How Trials Operate in the New Torture Regime
By William N. Grigg
Tuesday, April 08, 2008
What purpose does a trial serve when it's conducted by a state claiming the power to torture confessions from a suspect, or "evidence" from a witness?
Obviously, an exercise of this kind isn't carried out in the interest of establishing the truth beyond a reasonable doubt: Torture is a very effective means of compelling someone to submit to an official story, but entirely unreliable as a method of learning the truth. Thus it follows that a legal system in which torture is practiced is devoted to protecting and glorifying a ruling elite than in pursuing justice in any sense of the expression.
In the Military Commission system created by the Bush Regime, "evidence" can be obtained through torture -- whether in the form of testimony or confessions. The prosecution is permitted to introduce sealed evidence, and to insulate "expert" witnesses from impeachment by the defense. Defendants are presumed guilty; indeed, the entire exercise is defined by the assumption that those tried in such forums are guilty by definition, the "worst of the worst." With guilty verdicts a foreordained conclusion, the default sentence is death.
The Commission itself is under the supervision of a presidential appointee called the "convening authority" -- essentially a kind of legal vizier, or a special minister for show trials. Not only does this mean that the system exists entirely outside the framework created by Article III of the Constitution (although the Supreme Court, conceivably, could simply assert appellate jurisdiction over it), this also means that its operations would be guided by the political priorities of a presidential administration or political party, rather than by anything remotely akin to a commitment to the truth.
This assessment draws on the brief (.pdf) filed April 3 by Navy Lt. Cmdr. Brian Mizer, defense counsel for Salim Ahmed Hamdan, one of eight Guantanamo detainees scheduled for trial this year before a Military Commission.
"High-value" Hamdan, Richard Pryor look-alike and accused limo driver for Osama bin Laden. He might not be a nice guy, but it seems odd that he'd be a first tier war criminal; after all, was Hitler's chauffeur prosecuted at Nuremberg?
Mizer protests that the Commission system, already designed to favor the prosecution, has been fatally compromised by "unlawful command influence" from the Bush administration. Mizer cites the account offered by Col. Morris Davis, the former chief prosecutor at Guantanamo, of an August 2005 conversation with Pentagon general counsel William J. Haynes: As noted in this space earlier, when Davis mentioned the possibility of acquittals, Haynes replied, "Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions."
Davis also recalled a September 26, 2006 meeting of the Special Detainee Follow-up Group at which deputy secretary of defense Gordon England said "there could be strategic political value to charging some of them before the  election." Viewed in this light, the Commission would be the ultimate "527" advocacy group (albeit one that would be funded directly by the taxpayers).
The Mizer brief also describes the efforts of undersecretary of defense for intelligence Stephen Cambone -- who has been indicted for war crimes (albeit by a German court with no proper jurisdiction) for his role in the Abu Ghraib atrocities -- to get the "Justice" Department more deeply involved in the Military Commissions. Cambone claimed that this was because military attorneys lacked the "sophistication" to deal with cases brought before the Commission. It's quite likely that the real intent here was to limit the damage that could be done to the show trial apparatus by military officials (such as Davis and Mizer) bound by an anachronistic sense of honor and an inconvenient loyalty to the United States Constitution.
One of the most remarkable disclosures in the Mizer brief deals with the role of Evan Kohlmann, a designated counter-terrorism expert tapped to testify in the Hamdan trial. Mizer sought permission to call an expert of his own to act as a rebuttal witness against Kohlmann; that request was denied by Susan Crawford, the White House political hack designated "convening authority" for the Military Commission.
Mr. Kohlmann embodies a fascinating, and very disturbing, nexus between the Military Commission system and the civilian "justice" system as it's been modified to fight the "war on terror." A frequent guest on cable television programs, Kohlmann maintains the GlobalTerrorAlert.com website and contributes to Steven Emerson's Investigative Project. He's also frequently called on as an expert witness, both domestically and for United Nations human rights tribunals.
Roughly four years ago, Kohlmann was called as an "expert witness" in the trial of Yassin Muhiddin Aref and Mohammed Mosharref Hossain. That trial illustrates the extent to which our criminal "justice" system already operates in much the same way the Military Commission is intended to.
Aref is an Iraqi Kurd who migrated to the United States as a refugee in1999; Hossain is a Bangladeshi expatriate and U.S. citizen. They both lived in Albany, New York. Aref and Hossain worshiped at the same mosque, and were both targeted by Shahed Hussain, aka "Malik," a Pakistani con-man hired as an infomant/provocateur by the FBI.
In July 2003, the FBI sent "Malik" to a small pizza restaurant owned and operated by Hossain, the middle-aged father of six young children with no previous criminal record. The "lure" used by Malik was a promise to help Hossain obtain an identification card for his mentally handicapped brother; Malik -- who, as it happens, was under indictment and faced criminal charges for driver's license-related fraud -- was recorded assuring Hossain that there was "nothing illegal" about what they planned to do.
Malik had ingratiated himself with Hossain, offering to loan him $50,000 to help his struggling pizza shop. The money, Malik explained, came from the purchase of a surface-to-air missile intended for use by a Pakistan-based Islamic terrorist group called Jaish-e-Mohammed, or JEM.
At one point, Hossain brought Aref to a meeting as a witness for the proposed loan. This was exactly what the FBI hoped would occur, since it was Aref whom they were after: He had been the subject of illegal surveillance by the National Security Agency.
In the more than fifty hours of covertly recorded conversations, neither Aref nor Hossain expressed support of any kind for terrorism of any variety. Aref, who worked as a janitor before becoming an Imam, was recorded urging Malik to avoid terrorists, insurrectionists, and Islamic radicals of all varieties, and to promote Islam by doing good works on behalf of others. Hossain was apparently so untutored in the ways of radicalism that he thought the term "JEM" referred to a musical act.
In August 2004 the FBI consummated its little sting by arresting Aref and Hossain and accusing them of laundering money on behalf of terrorists abroad ... which they actually didn't do, you see, because the "plot" was nothing more than an elaborate ruse by the FBI. Since they hadn't actually done anything materially to support terrorism, US Attorney Glenn Suddaby, who has built a career out of useless "trophy" prosecutions, accused them of being "willing to help terrorists." Assuming this is a crime of any sort, would be a "state of mind" offense prosecutable only in a totalitarian system, since no other kind of government would claim jurisdiction over an unspoken, un-acted-on "willingness" to commit criminal acts.
The prosecution made it clear that Aref was their primary target. Hossain's defense lawyer, Desert Storm Veteran Kevin Luibrand, tried desperately to de-couple the two cases, but the Feds would have none of it: Hossain had been used as a stalking horse to get to Aref, and permitting them to be tried individually would ruin the case against both, such as it was.
Grandiose claims were made to the effect that Aref had been targeted because his name and contact information had been found in an al-Qaeda document discovered by U.S. troops in Iraq. That "evidence" was deemed classified, and the defense wasn't permitted to inspect it, much less rebut it.
The prosecution also claimed Aref was "linked" to Mullah Krekar, the founder of Ansar al-Islam, a Kurdish Sunni Muslim group of a jihadist bent. As Stephen Lendman points out, Aref had a distant connection to Krekar: In the late 1990s he worked as a gardener in Damascus for an official in the Islamic Movement of Kurdistan (IMK), in which Krekar was an official before he founded Ansar-al-Islam in 2001.
The IMK was an ally of Washington, and when the Bush administration was gearing up for war with Iraq in 2002, it expected Ansar to fall in line, as well. When Krekar -- perhaps thinking of what had happened to the Kurds and other U.S. "allies" after the first Gulf War -- refused to play along, Washington slapped up a smear campaign against him, describing Ansar as the "missing link" tying Saddam to al-Qaeda, accusing Krekar of drug smuggling, and pressuring allies to prosecute him.
Krekar has lived in Norway as a political refugee since 1991. In 2003 the Norwegian government investigated charges that he was involved in terrorism. After his indictment, Norwegian investigators went to Iraq to double-check the U.S.-provided "evidence" against Krekar. They learned that the key witness, Didar Khalan, had been tortured into incriminating Krekar. This revelation prompted Norwegian authorities to drop the charges.
The "link" between Krekar and Aref remained active, and was apparently used to justify the sting operation. For his part Hossain was accused of involvement with terrorism, and prosecutors claimed he had admitted as much: A covertly recorded conversation with Malik included the statement, "We are members of Jamaat-e-Islami."
As it happens, there are many organizations of that name in various Muslim countries; some of those groups are terrorist organizations. In Bangladesh, the Jamaat-e-Islami is the majority party, founded in India back in 1941. Although strongly authoritarian (as Islamic religious parties tend to be), it is not itself a terrorist group. Calling a Bangladeshi who belongs to the JEI party is a terrorist is somewhat like saying all Republicans support torture.
The first expert witness called by the prosecution in the case of Aref and Hossain, Rohan Gunaratna, acknowledged in a pre-trial deposition that Hossain could be a member of JEI without having anything to do with terrorism. At the last possible minute, Gunaratna was removed and Evan Kohlmann was brought in as a replacement.
He don't know nuffin' 'bout no Bangladeshis ... but he has access to Google: Counter-terrorism "expert" Evan Kohlmann.
Kohlmann, who possesses degrees from some reputable institutions of higher learning, may be a very bright young man. But he knows about as much about Bangladeshi matters as Sean Hannity knowns about ... well, anything.
Which is to say that on this one particular subject -- which just happened to be the central pillar of the case against Hossain -- Kohlmann was a blustering idiot.
Questioned by the defense during a September 2006 pre-trial deposition, Kohlmann admitted not knowing (inter alia), the name of the Bangladeshi Prime Minister; the number of political parties active in that country; the leader of the JEI party, which he described as "a minority party"; the party's platform; the number of JEI Party members in the government; the name of any other major party in Bangladesh; the role of the Bangladeshi National Party in the country's political system (it is an ally with the JEI in a coalition controlling 67 percent of the seats in parliament), although he stammered helplessly that "the name sounds vaguely familiar"; he admitted that he had never been to Bangladesh, interviewed any JEI representatives, written any papers about the subject, or been interviewed about it in the media.
Yassin Aref, second from left, leaves his 2007 sentencing hearing in chains and under conspicuous, heavily armed guard.
Despite admitting, under oath, to possessing a mind entirely unsullied by relevant knowledge in the field of his supposed expertise, Kohlmann was certified "Good Enough for Government Work" by the judge, and permitted to testify. Following Kohlmann's performance on the witness stand -- during which he displayed ignorance remarkable for its singular purity -- the defense moved to have his testimony dismissed. Two days later, Kohlmann produced a supplemental deposition "correcting" many of the errors of rudimentary fact he had committed.
As the defense would later note, Kohlmann "had transformed from one who did not know the name of the Prime Minister of Bangladesh on Monday into an expert on Bangladesh on Wednesday morning" -- as the result of an interlude of frantic Googling.
Yet Kohlmann's "expert" testimony was permitted to stand, as was the "classified" evidence against Aref, the snippets of "incriminating" conversations illegally obtained through unconstitutional wiretaps, and the "evidence" manufactured by the FBI's provocateur (who was spared a prison term and deportation in exchange for his labors). Even the presiding judge who permitted this case to proceed was constrained to describe it as remarkably weak.
Bipartisanship in action: "Comrades" reach across party lines in defense of the Heimat.
A brief recap would be appropriate here:
The Regime, seeking to punish a Kurdish Muslim leader for refusing to collaborate in the war on Saddam, tortured a prisoner into falsely accusing that leader of involvement in terrorism. Because a helpless Kurdish refugee in upstate New York had the most tenuous of connections to the targeted Kurdish leader, the refugee was also targeted and kept under illegal electronic surveillance. To get to that refugee, the FBI sent a paid provocateur -- somebody who had committed actual crimes -- to manipulate a U.S. citizen into being a stalking horse by taking advantage of the citizen's financial and family concerns. The trial employs secret evidence and the "expert" testimony of a government-approved witness who knew nothing of any relevance to the proceedings.
The jury should have wadded this case up and thrown it back in the prosecutor's face. Instead, it simply ratified the charges without exercising so much as a particle of independent, critical thought. The Feds had demanded 30 years; the judge, as if seeking to demonstrate his Solomonic wisdom, cut each sentence in half.
I'll say this much: Examining the details of this and many similar cases does mitigate somewhat the horrors represented by the new Military Commission system. If juries can swallow a case like this -- the sort of thing that would trigger the gag reflex of a Tijuana whore -- then we might as well grant the Torture Regime's obvious wish and do away with civilian courts outright.
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