Clive Stafford Smith, British born lawyer for over fifty detainees in Guantanamo Bay. He is the legal director of the UK charity Reprieve and has defended prisoners on death row for over twenty years. He is the author of Eight O’Clock Ferry to the Windward Side: Seeking Justice in Guantanamo Bay.

AMY GOODMAN: A military judge has postponed the first war crimes tribunal at Guantanamo to allow a Supreme Court ruling to be made on the right of prisoners to challenge their detention in civil courts. The trial against Osama bin Laden’s former driver, Salim Ahmed Hamdan, was scheduled to start on June 2nd. Navy Captain Keith Allred ruled on Friday the trial should be delayed seven weeks, until July 21st, in case the Supreme Court ruling affects his case.

The court is considering a challenge to a provision of the Military Commissions Act of 2006 that denies Guantanamo prisoners the right to file petition of habeas corpus. It marks the third time the Supreme Court has examined the rights of prisoners held at Guantanamo. A ruling is expected June 30th.

In a separate ruling, the judge ordered a psychiatric evaluation for Hamdan to determine if he is competent to stand trial. A psychiatrist hired by his lawyers found he suffers from depression, post-traumatic stress disorder, and can’t participate in his defense. The military says he has no signs of any problems.

The US holds about 270 prisoners at Guantanamo now and has said it plans to bring about eighty before the tribunals, the first to be held by the United States since World War II.

Clive Stafford Smith is a British attorney who represents more than fifty of the prisoners at Guantanamo, legal director of the UK charity Reprieve and author of Eight O’Clock Ferry to the Windward Side: Seeking Justice in Guantanamo Bay. He is testifying on Tuesday before the House Committee on Foreign Relations about Guantanamo Bay. He joins from Washington, D.C.

Welcome to Democracy Now! again, Clive Stafford Smith.



CLIVE STAFFORD SMITH: Well, thank you very much for having me again.

AMY GOODMAN: Can you talk about the significance of the Hamdan case?

CLIVE STAFFORD SMITH: Well, of course, the Hamdan case has dragged on and on and on, and it’s, I think, highlighted the mess that Guantanamo Bay is in down there. And really, the most eloquent spokesperson on that is not me; it’s Colonel Morris Davis, who was the chief prosecutor of the process until he resigned recently, the chief military prosecutor in Guantanamo Bay.

And he had three criticisms, and he recently testified in Guantanamo about his criticisms. One is that the process is rigged. He said that he been told by a senior Bush administration official that there would be and there could be no acquittals in Guantanamo. In other words, everyone has to be convicted. He also said that there was intense politicization of the process. And indeed, Judge – the judge, Captain Allred, prohibited some of the senior offices, including Brigadier General Hartmann, from having any more role in the process, because they were basically telling everyone what to do. And I think the third one is the most important, which is that Colonel Davis said we really ought to ban the use of evidence that’s been extracted through abuse and torture, such as waterboarding, from Guantanamo trials, because it’s still being used down there. And then, indeed, one of my clients, Benyam Mohammed, it’s all they have got on him, is evidence that they extracted from him after taking him to Morocco and torturing him with a razor blade to his genitals. So this is just a – it’s a farce.

But if you step back for a second and you compare what’s happening in Guantanamo to the best job we ever did as Americans – and I’m American, as well, despite the accent – Nuremburg tribunals, which were really a beacon of the way the process should be run. Perhaps one of the highlights of Guantanamo is, the first three people we charged there were not Hermann GÃ¶ring and the people who were the worst in the Nazis in World War II. Instead, the first three people we charged were Salim Hamdan, who is allegedly a chauffeur for bin Laden, and then two juveniles, Omar Khadr and Mohamed Jawad, who were both juveniles. And I think that puts it a little bit in context of how carried away the military process has got down there.



AMY GOODMAN: Clive, can you talk about the significance of last week, of the Pentagon dropping charges against the Saudi man held at Guantanamo who was at the center of the military’s controversial torture program, Mohammed al-Qahtani, accused of being the twentieth hijacker? They’ve dropped the charges against him.

CLIVE STAFFORD SMITH: They did, indeed. And what was really extraordinary, in one way, was that they charged Mohammed al-Qahtani with the death penalty in the first place, because, if you recall, it was a leaked Freedom of Information document that came out in his case, which detailed, you know, hour by hour and day by day, the abuses he had been through in Guantanamo Bay that was splashed all over the US media a couple of years back. And, you know, one wonders at the judgment of people in Guantanamo that they charged him early on for the death penalty, where we were going to spend weeks and weeks and weeks in trial in Guantanamo listening to evidence about him being abused, where there’s already documentary proof of it.

Now, they’ve dropped his case now, and I sincerely hope that they have enough sense not to go forward against him with evidence that’s extracted through torture. He’s being represented by Center for Constitutional Rights, amongst others, and I think it’s through their great work that this has happened.

AMY GOODMAN: Also, the latest news of the disqualifying of – a military judge disqualifying the Pentagon general who has been centrally involved in overseeing the war crimes tribunals, named Brigadier General Thomas Hartmann, saying he couldn’t be objective, working too closely with the prosecutor.

CLIVE STAFFORD SMITH: Well, and this was as a result, as I had mentioned briefly, of Colonel Mo Davis’s testimony, the chief prosecutor from the process down there who quit because of Hartmann’s intermeddling. And Colonel Davis is – and I think he’s so much more credible than someone like me, quite frankly, because he was on the prosecution side. And his criticism was that Brigadier General Hartmann was basically telling him what to do and saying, “Look, there’s an election coming up. It’s in November. We’ve got to have prosecutions now against the high-profile guys. It doesn’t matter if you’re not ready to prosecute them, but we need Khalid Sheikh Mohammed on trial because of electioneering.”

Now, you know, that’s not the way any process should work. But the fact that the chief military prosecutor says this is what’s going on, I think, is enough to give us all pause and say, look, let’s stop this process, let’s do what most of the political candidates say in the election, which is bring people to the US if we want to try them and give them a proper trial. That’s really what America is all about.

AMY GOODMAN: And the significance of the US military planning to build a new forty-acre prison complex in Afghanistan near Kabul, a $60 million dollar site replacing the makeshift prison at Bagram that apparently holds around 630 prisoners right now, a number of them held for more than five years without charge?

CLIVE STAFFORD SMITH: Well you know, one thing that my charity, Reprieve, out of London, we’ve been trying to do is track down the real ghost prisoners in this process. And if you look at Guantanamo Bay, 270, roughly, as you mentioned, prisoners in Guantanamo, but according to the most recent official figures, the United States is currently holding 27,000 secret prisoners around the world. So that means that 99 percent of these folk are not in Guantanamo Bay. Now they’re in other prisons elsewhere. And as you mentioned, Bagram has 680. But there’s a huge number of people being held in Iraq, and one of the intriguing aspects of this that doesn’t get much reporting is that the US is bringing people into Iraq from elsewhere to hold them there, simply because that keeps rather annoying people like you, Amy – I mean the media – and also annoying people like me, lawyers, away from the prisoners so they can’t get any sort of legal rights.

And when you look around the world, there’s a huge camp, Camp Lemonier in Djibouti, where a lot of people are being held. Diego Garcia, contrary to the past analysis of the British government, in the Indian Ocean has been used, in my belief, to hold people. And we’ve identified thirty-two prison ships, sort of prison hulks you used to read about in Victorian England, which have been converted to hold prisoners, and we’ve got pictures of them in Lisbon Harbor, for example. And these are holding prisoners around the world, as well. And there’s a bunch of proxy prisons – Morocco, Egypt and Jordan – where this stuff is going on. And this is a huge concern, because the world focus is on Guantanamo Bay, which really is a diversionary tactic in the whole war of terror or war on terror, whatever you’d like to call it. And actually, most of these people who have been severed from their legal rights are in these other secret prisons around the world.

AMY GOODMAN: We’re talking to Clive Stafford Smith. He is a British lawyer who represents – well, what is it now? About 20 percent of the prisoners, since the number is now below 300?



CLIVE STAFFORD SMITH: I think you’re giving me a little too much credit, actually, Amy. We’ve got thirty-one prisoners there now. We’ve got fifty, thankfully, who are out, including – I had a lovely visit the other day to Sudan – Sami Al-Haj, the Al Jazeera journalist, who was held for six years in Guantanamo Bay, most recently charged with being a terrorist because he had trained in the use of “the camera” – was the direct quote – by Al Jazeera. That was the allegation against him that was the main focus of the US intelligence in Guantanamo, and that’s because he was an Al Jazeera cameraman. He is now back with his family. So I’m glad he’s safe –

AMY GOODMAN: You were just with him in Sudan?



CLIVE STAFFORD SMITH: Yeah, yeah. I was in the hospital, and he had been –



AMY GOODMAN: How is Sami Al-Haj?

CLIVE STAFFORD SMITH: Well, you know, there was some Pentagon press release saying that he was faking how ill he was. You know, that really makes my blood a little boil. He had been on hunger strike for 478 days. On the flight back to Sudan, which went via Baghdad and was twenty hours long, he had no water, no food, didn’t go to the toilet the whole time. And he was really in very, very bad shape when he showed up in Sudan, got rushed to hospital.

I am glad to say that he’s getting a lot better. And I was there with him and his wife and his little seven-year-old son. And I’m just so glad we finally got around to letting him go, because I think that was a tragedy for our US reputation around the world that we were holding a cameraman and saying that he was some terrorist, and every day on Al Jazeera – every hour, in fact – there would be a little strap line along the bottom of the TV screen, where forty million people would see that Sami Al-Haj was still being held in Guantanamo. So I’m glad that he’s finally out.

AMY GOODMAN: And the issue of Sami Al-Haj saying he was being repeatedly questioned about the leaders, about those who run Al Jazeera and about his colleagues at Al Jazeera?

CLIVE STAFFORD SMITH: Well, that was the focus. I mean, and Sami actually had to ask the intelligence folk in Guantanamo – and I was very interested listening to the person you were talking to before, Tim, about the whole process, because of course it’s so true that the focus of a lot of these civilian folk who were doing the intelligence gathering, you know, I don’t know how they think they get paid, but apparently they get paid just by the word. And they interrogated Sami Al-Haj roughly 120 times about people working at Al Jazeera, trying to get him to say that Al Jazeera was an al-Qaeda front. And Sami said, “It’s just not true. I’m not going to say that.” But this went on and on. And finally Sami had to ask them to interrogate him about himself and whatever allegations they might have against him.

AMY GOODMAN: Very quickly, Clive, did you say that you – that the US is taking prisoners to Iraq?

CLIVE STAFFORD SMITH: Oh, yes, they are. I mean, the US is taking an estimated forty to sixty, on average, prisoners a day around the world. And it doesn’t take a lot of arithmetic to tell you how many people that is each month. And people are being taken to Iraq to be held in Abu Ghraib, even today, and also in other camps in Iraq. And this is a big challenge for us as the lawyers to try to bring – you know, reunite them with their legal rights, because I, for one, am sort of forbidden by my wife from spending too much time going to Iraq and getting shot at.

AMY GOODMAN: We’re going to have to leave it there. Clive Stafford Smith will be testifying before Congress tomorrow. His book is called Eight O’Clock Ferry to the Windward Side. He is a lawyer from Britain representing more than thirty prisoners at Guantanamo.