Newly leaked documents show the ongoing travesty of Guantanamo

A massive WikiLeaks disclosure sheds new light on the lack of credible evidence against detainees

By Glenn Greenwald

** FILE ** A detainee shields his face as he peers out through the so-called "bean hole" which is used to pass food and other items into cells, within the detention compound at Guantanamo Bay U.S. Naval Base, Cuba, in this Dec. 4, 2006 file photo, reviewed by a U.S. Dept of Defense official. Five years since the first detainees arrived here on Jan. 11, 2002, Guantanamo is a lightning rod for criticism of US President George W. Bush's handling of the war on terror, with Bush meanwhile maintaining that the facility is essential to America's security. (AP Photo/Brennan Llinsley) (Credit: Associated Press)

Topics:Guantanamo

Numerous media outlets — The New York Times, The Washington Post, The Guardian, The Telegraph, and NPR, among others – last night published classified files on more than 700 past and present Guantanamo detainees. The leak was originally provided to WikiLeaks, which then gave them to the Post, NPR and others; the NYT and The Guardian claim to have received them from “another source” (WikiLeaks suggested the “other source” was Daniel Domscheit-Berg, a former WikiLeaks associate who WikiLeaks claims took, without authorization, many WikiLeaks files when he left).

The documents reveal vast new information about these detainees and, in particular, the shoddy and unreliable nature of the “evidence” used (both before and now) to justify their due-process-free detentions. There are several points worth noting about all this:

(1) Given that multiple media outlets have just published huge amounts of classified information, it is more difficult than ever to distinguish between WikiLeaks and, say, the NYT or the Post under the law. How could anyone possibly justify prosecuting WikiLeaks for disseminating classified information while not prosecuting these newspapers who have done exactly the same thing? If Dianne Feinstein, the DOJ and Newt Gingrich are eager to prosecute WikiLeaks for “espionage” – and they are – how can that not also sweep up these media outlets?

(2) Once again we find how much we now rely on whistleblowers in general – and WikiLeaks and (if he did what’s accused) Bradley Manning in particular – to learn the truth and see the evidence about what the world’s most powerful factions are actually doing. WikiLeaks is responsible for more newsworthy scoops over the last year than all media outlets combined: it’s not even a close call. And if Bradley Manning is the leaker, he has done more than any other human being in our lifetime to bring about transparency and shine a light on what military and government power is doing.

(3) The difference among the various newspapers in how these leaks are being presented is stark, predictable and revealing. The Guardian emphasizes exactly what is most important about these documents: how oppressive is this American detention system, how unreliable the evidence is on which the accusations are based, and how so many people were put in cages for years without any justification:

On its front page, the Telegraph trumpets the “more than 150 innocent people held at the U.S. prison.”

The NYT, by stark contrast, emphasizes how Dangerous and Menacing these Evil Terrorists are shown to be (while at least noting underneath that many were held without cause):

Unsurprisingly, the Washington Post is the most absurd of all; here’s what they found most newsworthy:

In sum, foreign newspapers highlight how these documents show U.S. actions to be so oppressive and unjust, while American newspapers downplayed that fact. That reflects Jack Goldsmith’s praise of American media outlets as comprising a “patriotic media”.

(4) These documents shed new light on the persecution of Sami al-Haj, the Al Jazeera cameraman who was encaged at the camp for more than 6 years and then abruptly released without ever being charged. As I’ve written many times, this was one of the most discussed cases in the Muslim world – that the U.S. would imprison an Al Jazeera journalist without charges for years – yet (outside of Nicholas Kristof) it was almost entirely suppressed in establishment media outlets (even as American journalists obsessed on the imprisonment of American journalists by Iran and North Korea for far shorter periods of time).

Al-Haj has long claimed that he was interrogated almost exclusively about his work for Al Jazeera, and virtually nothing about the accusations against him (being an “Al Qaeda courier”). The files released about him corroborate that claim, as The Guardian notes : “An al-Jazeera journalist was held at Guantánamo for six years partly in order to be interrogated about the Arabic news network.” In particular:

His file makes clear that one of the reasons he was sent to Guantánamo was “to provide information on … the al-Jazeera news network’s training programme, telecommunications equipment, and newsgathering operations in Chechnya, Kosovo and Afghanistan, including the network’s acquisition of a video of UBL [Osama bin Laden] and a subsequent interview with UBL”.

Al-Haj was far from the only journalist the U.S. imprisoned for years without charges during the War on Terror, but his case represents one of the most egregious – and under-reported – American acts during the last decade, given that he was detained to learn more about Al Jazeera. These newly released files dispel any doubt about the accuracy of al-Haj’s claims regarding his detention experience.

(5) Perhaps most important of all, these documents conclusively underscore the evils of the Obama administration’s indefinite detention regime. Just last month, President Obama signed an Executive Order directing that dozens of detainees held for years at Guantanamo continue to be imprisoned indefinitely without any charges: either in a real court or even before a military commission. Although indefinite detention was one of the primary hallmarks of Bush/Cheney radicalism, this order was justified by the White House and its followers on the ground that the President knows of secret evidence that shows that these detainees are Too Dangerous to Release, yet cannot be prosecuted because the evidence against them is tainted (see this post for why that line of reasoning is so logically and morally twisted).

The idea of trusting the government to imprison people for life based on secret, untested evidence never reviewed by a court should repel any decent or minimally rational person, but these newly released files demonstrate how warped is this indefinite detention policy specifically. The New Yorker‘s Amy Davidson highlights some of the most extreme inanities in how “evidence” was assembled, while McClatchy’s Carol Rosenberg describes just some of the reasons to find this “evidence” so unreliable: beyond the fact that so much of it was extracted using torture:

The U.S. military set up a human intelligence laboratory at Guantanamo that used interrogation and detention practices that they largely made up as they went along. . . .

The documents, more than 750 individual assessments of former and current Guantanamo detainees, show an intelligence operation that was tremendously dependent on informants — both prison camp snitches repeating what they’d heard from fellow captives and self-described, at times self-aggrandizing, alleged al Qaida insiders turned government witnesses who Pentagon records show have since been released.

Intelligence analysts are at odds with each other over which informants to trust, at times drawing inferences from prisoners’ exercise habits. They order DNA tests, tether Taliban suspects to polygraphs, string together tidbits in ways that seemed to defy common sense.

In one sense this is not new, as federal courts which have reviewed these detentions during the Obama administration have overwhelmingly found them lacking any credible evidence. Still, these files provide important new specifics. The NYT describes the case of Omar Hamzayavich Abdulayev – placed in Guantanamo in 2002 when he was 23 (he’s now 32) and one of the detainees just ordered indefinitely detained by Obama. The newly released files reveal what the NYT calls “the haunting conclusion of his 2008 assessment: ‘Detainee’s identity remains uncertain’.” In other words, the person who has been in Guantanamo for 9 years – most of his adult life – and whom Obama just ordered detained indefinitely with no charges, very well may not even be the person we think he is.

(6) Those condemning these disclosures – consisting of the now-familiar union of Bush neocons and the hardest-core Obama followers – are saying, in essence, that it would be far better if we had remained ignorant about the extreme unreliability of the “evidence” justifying these detentions, and that it would be preferable if the evidence showing the extreme injustice of continuing to imprison people there without so much as charging them with any crimes continued to be concealed.

* * * * *

Over the weekend, The Washington Post published a detailed account of why Obama has not closed Guantanamo, debunking the apologists’ claim that he did everything he could but was thwarted by an independent Congress. Marcy Wheeler highlights just some of the key points from that article.

For those in New York and the Baltimore/D.C. area, I’ll be speaking this week at these events.

: Follow Glenn Greenwald on Twitter: @ggreenwald. More Glenn Greenwald

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Guantanamo’s deepening failure

The secretive military system for prosecuting accused terrorists is a travesty, says the man who once ran it

By Morris Davis

Morris Davis (Credit: AP/Reuters/Yuri Gripas)

Topics:War on Terror, Guantanamo, Morris Davis, Editor's Picks

The U.S. Defense Department specializes in euphemism. “Limited kinetic action” is a polite way of saying “war,” and “collateral damage” does not sound as blunt as “dead children.” When I was chief prosecutor for the military commissions at Guantanamo Bay during the Bush administration, I was told not to say publicly that a detainee had “attempted suicide.” The government-approved term for the act was “self-injurious behavior.” I could not say “torture,” or as some called it, the “T-word.” Instead, I had to say “enhanced interrogation techniques.”

The euphemism tradition remains alive and well in the Obama administration. The slogan “fairness, transparency, justice” is featured prominently throughout the military commissions’ new half-million-dollar website. The slogan even shows up when case document links lead to a notice saying the “document you are trying to access is currently undergoing a security review” and might be posted later if the government decides it is “publicly releasable.”

Say you are interested in the case against Abd Rashim Nashiri, the alleged mastermind of the USS Cole bombing in Yemen in October 2000 that killed 17 U.S. sailors. You are not allowed to see the judge’s docketing order setting April 11-13 for the next session to consider motions.

You are not allowed to see a key motion seeking authorization for Nashiri’s lawyers to depose former Yemeni President Ali Abdullah Saleh while he is in the United States. The Obama administration is permitting Saleh to visit New York City for medical care; many believe he should be at the International Criminal Court facing charges for turning his forces on Yemeni protesters resulting in 270 civilian deaths.

Before being elected to the presidency, Barack Obama condemned what he said were “flawed” Bush-era military commissions. He voted against the Military Commissions Act of 2006 when he was a member of the Senate and he argued that detainees accused of criminal conduct should be tried in federal courts or courts-martial, either of which he said would “demonstrate our commitment to the rule of law.” Six years later it appears all it takes to transform fatally flawed into fundamentally fine for Barack Obama is to tack a new word onto an old title to give it a euphemistic revival: now we have “reformed military commissions.”

Brig. Gen. Mark Martins, the sixth and current chief prosecutor for the military commissions, gave a talk to the New York City Bar Association last month. In it, he used the phrase “reformed military commissions” more than three dozen times. Apparently tacking the word “reformed” onto “military commissions” and using it over and over is supposed to erase a decade-long record of failure that has, as then-Sen. Obama said, tarnished “our credibility as a nation committed to the rule of law.”

The failure of the military commission system is well documented. President Bush first authorized military commissions in an order he issued on Nov. 13, 2001. Six military commission trials were completed in the decade that followed. Two of the six “worst of the worst” war criminals – David Hicks and Salim Hamdan – have served their short military commission sentences and are free men back in their home countries.

Over the same period, hundreds of terrorism-related cases were tried with success and without incident in federal courts resulting in typical sentences that exceeded those in military commissions by a wide margin. The Bush administration’s initial notion that military commissions would be more swift, more secret and more severe than federal courts has proven clearly wrong. Nonetheless, the Obama administration intends to press ahead with “reformed military commissions,” U.S. credibility be damned.

I was one of the most public advocates of the original military commission structure that the U.S. Supreme Court ruled was illegal in June 2006. Congress revived and reformed the military commissions in September 2006 with the Military Commissions Act (that Sen. Obama voted against). These “reformed” military commissions were implemented through a series of documents that set out new rules and procedures to improve the process that the Supreme Court had struck down. Once again, I publicly praised their virtues to an increasingly skeptical world audience. Before I resigned as chief prosecutor in October 2007, I personally authorized charges against David Hicks, Salim Hamdan and Omar Khadr under the 2006 “reformed” military commission system.

President Obama ordered a halt to military commissions as soon as he took office in January 2009, but he backtracked a few months later in the face of conservative fear-mongering. Nine months after President Obama took office, the Democrat-controlled Congress passed the Military Commissions Act of 2009 to replace and reform the process it had created in 2006 to replace the process President Bush created in 2001. The slight change in 2009 is supposed to let President Obama save face. The military commissions authorized in 2001, 2006 and 2009 have so far generated 51 implementing documents totaling 2,352 pages setting out rules and procedures. Each series of reforms purports to be better than the last, which had purported to be better than ones before. Each has failed.

I honestly believed we were committed to full, fair and open trials when I became chief prosecutor in 2005, but I lost confidence in that commitment over time as political appointees tried to manipulate the process and make it more like a theatrical production than a judicial proceeding. After more than a decade of futility and failure, the question is no longer whether the U.S. could proceed with “reformed again and again and again military commissions,” but whether it should.

In his recent talk, Brig. Gen. Martins said, “while federal courts will and should objectively be the appropriate forum in most instances, reformed military commissions will sometimes be the better choice.” His rather vague statement raises some issues that should be considered before lumbering along even further down the sullied military commission path.

Which cases are candidates for military commissions? Brig. Gen. Martins said federal courts are the appropriate forum in most instances and that military commission cases may be “numerically few.” The administration has identified fewer than three dozen detainees they intend to prosecute for alleged criminal conduct. How will those cases be divided between federal courts and military commissions? Sen. Dianne Feinstein hinted at the answer during a Senate Judiciary Committee hearing in 2010 when she told Attorney General Eric Holder that in choosing between the two forums, “make the decisions based on the legal facts and where we best get a conviction.” If you peel back the rhetoric and examine the ground truth, military commissions likely end up the “better choice” when there is a chance the U.S. government might not be assured of a conviction elsewhere. In other words, the U.S. will afford an accused all the justice possible while ensuring the cards are stacked decidedly in the government’s favor.

Military commission proponents rationalize the need for this peculiar forum citing the exigencies of war and the unique circumstances presented on the battlefield. That argument would be more persuasive had most of the Guantanamo detainees been captured under circumstances bearing some resemblance to battle. They were not. For example, Khalid Sheikh Mohammed was rousted from a bed in a house in Rawalpindi, Pakistan, by Pakistani authorities, and Abd al-Rahim al-Nashiri was captured in the United Arab Emirates without any U.S. military involvement. In the end, it is not so much what the detainees did that make military commissions the better choice, it is what the U.S. did that may not stand up to traditional principles of justice.

The U.S. has invested a great deal of effort in trying to revive a military commission process it last used in World War II and make it fit the unique circumstances of a handful of post-9/11 terrorism cases. There have been 779 men detained at Guantanamo over the past decade. Only 171 remain, and a majority of them have been cleared for transfer (about 89 men) or designated for indefinite detention without trial (about 46 men). Four more have already been convicted and sentenced, leaving 32 potential cases for prosecution. The last of the 32 was captured in 2006, so the facts of any case have not changed in more than five years.

Rather than developing these few cases to conform to the rules of regular federal court, the U.S. has tried to develop an irregular military court to accommodate the cases. The end result – at least until the next reform attempt – is a process where an accused can spend a decade or more waiting for his day in court; nearly all of the information is classified and the accused only gets to see what the prosecution decides is appropriate; the government demands that it gets to see the information shared between the accused and his attorney; and even if the accused wins, he is likely to still spend the rest of his life in prison.

This is the kind of “heads we win, tails you lose” process the U.S. condemns when it is used in other countries. If President Obama thinks this is going to restore America’s reputation as a nation committed to the rule of law he is mistaken. Pinning the word “reformed” to the title does not make a silk purse out of this sow’s ear of justice.

: Morris Davis was chief prosecutor for the military commission at Guantanamo Bay, Cuba, from 2005-2007. He is a retired U.S. Air Force colonel and a member of the faculty at the Howard University School of Law in Washington, D.C. More Morris Davis

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Guantanamo’s system of injustice

The first trial of an accused terrorist exposes the flaws of "reformed" military commissions

By Laura Pitter

In this June 27, 2006 file photo US military guards walk within Camp Delta military-run prison, at the Guantanamo Bay US Naval Base, Cuba

Camp Delta, the military-run prison, at the Guantanamo Naval Base in Cuba (Credit: AP)

Topics:Guantanamo, on

Brig. Gen. Mark Martins, chief prosecutor for the Office of Military Commissions, has lately appeared at bar association conferences promoting “reformed military commissions” at Guantanamo. Speaking to the New York City bar association on January 11, Martins said the military commissions were “comparable to federal courts in their incorporation of all of the fundamental guarantees of a fair and just trial demanded by our values.” Indeed, a new masthead on the military commission website, put up after Martins took over, reads: “Fairness, Transparency, Justice.”

Yet this week, behind thick bulletproof glass in a secure hangar-like courtroom at Guantanamo, I saw vast differences between the two systems. One notices first the physical – the few observers permitted to visit the isolated island base reach the courthouse through a maze of walkways secured by high dark-mesh fences, guards and double barbed wire on both sides. Instead of sitting in the courtroom, observers sit in an adjoining room, behind glass, and hear voices on 40-second delay to allow court security officers to cut off the audio should any classified information be uttered. In the dock this week was Abd al-Rahim al-Nashiri, a Saudi of Yemeni descent accused of planning and participating in the bombing of the destroyer, the USS Cole, on October 12, 2000. The attack killed 17 US servicemen and injured many more. With US service members killed a federal court clearly would have jurisdiction over the case, so the government must have some other reason for choosing a military commission.

Nashiri’s is the first death penalty case to move forward in the military commissions. The fact that it is just being heard now, nine years after he was apprehended, demonstrates one of the starkest differences between the military commissions and federal courts – the absence of any real right to a speedy trial. This type of delay would never occur in federal court and greatly prejudices both sides, as memories fade and witnesses disappear.

Further, nearly every substantive issue litigated in Guantanamo this week would never have arisen in civilian court. For example, the defense asked the judge to order the military to stop reading mail marked attorney-client privileged. In a federal prison, while mail might be inspected for physical contraband, a warden wouldn’t read clearly marked legal mail to determine if it was truly a privileged communication.

The defense also sought permission from the judge alone to request funds for expert witnesses, a routine motion in federal court. But in the military commissions, the defense normally shares its request with the prosecution, potentially revealing its case theory and litigation strategy. Observers and reporters dozed during the hours of debate about whether defense email could be encrypted –- a seemingly dry issue until one realizes that request was being made because the Defense Department has been reading all the defense attorneys’ email.

The defense has still not received roughly 70,000 pages of documents deemed relevant and material to the defense. Much of the evidence in the case is classified. After his capture, Nashiri was held in a secret CIA “black site” for four years, and waterboarded — a form of mock execution by inducing near suffocation long considered torture under US and international law. He was also threatened with a gun and, later, with a revving power drill near his head while he was hooded but otherwise naked. Details of his torture, while available in the public domain, are largely treated as classified.

The classified nature of the evidence means the defense only gets summaries of parts the prosecution deems relevant and that the judge approves. A request by the defense to challenge the accuracy of the summaries was denied. But civilian judges recognize that the parties should be able to challenge summaries, and may do so with a motion to reconsider.

Despite the volume of documents, the prosecution pressed for trial to begin on March 3. That type of timeline is unheard of in federal court, especially in a death penalty case. The federal court case against 9/11 conspirator Zacarias Moussaoui took more than four years. Richard Kammen, one of Nashiri’s defense attorneys, called the prosecution’s proposed schedule “a time line for secret justice, for expedient justice, for under-resourced defense justice, and for justice that is fundamentally unfair.” He asked for ten months to two years depending upon whether he gets the resources and access to documents he needs. Ultimately the judge did not fix a trial date but gave the defense only two months to read all the documents and file any motions to challenge their adequacy.

Even in the presentation of evidence, the military commissions have vastly different rules of evidence. Statements from the accused obtained by torture are prohibited. But evidence derived from other types of coercion may be admitted. In federal court, any evidence derived from coercion would be barred, absent a showing that it would have been discovered in another lawful way. Also, unlike in federal court or the US courts martial system, multiple levels of hearsay are admissible (like a memo reporting on a conversation), denying a defendant any genuine right to confront witnesses against him.

Given the stark differences on display this week, it was startling to hear Martins say after the proceedings that military commissions “like federal court and courts martial” provide a fair system of justice. The US does not need to use this fundamentally flawed military commission system. As Martins himself admits, and the Obama administration has acknowledged, detainees can be prosecuted in either system for virtually the same offenses.

Whether one agrees with the use of military commissions or not, Martins and the Obama administration should at least be honest about the differences: as demonstrated by the proceedings this week, fundamental procedural protections afforded defendants in federal courts simply do not exist in military commissions. And without comparable fairness and transparency, the promise of justice remains a big question mark.

: Laura Pitter is counterterrorism advisor in Human Rights Watch’s US Program. More Laura Pitter

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Jon Stewart blasts Congress, Obama over terror bill

The Comedy Central host voices amazement at the government's newest encroachments on civil liberties

VIDEO

By Peter Finocchiaro

Topics:Morning Clip, The Daily Show, Guantanamo

If you’re a stickler for civil liberties, then you probably find the National Defense Authorization Act to be somewhat troubling. The annual defense appropriations bill, which received the seal of approval from Congress last week, contains provisions that would allow the government to detain terror suspects (and associates thereof) for an indefinite period of time, without a trial.

The Obama administration has suggested that it’s open to a veto of the bill — a move that would appear consistent with his opposition to indefinite detentions when he was running for president. The only problem — as Jon Stewart pointed out on “The Daily Show” last night — is that the President Obama would veto the bill not because it runs counter our conception of liberty … but because it doesn’t go far enough.

: More Peter Finocchiaro

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Is Guantanamo forever?

The Senate contemplates a bipartisan bill to make permanent the failed system of indefinite detention

By Andrea Prasow

A guard looks out from a tower in front of the detention facility on Guantanamo Bay U.S. Naval Base in Cuba. (Credit: Associated Press)

Topics:Guantanamo, National Defense Authorization Act

A decade ago, after the Sept. 11attacks, President Bush authorized the detention without charge of alleged terrorist suspects. It had been decades since the United States had detained people without charge or trial on national security grounds. The last time was during World War II when thousands of Japanese-Americans were unjustly detained in internment camps. The U.S. has since acknowledged this mistake, paying reparations to those wrongly detained.

The Bush system of indefinite detention established at Guantanamo and elsewhere attempted to stand outside and circumvent the rule of law. This system has failed to prosecute more than a handful of terrorist suspects, while wrongfully detaining hundreds more. Yet Congress is now poised to make this system a permanent feature of U.S. law.

The National Defense Authorization Act, scheduled to be voted on by the Senate this week, contains several provisions that, if passed, would have the military police the streets, expand Guantanamo and indefinite detention elsewhere, and force certain terrorism suspects into military custody instead of charging them with crimes in civilian courts.

This, despite the fact that the civilian justice system has proven effective in the fight against terrorism, preventing future attacks and prosecuting, far more than the military, alleged terrorist cases. In the last 10 years over 400 people have been tried and convicted of terrorism-related offenses in U.S. federal courts. Many convicted in this system are serving their sentences in U.S. prisons. The criminal justice system, flawed though it may be, has stood the test of time.

Meanwhile, in the extra-legal military system, hundreds of detainees were abused in U.S. custody and some died. While a total of 779 people have been held at Guantanamo, only six have been prosecuted in a military commission and two are already free.

Immediately after the attacks of Sept. 11 the world rallied around the United States in a show of solidarity. But the support faded rapidly as the new U.S. counterterrorism policy became clear. The “global war on terror” and the ensuing cruel and illegal policies of torture, enforced disappearances and indefinite detention without trial damaged the international standing of the United States, to say nothing of the cruelty inflicted upon the people abused and detained and on their families. The detention provisions of the NDAA would reinforce this discredited idea of a “global war on terror.”

These provisions, the result of a bipartisan compromise sponsored by Sens. Carl Levin and John McCain, would effectively jettison the civilian law enforcement system and require the military to become the world’s judge, jury and jailor. This position is being closely watched by the U.S. allies who supported Obama’s now-defunct plan to close Guantanamo and agreed to serve alongside U.S. troops in Afghanistan and elsewhere. It is also being watched by the repressive regimes of the world who have long declared the U.S. had no authority to tell them how to respect human rights while Guantanamo and illegal detention persisted.

When the Senate Armed Services Committee considered these provisions, they did so behind closed doors, away from public scrutiny. Neither the Senate Judiciary nor Intelligence Committees were consulted and no hearings were held. In a powerful statement, all members of the Intelligence Committee and most members of the Judiciary Committee asked Majority Leader Harry Reid to refuse to allow the bill to proceed until the detention provisions were removed from the bill. Instead, the drafters made the bill even worse, prompting the secretary of defense to write a letter in opposition and the White House to issue a veto threat.

Secretary of Defense Leon Panetta wrote to Levin, saying the “advantages … of requiring that certain individuals be held by the military are, at best, unclear” and “restrain[] the Executive Branch’s options to utilize, in a swift and flexible fashion, all the counterterrorism tools that are now legally available.”

The detention provisions don’t belong in the NDAA, or anywhere else in U.S. law. Sen. Mark Udall of Colorado has braved opposition from Levin and McCain – to oppose them. He has offered the only reasonable amendment to the bill – strip the detention provisions from it and allow Congress to move forward with the other relatively uncontroversial and important parts of the bill related to funding the Defense Department.

The administration has threatened to veto not only the Senate bill over these provisions, but also an earlier version of the bill passed by the House. Proponents of the provisions claim a veto would jeopardize funding for U.S. troops but the reality is, troops are funded by the defense appropriations bill, not the NDAA. The aggressive response from the administration, including statements from the Defense Department, Justice Department and director of National Intelligence, suggest that the veto threat is a serious one.

In the days after the Sept. 11 attacks, the U.S. stepped outside the law. Slowly, and with the benefit of hindsight, it has moved back to using the time-tested U.S. system of justice to prevent and prosecute terrorism cases. Congress should cease its attempts to cement in an extra-legal regime. It didn’t work before and it won’t work again.

: Andrea J. Prasow is senior counterterrorism counsel and advocate with Human Rights Watch in Washington, D.C. More Andrea Prasow

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“You Don’t Like the Truth”: Our first look at a Gitmo interrogation

A bewildered Canadian teenager goes to Guantanamo Bay in this disturbing look inside the War on Terror

By Andrew O'Hehir

A still from "You Don't Like the Truth"

Topics:Guantanamo, Our Picks, Movies, Taliban, Documentaries, Afghanistan, Canada, Al-Qaida, Terrorism

In the wake of the extrajudicial killing of American citizen Anwar al-Awlaki and several other people in Yemen this week, we’re faced (once again) with the realization that the United States Constitution has become a largely meaningless totem. It gets waved around enthusiastically by people on all sides of the political spectrum whenever it seems to serve their interests, but nobody pays much attention to what it actually says. Presumably President Obama, the military-intelligence establishment and the mainstream media are declaring Awlaki a special case. Thanks to the secret provisions of secret laws, he was deprived of all the rights of citizenship and not subject to the ordinary rule of law that extends back not merely to the Constitution but to the Magna Carta (at least).

Some similar exemption must also be made for the Canadian citizen Omar Khadr, who was 15 years old when he was found, badly injured and barely alive, after a 2002 firefight between U.S. troops and Taliban forces in Afghanistan. (Khadr’s father, an al-Qaida supporter and fundraiser, had apparently dropped him off at a Taliban compound a few weeks earlier.) Based on what we see in the painful, revealing documentary “You Don’t Like the Truth: 4 Days Inside Guantánamo” — the first film to show actual interrogation footage from inside the secret American military prison at Guantánamo Bay, Cuba — Khadr became a sort of ritual sacrifice by the Canadian government, an offering to its American allies and/or overlords. His case became a hot political issue north of the border, where Canadians pride themselves on a society that is more egalitarian, and more civilized, than that of their American neighbors.

Following a Canadian Supreme Court decision, most of Khadr’s seven-hour interrogation at Gitmo by CSIS officers — the approximate Canadian equivalent of the CIA — has been declassified, and veteran lefty documentarians Luc Côté and Patricio Henríquez use that claustrophobic, low-resolution 2003 footage as the basis for “You Don’t Like the Truth.” That sounds like something the interrogators might have said to Khadr, but it isn’t. It’s what he tells them after realizing they don’t want to hear his allegations that he was tortured by American forces, and that all his supposed confessions about knowing Osama bin Laden and attending al-Qaida barbecues were made up on the spot, to stop the pain.

You won’t see Khadr suffer physical torture on these surveillance tapes, although the interrogators rely on time-honored tactics of psychological abuse, alternately berating him and plying him with Big Macs. You will see a teenager who speaks idiomatic North American English, and who is obviously relieved to see fellow Canadians, whom he naively assumes have come to help him. And you’ll see him go through a near-total breakdown, sitting alone in the room weeping for his mother, after he realizes that no one cares about what happens to him and that he’s only interesting to his interrogators as long as he keeps making up stories about Osama and al-Qaida.

I have no idea whether Khadr actually threw a grenade that killed a U.S. Delta Force soldier, as was alleged after his capture. (Khadr has consistently denied it, and photographic evidence suggests that he had been shot through the back and was out cold before the soldier’s death.) But the Canadian interrogators barely mention it, and it feels suspiciously like an inflammatory distraction, thrown in mostly to alienate all possible North American sympathy. At best it’s an ancillary question. If Khadr was a genuine military combatant, then he can’t be prosecuted for killing an enemy soldier in battle. Furthermore, he would have to be considered a child soldier under international law, which theoretically immunizes him even for war crimes. Convicting him on such charges, as the government eventually did in a secret court on secret evidence, required the finding that he wasn’t a soldier but a civilian terrorist (even though he was supposedly linked to two organizations, al-Qaida and the Taliban, with whom the U.S. government has repeatedly said it’s at war).

Côté and Henríquez intersperse brief and highly effective interview segments between snippets of the interrogation tape, with subjects ranging from former U.S. military officers (including Khadr’s lawyer and psychiatrist) to former Guantánamo inmates (including Moazzam Begg, now a leading British activist for other detainees) to Khadr’s mother and sister (wearing full-face Islamic veils) to Damien Corsetti, the much-demonized former soldier who knew Khadr as a guard at Bagram. What comes through repeatedly is that questions of law and reason, or guilt and innocence, played no role in the case of Omar Khadr. He was a vulnerable and confused kid whose own government turned its back on him, which made him a perfect candidate to become one of the few Gitmo detainees convicted of something. He was 15 when he was captured, and will be 31 when he (supposedly) gets out.

“You Don’t Like the Truth: 4 Days Inside Guantánamo” is now playing at Film Forum in New York, with more cities and dates to follow.