Charges Against 5 Detainees Dropped Temporarily
Wednesday, October 22, 2008
The government has temporarily dismissed charges against five detainees at Guantanamo Bay, Cuba, the Pentagon's Office of Military Commissions announced yesterday. All the cases had been handled by a military prosecutor who quit last month, citing "ethical qualms" about what he said was his office's failure to turn over potentially exculpatory evidence to the defense.
The five defendants were also linked in various charge sheets to Zayn al-Abidin Muhammed Hussein, better known by the nom de guerre Abu Zubaida, an alleged al-Qaeda leader who was subjected to waterboarding and other enhanced interrogation techniques while in CIA custody, U.S. officials have acknowledged.
It was unclear whether the prosecutor, Lt. Col. Darrel Vandeveld, raised questions about using testimony from Abu Zubaida or possessed evidence of its unreliability that he thought should be turned over to the defense. The Army reservist, who has said a standing military order prevents him from talking to the news media, did not respond to a message left at his home.
Col. Lawrence Morris, the chief military prosecutor, said the dismissal "without prejudice" -- which means the government can refile charges -- was prompted by new material prosecutors received from government agencies and required a "re-analysis" of the cases to come up with the "best possible charges." He didn't described the material.
Morris said the process of reexamining the cases began before Vandeveld stepped down and filed a statement with a military court about "the slipshod, uncertain 'procedure' for affording defense counsel discovery." Vandeveld's allegations "had no impact" on the dismissals, according to Morris, who has described Vandeveld as "disappointed" because his superiors "didn't see the wisdom of his recommendations."
Morris noted that the case that ostensibly led to Vandeveld's decision to leave the military prosecutor's office was not dismissed this week. According to defense lawyers who have spoken to him, Vandeveld alleges that the suppression of evidence favorable to the defense is systematic and not confined to one case.
All five men will continue to be held as "enemy combatants," a status that the government argues allows it to hold detainees regardless of whether they face trial.
Defense lawyers and some legal observers seized on the dismissals as evidence that the military tribunals at Guantanamo are simply unable to proceed with cases tainted by allegations of torture. "The implosion of these five prosecutions painfully underscores how the Bush administration's torture and detention policies have failed to render justice in any sense of the word," Anthony D. Romero, executive director of the ACLU, said in a statement. "Any evidence of potential wrongdoing is forever poisoned from being used in real courts when it is obtained through torture, waterboarding or rendition."
Brent Mickum, an attorney for Abu Zubaida, said the "government is trying to airbrush Zubaida out" of all proceedings.
Last week, in a separate habeas corpus proceeding, the Justice Department withdrew allegations linking Binyam Mohammed, one of the five defendants, to a "dirty bomb" plot and other plans to launch terrorist attacks in the United States. The conspiracy allegedly was conceived in discussions with Abu Zubaida.
Mohammed's attorney said military prosecutors are also trying to prevent Vandeveld from testifying about the alleged suppression of exculpatory evidence.
"Vandeveld was willing to testify for us if subpoenaed," said Clive Stafford Smith, director of Reprieve, a London-based group that defends the rights of prisoners. "They want new prosecutors to review the case before refiling charges so they can argue that Vandeveld is irrelevant."