The Full List of Prisoners Charged in the Military Commissions at Guantánamo
By Andy Worthington
I put this list together in the last week of March 2014, because it seemed to me that there was no one place where those interested in Guantánamo could find out who had been charged in the three versions of the military commissions that have been in existence at the prison (and in US law) since 2001.
Those charged number just 30 prisoners in total, out of the 779 men and boys held at Guantánamo since it opened in January 2002, although in half of those cases the charges have been dropped. Just eight prisoners have been convicted — and just two of those have taken place through trials rather than plea deals — and five of those men have been released. Seven other cases are ongoing.
I’ve been covering the commissions since 2006, and I have never found that they have established any kind of legitimacy, compared to federal courts, where crimes should be tried. This conclusion has only been strengthened in recent years, as conservative appeals court judges in Washington D.C. have overturned two of the eight convictions on the basis that they were for war crimes that were invented by Congress rather than being internationally recognized — something that is readily apparent from any analysis of their post-9/11 history, particularly, I believe, with reference to the disgraceful case of Omar Khadr, a former juvenile prisoner made to sign a plea deal in which he admitted responsibility for war crimes that were invented by his captors.
Below is a short history of the post-9/11 commissions followed by the list of the 30 prisoners who have been charged, in all three versions of the commissions – those established in 2001, 2006 and 2009. I have not specifically listed the charges against them, but those can be found by following the links — generally to Pentagon charge sheets, or to articles I have written about the commissions since 2007.
A brief history of the chaotic military commissions at Guantánamo
The military commissions were dragged out of the history books by Dick Cheney on November 13, 2001, when a Military Order authorizing the creation of the commissions was stealthily issued with almost no oversight, as I explained in an article in June 2007, while the Washington Post was publishing a major series on Cheney by Barton Gellman (the author of Angler, a subsequent book about Cheney) and Jo Becker. Alarmingly, as I explained in that article, the order “stripped foreign terror suspects of access to any courts, authorized their indefinite imprisonment without charge, and also authorized the creation of ‘Military Commissions,’ before which they could be tried using secret evidence,” including evidence derived through the use of torture.
Cheney’s military commissions, which involved various chaotic pre-trial hearings but no trials, lasted until June 28, 2006, when, in Hamdan v. Rumsfeld, a challenge brought by one of the ten men charged (Salim Hamdan, a Yemeni who had taken a paid job as one of Osama bin Laden’s drivers), the Supreme Court ruled that the commissions lacked “the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.”
Almost immediately, however, the Bush administration responded by negotiating with Congress for a new version of the commissions to be launched, and the result was the Military Commissions Act of 2006. Between February 2007 and December 2008, 27 prisoners were charged in the military commissions (including nine of the ten men previously charged), although only three cases went to trial — David Hicks in March 2007, Salim Hamdan in July 2008, and Ali Hamza al-Bahlul in October 2008. For a brief rundown of most of these stories, see my article from November 2008, “20 Reasons To Shut Down The Guantánamo Trials.”
When President Obama took office in January 2009, he initially suspended the commissions, but in a speech in May 2009 he announced that they were back on the table. He then worked with Congress to revive them, and the result was the Military Commissions Act of 2009. According to an announcement by Attorney General Eric Holder in November 2009, there were supposed to be two types of trials under the Obama administration — in federal court, for the five men accused of involvement in the 9/11 attacks, as well as in the military commissions. However, when the administration faced criticism for planning to hold the 9/11 trial in New York, President Obama dropped the plans, and Khalid Sheikh Mohammed and his four co-defendants (all accused of involvement the 9/11 attacks) were once more charged in the military commissions.
Nor were the military commissions free of problems. Senior Obama administration officials had told Congress (see here and here) that certain charges designated as war crimes in the MCA of 2006, and intended for the 2009 version — providing material support for terrorism, and, possibly, conspiracy — were not regarded as war crimes, and would probably be overturned on appeal. Congress failed to take the advice on board, but this was indeed what happened in October 2012, in another victory for Salim Hamdan, when his conviction was overturned, and in January 2013 the conviction of Ali Hamza al-Bahlul was also overturned. The government has appealed, but the effect has been for the military to concede that the total number of prisoners who will face trials by military commission (or have already faced trials) out of the 779 men held since the prison opened, is unlikely to exceed 20. In fact, at current estimates, it will be no more than the 15 already charged and/or convicted.
1. David Hicks (ISN 002, Australia) was charged
on June 10, 2004. His intended trial was delayed on several occasions,
firstly on November 9, 2004, after Judge James Robertson, in the
District Court in Washington D.C., ruled
that the US could not hold a military commission unless it was first
shown that the detainee was not a prisoner of war. That ruling was
unanimously reversed by a three-judge panel in the court of appeals (the
D.C. Circuit Court) on July 15, 2005, led by Judge A. Raymond Randolph,
but Hicks’ trial was delayed again because, on November 7, 2005, the
the Supreme Court issued a writ of certiorari to hear the case. On
November 15, District Judge Colleen Kollar-Kotelly stayed the proceeding
against Hicks until the Supreme Court issued its ruling (the ruling in
June 2006 that brought this version of the commissions to an end).
2. Ibrahim al-Qosi (ISN 054, Sudan) was charged on June 29, 2004. Because of the rulings outlined above, al-Qosi’s case was stayed twice, on November 9, 2004 and November 7, 2005, before the first version of the commissions was struck down by the Supreme Court in June 2006.
3. Ali Hamza al-Bahlul (ISN 039, Yemen) was charged on June 29, 2004. For al-Bahlul’s struggle to represent himself — and the ethical problem this caused to the lawyer assigned to represent him, Army Maj. Thomas Fleener — see “The Defense Will Not Rest,” an article in GQ in July 2007, which I wrote about here.
4. Salim Hamdan (ISN 149, Yemen) was charged
on July 13, 2004. See the entry for David Hicks (above) for Hamdan’s
important role in bringing this first version of the commissions to an
end. Hamdan was represented by Neal Katyal of Georgetown University Law
Center and Navy Lt. Cmdr. Charles Swift, with support from the Seattle
law firm Perkins Coie. Also see “Taking on Guantánamo,” a profile of Swift from Vanity Fair in 2007.
5. Omar Khadr (ISN 766, Canada) was charged on November 4, 2005. He attended pre-trial hearings in the second week of January 2006, prior to the first version of the commissions being scrapped. In March, after all the prisoners facing commissions were placed in solitary confinement, Khadr wrote to the court to complain, ”Excuse me Mr. Judge … I’m being punished for exercising my right and being co-operative in participating in this military commission. For that, I say with my respect to you and everybody else here, that I’m boycotting these procedures until I be treated humanely and fair.”
6. Ghassan al-Sharbi (ISN 682, Saudi Arabia) was charged on November 4, 2005. For al-Sharbi’s struggle to represent himself — and the ethical problem this caused to the lawyer assigned to represent him, Navy Lt. William Kuebler – see “The Defense Will Not Rest,” an article in GQ in July 2007, which I wrote about here.
7. Sufyian Barhoumi (ISN 694, Algeria) was charged on November 4, 2005.
8. Jabran al-Qahtani (ISN 696, Saudi Arabia) was charged on November 4, 2005.
9. Binyam Mohamed (identified by US as Binyam Muhammad) (ISN 1458, Ethiopia-UK) was charged on November 4, 2005. At a hearing on April 6, 2006, Mohamed insisted on representing himself, and held up a sign
in court — for the benefit of the watching world – which read, “con
mission.” He stated, “This is not a commission, it’s a con mission, It’s
a mission to con the world.”
10. Abdul Zahir (ISN 753, Afghanistan) was charged on January 20, 2006. He is the only one of the ten not to be charged again when the military commissions were revived by Congress in the Military Commissions Act of 2006. In April 2013, he was one of 71 prisoners recommended for a Periodic Review Board, which means that, at some point, he should have his case reviewed by the board, which will either recommend his release or his continued detention.
2. Salim Hamdan (ISN 149, Yemen) was charged for a second time on April 5, 2007, and was convicted of providing material support for terrorism (but acquitted of conspiracy by the military jury) on August 6, 2008, after a two-week trial. He was given a sentence of five and a half years, but the judge, Keith Allred, allowed for time served since he was first charged (61 months), meaning that he had just five months to serve. He was repatriated to Yemen on November 26, 2008, where he was imprisoned until December 27, 2008, when he was released. His conviction was overturned by the court of appeals in Washington D.C. (the D.C. Circuit Court) on October 16, 2012. This ruling, in conjunction with the overturning of Ali Hamza al-Bahlul’s conviction (see below), seems to have made it impossible for most of the planned prosecutions at Guantánamo, which involve material support for terrorism — and in some cases conspiracy — to proceed.
3. Omar Khadr (ISN 766, Canada), a juvenile at the time of his capture, was charged for a second time on April 5, 2007. Pre-trial hearings took place from June 2007 until President Bush left office. See my articles here, here, here and here.
4. Mohamed Jawad (ISN 900, Afghanistan), a juvenile at the time of his capture, was charged on October 9, 2007. His prosecutor, Darrel Vandeveld, resigned
on September 25, 2008, complaining that vital information was being
withheld from the defense. In October 2008, his judge, Col. Henley
determined that Jawad’s confessions about throwing a grenade throwing a
grenade at a US military vehicle, which he made to Afghan and US
officials after his capture in December 2002 were inadmissible because
they had been obtained through torture and intimidation. In July 2009,
he had his habeas corpus petition granted by Judge Ellen Huvelle in the District Court in Washington D.C., and he was repatriated to Afghanistan on August 24, 2009 (also see here and here).
5. Ahmed al-Darbi (ISN 768, Saudi Arabia) was charged on December 20, 2007. He was arraigned in April 2008, although he refused to attend the hearing. In September 2008, his military-appointed lawyer, Army Lt. Col. Bryan Broyles, resigned, complaining about the ethical problems of representing someone who did not wish to be represented (as al-Darbi didn’t), and explaining that al-Darbi never came to trust him because “the attorney-client relationship is close to impossible to establish” in a system in which a lawyer is imposed on a prisoner.
6. Ibrahim al-Qosi (ISN 054, Sudan) was charged for a second time on February 8, 2008. In April 2008, he too boycotted his arraignment, telling the judge, “I do not recognize the justice or the lawfulness of this court,” and adding, “What is happening in your courts is in fact a sham, which aims solely that the cases move at the pace of a turtle in order to gain some time to keep us in these boxes without any human or legal rights.”
7. Ali Hamza al-Bahlul (ISN 039, Yemen) was charged for a second time on February 8, 2008, and was convicted in November 2008 after a one-sided trial in which he refused to mount a defense, and given a life sentence. His conviction was overturned
by the court of appeals in Washington D.C. (the D.C. Circuit Court) on
January 25, 2013. The US government has appealed, but the ruling, in
conjunction with the overturning of Salim Hamdan’s conviction, seems to
have made it impossible
for most of the planned prosecutions at Guantánamo, involving material
support for terrorism — and in some cases conspiracy — to proceed.
8. Khalid Sheikh Mohammed (ISN 10024, Pakistan-Kuwait), a “high-value detainee” held in CIA “black sites,” was charged on February 11, 2008. Pre-trial hearings took place from June 2008 until President Bush left office. See here, here and here.
9. Ramzi bin al-Shibh (ISN 10013, Yemen), a “high-value detainee” held in CIA “black sites,” was charged on February 11, 2008. Pre-trial hearings took place from June 2008 until President Bush left office. See here, here and here.
10. Mustafa al-Hawsawi (ISN 10011, Saudi Arabia), a “high-value detainee” held in CIA “black sites,” was charged on February 11, 2008. Pre-trial hearings took place from June 2008 until President Bush left office. See here, here and here.
11. Walid bin Attash (ISN 10014, Saudi Arabia), a “high-value detainee” held in CIA “black sites,” was charged on February 11, 2008. Pre-trial hearings took place from June 2008 until President Bush left office. See here, here and here.
12. Ali Abd al-Aziz Ali (aka Ammar al-Baluchi) (ISN 10018, Pakistan-Kuwait), a “high-value detainee” held in CIA “black sites,” was charged on February 11, 2008. Pre-trial hearings took place from June 2008 until President Bush left office. See here, here and here.
13. Mohammed al-Qahtani (ISN 063, Saudi Arabia) was charged on February 11, 2008, but the charges were dropped on May 12, 2008 after the commissions’ convening authority, Susan Crawford, concluded
that he had been tortured at Guantánamo. “We tortured Qahtani. His
treatment met the legal definition of torture,” she told Bob Woodward of
the Washington Post in January 2009.
14. Mohammed Kamin (ISN 1045, Afghanistan) was charged on March 12, 2008. The Obama administration dropped the charges against him on December 11, 2009. At the time, Pentagon officials said they would re-file charges against him, but it never happened. In June 2013, it was revealed that, in January 2010, President Obama’s Guantánamo Review Task Force had recommended him for ongoing detention without charge or trial, and, at some point, he should have his case reviewed by a Periodic Review Board, which will either recommend his release or his continued detention.
15. Ahmed Khalfan Ghalani (ISN 10012, Tanzania), a “high-value detainee” held in CIA “black sites,” was charged
on March 31, 2008 and arraigned on October 22, 2008. Under Obama,
however, he was moved to the US mainland (in May 2009) for a federal
court trial that began in September 2010 and resulted in a conviction on a single charge of conspiracy and a life sentence
in January 2011. Despite this, lawmakers have passed legislation
preventing President Obama from bringing any other Guantánamo prisoners
to the US mainland for federal court trials.
16. Noor Uthman Muhammed (ISN 707, Sudan) was charged on May 23, 2008. The charges were dropped on October 21, 2008, after Darrel Vandeveld’s resignation, but were reinstated on December 5, 2008.
17. Ghassan al-Sharbi (ISN 682, Saudi Arabia) was charged for a second time on May 28, 2008, but the charges were dropped on October 21, 2008, after Darrel Vandeveld’s resignation.
18. Sufyian Barhoumi (ISN 694, Algeria) was charged for a second time on May 28, 2008, but the charges were dropped on October 21, 2008, after Darrel Vandeveld’s resignation. However, in July 2013, Barhoumi sought
to be charged and tried, in the hope of being released from Guantánamo —
although prosecutors showed no willingness to prosecute him.
19. Jabran al-Qahtani (ISN 696, Saudi Arabia) was charged for a second time on May 28, 2008, but the charges were dropped on October 21, 2008, after Darrel Vandeveld’s resignation.
20. Binyam Mohamed (identified by US as Binyam Muhammad) (ISN 1458, UK-Ethiopia) was charged for a second time on May 28, 2008, but the charges were dropped on October 21, 2008, after Darrel Vandeveld’s resignation. He was released to the UK in February 2009, primarily because his US-instigated torture in Morocco, which the British either knew about, or were negligent in not finding out about, had been exposed in the UK courts, and was causing a Transatlantic headache.
21. Mohammed Hashim (ISN 850, Afghanistan) was charged with providing material support for terrorism and spying on May 30, 2008, and the charges were approved by the convening authority on October 21, 2008. However, on December 20, 2009, he was repatriated to Afghanistan (and the charges were dropped). For more, see my article, “Afghan fantasist to face trial at Guantánamo,” written when he was initially charged.
22. Abd al-Rahim al-Nashiri (ISN 10015, Saudi Arabia), a “high-value detainee” held in CIA “black sites,” was charged on June 30, 2008, and the charges were referred to the convening authority on December 19, 2008.
23. Abdul Ghani (ISN 934, Afghanistan) was charged on July 28, 2008, but the charges were dropped on December 19, 2008. In September 2012, it was revealed by the Justice Department that he had been cleared for release by President Obama’s Guantánamo Review Task Force in January 2010, but he is still held. For more, see, “Close Guantánamo: Abdul Ghani, An Insignificant Afghan Villager Held for Nine Years” (now 11 years).
24. Obaidullah (ISN 762, Afghanistan) was charged on September 9, 2008. For more, see my article, “Guantánamo trials: another insignificant Afghan charged,” written when he was initially charged.
25. Fayiz al-Kandari (described as Faiz al-Kandari) (ISN 552, Kuwait) was charged on October 21, 2008. The charges were dropped on June 29, 2012 by the convening authority, Retired Vice Admiral Bruce MacDonald.
26. Fouad al-Rabiah (described as Fouad al-Rabia) (ISN 551, Kuwait) was charged on October 21, 2008. However, in September 2009, he had his habeas corpus petition granted
in the District Court in Washington D.C. by Judge Colleen
Kollar-Kotelly, which uncovered extraordinary evidence of how coerced
confessions were extracted from al-Rabiah at Guantánamo. He was released in December 2009.
27. Tarek El-Sawah (aka Tariq al-Sawah) (ISN 535, Egypt) was charged on December 12, 2008. In April 2012, the charges against him were dropped on the advice of Michael C. Chapman, the legal advisor to the convening authority. In October 2013, I reported how his lawyers were seeking his release because he is physically and mentally ill. See, “Lawyers Seek Release from Guantánamo of Tariq Al-Sawah, an Egyptian Prisoner Who is Very Ill.”
1. Ibrahim al-Qosi (ISN 054, Sudan) had the announcement of his intended trial by military commission (for the third time) made by Attorney General Eric Holder on November 13, 2009. Al-Qosi accepted a plea deal
on July 7, 2010, in which, in exchange for a guilty plea, he was to be
held for just two more years instead of the 14-year sentence delivered
by a military jury. He was repatriated to Sudan in July 2012.
2. Omar Khadr (ISN 766, Canada) had the announcement of his intended trial by military commission (for the third time) made by Attorney General Eric Holder on November 13, 2009,. Khadr accepted a plea deal in October 2010, in which, in exchange for a guilty plea, he received an eight-year sentence (consisting of one more year at Guantánamo, followed by seven in Canada) instead of the 40-year sentence delivered by a military jury. He was repatriated to Canada in September 2012. In November 2013, his US lawyer, Sam Morison, announced that he was challenging his conviction, and Khadr’s own comments are here.
3. Noor Uthman Muhammed (ISN 707, Sudan) had the announcement of his intended trial by military commission (for the second time) made by Attorney General Eric Holder on November 13, 2009. Muhammed accepted a plea deal in February 2011, in which, in exchange for a guilty plea, he received a sentence of two years and ten months. He was repatriated to Sudan in December 2013.
4. Abd al-Rahim al-Nashiri (ISN 10015, Saudi Arabia) had the announcement of his intended trial by military commission (for the second time) made by Attorney General Eric Holder on November 13, 2009. For the stumbling progress of his pre-trial hearings since then, see here, here, here, here, here and here. And see here for the latest news from Poland, where al-Nashiri has a legal case ongoing.
5. Ahmed al-Darbi (ISN 768, Saudi Arabia) had the announcement of his intended trial by military commission (for the second time) made by Attorney General Eric Holder on November 13, 2009. Al-Darbi accepted a plea deal
on February 20, 2014, in which, in exchange for a guilty plea, he “will
spend at least three and a half more years at Guantánamo before he is
sentenced,” and will then probably be transferred to Saudi Arabia to
serve out the remainder of a sentence that is expected to be between
nine to 15 years, “depending on his behavior in custody,” as the New York Times described it.
6. Khalid Sheikh Mohammed (ISN 10024, Pakistan-Kuwait) had the announcement of his intended federal court trial in New York made by Attorney General Eric Holder on November 13, 2009. However, under pressure from critics, President Obama dropped the plan, and KSM and his four co-defendants (all accused of involvement the 9/11 attacks) were once more charged in the military commissions. For more, see here, here, here, here and here.
7. Ramzi bin al-Shibh (ISN 10013, Yemen) had the announcement of his intended federal court trial in New York made by Attorney General Eric Holder on November 13, 2009. However, under pressure from critics, President Obama dropped the plan, and the five 9/11 co-defendants (all accused of involvement the 9/11 attacks) were once more charged in the military commissions. For more, see here, here, here, here and here.
8. Mustafa al-Hawsawi (ISN 10011, Saudi Arabia) had the announcement of his intended federal court trial in New York made by Attorney General Eric Holder on November 13, 2009. However, under pressure from critics, President Obama dropped the plan, and the five 9/11 co-defendants (all accused of involvement the 9/11 attacks) were once more charged in the military commissions. For more, see here, here, here, here and here.
9. Walid bin Attash (ISN 10014, Saudi Arabia) had the announcement of his intended federal court trial in New York made by Attorney General Eric Holder on November 13, 2009. However, under pressure from critics, President Obama dropped the plan, and the five 9/11 co-defendants (all accused of involvement the 9/11 attacks) were once more charged in the military commissions. For more, see here, here, here, here and here.
10. Ali Abd al-Aziz Ali (aka Ammar al-Baluchi) (ISN 10018, Pakistan-Kuwait) had the announcement of his intended federal court trial in New York made by Attorney General Eric Holder on November 13, 2009. However, under pressure from critics, President Obama dropped the plan, and the five 9/11 co-defendants (all accused of involvement the 9/11 attacks) were once more charged in the military commissions. For more, see here, here, here, here and here.
11. Obaidullah (ISN 762, Afghanistan) had the announcement of his intended trial by military commission (for the second time) made on January 6, 2010. In June 2011, however, the charges were dropped,
although he is still held. At some point, he should have his case
reviewed by a Periodic Review Board, which will either recommend his
release or his continued detention.
12. Majid Khan (ISN 10020, Pakistan), a “high-value detainee” held in CIA “black sites,” was charged on February 14, 2012, and accepted a plea deal on February 29, 2012, in which, in exchange for a guilty plea, he will apparently receive a 19-year sentence, although that will not be delivered until four years after his trial.
13. Abd al-Hadi al-Iraqi (ISN 10029, Iraq) was charged on June 7, 2013. One of the last prisoners to arrive at Guantánamo, very little information about him has been released publicly, although it was announced on February 14, 2014 that a charge of conspiracy had been added to his charge sheet.
Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here – or here for the US).
To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list and the chronological list of all Andy’s articles.
Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.
I put this list together in the last week of March 2014, because it seemed to me that there was no one place where those interested in Guantánamo could find out who had been charged in the three versions of the military commissions that have been in existence at the prison (and in US law) since 2001.
Those charged number just 30 prisoners in total, out of the 779 men and boys held at Guantánamo since it opened in January 2002, although in half of those cases the charges have been dropped. Just eight prisoners have been convicted — and just two of those have taken place through trials rather than plea deals — and five of those men have been released. Seven other cases are ongoing.
I’ve been covering the commissions since 2006, and I have never found that they have established any kind of legitimacy, compared to federal courts, where crimes should be tried. This conclusion has only been strengthened in recent years, as conservative appeals court judges in Washington D.C. have overturned two of the eight convictions on the basis that they were for war crimes that were invented by Congress rather than being internationally recognized — something that is readily apparent from any analysis of their post-9/11 history, particularly, I believe, with reference to the disgraceful case of Omar Khadr, a former juvenile prisoner made to sign a plea deal in which he admitted responsibility for war crimes that were invented by his captors.
Below is a short history of the post-9/11 commissions followed by the list of the 30 prisoners who have been charged, in all three versions of the commissions – those established in 2001, 2006 and 2009. I have not specifically listed the charges against them, but those can be found by following the links — generally to Pentagon charge sheets, or to articles I have written about the commissions since 2007.
A brief history of the chaotic military commissions at Guantánamo
The military commissions were dragged out of the history books by Dick Cheney on November 13, 2001, when a Military Order authorizing the creation of the commissions was stealthily issued with almost no oversight, as I explained in an article in June 2007, while the Washington Post was publishing a major series on Cheney by Barton Gellman (the author of Angler, a subsequent book about Cheney) and Jo Becker. Alarmingly, as I explained in that article, the order “stripped foreign terror suspects of access to any courts, authorized their indefinite imprisonment without charge, and also authorized the creation of ‘Military Commissions,’ before which they could be tried using secret evidence,” including evidence derived through the use of torture.
Cheney’s military commissions, which involved various chaotic pre-trial hearings but no trials, lasted until June 28, 2006, when, in Hamdan v. Rumsfeld, a challenge brought by one of the ten men charged (Salim Hamdan, a Yemeni who had taken a paid job as one of Osama bin Laden’s drivers), the Supreme Court ruled that the commissions lacked “the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.”
Almost immediately, however, the Bush administration responded by negotiating with Congress for a new version of the commissions to be launched, and the result was the Military Commissions Act of 2006. Between February 2007 and December 2008, 27 prisoners were charged in the military commissions (including nine of the ten men previously charged), although only three cases went to trial — David Hicks in March 2007, Salim Hamdan in July 2008, and Ali Hamza al-Bahlul in October 2008. For a brief rundown of most of these stories, see my article from November 2008, “20 Reasons To Shut Down The Guantánamo Trials.”
When President Obama took office in January 2009, he initially suspended the commissions, but in a speech in May 2009 he announced that they were back on the table. He then worked with Congress to revive them, and the result was the Military Commissions Act of 2009. According to an announcement by Attorney General Eric Holder in November 2009, there were supposed to be two types of trials under the Obama administration — in federal court, for the five men accused of involvement in the 9/11 attacks, as well as in the military commissions. However, when the administration faced criticism for planning to hold the 9/11 trial in New York, President Obama dropped the plans, and Khalid Sheikh Mohammed and his four co-defendants (all accused of involvement the 9/11 attacks) were once more charged in the military commissions.
Nor were the military commissions free of problems. Senior Obama administration officials had told Congress (see here and here) that certain charges designated as war crimes in the MCA of 2006, and intended for the 2009 version — providing material support for terrorism, and, possibly, conspiracy — were not regarded as war crimes, and would probably be overturned on appeal. Congress failed to take the advice on board, but this was indeed what happened in October 2012, in another victory for Salim Hamdan, when his conviction was overturned, and in January 2013 the conviction of Ali Hamza al-Bahlul was also overturned. The government has appealed, but the effect has been for the military to concede that the total number of prisoners who will face trials by military commission (or have already faced trials) out of the 779 men held since the prison opened, is unlikely to exceed 20. In fact, at current estimates, it will be no more than the 15 already charged and/or convicted.
Military Commissions under President Bush, as authorized by Military Order No. 1 (2001-2006)
1. David Hicks (ISN 002, Australia) was charged
on June 10, 2004. His intended trial was delayed on several occasions,
firstly on November 9, 2004, after Judge James Robertson, in the
District Court in Washington D.C., ruled
that the US could not hold a military commission unless it was first
shown that the detainee was not a prisoner of war. That ruling was
unanimously reversed by a three-judge panel in the court of appeals (the
D.C. Circuit Court) on July 15, 2005, led by Judge A. Raymond Randolph,
but Hicks’ trial was delayed again because, on November 7, 2005, the
the Supreme Court issued a writ of certiorari to hear the case. On
November 15, District Judge Colleen Kollar-Kotelly stayed the proceeding
against Hicks until the Supreme Court issued its ruling (the ruling in
June 2006 that brought this version of the commissions to an end).2. Ibrahim al-Qosi (ISN 054, Sudan) was charged on June 29, 2004. Because of the rulings outlined above, al-Qosi’s case was stayed twice, on November 9, 2004 and November 7, 2005, before the first version of the commissions was struck down by the Supreme Court in June 2006.
3. Ali Hamza al-Bahlul (ISN 039, Yemen) was charged on June 29, 2004. For al-Bahlul’s struggle to represent himself — and the ethical problem this caused to the lawyer assigned to represent him, Army Maj. Thomas Fleener — see “The Defense Will Not Rest,” an article in GQ in July 2007, which I wrote about here.
4. Salim Hamdan (ISN 149, Yemen) was charged
on July 13, 2004. See the entry for David Hicks (above) for Hamdan’s
important role in bringing this first version of the commissions to an
end. Hamdan was represented by Neal Katyal of Georgetown University Law
Center and Navy Lt. Cmdr. Charles Swift, with support from the Seattle
law firm Perkins Coie. Also see “Taking on Guantánamo,” a profile of Swift from Vanity Fair in 2007.5. Omar Khadr (ISN 766, Canada) was charged on November 4, 2005. He attended pre-trial hearings in the second week of January 2006, prior to the first version of the commissions being scrapped. In March, after all the prisoners facing commissions were placed in solitary confinement, Khadr wrote to the court to complain, ”Excuse me Mr. Judge … I’m being punished for exercising my right and being co-operative in participating in this military commission. For that, I say with my respect to you and everybody else here, that I’m boycotting these procedures until I be treated humanely and fair.”
6. Ghassan al-Sharbi (ISN 682, Saudi Arabia) was charged on November 4, 2005. For al-Sharbi’s struggle to represent himself — and the ethical problem this caused to the lawyer assigned to represent him, Navy Lt. William Kuebler – see “The Defense Will Not Rest,” an article in GQ in July 2007, which I wrote about here.
7. Sufyian Barhoumi (ISN 694, Algeria) was charged on November 4, 2005.
8. Jabran al-Qahtani (ISN 696, Saudi Arabia) was charged on November 4, 2005.
9. Binyam Mohamed (identified by US as Binyam Muhammad) (ISN 1458, Ethiopia-UK) was charged on November 4, 2005. At a hearing on April 6, 2006, Mohamed insisted on representing himself, and held up a sign
in court — for the benefit of the watching world – which read, “con
mission.” He stated, “This is not a commission, it’s a con mission, It’s
a mission to con the world.”10. Abdul Zahir (ISN 753, Afghanistan) was charged on January 20, 2006. He is the only one of the ten not to be charged again when the military commissions were revived by Congress in the Military Commissions Act of 2006. In April 2013, he was one of 71 prisoners recommended for a Periodic Review Board, which means that, at some point, he should have his case reviewed by the board, which will either recommend his release or his continued detention.
Military Commissions under President Bush, as authorized by the Military Commissions Act of 2006 (2006-2008)
1. David Hicks (ISN 002, Australia) was charged for a second time on February 2, 2007, and reached a plea deal on March 26, 2007. He was given a seven-year sentence on March 31, 2007, of which all but nine months was suspended, and returned to Australia on May 20, 2007, where he was imprisoned. He was released on December 26, 2007. In November 2013, Hicks appealed his conviction, following successful appeals by Salim Hamdan and Ali Hamza al-Bahlul (see below).2. Salim Hamdan (ISN 149, Yemen) was charged for a second time on April 5, 2007, and was convicted of providing material support for terrorism (but acquitted of conspiracy by the military jury) on August 6, 2008, after a two-week trial. He was given a sentence of five and a half years, but the judge, Keith Allred, allowed for time served since he was first charged (61 months), meaning that he had just five months to serve. He was repatriated to Yemen on November 26, 2008, where he was imprisoned until December 27, 2008, when he was released. His conviction was overturned by the court of appeals in Washington D.C. (the D.C. Circuit Court) on October 16, 2012. This ruling, in conjunction with the overturning of Ali Hamza al-Bahlul’s conviction (see below), seems to have made it impossible for most of the planned prosecutions at Guantánamo, which involve material support for terrorism — and in some cases conspiracy — to proceed.
3. Omar Khadr (ISN 766, Canada), a juvenile at the time of his capture, was charged for a second time on April 5, 2007. Pre-trial hearings took place from June 2007 until President Bush left office. See my articles here, here, here and here.
4. Mohamed Jawad (ISN 900, Afghanistan), a juvenile at the time of his capture, was charged on October 9, 2007. His prosecutor, Darrel Vandeveld, resigned
on September 25, 2008, complaining that vital information was being
withheld from the defense. In October 2008, his judge, Col. Henley
determined that Jawad’s confessions about throwing a grenade throwing a
grenade at a US military vehicle, which he made to Afghan and US
officials after his capture in December 2002 were inadmissible because
they had been obtained through torture and intimidation. In July 2009,
he had his habeas corpus petition granted by Judge Ellen Huvelle in the District Court in Washington D.C., and he was repatriated to Afghanistan on August 24, 2009 (also see here and here).5. Ahmed al-Darbi (ISN 768, Saudi Arabia) was charged on December 20, 2007. He was arraigned in April 2008, although he refused to attend the hearing. In September 2008, his military-appointed lawyer, Army Lt. Col. Bryan Broyles, resigned, complaining about the ethical problems of representing someone who did not wish to be represented (as al-Darbi didn’t), and explaining that al-Darbi never came to trust him because “the attorney-client relationship is close to impossible to establish” in a system in which a lawyer is imposed on a prisoner.
6. Ibrahim al-Qosi (ISN 054, Sudan) was charged for a second time on February 8, 2008. In April 2008, he too boycotted his arraignment, telling the judge, “I do not recognize the justice or the lawfulness of this court,” and adding, “What is happening in your courts is in fact a sham, which aims solely that the cases move at the pace of a turtle in order to gain some time to keep us in these boxes without any human or legal rights.”
7. Ali Hamza al-Bahlul (ISN 039, Yemen) was charged for a second time on February 8, 2008, and was convicted in November 2008 after a one-sided trial in which he refused to mount a defense, and given a life sentence. His conviction was overturned
by the court of appeals in Washington D.C. (the D.C. Circuit Court) on
January 25, 2013. The US government has appealed, but the ruling, in
conjunction with the overturning of Salim Hamdan’s conviction, seems to
have made it impossible
for most of the planned prosecutions at Guantánamo, involving material
support for terrorism — and in some cases conspiracy — to proceed.8. Khalid Sheikh Mohammed (ISN 10024, Pakistan-Kuwait), a “high-value detainee” held in CIA “black sites,” was charged on February 11, 2008. Pre-trial hearings took place from June 2008 until President Bush left office. See here, here and here.
9. Ramzi bin al-Shibh (ISN 10013, Yemen), a “high-value detainee” held in CIA “black sites,” was charged on February 11, 2008. Pre-trial hearings took place from June 2008 until President Bush left office. See here, here and here.
10. Mustafa al-Hawsawi (ISN 10011, Saudi Arabia), a “high-value detainee” held in CIA “black sites,” was charged on February 11, 2008. Pre-trial hearings took place from June 2008 until President Bush left office. See here, here and here.
11. Walid bin Attash (ISN 10014, Saudi Arabia), a “high-value detainee” held in CIA “black sites,” was charged on February 11, 2008. Pre-trial hearings took place from June 2008 until President Bush left office. See here, here and here.
12. Ali Abd al-Aziz Ali (aka Ammar al-Baluchi) (ISN 10018, Pakistan-Kuwait), a “high-value detainee” held in CIA “black sites,” was charged on February 11, 2008. Pre-trial hearings took place from June 2008 until President Bush left office. See here, here and here.
13. Mohammed al-Qahtani (ISN 063, Saudi Arabia) was charged on February 11, 2008, but the charges were dropped on May 12, 2008 after the commissions’ convening authority, Susan Crawford, concluded
that he had been tortured at Guantánamo. “We tortured Qahtani. His
treatment met the legal definition of torture,” she told Bob Woodward of
the Washington Post in January 2009.14. Mohammed Kamin (ISN 1045, Afghanistan) was charged on March 12, 2008. The Obama administration dropped the charges against him on December 11, 2009. At the time, Pentagon officials said they would re-file charges against him, but it never happened. In June 2013, it was revealed that, in January 2010, President Obama’s Guantánamo Review Task Force had recommended him for ongoing detention without charge or trial, and, at some point, he should have his case reviewed by a Periodic Review Board, which will either recommend his release or his continued detention.
15. Ahmed Khalfan Ghalani (ISN 10012, Tanzania), a “high-value detainee” held in CIA “black sites,” was charged
on March 31, 2008 and arraigned on October 22, 2008. Under Obama,
however, he was moved to the US mainland (in May 2009) for a federal
court trial that began in September 2010 and resulted in a conviction on a single charge of conspiracy and a life sentence
in January 2011. Despite this, lawmakers have passed legislation
preventing President Obama from bringing any other Guantánamo prisoners
to the US mainland for federal court trials.16. Noor Uthman Muhammed (ISN 707, Sudan) was charged on May 23, 2008. The charges were dropped on October 21, 2008, after Darrel Vandeveld’s resignation, but were reinstated on December 5, 2008.
17. Ghassan al-Sharbi (ISN 682, Saudi Arabia) was charged for a second time on May 28, 2008, but the charges were dropped on October 21, 2008, after Darrel Vandeveld’s resignation.
18. Sufyian Barhoumi (ISN 694, Algeria) was charged for a second time on May 28, 2008, but the charges were dropped on October 21, 2008, after Darrel Vandeveld’s resignation. However, in July 2013, Barhoumi sought
to be charged and tried, in the hope of being released from Guantánamo —
although prosecutors showed no willingness to prosecute him.19. Jabran al-Qahtani (ISN 696, Saudi Arabia) was charged for a second time on May 28, 2008, but the charges were dropped on October 21, 2008, after Darrel Vandeveld’s resignation.
20. Binyam Mohamed (identified by US as Binyam Muhammad) (ISN 1458, UK-Ethiopia) was charged for a second time on May 28, 2008, but the charges were dropped on October 21, 2008, after Darrel Vandeveld’s resignation. He was released to the UK in February 2009, primarily because his US-instigated torture in Morocco, which the British either knew about, or were negligent in not finding out about, had been exposed in the UK courts, and was causing a Transatlantic headache.
21. Mohammed Hashim (ISN 850, Afghanistan) was charged with providing material support for terrorism and spying on May 30, 2008, and the charges were approved by the convening authority on October 21, 2008. However, on December 20, 2009, he was repatriated to Afghanistan (and the charges were dropped). For more, see my article, “Afghan fantasist to face trial at Guantánamo,” written when he was initially charged.
22. Abd al-Rahim al-Nashiri (ISN 10015, Saudi Arabia), a “high-value detainee” held in CIA “black sites,” was charged on June 30, 2008, and the charges were referred to the convening authority on December 19, 2008.
23. Abdul Ghani (ISN 934, Afghanistan) was charged on July 28, 2008, but the charges were dropped on December 19, 2008. In September 2012, it was revealed by the Justice Department that he had been cleared for release by President Obama’s Guantánamo Review Task Force in January 2010, but he is still held. For more, see, “Close Guantánamo: Abdul Ghani, An Insignificant Afghan Villager Held for Nine Years” (now 11 years).24. Obaidullah (ISN 762, Afghanistan) was charged on September 9, 2008. For more, see my article, “Guantánamo trials: another insignificant Afghan charged,” written when he was initially charged.
25. Fayiz al-Kandari (described as Faiz al-Kandari) (ISN 552, Kuwait) was charged on October 21, 2008. The charges were dropped on June 29, 2012 by the convening authority, Retired Vice Admiral Bruce MacDonald.
26. Fouad al-Rabiah (described as Fouad al-Rabia) (ISN 551, Kuwait) was charged on October 21, 2008. However, in September 2009, he had his habeas corpus petition granted
in the District Court in Washington D.C. by Judge Colleen
Kollar-Kotelly, which uncovered extraordinary evidence of how coerced
confessions were extracted from al-Rabiah at Guantánamo. He was released in December 2009.27. Tarek El-Sawah (aka Tariq al-Sawah) (ISN 535, Egypt) was charged on December 12, 2008. In April 2012, the charges against him were dropped on the advice of Michael C. Chapman, the legal advisor to the convening authority. In October 2013, I reported how his lawyers were seeking his release because he is physically and mentally ill. See, “Lawyers Seek Release from Guantánamo of Tariq Al-Sawah, an Egyptian Prisoner Who is Very Ill.”
Military Commissions under President Obama, as authorized by the Military Commissions Act of 2009 (2009-)
1. Ibrahim al-Qosi (ISN 054, Sudan) had the announcement of his intended trial by military commission (for the third time) made by Attorney General Eric Holder on November 13, 2009. Al-Qosi accepted a plea deal
on July 7, 2010, in which, in exchange for a guilty plea, he was to be
held for just two more years instead of the 14-year sentence delivered
by a military jury. He was repatriated to Sudan in July 2012.2. Omar Khadr (ISN 766, Canada) had the announcement of his intended trial by military commission (for the third time) made by Attorney General Eric Holder on November 13, 2009,. Khadr accepted a plea deal in October 2010, in which, in exchange for a guilty plea, he received an eight-year sentence (consisting of one more year at Guantánamo, followed by seven in Canada) instead of the 40-year sentence delivered by a military jury. He was repatriated to Canada in September 2012. In November 2013, his US lawyer, Sam Morison, announced that he was challenging his conviction, and Khadr’s own comments are here.
3. Noor Uthman Muhammed (ISN 707, Sudan) had the announcement of his intended trial by military commission (for the second time) made by Attorney General Eric Holder on November 13, 2009. Muhammed accepted a plea deal in February 2011, in which, in exchange for a guilty plea, he received a sentence of two years and ten months. He was repatriated to Sudan in December 2013.
4. Abd al-Rahim al-Nashiri (ISN 10015, Saudi Arabia) had the announcement of his intended trial by military commission (for the second time) made by Attorney General Eric Holder on November 13, 2009. For the stumbling progress of his pre-trial hearings since then, see here, here, here, here, here and here. And see here for the latest news from Poland, where al-Nashiri has a legal case ongoing.
5. Ahmed al-Darbi (ISN 768, Saudi Arabia) had the announcement of his intended trial by military commission (for the second time) made by Attorney General Eric Holder on November 13, 2009. Al-Darbi accepted a plea deal
on February 20, 2014, in which, in exchange for a guilty plea, he “will
spend at least three and a half more years at Guantánamo before he is
sentenced,” and will then probably be transferred to Saudi Arabia to
serve out the remainder of a sentence that is expected to be between
nine to 15 years, “depending on his behavior in custody,” as the New York Times described it.
6. Khalid Sheikh Mohammed (ISN 10024, Pakistan-Kuwait) had the announcement of his intended federal court trial in New York made by Attorney General Eric Holder on November 13, 2009. However, under pressure from critics, President Obama dropped the plan, and KSM and his four co-defendants (all accused of involvement the 9/11 attacks) were once more charged in the military commissions. For more, see here, here, here, here and here.7. Ramzi bin al-Shibh (ISN 10013, Yemen) had the announcement of his intended federal court trial in New York made by Attorney General Eric Holder on November 13, 2009. However, under pressure from critics, President Obama dropped the plan, and the five 9/11 co-defendants (all accused of involvement the 9/11 attacks) were once more charged in the military commissions. For more, see here, here, here, here and here.
8. Mustafa al-Hawsawi (ISN 10011, Saudi Arabia) had the announcement of his intended federal court trial in New York made by Attorney General Eric Holder on November 13, 2009. However, under pressure from critics, President Obama dropped the plan, and the five 9/11 co-defendants (all accused of involvement the 9/11 attacks) were once more charged in the military commissions. For more, see here, here, here, here and here.
9. Walid bin Attash (ISN 10014, Saudi Arabia) had the announcement of his intended federal court trial in New York made by Attorney General Eric Holder on November 13, 2009. However, under pressure from critics, President Obama dropped the plan, and the five 9/11 co-defendants (all accused of involvement the 9/11 attacks) were once more charged in the military commissions. For more, see here, here, here, here and here.
10. Ali Abd al-Aziz Ali (aka Ammar al-Baluchi) (ISN 10018, Pakistan-Kuwait) had the announcement of his intended federal court trial in New York made by Attorney General Eric Holder on November 13, 2009. However, under pressure from critics, President Obama dropped the plan, and the five 9/11 co-defendants (all accused of involvement the 9/11 attacks) were once more charged in the military commissions. For more, see here, here, here, here and here.
11. Obaidullah (ISN 762, Afghanistan) had the announcement of his intended trial by military commission (for the second time) made on January 6, 2010. In June 2011, however, the charges were dropped,
although he is still held. At some point, he should have his case
reviewed by a Periodic Review Board, which will either recommend his
release or his continued detention.12. Majid Khan (ISN 10020, Pakistan), a “high-value detainee” held in CIA “black sites,” was charged on February 14, 2012, and accepted a plea deal on February 29, 2012, in which, in exchange for a guilty plea, he will apparently receive a 19-year sentence, although that will not be delivered until four years after his trial.
13. Abd al-Hadi al-Iraqi (ISN 10029, Iraq) was charged on June 7, 2013. One of the last prisoners to arrive at Guantánamo, very little information about him has been released publicly, although it was announced on February 14, 2014 that a charge of conspiracy had been added to his charge sheet.
Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here – or here for the US).To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list and the chronological list of all Andy’s articles.
Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.
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