Earlier last month, lawyers for Moath Hamza Ahmed al-Alwi, a Yemeni citizen who’s been detained in Guantánamo since January 16, 2002, petitioned the Supreme Court to review his case. His legal team argues that the US government lacks the authority to detain al-Alwi under the 2001 Authorization for Use of Military Force and that indefinite detention is illegal. Previously, the district and circuit courts denied al-Alwi’s habeas petition, which is why his lawyers are going to the Supreme Court. Al-Alwi’s case is a reminder of Guantánamo’s reality: The military commissions system is a kangaroo court designed to cover-up CIA torture while dozens of men remain indefinitely detained, and it’s likely that new prisoners could be transferred to Guantánamo.

Since 2002 when the Guantánamo prison first opened, over 700 prisoners have spent time in Guantánamo and most of them have been released since then. Currently, 40 detainees remain held in Guantánamo and only five are cleared for transfer, while most have not been charged or tried. Dubbed the “forever prisoners,” 26 are specifically held in indefinite detention without charge or trial. Meanwhile, only two prisoners have already been convicted and seven have been charged in the military commissions system. Part of the US government’s justification for indefinitely detaining certain Guantánamo detainees is that they are both too difficult to prosecute, because of inadmissible and often torture-obtained evidence, and too dangerous to release. However, recidivism for former Guantánamo prisoners is low — 4.6 percent. In other words, it is rare that released Guantánamo prisoners participate in terrorist or militant activity. Indefinite detention violates international human rights law, particularly the International Covenant on Civil and Political Rights.

New Prisoners?

During the 2016 presidential campaign, Donald Trump promised to keep Guantánamo open and load it up with “bad dudes.” President Trump has certainly kept his promise of keeping the prison open. In addition, he’s elevated torturers to high levels in his administration. CIA Director Gina Haspel oversaw the CIA’s black site in Thailand and the torture that occurred there, including of Abd al-Rahim al-Nashiri.

Even though no new “bad dudes” have arrived, the Trump administration is contemplating sending new prisoners to Guantánamo. Should any new detainees come to Guantánamo, they are most likely to be ISIS fighters. American and British officials have pondered sending captured ISIS fighters, such as Alexandar Kotey and El Shafee ElSheikh to Guantánamo. Kotey and ElSheikh are two British nationals and Islamic State militants who are currently detained in Syria. The men were captured by the largely-Kurdish Syrian Democratic Forces, a US ally, in February. They allegedly belonged to a four-person ISIS cell in Britain — known as the Beatles because of the members’ British accents — that is suspected of torturing and killing American and British hostages. Former Attorney General Jeff Sessions supported sending them to Guantánamo, while British officials say they are not opposed to the idea.

The detainees who would be potentially sent to Guantánamo “would be drawn from a group of about 600 currently held by the US-backed Syrian Democratic Forces in a rebel-controlled area of Syria,” according to NBC News. Many detainees are foreign fighters ranging from “foot soldiers plucked off the battlefield to the highest value detainees who were tracked and captured with help from the US military.”

This is the reality of perpetual war. Like the Bush and Obama administrations, the Trump administration points to the 2001 Authorization for Use of Military Force, which gives the president power to use force against nations and terrorists linked to 9/11, as the legal authority for war-on-terror policies, such as drone strikes, indefinite detention and keeping Guantánamo open. In an October 2017 Senate Foreign Relations Committee, then-Secretary of State Rex Tillerson stated that the 2001 AUMF “provides statutory authority for ongoing US military operations against al-Qaida, the Taliban, and associated forces, including against the Islamic State in Iraq and Syria, or ISIS,” along with a “domestic legal basis for our detention operations at Guantánamo Bay.” “Associated forces” is a term created by the Obama administration to cover groups fighting alongside al-Qaeda, which expanded the scope of the AUMF. In that same hearing, Tillerson and Defense Secretary Jim Mattis said there should be no geographic or time limit to the War on Terror.

The 2001 AUMF provides the legal basis for the US government to justify keeping a war-on-terror prison at Guantánamo Bay. Guantánamo is the prisoner-of-war camp for the endless war on terror. This makes the detainees prisoners-of-war in an endless war. However, loosely-connected militant and terrorist groups like al-Qaeda and “associated forces” do not constitute legitimate parties “parties” to an armed conflict, according to a UN report challenging the US government’s targeted killing program. Therefore, the global War on Terror goes against international legal standards that prohibit waging wars against such amorphous enemies. As a result, this calls into question the existence of the Guantánamo Bay prison.

This is also why al-Alwi is challenging his detention. Most Guantánamo detainees, including al-Alwi, were captured during the early months of the war in Afghanistan when the United States military was engaged in actual combat. In their petition, al-Alwi’s lawyers argue that because the United States largely ended combat operations in Afghanistan and is mostly supporting the Afghan military, which is doing most of the current fighting, the war in Afghanistan has radically changed. As a result, the relevant conflict in question has virtually ended, which, his lawyers argue, is a reason to end al-Alwi’s indefinite detention. They also argue that indefinite detention violates the laws of war, international human rights law and raises constitutional questions. “Continued imprisonment raises serious constitutional questions — which the Court should avoid by limiting AUMF detention authority — and violates the law of war and other international norms,” they write in the petition.

CIA Influence on FBI Clean Team

Meanwhile, the military commissions — which were established by the Bush administration to try and convict Guantánamo detainees for acts of terrorism — are in disarray. Last August, the former judge for the 9/11 case, Col. James Pohl, shortly before he retired, prohibited using statements made by detainees to the FBI “clean team” as evidence. The clean team was a group of FBI and military interrogators who, in late 2006, set out to collect the same information the CIA previously obtained from the half dozen high-value detainees who were held in CIA black sites. Those detainees, who were transferred to Guantánamo in 2006, include the alleged 9/11 plotters. The clean team statements were produced through traditional, rapport-building interrogation techniques rather than torture. The US government is relying on those statements to prosecute the alleged 9/11 plotters and USS Cole bomber. However, the FBI clean team was far from independent; its interrogation strategy and questions had to meet CIA approval — approval from the very agency responsible for the torture.

There are two major cases currently being tried in the Guantánamo military commissions — the USS Cole bombing in 2000, in which 17 US sailors were killed, and the September 11, 2001 terrorist attacks, which killed nearly 3,000 people. The alleged mastermind of the USS Cole bombing is Abd al-Rahim al-Nashiri, while the five alleged 9/11 plotters are Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al Shibh, Ammar al Baluchi and Mustafa al Hawsawi.

All six defendants were among the 119 people detained, interrogated and tortured in secret CIA prisons across the globe. The CIA inflicted a range of torture and abuses, including physical beatings, threats against relatives, sexual abuse, waterboarding, cramped confinement, mock executions and stress positions. Torture is both an ineffective interrogation technique and a violation of international and US domestic law.

Under the military commissions rules, the prosecution cannot use statements the detainees gave to the CIA while they were held in secret prisons. Therefore, according to the Miami Herald, “as a substitute, prosecutors had planned to have FBI agents describe what the suspects told them soon after their September 2006 transfers to Guantánamo in supposedly consensual interviews.” However, Pohl ruled that the prosecution cannot use CIA detainees’ statements given to the FBI clean team as evidence. In the ruling, Pohl declared, “Under the specific facts of this case, in order to provide the defense with substantially the same ability to make a defense as would discovery of or access to the specific classified information, the Government will not be permitted introduce any FBI Clean Team Statement from any of the Accused for any purpose.”

The prosecution opposed the judge’s ruling since the FBI clean team statements are prosecution’s key evidence in the 9/11 case. Recently, prosecutors pressured the new judge, US Marine Col. Keith A. Parrella, to allow the FBI clean team statements to read details from court-approved summaries of what the CIA did to its detainees in the secret prisons, particularly Khalid Sheikh Mohammed. The FBI clean team was sent to interview the suspected terrorists in late 2006. Military commissions prosecutors want to use the responses obtained during these interrogations as evidence in the 9/11 and USS Cole bombing cases.

In order for the statements given to the FBI clean team to be reliable, the clean team had to be independent of CIA influence. The fact that the six men were tortured in CIA custody taints the case against them. Information obtained through torture is unreliable, in addition to inadmissible. So it would be hard to “un-torture” the defendants and use that evidence in prosecution. A retired Navy rear admiral John D. Hutson told the Washington Post in February 2008, “There’s something in American jurisprudence called ‘fruit of the poisonous tree’: You can clean up the tree a little but it’s hard to do. Once you torture someone, it is hard to un-torture them. The general public is going to be concerned about the validity of the testimony.” In 2013, James Connell III, defense attorney for Ammar al-Baluchi, argued similarly to Truthout, “If a statement is truly independent of prior coercion, that statement can be used in court. The problem is that after years of secret detention, it will be difficult for the prosecution to establish that the most recent interrogation is truly independent of what came before.” The prosecution’s case’s validity relied on the independence of the FBI clean team.

Now, it seems the FBI clean team was far from independent. A January 10, 2007, FBI memo disclosed to the al-Hawsawi defense team last December in discovery and obtained by Truthout, details the rules the FBI clean team had to follow when interviewing high-value detainees, such as the accused 9/11 plotters. Essentially, the FBI clean team could interview detainees, but their interrogation strategy and questions had to meet CIA approval. For example, the memo states, “All classified materials to be used during a detainee interview will be reviewed by the appropriate agency for authorization to use the information in an interview. Agents should discuss their interview strategy with the assigned DoD/DOJ prosecutor prior to the interview to identify areas of questioning necessary to meet the elements of the military commission offense.” It also states, “No statement made by a detainee while that detainee was in the custody of an intelligence agency, or any evidence obtained as a result of such statement, will be used in an interview unless approved in advance by the assigned prosecutor and the appropriate intelligence agencies.” Those detainee statements could include allegations of torture.

During last December’s pretrial hearing, defense attorneys were able to cross-examine two FBI special agents who were assigned to the clean team. When al-Hawsawi’s defense lawyer Walter Ruiz asked if the FBI clean team had to follow specific rules when referring to statements of “specific torture that Mr. al-Hawsawi alleged,” one of the agents said, “As I understood the ground rules at that time, any statements by any high-value detainees during that time, the 2003, roughly, to 2006 time frame, if I wanted to use any of that material — and I was not aware of the substance of that material — if I were to use any of that material, that would have required clearance from the CIA.” Essentially, rather than conduct an independent and impartial investigation, in order to ask questions to the detainees, the FBI had to run their questions by the CIA for approval.

In addition to having questions meet CIA approval, the same memo regulates how the FBI can document their interviews with detainees. FBI agents had to “document the interview” on a CIA laptop and a draft of the interview had to be sent to the CIA for classification review. If a detainee mentioned instances of torture they experienced or details about CIA black sites, that information was considered classified by the CIA. The memo states, “During the interview process, a detainee may provide the agents with information concerning the interrogation techniques previously used on him and his detention locations. Such information, even though coming from a detainee, is deemed by the CIA to be national security information.” Since that information is classified, the FBI had it in a separate document that only the CIA could possess.

Moreover, a 2008 Department of Justice Inspector General report found that in 2003 the FBI and CIA entered into a memorandum of understanding (MOU) concerning FBI agents who assisted the CIA “in debriefing certain high value detainees and ‘sensitive CIA debriefing sites.'” The memo addressed “how information obtained by FBI agents detailed to such sites will be used and protected” and the FBI “agreed to observe strict need-to-know principles and limit knowledge of the existence of the MOU.” This suggests that the CIA had a significant degree of control over information obtained by FBI agents assisting in the debriefing of high-value detainees.

The US government also imposed restrictions on defense lawyers’ ability to investigate and interview potential witnesses, namely CIA agents who know what happened to their clients in CIA custody. This is part of the military commissions’ secrecy regime. Another part is a gag order prohibiting defense attorneys, who hold top-secret security clearances, from disclosing additional information they know about torture to their clients and the general public because that information is classified. Despite public disclosures, there are still many details about the CIA torture program that remain classified. The 2014 Senate report on the CIA torture program publicly released only 528 out of the full 6,000-page report — the rest remains classified. So defense attorneys cannot publicly disclose details of torture they know that are not officially declassified, even if those details are important for their client and the public to know. Another part is classifying defendants’ thoughts and memories of the torture they experienced as “state secrets.”

Restricting interviews with CIA agents is another part of this system. Last year, the prosecution threatened defense attorneys with criminal charges if they tried to interview CIA agents. Connell told Truthout, “Prior to the restrictions on interviews, we had an extensive investigative effort to locate and interview people with knowledge of the black sites and the torture which went on there. The government apparently believed we were getting too close to the truth, so they threatened to prosecute the defense if they continued to interview CIA witnesses outside a strictly controlled pseudonym protocol.” This “pseudonym protocol” refers to a government-provided codename for CIA agents. Defense attorneys are not given the agents’ real names.

Ruiz told Truthout that the prosecution has “come out with a series of protective orders claiming national security privilege and come up with a number of procedures that do obstruct our ability to conduct a meaningful capital defense investigation.” He added, “They won’t reveal the identities of the CIA torturers and they won’t reveal the black sites.” In addition, the prosecution is refusing to allow the CIA agents to physically meet with defense attorneys for face-to-face interviews.

The military commissions are still in pre-trial phase and no trial date has been set for the 9/11 case. Given the conservative make-up of the Supreme Court, it seems unlikely that the Court will rule in favor of al-Alwi. Like his predecessors, Trump is continuing the post-9/11 perpetual war machine — a war with no end in sight.

Copyright © Truthout. May not be reprinted without permission.