police guard force (372nd Military Police Company, 320th Military Police Battalion, 800th MP Brigade), in Tier (section) 1-A of the Abu Ghraib Prison.”
Sadly, the Taguba report was neither the first nor the last to document abuse and torture at Abu Ghraib. Moreover, prior to its release, the International Committee of the Red Cross had issued multiple warnings that such abuse was occurring at Abu Ghraib and elsewhere.
Simulating Atonement
Once the pictures were revealed, President Bush and other members of his administration were quick to condemn the violence at the prison. Within a week, Bush had assured King Abdullah of Jordan, who was visiting the White House, that he was sorry about what those Iraqi prisoners had endured and “equally sorry that people who’ve been seeing those pictures didn’t understand the true nature and heart of America.”
As scholar Ryan Shepard pointed out, Bush’s behavior was a classic case of “simulated atonement,” aimed at offering an “appearance of genuine confession” while avoiding any real responsibility for what happened. He analyzed four instances in which the president offered an “apologia” for what happened—two interviews with Alhurra and Al Arabiya television on May 5, 2004, and two appearances with the King of Jordan the next day.
In each case, the president also responsible for the setting up of an offshore prison of injustice on occupied Cuban land in Guantánamo Bay in 2002 managed to shift the blame in classic fashion, suggesting that the torture had not been systematic and that the fault for it lay with a few low-level people. He also denied that he knew anything about torture at Abu Ghraib prior to the release of the photos and tried to restore the image of America by drawing a comparison to what the regime of Iraqi autocrat Saddam Hussein had done prior to the American invasion.
The false pretenses under which the U.S. waged war on Iraq are a reminder that the war on terror was never truly about curbing a threat, but about expanding American imperial power globally.
In his interview with Alhurra, for example, he claimed that the U.S. response to Abu Ghraib—investigations and justice—would be unlike anything Saddam Hussein had done. Sadly enough, however, the American takeover of that prison and the torture that occurred there was anything but a break from Hussein’s reign. In the context of such a faux apology, however, Bush apparently assumed that Iraqis could be easily swayed on that point, regardless of the violence they had endured at American hands; that they would, in fact, as Ryan Shepard put it, “accept the truth-seeking, freedom-loving American occupation as vastly superior to the previous regime.”
True accountability for Abu Ghraib? Not a chance. But revisiting Bush’s apologia so many years later is a vivid reminder that he and his top officials never had the slightest intention of truly addressing those acts of torture as systemic to America’s war on terror, especially because he was directly implicated in them.
Weapons of American Imperialism
On March 19th, 2003, President Bush gave an address from the Oval Office to his “fellow citizens.” He opened by saying that “American and coalition forces are in the early stages of military operations to disarm Iraq, to free its people, and to defend the world from grave danger.” The liberated people of Iraq, he said, would “witness the honorable and decent spirit of the American military.”
There was, of course, nothing about his invasion of Iraq that was honorable or decent. It was an illegally waged war for which Bush and his administration had spent months building support. In his State of the Union address in 2002, in fact, the president had referred to Iraq as part of an “axis of evil” and a country that “continues to flaunt its hostility toward America and to support terror.” Later that year, he began to claim that Saddam’s regime also had weapons of mass destruction. (It didn’t and he knew it.) If that wasn’t enough to establish the threat Iraq supposedly posed, in January 2003, Vice President Dick Cheney claimed that it “aids and protects terrorists, including members of al Qaeda.”
Days after Cheney made those claims, Secretary of State Colin Powell falsely asserted to members of the United Nations Security Council that Saddam Hussein had chemical weapons, had used them before, and would not hesitate to use them again. He mentioned the phrase “weapons of mass destruction” 17 times in his speech, leaving no room to mistake the urgency of his message. Similarly, President Bush insisted the U.S. had “no ambition in Iraq, except to remove a threat and restore control of that country to its own people.”
Whether or not justice prevails in some way for Abu Ghraib’s survivors, as witnesses–even distant ones—to what transpired at that prison, our job should still be to search for the stories behind the hoods, the bars, and the indescribable acts of torture that took place there.
The false pretenses under which the U.S. waged war on Iraq are a reminder that the war on terror was never truly about curbing a threat, but about expanding American imperial power globally.
When the United States took over that prison, they replaced Saddam Hussein’s portrait with a sign that said, “America is the friend of all Iraqis.” To befriend the U.S. in the context of Abu Ghraib, would, of course, have involved a sort of coerced amnesia.
In his essay “Abu Ghraib and its Shadow Archives,” Macquarie University professor Joseph Pugliese makes this connection, writing that “the Abu Ghraib photographs compel the viewer to bear testimony to the deployment and enactment of absolute U.S. imperial power on the bodies of the Arab prisoners through the organizing principles of white supremacist aesthetics that intertwine violence and sexuality with Orientalist spectacle.”
As a project of American post-9/11 empire building, Abu Ghraib and the torture of prisoners there should be viewed through the lens of what I call carceral imperialism—an extension of the American carceral state beyond its borders in the service of domination and hegemony. (The Alliance for Global Justice refers to a phenomenon related to the one I’m discussing as “prison imperialism.”) The distinction I draw is based on my focus on the war on terror and how the prison became a tool through which that war was being fought. In the case of Abu Ghraib, the capture, detention, and torture through which Iraqis were contained and subdued was a primary strategy of the U.S. colonization of Iraq and was used as a way to transform detained Iraqis into a visible threat that would legitimize the U.S. presence there. (Bagram prison in Afghanistan was another example of carceral imperialism.)
Beyond Spectacle and Toward Justice
What made the torture at Abu Ghraib possible to begin with? While there were, of course, several factors, it’s important to consider one above all: the way the American war not on, but of terror rendered Iraqi bodies so utterly disposable.
One way of viewing this dehumanization is through philosopher Giorgio Agamben’s Homo Sacer, which defines a relationship between power and two forms of life: zoe and bios. Zoe refers to an individual who is recognized as fully human with a political and social life, while bios refers to physical life alone. Iraqi prisoners at Abu Ghraib were reduced to bios, or bare life, while being stripped of all rights and protections, which left them vulnerable to uninhibited and unaccountable violence and horrifying torture.
Twenty years later, those unforgettable images of torture at Abu Ghraib serve as a continuous reminder of the nature of American brutality in that Global War on Terror that has not ended. They continue to haunt me—and other Muslims and Arabs—20 years later. They will undoubtedly be seared in my memory for life.
Whether or not justice prevails in some way for Abu Ghraib’s survivors, as witnesses–even distant ones—to what transpired at that prison, our job should still be to search for the stories behind the hoods, the bars, and the indescribable acts of torture that took place there. It’s crucial, even so many years later, to ensure that those who endured such horrific violence at American hands are not forgotten. Otherwise, our gaze will become one more weapon of torture—extending the life of the horrific acts in those images and ensuring that the humiliation of those War on Terror prisoners will continue to be a passing spectacle for our consumption.
Two decades after those photos were released, what’s crucial about the unbearable violence and horror they capture is the choice they still force viewers to make—whether to become just another bystander to the violence and horror this country delivered under the label of the War on Terror or to take in the torture and demand justice for the survivors.
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