| Andy Worthington|
Published: Monday December 22, 2008
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US appears to ignore findings of British court on detainee's tortureLONDON -- The announcement Dec. 1 that Barack Obama had retained Bush Defense Secretary Robert Gates was intended to demonstrate the President-elect’s desire for a “big-tent” administration that transcended partisan politics. Gates had voiced his desire to close the Pentagon's notorious Guantánamo Bay prison almost as soon as he took over from Donald Rumsfeld in December 2006, and this and his subsequent stewardship of the Iraq War earned him a place as a trustworthy figure who might bridge the Bush and Obama divide.
However, a declaration the defense secretary made in a Washington, D.C. District Court filing Dec. 12 during the habeas review of Guantánamo prisoner Binyam Mohamed might make some rethink the trustworthy label. Mohamed’s lawyer, Clive Stafford Smith, says that unless Gates retracts his statement, he could find himself accused of perjury.
Mohamed has said that after being seized in Pakistan in April 2002 and held for three months, he was rendered by the CIA to Morocco, where he was tortured for 18 months.
His claims of torture were upheld by the British High Court in a review this summer (PDF), which took place after Mohamed’s lawyers sued the British government for alleged complicity in their client’s rendition and torture. Both the British government and the British High Court accepted that Mohamed “has put forward a prima facie case of torture,” Stafford Smith said.
The court established that Mohamed was “unlawfully rendered from Pakistan to Morocco by the United States authorities,” his lawyers said, and was ”subject to unlawful incommunicado detention and torture during his interrogation there by or on behalf of the United States authorities.” The court also established that Mr. Mohamed was “unlawfully rendered by the United States authorities from Morocco to Afghanistan,” where he was “detained unlawfully and incommunicado” and was “tortured or subject to cruel, inhuman or degrading treatment by or on behalf of the United States authorities in the ‘Dark Prison.’” -- a secret CIA facility near Kabul.
At the end of this ordeal, Mohamed said he made a number of false confessions about his involvement with al-Qaeda and a plot to detonate a radioactive "dirty bomb" in New York as a direct result of his torture in Morocco and at the hands of CIA agents in Afghanistan.
The Bush administration has never provided any explanation for Mohamed’s whereabouts from July 2002 to May 2004. In June, the U.S. Supreme Court granted Guantánamo prisoners habeas corpus rights. Mohamed’s case was reviewed by Judge Emmet G. Sullivan in Washington D.C. District Court.
Sullivan set a deadline of Oct. 6 for the government to produce exculpatory evidence relating to the case (in other words, any evidence that tended to disprove the government’s claims). When the time arrived, however, the Justice Department dropped the claim about the “dirty bomb” plot.
At a Oct. 30 hearing, Sullivan said, “That raises a question as to whether or not the allegations were ever true.”
Sullivan continued to press the government for exculpatory evidence. Although the “dirty bomb” plot claim had been dropped, he ordered the Justice Department to disclose any exculpatory evidence relating to the charge. In order to determine the reliability of Mohamed’s statements, he said he wanted to know how the interrogation sessions were conducted.
Sullivan also ordered the Justice Department to secure an affidavit from Gates. The defense secretary swore under penalty of perjury that all exculpatory evidence in Mohamed’s case -- including evidence relating to the alleged “dirty bomb” plot -- had been provided to Mohamed’s lawyers.
“It is the practice of the United States Government, in preparing factual returns in the Guantánamo Bay detainee habeas cases, to provide petitioners all evidence encountered in the development of the factual return that tends to materially undermine information presented in the return to support the petitioner’s classification as an enemy combatant,” Gates said in his declaration.
“Consistent with this practice, on August 12, 2008, the attorneys preparing the factual return in this case provided Petitioner with evidence encountered in the development of his return that meets this standard,” Gates added.
He also explained that following Sullivan’s ruling, “all exculpatory evidence reasonably available to the government” relating to the “withdrawn allegations” about the “dirty bomb” plot had been provided “on a rolling basis.” He added that 42 documents provided by the British government had also been handed over. “As a result,” he wrote, “the United States Government has turned over all reasonably available evidence that suggests Binyam Mohamed should not be designated as an enemy combatant.”
In a letter sent to the Justice Department on Monday Dec. 15 (which has been seen by The Raw Story), Stafford Smith said he was trying to evaluate whether the defense secretary had deliberately perjured himself, or had been misled.
“I will say that I am extremely disappointed in the declaration that was filed on behalf of Secretary Gates on Friday,” Stafford Smith wrote, adding, “There is no question but that it is false.” He said he couldn't conclude “whether I would categorize Mr. Gates’ statement as outright perjury, or as a misguided consequence of his reliance on an erroneous definition of the legal terms."
“The vast majority of material (almost the entirety of the substantive evidence) submitted against Mr. Mohamed consists of statements attributed to him,” and therefore "would qualify as ‘exculpatory’ under Sullivan’s order," he said.
Stafford Smith says it's apparent that a wealth of material has not yet been turned over.
“Without going into anything that is classified, the Government has at no point in this case even acknowledged that Mr. Mohamed was rendered by the U.S. to Morocco on July 21, 2002, or that he was held there for 18 months, or that he was abused there," he wrote. "Nor has the government breathed a word about the five months he subsequently spent being abused and tortured in the Dark Prison in Kabul.”
Stafford Smith said his only interest was to secure justice for his client.
“Both my interest, and that of my co-counsel in the habeas and the military commissions litigation, is to represent our client in the best traditions of US justice,” he wrote. “It pains me to have to say that the government continues to ignore its own obligations, and is risking sanctions.”
“Nothing has changed," Stafford Smith told RAW STORY last week. "Unless Robert Gates revises his opinions, his declaration will demonstrate that he has been drawn into the defense not of the nation, but of some of the worst excesses of the current administration, involving ‘extraordinary rendition’ and torture, and shameless attempts to cover up all evidence of wrongdoing.”
Gates could not be reached for comment.
Andy Worthington is the author of The Guantanamo Files: The Stories of the 774 Detainees in America's Illegal Prison (published by Pluto Press).