Moazzam Begg in Conversation with Binyam Mohamed

CP: Could you please introduce yourself to our readers?

YB: Lieutenant Colonel Yvonne Bradley appointed counsel for Binyam Mohammed

CP: What are your general impressions of Guantanamo Bay?

YB: Let me put this before I even answer that question. I should have stated this up front.

The opinions I am about to give or my opinions as counsel , military counsel for the client I represent, by no means represent the opinions of the Department of Defence, United States Air force or any United States Government, military organisation or agency.

YB: General impressions of Guantanamo is…it’s a very depressing place. It’s a place where facility wise overall, character wise of the island, is a place in my opinion that should be closed down.

CP: And in terms of the ways the detainees are treated there?

YB: Detainees are treated inhumanely and I say that not only from how they’re probably treated at Guantanamo, but the entire history of how these individuals were treated before they even got to Guantanamo. From their rendition, from being picked up in various places they were picked up, to the time they got to Guantanamo and to the time until today on how these individuals are treated and how counsel are treated who represent these individuals.

That the entire system is set up not to treat these people humanly. To deny contact with, real contact with families and not the type of contact where mail is censored and where contact is limited. Where there is absolutely no trust between counsel and detainees because of the psychological abuse and the way that the entire system is managed and maintained in Guantanamo Bay.

CP: Are there any specific things you can tell us about in relation to the way some of the detainees are treated that you find particularly horrific?

YB: Well a lot of it is not so open, it doesn’t necessarily happen in front of counsel. Sometimes you have to pick up the small clues that occur or small things that, that you personally observe when you’re down there.

It’s just small things, for example the use of the air conditioning. I mean there are times where detainees will be left in a very very cold room and the air conditioning isn’t turned off. That’s no big deal, but when you’re in a situation where you are chained to the floor and not able to control your own environment it becomes an issue. It becomes a psychological issue.

There’s also times where just the opposite, with air conditioning may not be put on and again the detainees left in a hot cell with the inability to change their environment.

I know sometimes when I’ve been there it’s the attitude that you sometimes have from some of the guards. Some are open and friendly, but many of them are very distant and I know if they’re treating me in that fashion, I can’t even imagine what happens to the detainees when counsels not there or how they’re being treated.

CP: As lawyers representing these individuals who have been demonised in some of the worst possible ways are you similarly demonised by other members of the military or public or how is the perception of your defence of these individuals?

YB: I don’t think so much demonised I think people don’t fully understand. I think most people believe, falsely believe that these people are being treated fairly; they will be receiving fair trials, which, none if that is true.

So I haven’t personally been demonised. I know I’ve had differences of agreement of what is or is not happening at Guantanamo and whether or not these individuals are being given fair trials and due process. So I think there’s a misperception about what’s happening at Guantanamo Bay. But fortunately for me I haven’t been personally demonised. I know that there’s been comments from people about what’s going on at Guantanamo, and be careful on how zealously you may represent these individuals, but as a attorney I only know of one way to represent a client and that is through full, fair, zealous representation.

CP: Can you please just explain to our readers about what the Military Commission Act 2006 [MCA] is and your views on it?

YB: It’s probably one of the poorest pieces of legislation in quite a while. I can’t even start to describe how tragic it is that the MCA was passed and that anyone would be expected to be fairly trialled under the MCA.

I mean I have an understanding of history. I minored in History and I look back at this time period that we’re going through with the same eyes, lenses of looking back to the Japanese internment, back to McCarthyism and communism, where we used fear and scare tactics to pass laws that were just horrible. So the MCA is a_ horrible _piece of Act.

If anyone believes that individuals would be fairly treated and receive due process under the MCA they’re under a great delusion. And as I say I can only compare it to the Japanese internment where we justified locking up people without due process. The MCA will deny people due process; will deny them a fair trial. It is designed for one goal and one goal only in my opinion, and that is to secure convictions. It’s not there to decide innocence and guilt; it’s designed for the Government to ensure that these individuals are convicted without solid evidence and with the use of torture and things that would not be tolerated if we were looking at this from a very logical, fair and due process view point.

CP: What are the key provisions that you find particularly disturbing?

YB: One, particularly because my client has been tortured and rendered, it’s the use of torture or coercion/ we want to soften it and use the word coercion, but there’s no difference between torture and coercion.

That the use of coercion can be used against a person, that is against every constitutional principle I’ve ever been taught. Against every due process principle I’ve ever practised. That you can coerce someone or torture someone or abuse someone physically or psychologically and then allow those type of unreliable, false statements, confessions, admissions to be used against the individual, that’s absolutely unacceptable in civilized societies. So that is one. 

Secondly, it’s allowing the use of hearsay. Not requiring the actual witness who made mention or statements against the individual to come into court room to testify and then not allowing the methods, the techniques that were used to obtain this statement or to obtain this evidence to be fully disclosed. And for the Government to hide behind this national security in classification to avoid the embarrassment of how they obtained this information.

Along with Habeas Corpus, I mean that act is so bad that I could probably go through a laundry list but the torture, the hearsay, the ipso facto, the making up of laws after the fact to make them offences, the Habeas , it’s not even, words really actually escape me of what I can really say about the MCA. It’s not a fair piece of legislation at all.  An embarrassment, that any country or any government or anyone would allow people to be processed under that and call it fair and full trials.

CP: You mentioned you client, who is your client?

YB: My client is Binyam Mohammed . He’s an Ethiopian national and a British resident.

CP: What has Binyam been accused of?

YB: Well at this point officially he hasn’t been accused of anything since he hasn’t been recharged under the new MCA. So whatever his official charges will be under the new act we will have to wait and see when they charge him and what they charge him with, of which I have real concerns. Because they’ll probably charge him as they have done with David Hicks, with this ipso facto offence of supporting, materially supporting terrorism.

But under the old commission he was charged with, and when I say the old commission, the commission hearings that were going on until the Hamdan verses Rumsfeld case which the Supreme Court ruled that the commissions were unconstitutional. But under the old system Mr Mohammed was charged with this complex conspiracy. He wasn’t even charged with any substance offences, one large conspiracy of attending camps and of knowing almost anybody you can, a who who of Al Qaeda individuals that he allegedly knew. Which I mean it was absolutely, if we weren’t in a real life situation it would be almost hilarious. But it was one large complex, illogical conspiracy.

CP: You mentioned that your client had been tortured and rendered, could you please clarify a bit further?

YB: Yes I can. Mr Mohammed was picked up in Pakistan at the airport. Not on the battlefield, not fighting individuals, but he was picked up at the airport in Pakistan on his way back to London.

After he was picked up in Pakistan he was kept about 2 months by the Pakistani authorities ad during that time period the American authorities somehow tied him into being in, involved with Al Qaeda. And pretty much being Bin Laden’s right hand man, the way you can read the complex conspiracy they charged him with.

After spending about 2 months in Pakistan and being abused and tortured in Pakistan. The type of torture in Pakistan were  beatings, a gun held to him, being threatened to be shot, I mean that was only the tip of the iceberg and to some extent you can’t even call it torture [compared to] in what happened later to Mr Mohammed.

He was then rendered by the CIA from Pakistan to Morocco for one purpose and one purpose only. In Morocco which is known to torture individuals, so he spent 18 months in Morocco where he received horrendous treatment and was tortured, threatened with physical and bodily harm. Threatened to be raped, threatened to be killed, physically harmed, beaten, held up by his ankles also held up by his hands in a position called the strappado position, which is a very painful physical position to put people in for not just for hours, but for weeks on end, for long periods of time.

And if that wasn’t enough, he also was subject to being cut on his body. And I’m going to get a little graphic here but I think it’s important to understand the abuse Mr Mohammed went through, to try to get him to talk and make statements.

Once he was cut on his chest with a scalpel type of device, with like a razor or scalpel and then he was also cut with a razor or scalpel on his genitals and this happened not only once but over several months.

That they would come in every once in a while and do this. And the worst part of this, it’s not so much the physical abuse, I mean that’s bad, it’s horrible, but you know scars and cuts they heal. It’s the psychological abuse, waiting in between times when people come in and abuse you.

Along with the physical abuse was the psychological abuse of environmental manipulation, of being held long periods of time without food or without water or without the opportunity to use toilet facilities. I mean, he went through 18 months of that in Morocco.

After 18 months in Morocco he then was again rendered by the CIA from Morocco to Afghanistan to Kabul.

He spent 5 months in a prison known as the Dark Prison. And the reason it was known as the Dark Prison was because the detainees there spent pretty much 24 hours in darkness, pitch black darkness, where they were subject to abuse, again psychological as well as physical abuse. Psychological abuse occuring such as hearing loud music 24 hours. Blaring rock and roll music loud, blaring just sounds, of people screaming, of women, just horrendous sounds in pitch blackness. And hearing other detainees in, being physically tortured and he spent 5 months in the Dark Prison before then being again rendered to Bagram prison for about a period of 3 or 4 months and then finally in September 2004 being sent to Guantanamo Bay, where again the abuse may not be as physically or psychologically abusive in comparison. I mean, I think any torture or abuse is wrong, but again just the little things that occur at Guantanamo, the interrogation that will occur over and over again continued even while he was in Guantanamo Bay.

CP: Just so we understand what is your relationship right now with Binyam?

YB: Well I know you can’t see this but I’m smiling and the reason I’m smiling is because, I’m smiling out of frustration, not because anything’s funny. It’s frustrating because individuals really expect an attorney/client relationship. Given after 4 or 5 years of abuse by, at the hands of either military authorities and or law enforcement authorities of the United States, that I am supposed to go in and establish some kind of trust relationship with this, with my client, and to be able to represent him in any fashion is almost ridiculous.  In the sense, there’s so much to overcome and it’s not going to be overcome within months or years given that he’s still psychologically in prison, physically imprisoned.  And there’s no way to establish a trust. The system that they set up at Guantanamo doesn’t allow it. It doesn’t allow communication of attorney/client privilege. As far as letter writing, without my letters or anything that was sent being looked at, it doesn’t allow telephone communication. It allows nothing that can establish attorney/client relationships. So I smile and I shake my head in desperation, because it’s almost hard to describe what that relationship is because it’s not designed or fostered to ever establish anything but the continual distrust that any individual would have given the abuse, given what this individual has, Mr Mohammed has gone through.

CP: Does Binyam trust you now?

YB: I can best answer that question the way I’ve told other people. During the last set of commissions, before they were shut down by the US Supreme Court in the Hamdan case Binyam was asked to choose an attorney and he was pretty much being forced to choose me because he couldn’t represent himself, and the rules state the he had to have American counsel, pretty much American military counsel. And Binyam put it very succinctly. He told the judge imagine you as an American over in Pakistan or Afghanistan and you get picked up by the Al Qaeda or the Taliban, and once you get picked up and arrested you are put away for a long period of time, not allowed to see anyone, tortured and abused. And then one day after 3 or 4 years someone with a turban and a beard came in and said I’m here to represent you, trust me. At what stage would you ever trust that person?

CP: What problems have you faced in terms of helping Binyam, representing Binyam within the courts?

YB: Well, one perfect example of the injustice of this system and how it’s impossible to fairly represent these individuals and the agenda that is being set to establish convictions.

One of the issues I had during the old commission was an ethical issue. It was a concerning issue because it could have possibly got me disbarred, in the way that the Military Commission Defence Office was established.

So rightly so as an attorney should do, I brought the issue before the judge, told the judge there was an ethical concern that I needed the court to work out the ethical issue.

I brought the judge a 19 page opinion from an expert in Pennsylvania, one of the leading experts in Pennsylvania who my bar association advised me to go to, talked with the individual, provided that 19 page opinion, he opined that there were problems, ethical concerns with the design and in the way that the Office of Military Commission Defence was set up.

I brought this to the judge’s attention and he just ignored it. Almost as if he had no care whatsoever that I had these ethical concerns. And so again I asked the court to address these ethical concerns before I could represent Mr Mohammed, in fact I told the court before the proceedings really began that at this point I did not consider myself fully representing him until we resolved the ethical issue.

Well the judge again decided that he did not see the ethical concern, pretty much ignored the 19 page opinion and then told me to proceed on in representing Mr Mohammed.

I again emphasised it was important that even though I was representing Mr Mohammed for this one case that there are other clients I had represented in Pennsylvania, which is my long term job and deciding this ethical issue and I again could not go on until the ethical issue was decided.

And again I pleaded for him to decide the ethical issue, not just brush it aside as if it did not exist. Finally what the judge said to me was pretty much – I’m a colonel, that he was a colonel and that I was a major, and that I understood from him being a colonel and me being a major that he was giving me an order to continue.

Not to resolve the ethical issue, not to say that he was going to resolve the ethical issue. That he was ordering me despite the ethical concerns that I had to move on. When I told him that an order could not, does not resolve the ethical issue, that just makes it worse, now either I have to violate the order or I have to violate my ethical, the ethical concern and be possibly disbarred, he has now put me in a place where I can’t move. We quickly took a recess and when I say we, the defence took a recess. We talked about it, decided what I was going to do because if I didn’t go on and do what he wanted to do I’d be in violation of the order and if I do I could be in possible violation of my own states ethic code.

After the recess we came back in, again the judge pretty much ordered me to move on by asking me questions and I had to raise my 5th amendment rights and inform him that I could not, wouldn’t answer any questions if it meant doing anything against his order or if it meant anything I would have to do that maybe a ethical violation in representing Mr Mohammed until the ethics issue had been resolved.

The judge then asked me several questions after that again trying to force me to move on with the case without resolving the ethical issue again trying to get me to force, to force his will as a order, not as contempt.  I mean I would have understood if it was contempt of court, but he never held me in contempt, he ordered me as a colonel and me as an inferior officer, as a major to move on which is an article 92 violation under the UCMJ. Again I raised my 5th amendment rights about 2 or 3 other times. He then at one point said he was taking a 5 minute recess. I assumed at that point when he was going to take the recess that he was going to go in the back, draft up charges against me for article 92 violation, of violating the orders of a superior officer. Two hours later the judge comes back and he says after further consideration I believe that you need to draft your ethical issue more in a motion and call witnesses and we will have a hearing on this matter. So after two hours he agreed that the ethical issue had to be resolved, that he was going to let me fully brief the issue and have a motion hearing on the issue so we could resolve the ethical issue.

CP: Just to finish up I was wondering if you had any words you’d like to give our readers regarding this whole issue of Guantanamo and maybe some advice to them?

YB: Yes, my general advice to individuals when we talk about the entire military justice, Military Commission Act and the commission hearings, is that these hearings at the military commission that were carved under the MCA were not designed in any fashion to give a full and fair trial to these individuals. That it’s a system that’s designed for one thing and one thing only, that is to make sure that these individuals whether innocent or guilty or otherwise are convicted. Anyone who in my opinion, anyone who walks into a military commission is already convicted. It’s not designed to determine what the truth is, it’s not designed to bring out the evidence, it’s designed for one thing and it’s a shame, it’s an embarrassment that we are not trying these people under full and fair trial system that has already been designed in the United States, either through the federal courts or even through a court marshal under the UCMJ.

It’s an embarrassment that we have designed this system that’s for one thing and one thing only. Not to get the truth, not to be even concerned with the truth but to be concerned with one thing, of convicting people despite innocence, despite what the truth may be on these matters.

CP: Yvonne Bradley, thank you for speaking to us.