2-15-2011By Raha Wala
Georgetown Fellow, Law and Security
“I have never been a member of al Qaeda or the Taliban.” These are the words of Noor Uthman Muhammed, read to a panel of military commission members charged with helping decide his fate as he remains in Guantanamo, where he has been held for almost nine years. Referred to simply as “Noor” in the military commission proceedings, the frail, forty-something year-old, Sudanese man pled guilty earlier this week to providing material support for terrorism and conspiring with al Qaeda affiliates. The military commission panel has recommended a sentence of fourteen years, but Noor will likely serve a substantially lighter sentence of thirty-four months pursuant to the terms of his pre-trial agreement with the government.
As I’ve watched this trial unfold in Guantanamo, I’ve listened to prosecution and defense counsel advance their competing narratives about Noor. The prosecution claimed that Noor was a high-level operative at the Khalden camp, a jihadist training site in Afghanistan, where he trained countless terrorists, many of whom went on to plan or commit horrific acts of terrorism. The defense painted Noor as a poor, uneducated man who ended up at Khalden as a young man in search of stability and purpose in his life. Although Noor admitted that he provided basic arms training and logistical support at Khalden, he maintains that he never participated in any terrorist plots, and never intended to.
What has become increasingly clear is that behind these competing narratives lies the question of whether Noor will ever be able to leave Guantanamo to see his family, who eagerly awaits his return to Sudan. Noor – stricken with Hepatitis B, Tuberculosis, and other health problems – is not likely to live much longer, and every time he muttered “na’am” (“yes” in Arabic) to indicate that he understood what was going on in the trial, he seemed exhausted and resigned to his fate. In the words of one of Noor’s defense counsel, Navy Captain Chris Kannady, Noor “wears the scars, and feels the emotions, of all the things that have happened to him.”
Indeed, Noor has spent almost nine years in U.S. custody with little opportunity, until now, to challenge the government’s case against him. During that time, Noor and his lawyers claim that he was subjected to brutal detention conditions and interrogation methods, the details of which are familiar to those who have studied the U.S. government’s post-9/11 torture program. In the days and months after Noor was detained, he was told that if he didn’t cooperate, he would be sent to Egypt, where his family would never hear from him again. We now know that such threats were not hypothetical, as the United States had a long-standing practice of rendering terrorism suspects to Egypt and other countries to be tortured.
According to Noor, over the ensuing years of detention in U.S. custody he was subjected to a variety of abusive interrogation methods that were, at the time, authorized and widely-used by government officials. He was placed in painful stress positions for extended periods of time. He was exposed to extreme temperatures. He was shackled and beaten. He was held in solitary confinement for almost two years. And like many others subjected to extended periods of solitary confinement, he thought he was losing his mind. To deprive Noor of sleep, he was scurried from one location to another, and exposed to blaring loud music for hours on end. Female guards, understanding the tenets of Noor’s faith, wore transparent clothing to humiliate him while he was being interrogated. Speaking of his treatment in U.S. custody, Noor said: “they did not consider me to be a human being, and I had no dignity in their eyes.”
Although no U.S. official has been held accountable for the systematic abuse perpetrated against individuals like Noor, the military commission, in what seems like a token gesture at this point, promised to consider it in coming up with an appropriate sentence for Noor. (The commission must not have given it much consideration though, as it returned the maximum possible sentence against Noor.)
Irrespective of the sentence Noor ends up serving , these military commission proceedings will be remembered as an affront to the rule of law and fundamental notions of justice. Since the post-World War II war crimes trials at Nuremberg, military commissions have been reserved to try major war criminals for offenses committed during the conduct of war. However, Noor’s role in providing weapons training and logistical support at Khalden does not make him a war criminal under any reasonable interpretation of the laws of war. By trying and convicting Noor as a war criminal, the United States is undermining the very laws that U.S. soldiers rely on in the field. Moreover, Noor’s allegedly criminal acts, undertaken between 1996 and 2000, happened well before the United States was involved in any war, calling into question the very foundation of the military commission proceeding. A fundamental principle of law in any decent society is that individuals cannot be punished for acts that were not illegal when committed. Yet by prosecuting Noor for material support and conspiracy – vague offenses codified as war crimes years after Noor left Afghanistan – the United States is imposing ex post facto punishment on Noor and violating the universal principle of legality.
Adhering to the rule of law does not mean that the United States must tolerate terrorism. Many of the government’s claims against Noor allege serious and substantial connections to terrorist acts, and law enforcement has a responsibility to act in the face of threats to public safety. But if the government’s allegations are true, Noor should have been arrested and prosecuted in a federal civilian court. Federal prosecutors have plenty of tools to handle international terrorism cases. Indeed, federal courts have convicted over 400 individuals of terrorism-related offenses since 9/11. Just last month, Ahmed Ghailani, the first Guantanamo detainee to receive a civilian trial, was sentenced to life in prison for his role in the East Africa embassy bombings. By contrast, Noor’s case marks just the 6th conviction by the military commission system, which has been plagued by one legal challenge after another over the last nine years. President Obama has said that the choice between our national security and our ideals is a false one. He’s right. It’s time to close this chapter on Guantanamo and the failed military commissions system, and place our trust in tried and true federal courts.