By Clive Stafford Smith, Nation Books, October 1, 2007, 1568583745

Clive Stafford Smith is a lawyer for Reprieve, which “provides frontline investigation and legal representation to prisoners denied justice by powerful governments across the world, especially those governments that should be upholding the highest standards when it comes to fair trials.”

The book is about Guantanamo, but Smith lets us know there are many other secret prisons operated by the U.S., such as the one off the island of Diego Garcia in the Indian Ocean. The U.S. Government is operating these prisons without oversight and against the Geneva Conventions to which the U.S. is a party. The prisons are holding prisoners illegally and unquestionably torturing them.

There are even prisoners designated No Longer Enemy Combatants (NLECs) by the U.S. Military itself are still being held, even though they have acquitted by the military tribunals. These prisoners were branded the “worst of the worst” and “bad men” by the highest levels of the U.S. Government, but they aren’t and never were. The majority were sold by bounty hunters, like slaves at a market, for the princely sum of $5,000 each, that’s five or six years income for an ordinary Pakistani.

The majority of the Guantanamo prisoners are innocent and fortunately many have been set free, but some of the most abused are now psychotic, and are still prisoners Tortured into psychosis by the U.S. Military, and now the U.S. has to figure out what to do with them. No country will take them.

What’s worse is that beyond Guantanamo, there are some 14,000 prisoners in U.S. custody or who have been transfered to 3rd parties to be tortured. Are they are innocent? Were they arrested due to some coerced confession by other prisoners? A mountain of lies created by the misguided idea that torture is necessary and can extract useful and true information.

Smith enters into the torture debate by interviewing various people, some who have freely admitted to forceful interrogations. Others, like Richard Perle & Alan Dershowitz, are academics who have never tortured nor been interrogators, and approach the torture debate as a theoretical exercise with the classic argument about the “ticking time bomb”.

Smith demonstrates the ticking bomb theory is irrelevant, because it has never happened, and none of the reasons the U.S. or their proxies are torturing people today has even the remotest connection with a ticking bomb. For the most part, it seems to me and Smith documents, the torture has more to do with proving the guiltiness of those who are being tortured or their non-compliance with irregular and brutally enforced prison rules.

Needless to say that I’m horrified by Guantanamo. Fortunately, I didn’t write this book, Smith did. He writes well, clearly, and unemotionally. Given his secret clearance from the U.S. Government and his many visits to Guantanamo, he also has knowledge that I do not have, nor would be able to get. I’m too emotional to be his position, and I’m admire him greatly for fighting for justice for people who have had all rights taken away from them.

[p4] I go outside, planning to walk down the road to find some kind of dinner. The motel sign bears the base motto: ‘Honor Bound to Defend Freedom’. Freedom is a relative term. Iguanas are free enough on both sides of the island and if a soldier accidentally runs one over it’s a $10,000 fine, since the US environmental laws apply in Guantanamo. Meanwhile, several hundred prisoners are more than five years into captivity. If a jailer feels the need to hit one of them, it’s called ‘mild non-injurious contact’ and there are no consequences. For these prisoners it’s a law-free zone. In 2004 we argued in the Supreme Court that it would be a huge step for mankind if they gave our clients the same rights as the animals on the base. ‘Equal rights with Iguanas!’ became our clarion call.

[p28] ‘Now translate the issue of innocence into the context of interrogation; what proportion of people are we willing to torture erroneously, because we just got it wrong, before that invalidates the whole process of torture?’ I asked.

‘Well, I would think it would have to be a very small percentage, much smaller than the death penalty,’ [Michael Levin, inventor of the ticking-time-bomb torture theory] said reflexively.

‘So what you’re saying is we’re willing to torture fewer people who’re innocent than execute them?’ I was intrigued. I wouldn’t want to be tortured, but I’d rather that than being tortured to death. I had witnessed two clients die horribly in the electric chair.

‘Many fewer, because torture’s not a punishment, right? It’s not a punishment, it’s to prevent harm. And so you really, in that case, you have to be very, very sure that there’s harm on the horizon.’

That seemed a strained distinction. He had said he would hesitate before he would torture someone plotting to take thousands of lives. He wanted to be more careful about inflicting pain under those circumstances – where innocent people suffer but they don’t die – than he would be when society was executing a human and where history suggested society made plenty of mistakes. Perhaps he had a point, though: far fewer people would agree with ‘torture’ as a proposition than with the death penalty. But where did that leave us on Levin’s theory about the ticking time bomb, the cornerstone of his torture hypothesis?

‘Can you identify, though, for me …’ I began. ‘Can you identify one instance, say, in the last fifty years where torture was a real practical thing we could have done to avert a … a massive disaster?’

‘Well,’ Levin pondered. ‘I can’t think of anywhere, with 20/20 hindsight, we might be able to say – well, they suspected these guys at the aeroplane gate, they were acting funny, if only we had known and we’d squeezed the information out of them right then and there, [p29] diverted the flights … of course, you couldn’t know that until afterwards. Unless you’ve got a candidate, I can’t think of one at the moment.’

So we had a theory, but it seemed to have no practical application. Meanwhile I had what I had come for: a relatively coherent advocate for the torture position. I found my discussion with him very disturbing. Far from being my imaginary bogeyman of neocon extremism, he had been pleasant and not totally unreasonable. I could see his students lapping all this up.

[p48] Various people I had interviewed had noW made their case for torture and sometimes against. The ticking-time-bomb hypothetical, perhaps the most compelling argument in favour of torture, had been rolled out by every torture apologist I had encountered. Mike Baker denied that such an event ever took place during his time with the CIA. Indeed, with each person I interviewed - Professor Levin, Professor Dershowitz, Richard Perle and Big Bill Cowan - I gave them 500 years to come up with an example. Nobody could identify one instance where a catastrophic bomb had been defused by torture.

It is this ticking-time-bomb myth that is used to justify the nightmare of torture.

[p117] ‘I am telling you that you need to put it down or it is going to be put away.’

‘So it is a new rule?’ Binyam wanted Kohlmann to admit that these were being made up as we went along.

‘Mr Muhammad, there are rules of court, OK?’ said Kohlmann, impatience now showing through. ‘I can establish additional rules of court for the conduct of these proceedings, OK?’

‘OK, so we have a new rule, “No more signs in the court”?’ Binyam said. ‘Because I want to follow the rules. I don’t want to be here and you think, “Oh, look at this idiot.” You said I have to obey the rules. I asked about these rules. There is nowhere where it says that I can’t have a sign in the court. Now if there is, and if there is not, just tell me, because I will not do it.’

‘I am telling you as the Presiding Officer in charge of the proceeding that we are not going to have signs held up.’

‘OK, sir, that is a new rule,’ Binyam concluded, obediently putting down his sign on the desk, sensing that after waving it around for almost ten minutes he had already won this skirmish.

Binyam turned the conversation to what he would, and would not, be allowed to say, asking Kohlmann to give him some more guidance, since the made-up rules were proving incomplete. Of course, this incompleteness was inevitable. In Britain, lawyers have been arguing about the law for 800 years since the Magna Carta, and they still cannot agree what the rules are. The idea that someone in the Pentagon cnuld create a new legal system out of the whole cloth, publish it on 30 April 2003, and expect there to be no challenges to it was risible.

Kohlmann lectured Binyam on how he would not be allowed to talk in court all the time. The colonel had figured out that his earlier effort to appear accommodating was backfiring, as Binyam was proving far better prepared and more eloquent than the other prisoners who had appeared in earlier commission hearings. Some of them came from Yemen and Saudi Arabia, and barely spoke English. It was hard for them to control a courtroom since they were dependent on translators.

‘You are also going to have to be guided by appropriate standards of civility.’ Kohlmann said, laying down another rule about the times Binyam could speak in public, ‘which, in my view, would not include … the use of words like “crap” or “shit”, OK? That is impolite conduct.’

[p118] Joe and I were still sitting in the audience and it was difficult not to smile.

Binyam had used the word ‘crap’ more than once. ‘That is impolite,’ Binyam repeated out loud, as if he were reflecting over the word. I sensed that he was considering how he had been ‘impolitely’ tortured for a couple of years.

‘And you did all of those things just now and you need to stop doing that. Otherwise, you are not going to be allowed the leave that I have been granting you, OK? I will need to clamp down on that a little bit.’

‘Let me have .. .’ Binyam began, but Kohlmann was not going to let him back in yet.

‘Don’t use bad language,’ Kohlmann re-emphasised. ‘You can make your point, “I think the rules for the proceedings are absurd.” OK, that works just as well as “This is crap,” OK?’

I almost choked. Here was a quote out of the mouth of the colonel in charge of the tribunal – ‘I think the rules for the proceedings are absurd.’ Well put, I thought.

‘So …’

‘And you seem like a rather articulate fellow to me and I think you can probably make your points without bad language.’

‘Actually, Islam teaches us not to use bad language, but .. .’

‘I didn’t hear you.’

‘Islam teaches us not to use bad language but sometimes I can’t control, so it just comes out.’

‘OK, well try.’

‘I am trying to restrain myself as you are trying to restrain yourself, but I just … I want to understand,’ said Binyam, thinking he had allowed Kohlmann enough of the talking for a while. ‘You say “impolite” and I think it is impolite to have a person tell you that people outside have lawyers who advise them and don’t have to have them in the courtroom. And you say, “You know what, I don’t care.” I think that is impolite. I think you should say, “You know what, 1 have to go and make an investigation on this.’

‘I will give you one minute here.’ Kohlmann looked at his wrist. ‘Because you are kind of starting up again, all right?’

‘I don’t need it.’ Binyam looked down and started writing something, pointedly ignoring the colonel.

[p150] Four years later the US had given up on the idea that Yusuf was an al-Qaeda financier, but they still hadn’t yet worked out his real age. According to the unclassified allegations still pending against him in 2005, Yusuf had been ‘identified as belonging to a London, United Kingdom cell led by Abu Qatada al-Masari, circa 1998’. Abu Qatada may have become well known later, when the British government detained him in Belmarsh for his allegedly extremist views, but at the time Yusuf had never heard of him. In 1998 Yusuf would have been eleven and he must have been beamed over to the al-Qaeda cell meetings by the Starship Enterprise, since he had never left Saudi Arabia by conventional means.

[p156] I only learned that Sami had been found innocent on my next visit, two months later on 3 July, now eight months after his CSRT. During our meeting Sami heaped scorn on his captors, telling me how they had come to his cell with the good news. Because of his previous ‘noncompliance’ they were holding him in an orange uniform, without any of the’ comfort items’ that the Pentagon boasted were available to the prisoners.

‘So when I was found innocent, what did the US military do?’ he demanded, his voice becoming shrill, almost hysterical. ‘They came to Camp Five and offered me a white uniform instead of the orange one. They gave me a water bottle and a comb for two days, and then they took them away again. That is what it meant to be innocent. I refused their white uniform. To me innocence means more than this. It means freedom.’

He was an [Not Enemy Combatant (NEC)] and, according to Navy Secretary England’s promise, he deserved immediate release. Yet even when Sami told me what had happened I could not at once proclaim his right to be sent home. According to the security rules, his status as an NEC was classified.

When I was eventually able to petition a court for his release, the Administration’s response was bizarre: first their lawyers refused to ‘admit or deny’ that he had won his CSRT. Next they said that Sami was not an NEC, as that designation had now been changed. He and the other thirty-seven who had miraculously won their CSRTs were not NECs, but had been redesignated as NLECs - ‘no longer enemy combatants’. In other words President Bush had been correct to designate Sami as an enemy combatant, but the US had generously [p157] decided that he had changed his wicked ways. Under the law, we were told, Sami had no right to release, as an enemy combatant could still be held for the duration of the conflict, even if he was no longer dangerous.

In August I complained loudly to the court about Sami, as he was still being held in Camp Five. So the military moved him to Camp Iguana, which had originally been constructed for the three Afghani juveniles, where conditions were far better. I was relieved that at least he was in a better place.

Sami was released from Guantanamo to Egypt on 30 September 2005, a year after the CSRT cleared him, and I talked to him on the telephone. It was only then that I learned the truth. The military had apparently moved him to Camp Iguana so they could represent that he had been transferred to better conditions. But a few hours later he had been moved back to Camp Five, where he remained until he was released.

Sami al Laithi’s case had been a rare one. He was one of just thirty eight men to have been found innocent at a CSRT (or, at least, longer guilty). This left more than ninety per cent of the prisoners in Guantanamo as ‘guilty’ according to the wallaby courts that the military had established. At the core of the debate regarding the truth, what was going on in Guantanamo was whether the Bush Administration had accurately identified the prisoners as enemy combatants. Gradually it has become clear that Guantanamo was the mother of mistakes – an analysis of the allegations against the prisoners reflectled that fifty-five per cent are not even alleged to have ever taken part in hostilities.

From the beginning I had my doubts – not because I mistrust, the military’s motives, but because I doubted their ability to work out who among the billion Muslims in the world were the real terrorists. Osama bin Laden would be easy to identify if only they could catch him, since he kept making appearances on television. With others it would not be so simple.

[p161] Some might say that the system is badly constructed, that the ‘fittest’ people for the job of prosecutor are not ‘surviving’ the selection process. Yet the problem is that people disagree on the goal of the prosecution function. American career prosecutors are uniquely ‘fit’ for the purpose of ensuring that people get locked up; they are just not so good at ensuring that the right person gets locked up or, equally important, that mistakes get rectified. Lawyers quote the aphorism, ‘Better that a hundred guilty go free than one innocent person is imprisoned.’ If we truly meant it, we would structure the system very differently and press a person who is less comfortable with certainties

This flaw permeates every step of the American criminal justice system. Wishy-washy former social workers rarely become police officers. Those who doubt their ability to pass judgement on a fellow human do not angle for judicial office.

The same is true of jurors. When faced with the awesome task of sitting on a jury, someone who feels inadequate is given plenty of opportunity under the American legal system to slide out of the courtroom. As a result, those who end up on the jury tend to be confident in their ability to condemn. Every time a Death Row prisoner has been exonerated – well over a hundred in the thirty years since America reinstituted capital punishment – twelve jurors have conferred and decided he was guilty beyond a reasonable doubt, before going even further: deciding he should die.

[p163] For four years, for the most part the military successfully refused to disclose the names of the prisoners, let alone the basis for their etention. As various people – lawyers and journalists – sued and convinced the federal courts to order the release of documents about Guantanamo Bay, our legal team divided them up for analysis. Prossor Mark Denbaugh, at Seton Hall University Law School, had his students analyse the allegations made against the prisoners in their CSRTs. These represented the best case the military could make against each prisoner and revealed that ninety-five per cent had not been been into custody by US troops – they had been turned over by the Pakistanis and the anti-Taliban Northern Alliance, usually in exchange for large bounties. Ninety-two per cent were not even accused of being al-Qaeda fighters, let alone proven guilty.

Gradually American officials began to admit in public that the prisoners were not all superterrorists.

‘Only like ten per cent of the people at Guantanamo are really dangerous, [and] should be there, and the rest are people that don’t havve anything to do with it,’ said a CIA operative, speaking anonymsly to a PBS television station in April 2004. They don’t even understand what they’re doing here.’ He had spent a year working at base when he reached this conclusion.

‘There are a large number of people at Guantanamo who shouldn’t there,’ said another former interrogator to the Wisconsin_State_Journal in August 2004. ‘They have no meaningful connection to al-Qaeda or the Taliban.’

‘Sometimes we just didn’t get the right folks,’ said Major-General Hood. This time it was the commander at Guantanamo acknowging the possibility of error to the Wall Street Journal in January 5.

What was the reason those ‘folks’ were still in Guantanamo months years later?

[p177] At the end of November 2001 the war had already peaked and Sami [al-Haj, an al-Jazeera cameraman – not same as Sami mentioned earlier] went with the crew back to Pakistan. Yousef was recalled to Qatar, but the station asked Sami to consider returning to Afghanistan with a new correspondent, Abdulhat Sadah. This time Sami never made it past the border.

It is not clear why he was initially stopped by the Pakistanis, although piecing it together from his interrogations, the US authorities seem to have requested his detention, thinking he had filmed an al-Jazeera interview with Osama bin Laden. Presumably they hoped that if they interrogated him they would learn clues as to bin Laden’s whereabouts. If this was true there would have been a simple expedient: they could have asked politely to speak with Sami, in which case he would have agreed, and they would have learned of their mistake. The bin Laden interview had been done by another crew.

Instead, Sami ended up in Guantanamo Bay.

[p179] There was significant circumstantial evidence that the Admintration was waging a broad offensive against the [al-Jazeera] television station, allenging the journalists’ freedom of expression. Four times the US authorities had searched the al-Jazeera offices or hacked the website because of its criticism of the Iraq war. Three al-Jazeera journalists were arrested by US forces.

Al-Jazeera offices were bombed in both Afghanistan and Iraq, resulting, in Baghdad, in the death of one of their correspondents, Tareq Ayyoub.

[p180] The missile seemed to have targeted the electric generator on the roof to stop al-Jazeera from broadcasting. Whether this was true or not, the US military certainly knew that this was al-Jazeera’s building.

st the background of this campaign against al-Jazeera, what rned about Sami’s ongoing interrogation in Guantanamo was

urbing. In the first hundred-plus sessions the US military never d a question about the allegations against him, as they were only ‘ested in turning him into an informant against al-Jazeera. He had iask them to interrogate him about what he was supposed to have


Bizarrely, Osama bin Laden decided to come to Sami’s defence in one of his tapes. Bin Lad seemed rather put out by the ‘amazing’ fact that some Guantana prisoners ‘oppose al-Qaeda’s methodology of calling for war with America.’ These people had no business being locked up. Specifically, he singled out ‘those working in the media, like Sami al-Haj …’

It was the kiss of death for Sami, of course. If bin Laden identified Sami as a member of al-Qaeda, the US military would have viewed it as conclusive proof that Sami was guilty. As it was, the fact [p183] that bin Laden asserted that Sami had nothing to do with al-Qaeda was almost certainly viewed as … conclusive proof that Sami was guilty. Why else would bin Laden say such a thing?

[p188] Hunger strikes had been a part of prisoners’ ongoing struggle Guantanamo for most of the prison’s history, though the military authorities laboured hard to keep the details from the public. The coordinated hunger strike began on 27 February 2002 and ran until the last man was fed through a tube in his nose after a seventy-one-day fast. The military did ultimately admit that some prisoners had been refusing food, but conceded that it was because of their ‘murky future’ and ‘the fact that they don’t know what is happening to them.’ But they did not accept that the terrible conditions at the prison played a role.

Even in the early days of Guantanamo, journalist David Rose reported an astonishing attitude on the part of the medical personnel who were meant to be treating the prisoners. He described an [p189] exchange with one of the camp doctors: in the camp’s acute ward a young man lay chained to his bed, being fed protein-and-vitamin mush through a tube inserted in his nostril. ‘He’s refused to eat 148 consecutive meals,’ said Dr Louis Louk, a naval surgeon from Florida. ‘In my opinion he’s a spoiled brat, like a small child who stomps his feet when he doesn’t get his way.’

[p224] Sean Baker, a member of the Kentucky National Guard, had suffered the most significant injury inflicted on a guard during the history of Guantanamo, and he wasn’t injured by a homicidal Muslim but his fellow soldiers.

[p225] ‘Well, you know what’s gonna happen when they come in there on me?’

‘Trust me, Specialist Baker,’ Locke said more emphatically. ‘You will be fine.’

‘Sir, you’re going to tell that [Emergency Reaction Force (ERF)] team that I’m a US soldier?’ Baker said.

‘Yes, you’ll be fine, Specialist Baker. Trust me.’

They agreed on a code word (‘Red!’) that would instantly stop the exercise if it got out of hand.

Locke wanted the training to seem real. Apparently he did not let the ERF team know that Baker was play-acting. In their subsequent statements each soldier swore he thought this was a real extraction.

As he was instructed, Baker refused the ERF team’s orders and hid under the bunk. They entered the cell, beat him, choked him and slammed his head against the floor.

‘Red!’ Baker shouted.

The beating continued, particularly by the soldier on his back, a man called Scott Sinclair. ‘That individual slammed my head against the floor and continued to choke me,’ he said. ‘Somehow I got enough air, I muttered out, “I’m a US soldier, I’m a US soldier.”’

Even this - said with an American accent - failed to stop the attack, until one of the soldiers noticed something wrong. ‘Whoa, whoa, whoa!’ the man shouted.

Baker started having seizures that morning. He was taken to the naval hospital at Guantanamo.

‘He’d had the crap beat out of him,’ said Staff Sergeant Michael Riley, the platoon leader. ‘He had a concussion. I mean, it was textbook - blank. You know, a dead stare, like he was seeing you, but really looking through you.’

Baker suffered brain damage. A military medical board determined that he suffered from mood and seizure disorders caused by a traumatic brain injury he sustained while ‘playing [the] role of detainee who [was] non-cooperative and was being extracted from detention cell in Guantanamo Bay, Cuba’.

‘All I wanted to be is a soldier,’ he said in the television interview. ‘I feel like I’ve been betrayed by my own troops because … what happened to me. I don’t want this to happen to anyone else, what I’m living with daily.’

[p226] Baker was discharged from the military and is unemployed.

What would have happened if the subject had been a prisoner instead of a soldier who ultimately shouted out with an American accent?

‘I think they would have busted him up,’ says Baker. ‘I’ve seen detainees come outta there with blood on ‘em - if there wan’t someone to say, “I’m a US soldier,” if you were speaking Arabic Pashto or Urdu or some other language in the camp, we may never know what would have happened to that individual.’

[p229] For a long time the Pentagon took the position that it should not ve to identify anyone in US custody, because this would provide ormation to the ‘enemy’ concerning who had been captured. Presumably it did not take long for the’ enemy’ to figure this out and the Pentagon’s position was undermined by the glee with which the Bush Administration would publicise the name of any significant member al-Qaeda they seized.

[p238] We have hundreds of years of experience and the very reason we have excluded such evidence from criminal trials is because it is unreliable. Yet this debate is a moot one. In order to convict [Khalid Sheikh Mohammed (KSM)] of the most reprehensible crime, there is no need to use statements coerced out of him; the prosecution need only play a videotape of his own volunteered statements. Likewise, bin Laden has provided videotaped evidence of Ramzi bin al-Shibh actually plotting the September 11 attack.

[p239] There are very unsavoury reasons why certain people in the Bush Administration felt political pressure to neuter the right to a fair trial. Abu Zubaydah, a Saudi brought up in Palestine, was another of the men transferred to Guantanamo Bay. He was said to have inherited the mantle of al-Qaeda military operations chief when Mohammed Atef was killed by an American bomb in Afghanistan. More recent reports suggested that he was suffering from a serious mental illness, unsurprising given that he was badly wounded when captured and mistreated as he was shuttled around the world.

Abu Zubaydah had been in US custody even longer than KSM, and there may be even more embarrassing consequences to his appearance in a military commission. In his book Why_America_Slept, Gerald Posner describes how the US set up a fake Saudi detention centre in Afghanistan, with two agents posing as Saudi intelligence, to pretend [p240] that Abu Zubaydah had been flown to face the supposedly barbaric justice of Saudi Arabia. They expected Abu Zubaydah to tremble with fear when he discovered his ‘rendition’.

However, when Abu Zubaydah was confronted by the false Saudis, ‘his reaction was not fear’, Posner writes, ‘but utter relief’. He reeled off telephone numbers he had memorised for Prince Ahmed bin Salman bin Abdul Aziz, a nephew of King Fahd (and a racehorse owner whose horse War Emblem won the Kentucky Derby in 2002). To the amazement of the Americans, the numbers proved valid.

‘He’ll tell you what to do,’ said Abu Zubaydah, who described the extensive assistance that Saudis had given to al-Qaeda, The final chapter of Posner’s book suggests that the Saudis (inevitably tip off by the Americans, and possibly working with them) found a solution to prevent the unwanted publicity that these revelation would have entailed. Prince Ahmed and two other Saudi royals name by Abu Zubaydah coincidentally died within days of each othe shortly after Abu Zubaydah’s intelligence was passed along to tb Saudi government. On 22 July 2002 Prince Ahmed died of a heart attack aged forty-three. The next day Prince Sultan bin Faisal bin Turki al-Saud was killed in what was called a high-speed car accident at the age of forty-one. The last of the three, Prince Fahd bin Turki bin Saud al-Kabir, expired one week later, officially dying ‘of thirst’ while travelling east of Riyadh.

[p269] The neocon three [Cheney-Rumsfeld-Wolfowitz] would pay lip service to the possibility that the military might make mistakes, but they would belittle the chance of errors on a large scale. After all, these prisoners were Arabs, seized by the US military close to the Afghan battlefield, far away from their Middle Eastern homes. They could have no innocent reason for being there.

For someone in the office of vice president or secretary of defense there would be an additional factor that would prevent them from recognising the innocence of prisoners in Guantanamo. Most of us, when we latch on to an improbable belief, are surrounded by reminders that we might be mistaken. For a politician in the stratosphere of government there is rarely anyone available to deliver the long brown envelope of home truths on a regular basis. His acolytes are likely to be sycophantic, and his tour of the Guantanamo prison will be sterilised. It was therefore virtually inevitable that Cheney-Rumsfeld-Wolfowitz would remain convinced that the chance of a mistake in Guantanamo was infinitesimal.

[p272] There are various responses to Blair’s position and the first came from the British judges. Al-Qaeda was hardly ‘without limit’ in 2001the original al-Qaeda lunatic fringe consisted of bin Laden and a very small band of associates. As Blair used their crimes as an excuse to dismantle legal rights, the judiciary fought back.

The law lords declared illegal the Belmarsh experiment where the Blair government locked up various perceived extremists without trial. ‘This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life,’ wrote Lord Bingham. ‘I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler [p273] hung in the balance, but there is no doubt that we shall survive al-Qaeda.’

Bingham went on to a broader question: what is it about the British nation that we should be trying to protect?

‘What is meant by “threatening the life of the nation”?’ he asked. ‘The Armada threatened to destroy the life of the nation, not by loss of life in battle, but by subjecting English institutions to the rule of Spain and the Inquisition. The same was true of the threat posed to the United Kingdom by Nazi Germany in the Second World War. This country, more than any other in the world, has an unbroken history of living for centuries under institutions and in accordance with values which show a recognisable continuity.’ Ultimately, consistent application of the rule of law has been the basic right of anyone living in Britain.

[p274] On the military side of the scale, the justification for holding the prisoners was to extract intelligence and to prevent them from committing crimes in the future. Successive generals and admirals running the base have boasted about the ‘very significant intelligence’ that has been obtained from the prisoners; I have seen some of it and, while I cannot reveal what I have seen, I have yet to see intelligence that is of any real value in protecting the US or the UK. The unclassified evidence that I am permitted to discuss illustrates the problem: Omar Deghayes was not a Chechen rebel – he has never been to Chechnya, and he is not the man brandishing the Kalashnikov in the US military video. British prisoners Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed were not the three shady figures beside bin Laden in another videotape – at the time it was made in 2000, they were in Birmingham. Yusuf el Gharani was not a twenty-year-old member of the London al-Qaeda cell in 1998 – he was eleven, and had never left Saudi Arabia. Ahmed Errachidi was not The General of al-Qaeda in Afghanistan in July 2001 – he was a chef at the Westbury Hotel in London. These are just examples from my own small group of clients. Other prisoners probably have even more compelling stories, but many have no lawyer to tell.

To be sure, there must be some intelligence of value that has come from the base, but – as former CIA Agent Mike Baker told me – it is [p274] probably impossible to sort the wheat from the chaff, because so much coercion has been used. Foolish decisions made based on false intelligence can cause immense harm, as when Bush marched to war in Iraq relying on the coerced confession from Sheikh al-Libi, that purported to link Saddam Hussein and al-Qaeda. Certainly, there is no evidence that the prisoners, locked up for five years, have any current knowledge of crimes planned for the future, so that whatever value Guantanamo might once have had has surely dissolved by now. As ‘Big Bill’ Cowan said, if there is any excuse for torture, it has evaporated 24 hours after the prisoner’s capture.

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Clive Stafford Smith