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The Guardian/UK

Smoke, Mirrors and American Justice

Six key Guantánamo detainees are to undergo trial by military commission. But having been tortured, how can they expect a fair trial?

Victoria Brittain

The announcement by the Pentagon of trials by military commission for six of the big-name prisoners in Guantánamo Bay, is the latest in the series of smoke-and-mirror tricks used by the Bush administration to cover the inhuman illegality of the regime in the prison.The issue is straightforward: the men cannot receive fair trials.

In these first cases linked to 9/11, prosecutors will seek the death penalty for the six men, who include the self-declared mastermind of the 9/11 attacks, and of other al-Qaida attacks such as the east African US embassy bombings and the murder of journalist Daniel Pearl, Khalid Sheikh Mohammed.

The best-known of the other five defendants are Ramzi bin al-Shibh, a Yemeni, said to have been the intermediary between the hijackers and al-Qaida, and Mohammed al-Qahtani, believed originally to have been the 20th hijacker for 9/11, although he failed to make it into the US.

The immediate problem for the holding of any successful trial of these men is that they are known to have been severely tortured by the CIA and contractors working for them. No evidence obtained by torture is admissible in any court, and senior US lawyers are lining up to make all necessary legal challenges to the government.

Khalid Sheikh Mohammed, for instance, is one of three men (the others are Abu Zubaydah and Abd al-Rahim al-Nashiri) who the CIA has recently admitted were tortured with "waterboarding" by their operatives.

The descriptions of this technique of simulated drowning, carried out in secret prisons halfway round the world, are the stuff of nightmares. It is torture, and that is outlawed under international law. No words of excuse from the powerful can change that. And to see the CIA chief, Michael Hayden, in Congress openly justify waterboarding, is to see how far the war on terror has degraded the American government and its complicit allies here.

In the case of al-Qahtani, Time magazine published the secret log of his 49 days of 20-hour-per-day interrogation. The log described how the prisoner was forcibly administered intravenous fluids and drugs and forcibly given enemas, in order to keep his body functioning well enough for the interrogations to go on.

The log, titled Secret Orcon Interrogation Log Detainee 063 (pdf), offered a daily, detailed view of the interrogation techniques used to get confessions from him from November 2002 to January 2003. These included:

• Restraint on a swivel chair for long periods;

• Deprivation of sleep for long periods;

• Loud music and white noise played to prevent him from sleeping;

• Various humiliations, such as training him to act as a dog and wrapping him in an Israeli flag;

• Lowering the temperature in the room, then throwing water into his face;

• Forcing him to pray to Osama bin Laden.

Under this torture, not surprisingly, al-Qahtani made many false confessions, and implicated other prisoners. Later he withdrew all this, according to his lawyer.

Besides the issue of torture, the very system of military commissions has had a credibility problem from the start. The commissions have been beset by legal challenges, which went right to the supreme court, as well as by criticism from the military lawyers meant to work in them. Although officials have spoken of charging 80 or more detainees with war crimes, so far only one case has been completed, that of David Hicks, an Australian and the only non-Muslim in Guantánamo. That ended with a plea bargain, which included a gagging order.

Over six years 1,000 prisoners have been held without trial - despite supreme court orders that their cases should be heard in federal courts. The men have been kept away from the courts by the US military, the justice department and the White House, because most would never be convicted of any crime.

Outrageously, covering up this history, the Pentagon propaganda teams are now comparing their military commissions for the 9/11 suspects favourably to the Nuremberg trials after the second world war. The American justice system is once again taking a body blow from the Bush administration.

Victoria Brittain is a former associate foreign editor of the Guardian. She is co-author with Moazzam Begg of his book Enemy Combatant. Her previous books include Hidden Lives, Hidden Deaths and Death of Dignity.

Guardian Unlimited © Guardian News and Media Limited 2008

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