Cheney’s statement came just days after Judge Richard Leon, an appointee of George W. Bush, had ruled in the habeas corpus review of one of the supposed “hardcore” prisoners — a Chadian national called Mohammed El-Gharani, who was just 14 years old when he was seized in a random raid on a mosque in Karachi, Pakistan, and was later sold to US forces — that the government had failed to establish a case against El-Gharani, and ordered his release “forthwith.”

Leon ruled that what purported to be evidence had been supplied by two of El-Gharani’s fellow prisoners whose reliability had been called into doubt by government officials, and when it came to a key allegation, which, in Cheney’s version of reality, ought to have bolstered his claims — an allegation that El-Gharani had been part of an al-Qaeda cell in London in 1998 — Leon was particularly dismissive. “Putting aside the obvious and unanswered questions as to how a Saudi minor from a very poor family could have even become a member of a London-based cell,” he wrote, “the Government simply advances no corroborating evidence for these statements it believes to be reliable from a fellow detainee, the basis of whose knowledge is — at best — unknown.”

Leon’s words, delivered in sober language, were nonetheless witheringly dismissive, but El-Gharani’s lawyer, Clive Stafford Smith, had been advancing the same argument for years in rather more colorful terms. After noting that El-Gharani was just 11 years old at the time that he was supposed to have been plotting in London, Stafford Smith explained, “he must have been beamed over to the al-Qaeda meetings by the Starship Enterprise, since he never left Saudi Arabia by conventional means.”

Judge Leon’s dismissal of Mohammed El-Gharani’s case was not the only development that fatally undermined the vice president’s words during his last weekend in power. Largely unnoticed, as most of the mainstream media prepared the bunting for Barack Obama’s inauguration, was the release of six prisoners from Guantánamo — an Afghan, an Algerian and four Iraqis — whose stories also demonstrate that, when the facts are examined rationally, rather than being spun through a veil of paranoia, Dick Cheney’s “war on terror” was largely a “war on truth.”

One of these cases — that of Haji Bismullah, an Afghan who was 23 years old when he was seized in February 2003 — was reported in the New York Times last Monday, and his story alone discredits Dick Cheney’s words. As the Times explained, and as Bismullah insisted during his imprisonment at Guantánamo, at the time of his capture he was working for the government of Hamid Karzai as the chief of transportation in a region of Helmand province. In a story that echoes dozens of others from Guantánamo, it transpired that he was removed from his job by unscrupulous rivals, connected with the Taliban, who cooked up a false story to impress the U.S. military.

Bismullah’s long imprisonment is particularly disturbing, as his brother, a spokesman for the pro-American provisional governor, had filed a sworn statement with officials at Guantánamo in 2006, declaring that Bismullah and his entire family “fought to drive the Taliban out of Afghanistan,” and Sher Mohammed Akhundzada, a member of the Afghan Senate and an ally of Hamid Karzai, had also declared in a sworn statement that “he had known Bismullah and his family for years,” and that, when they had fought the Taliban, “Haji Bismullah was with us.”

However, while the Times is to be credited for picking up on the injustice of Haji Bismullah’s story, the cases of the other five prisoners released at the same time also do nothing to bolster Cheney’s claims, and in fact reveal, in shocking detail, how Guantánamo has been sustained not by evidence that it contains “hardcore” prisoners bent on the destruction of the United States, but on false allegations, which, in the majority of cases — like the supposed evidence against Mohammed El-Gharani — wither away under scrutiny.

The first of the five, Hassan Mujamma Rabai Said, was 25 years old when he was seized in Pakistan and sold to U.S. forces, having traveled across the mountains with an Afghan guide. According to the account compiled by the military during his seven years of imprisonment, he left his homeland in August 2000, traveled to Syria, where he lived for ten months, and then made his way, via Iran and Pakistan, to Jalalabad, Afghanistan. Said may have become involved in militancy during the few months that he was in Afghanistan prior to the 9/11 attacks, and in the three months before his capture, but the authorities failed to establish that this was what had happened.

Instead, the case against him relied on unsubstantiated allegations made by his fellow prisoners in unknown circumstances. These included claims that he “was identified as training at al-Farouq” (the main training camp for Arabs, established by the Afghan warlord Abdul Rasul Sayyaf in the early 1990s, but associated with Osama bin Laden in the years before 9/11), that he “was identified” as being “in charge of weapons inventory” in Afghanistan’s Tora Bora mountains, where Northern Alliance soldiers (with U.S. support) fought al-Qaeda and Taliban fighters in late November and early December 2001, and that he “was identified as having been chosen to be a bodyguard for Osama bin Laden.” This latter allegation is particularly suspicious, as it is incomprehensible that someone would have been chosen to be a bodyguard for bin Laden after such a short amount of time, but it was also noticeable that Said himself persistently refuted all the allegations. Although he conceded that “political motivation and a properly declared fatwa are legitimate reasons for participating in jihad,” he maintained that he “did not participate in jihad actions.”

Even vaguer allegations were leveled against Hassan Abdul Said, an Iraqi who was also 25 years old when he “turned himself in” to U.S. forces in the northern Afghan city of Mazar-e-Sharif on January 1, 2002. With the exception of two unsubstantiated allegations — that he stayed at a Taliban guesthouse in Mazar-e-Sharif for three months, and was “an Arab fighter on the Northern Front” — the authorities failed to come up with any evidence to justify holding him as an “enemy combatant.”

Instead, the last summary of allegations against him (in November 2005) focused on complicated and often contradictory claims about his life in Iraq and allegations of his involvement in drug smuggling, and stated that he was briefly imprisoned in Uzbekistan for two and a half months for having false documents, and was then “turned over to the Taliban and imprisoned for one month.” This is hardly the type of treatment that would have encouraged Said to support the regime, and it seems probable that the authorities realized this two years ago, when he was cleared for release after the first round of the annual Administrative Review Boards, which came to an end in February 2006.

For the other Iraqis in Guantánamo, life seems to have been even harder. Ali al-Tayeea, who was 28 years old at the time of his capture, was a mechanic, who had been imprisoned under Saddam Hussein, and had also been imprisoned in Turkey. He then made his way to Afghanistan, where, he said, he found paid work driving a truck for the Taliban.

In November 2001, after the fall of the city of Kunduz, al-Tayeea was one of several hundred men who, after surrendering to the forces of General Rashid Dostum, a U.S. ally and one of the leaders of the Northern Alliance, were subsequently imprisoned in Qala-i-Janghi, a fort in Mazar-e-Sharif. After some of the prisoners seized weapons and started a battle against their captors, he was one of around 85 prisoners who survived by hiding in the basement, which was bombed and flooded over the course of a week. One of his companions was John Walker Lindh, the so-called American Taliban, who received a 20-year sentence for supporting the Taliban in October 2002.

Al-Tayeea’s description of his experience in Qala-i-Janghi is one of the most harrowing first-hand accounts available:

Now, all the people were outside and we hear the bomb and someone from Dostum’s army had a machine gun on his shoulder. He opened fire on people. People were yelling, “please don’t shoot” and he opened fire…. There were RPGs and Kalashnikovs. There was nothing we could do. We were in the centre and fire came from everywhere. A lot of people died. I laid down because my hands were tied. I asked someone to just open my hands a little bit. I begged for someone to just open my hands because they had been tied for a long time with wire and they were blue and cold. They opened my hands and I went inside the shelter. There was bombing and fire for the first three days. It was dark and you couldn’t see who your neighbour was. Like, 70 people had died and it smelled bad. After three days, Dostum’s army … they thought we had guns. There were some people fighting outside…. We were inside the shelter. I didn’t fire because I’m not a jackass. I stayed inside. After three days, they opened the window and put fire inside the shelter and there was nothing we could do about it. Many people died in the fire and it smelled like steak. I looked and I was beside John Walker. After this they put water in through the window. John Walker was tall and he’s beside my shoulder. Some of the detainees that were short were under water.

Like Hassan Abdul Said and the other Iraqis released the weekend before last, Ali al-Tayeea had been cleared for release from Guantánamo for two years before he was eventually dispatched to an unknown fate in his homeland, but his time in the prison was particularly uncomfortable, as, by his own account, he had provided information to the interrogators, and had been threatened as a result. While it is understandable that prisoners would crack under the pressure of their harsh treatment in Guantánamo and their seemingly endless incarceration, and provide false information to the interrogators, it is, unfortunately, clear from the statements of other prisoners that al-Tayeea’s allegations were particularly troublesome. Moreover, despite appealing for “the American government to help me with asylum,” his experience shows that cooperation was no guarantee of any kind of reward.

In contrast to al-Tayeea’s case, the other two Iraqis had to contend with their own barrage of false allegations. Abbas al-Naely, who was 33 years old at the time of his capture, appears to have entered Afghanistan as a refugee from the Iraqi army in 1994. Seized in Pakistan in April 2002, he was described by a fellow Iraqi prisoner, Jawad Jabber Sadkhan (the only Iraqi still imprisoned in Guantánamo), as a beggar with a hashish problem. In a written statement, Sadkhan explained that, when al-Naely came to his house begging for help, “I did not have anything to offer [him]. But when I looked at his overall look and his dirty clothing he had on, he looked so miserable. So I went to a friend of mine and asked him for money.” He added, “He is a peaceful man and he does not pose a threat on nobody and he has parents that need him.”

In spite of this, and al-Naely’s statement that, when he was seized, the Pakistani authorities “told us that every Arab person has to go to the Americans for an investigation,” he came to be regarded by the U.S. military as a fighter for the Taliban who had “trained at the al-Farouq camp in Kabul,” had met Osama bin Laden and Mullah Omar, the Taliban’s leader, and had sworn bayat (an oath of loyalty) to Omar. In response, he denied ever meeting bin Laden, and, although he acknowledged that he had met Mullah Omar, explained that he had only asked him for financial help and assistance in returning to Iraq.

When it came to the allegation about al-Farouq, an extraordinary exchange took place between al-Naely and the presiding officer of his review board. “I never went to Farouq,” al-Naely explained, also pointing out that the camp was in Kandahar, not Kabul, to which the presiding officer replied, “Well I beg to differ with you because this source we have is very reliable. I have no problem if you admit to it. I would just prefer if you tell me the truth.”

The identity of the supposedly reliable source was not revealed, of course, but it was clear from Jawad Sadkhan’s statement that he had lied about al-Naely under duress, and there is no reason to suppose that any other sources were any more reliable. “Anything that happened between him and me, like some kind of animosity, was a result of the investigators here on this facility,” he wrote. “I was exposed to a lot of abuse, psychological abuse from the investigators and God only knows what happened. This person ISN 758 [al-Naely] is innocent from any allegations and God knows everything.”

For the last of the four Iraqis, Arkan al-Karim, who was 25 years old when he was taken by U.S. forces from a prison in Kabul in June 2002, even Abbas al-Naely’s experiences were tame. In an extraordinary list of allegations, al-Karim was accused of being “part of Osama bin Laden’s inner circle,” an al-Qaeda member “who ate frequently with Osama bin Laden,” and who “commanded 200 Arab and Taliban fighters in Kabul, and was also responsible for sending Arab fighters to Chechnya.” It was also alleged, inter alia, that he had “worked for Osama bin Laden for 13 years conducting weapons maintenance,” was “an expert in the areas of poisons, explosives, martial arts and weapons,” had “carried out an operation in Kuwait in which he blew up a building he believed was being used by the Israelis,” and had “taken up jihad in the Philippines, Chechnya and Bosnia.” Another claim involved an unidentified “al-Qaeda member” naming him as an understudy of Sheikh Abdullah Azzam, the cleric who had founded the first organization that supported the mujahideen resistance to the Soviet occupation of Afghanistan in the 1980s, and who was assassinated in 1989.

As al-Karim pointed out, the allegations about Abdullah Azzam, and about being a member of al-Qaeda for 13 years, were patently ludicrous, as he was just 13 years old in 1989, and had been in Iraq until 1994, when he drifted to Iran, and then Afghanistan, after deserting from the Iraqi army, but it also seems clear, from his experiences in Afghanistan and in Guantánamo, that every other allegation was equally worthless. As he explained to his review board, far from working with al-Qaeda or the Taliban, he was actually imprisoned by the Taliban for two years. During this time, a fellow prisoner, a Syrian Kurd called Abdul Rahim al-Ginco, who was also transferred to Guantánamo and is still held, “was tortured by al-Qaeda and eventually told them he and [al-Karim] were spies for the United States.”

Al-Karim explained that al-Ginco had “confessed in front of the interrogator [in Guantánamo] and said that he made me suffer and told a lot of lies on me in front of all those Arabs,” and added, “His confession is on a piece of paper and is here in Cuba.” He also reassured his review board that there were no problems between the two men, and explained, “I told him that I forgave him and I knew what they did to him. He was suffering just as I was.” In a separate statement, al-Ginco confirmed that he had identified al-Karim as an American spy, but said that he did it “because of the torturing that I was receiving,” and added that he chose to identify al-Karim and not someone else “because they pressured me and they told me to say that he was a spy.”

However, while this accounts for some of the false information masquerading as evidence in al-Karim’s case, it’s also clear that other prisoners were responsible for some of the other allegations. As he told his review board, he was a victim of the long-standing religious divide between Sunni and Shiite Muslims. The overwhelming majority of the prisoners in Guantánamo were (and are) Sunni Muslims, and as al-Karim explained, “I have no friends in this camp at all; most of them, if they don’t give me a hard time or they don’t give me a problem, they will not talk to me. But also, they’ve threatened me more than five or six times. They will say things about me.”

As these men struggle to rebuild their lives, or to avoid being arbitrarily imprisoned once more — in Afghanistan, where even government officials had no influence on the Bush administration; in Algeria, where justice resembles a game of Russian Roulette: and in Iraq, where no one seems to know what fate awaits them — the stories of these six men demonstrate conclusively the utter contempt that Dick Cheney showed for notions of truth and justice, and they will, I hope, act as an encouragement to those in the new administration who are preparing to review the cases, to see who can be released and who should still be held, to scrutinize the evidence — such as it is — with profound skepticism.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press). Visit his website.

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Crawford, a retired judge who served as general counsel for the army during the Reagan administration and as Pentagon inspector general when Dick Cheney was defense secretary for George W. Bush’s father, has served as the convening authority for the commissions since February 2007. In the interview, with Bob Woodward of the Washington Post, she explained why, last May, she had decided in the case of Mohammed al-Qahtani, a Saudi accused of trying and failing to become one of the 9/11 operatives, that she would not refer his case for prosecution.

“We tortured Qahtani,” she told Woodward. “His treatment met the legal definition of torture.”

The admission was extraordinary for a number of reasons, not least because it was the first time that a senior official in the administration had admitted that a prisoner had been tortured at Guantánamo (or anywhere else, for that matter). Last February, Gen. Michael Hayden, the director of the CIA, admitted in a Senate hearing that three “high-value detainees” — the supposedly senior al-Qaeda operatives Khalid Sheikh Mohammed, Abu Zubaydah and Abdul Rahim al-Nashiri — had been waterboarded in secret CIA custody, but although lawyers and torture experts are well aware that use of the technique — a form of controlled drowning — is torture, and that the Spanish Inquisition had explicitly referred to it as “tortura del agua,” senior government officials either equivocated or continued to deny that U.S. forces had ever engaged in torture.

For the outgoing administration, Susan Crawford’s confession means that equivocations and denials are no longer feasible, and for Barack Obama’s new government it is difficult to see how criminal proceedings can be avoided. As Dahlia Lithwick and Philippe Sands explained in an article for Slate, under the terms of the UN Convention Against Torture (to which the United States is a signatory), all 146 countries who have signed up to the treaty

are under an obligation to “ensure that all acts of torture are offences under its criminal law.” These states must take any person alleged to have committed torture (or been complicit or participated in an act of torture) who is present in their territories into custody. The convention allows no exceptions, as Gen. Pinochet discovered in 1998. The state party to the Torture Convention must then submit the case to its competent authorities for prosecution or extradition for prosecution in another country.

They added, “For the Obama administration, the door to the do-nothing option is now closed,” and any lingering doubts that this is the case should have been dispelled two days after Crawford’s interview was published, when, at his Senate confirmation hearing, Eric Holder, Barack Obama’s choice for attorney general, stated unambiguously, “Waterboarding is torture” (reiterating the position Obama had taken on ABC News on January 11), and proceeded to explain that it had been used as a torture technique during the Spanish Inquisition, by the Japanese in World War II, and in Cambodia under the Khmer Rouge, adding, “We prosecuted our own soldiers for using it in Vietnam.”

However, despite Eric Holder’s decisive contribution to the torture debate, the impact of Crawford’s confession does not end with its application to the torture of one particular prisoner or to the use of waterboarding. Although the administration attempted to redefine torture, in its notorious “Torture Memo” of August 2002, as the infliction of pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” Crawford was clearly more inclined to support the definition in the Torture Convention, which declares torture to be “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.”

In describing al-Qahtani’s treatment as torture, for example, Crawford did not object to the use of waterboarding (to which, as far as we know, al-Qahtani was not subjected), but to “a combination” of other interrogation techniques, “their duration and the impact on Qahtani’s health,” as she explained to Woodward.

“The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent,” she said. “You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge,” and to conclude that it was torture.

Al-Qahtani’s treatment was severe, of course. As Time magazine revealed in an interrogation log (PDF) that was made available in 2005, he was interrogated for 20 hours a day over a 50-day period in late 2002 and early 2003, when he was also subjected to extreme sexual humiliation, threatened by a dog, strip-searched and made to stand naked, and made to bark like a dog and growl at pictures of terrorists. On one occasion he was subjected to a “fake rendition,” in which he was tranquilized, flown off the island, revived, flown back to Guantánamo, and told that he was in a country that allowed torture.

In addition, as I explained in my book The Guantánamo Files,

The sessions were so intense that the interrogators worried that the cumulative lack of sleep and constant interrogation posed a risk to his health. Medical staff checked his health frequently — sometimes as often as three times a day — and on one occasion, in early December, the punishing routine was suspended for a day when, as a result of refusing to drink, he became seriously dehydrated and his heart rate dropped to 35 beats a minute. While a doctor came to see him in the booth, however, loud music was played to prevent him from sleeping.

However, although the techniques that were applied to al-Qahtani were specifically approved for use on him by Defense Secretary Donald Rumsfeld, after senior officers at Guantánamo had requested approval for the use of harsher interrogation techniques, it’s clear that at least two other prisoners at Guantánamo were singled out for particularly abusive treatment: Abdullah Tabarak, a Moroccan regarded as one of Osama bin Laden’s bodyguards, who (before his unexplained release from Guantánamo) was repeatedly prevented from seeing representatives of the International Red Cross due to “military necessity,” and Mohamedou Ould Slahi, a Mauritanian who had met the 9/11 hijackers in Germany, whose torture (which was arguably even more severe than that endured by al-Qahtani) was most recently reported in an article in Der Spiegel.

Moreover, as was made clear in a Senate Armed Services Committee report published last month (PDF), the techniques to which al-Qahtani, Tabarak and Slahi were subjected — which included “stripping detainees of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures” — were not techniques reserved solely for use on a handful of supposedly significant prisoners.

Instead, they were part of a deliberate policy of reverse engineering techniques taught to U.S. military personnel “to withstand interrogation techniques considered illegal under the Geneva Conventions,” and “based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions,” which effectively became part of Guantánamo’s standard operating procedure during 2003 and 2004. According to a former interrogator who spoke to the New York Times for an article that was published in January 2005,

While all the detainees were threatened with harsh tactics if they did not cooperate, about one in six were eventually subjected to those procedures…. The interrogator said that when new interrogators arrived they were told they had great flexibility in extracting information from detainees because the Geneva Conventions did not apply at the base.

To get some sense of perspective, the maximum number of prisoners that Guantánamo held at any one time was around 660, which means that, according to the former interrogator’s estimate, around 110 prisoners were subjected to these techniques. And while they may not have been applied quite as harshly as they were to al-Qahtani (although the many accounts I report in The Guantánamo Files are almost as harrowing), what Susan Crawford’s confession makes abundantly clear is that, when examining the use of torture, it is not appropriate simply to look at the application of each technique in isolation (when they may not have crossed the torture threshold), but to consider that in most cases their use was combined, as it was with al-Qahtani.

Nor is this the end of the story. In response to a question from Woodward about whether she believed that Khalid Sheikh Mohammed and four other prisoners charged in connection with the 9/11 attacks were tortured, Crawford stated, “I assume torture,” even though, as Woodward explained, she “declined to say whether she considers waterboarding … to be torture.” She then attempted to explain that she “let the charges go forward” in the 9/11 trial “because the FBI satisfied her that they gathered information without using harsh techniques,” using so-called “clean teams” who gained fresh confessions without using torture.

However, although she also attempted to make a distinction between Khalid Sheikh Mohammed and Mohammed al-Qahtani by stating that “Mohammed has acknowledged his Sept. 11 role in court, whereas Qahtani has recanted his self-incriminating statements,” it is, frankly, disingenuous to claim that torture can be magically written off if a tortured prisoner apparently confesses of his own free will at a later date.

As a result, it is also apparent that Crawford’s confession infects the majority of the 19 cases currently scheduled for trial by military commission, and, moreover, that it has disturbing implications for the rest of the administration’s detention policies over the last seven years, including the widespread torture of prisoners in the U.S. prisons at Kandahar and Bagram, before they were transferred to Guantánamo, the dozens of prisoners who were tortured in the “Dark Prison” and the “Salt Pit” (two secret CIA prisons in Afghanistan), the rest of the 14 “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006, and the unknown number of other prisoners held in secret prisons run by the CIA or rendered for torture to prisons in third countries (PDF).

As if this were not enough, Crawford’s confession also affects the many thousands of prisoners in Afghanistan and Iraq, who have endured wartime detention policies in which the Geneva Conventions were replaced by the reverse engineering of “Chinese Communist techniques used during the Korean war to elicit false confessions,” and, of course, has disturbing ramifications for investigations into the as-yet unknown number of prisoners who have died in Afghanistan and Iraq (PDF) and in secret prisons as a result of the unfettered exercise of these techniques.

As the implications of all this percolate slowly through the nation’s consciousness, the only outstanding question that remains unanswered is why Susan Crawford chose to make her confession to Bob Woodward just days before the Bush administration leaves office, having never granted an interview before.

As a protge of Vice President Dick Cheney and a close friend of Cheney’s chief of staff David Addington (the prime architects, with Rumsfeld, of the Bush administration’s torture regime), it seems unlikely that she would have had some kind of Damascene conversion, but her interview was peppered with statements that appear, both on the surface and on closer inspection, to constitute a genuine confession. “I sympathize with the intelligence gatherers in those days after 9/11, not knowing what was coming next and trying to gain information to keep us safe,” she explained. “But there still has to be a line that we should not cross. And unfortunately what this has done, I think, has tainted everything going forward.”

If Crawford had an ulterior motive, it is not readily apparent. Elsewhere in the interview, for example, she complained that the military commissions should not have been empowered to accept coerced testimony and complained about how “unprepared” the prosecutors were to bring cases to trial, and how she had to force them to provide exculpatory evidence to the defense. She also complained about Donald Rumsfeld’s role in authorizing torture and complained that the torture of al-Qahtani directly endangered U.S. forces abroad. “It did shock me,” she said. “I was upset by it. I was embarrassed by it. If we tolerate this and allow it, then how can we object when our servicemen and women, or others in foreign service, are captured and subjected to the same techniques? How can we complain? Where is our moral authority to complain? Well, we may have lost it.”

She also said that, although she believed that President Bush was “right to create a system to try unlawful enemy combatants captured in the war on terrorism,” the implementation of the policy was flawed. “I think he hurt his own effort,” she explained. “I think someone should acknowledge that mistakes were made and that they hurt the effort and take responsibility for it. We learn as children it’s easier to ask for forgiveness than it is for permission. I think the buck stops in the Oval Office.”

And although she called al-Qahtani “a very dangerous man,” she pointedly asked, “What do you do with him now if you don’t charge him and try him?” and handed the responsibility for dealing with him over to Barack Obama. Perhaps — though this may be a nave interpretation, and is certainly not meant to excuse her demonstrably poor performance as the commissions’ convening authority — she had looked to the future and was establishing her position accordingly, in case, one day, a special prosecutor for war crimes comes knocking.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press). Visit his website.

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Seven months ago, when the U.S. Supreme Court, which had granted habeas corpus rights to the Guantánamo prisoners in June 2004, reversed subsequent legislation that purported to strip them of their fundamental right to ask why they were being held, and made their habeas rights constitutional in Boumediene v. Bush, there were high hopes that the subsequent habeas reviews would cut through the web of coerced confessions and dubious intelligence that the administration was using to justify holding the prisoners as “enemy combatants.”

At first, this was exactly what happened. Within a fortnight of the Supreme Court’s ruling, the first case to be reviewed dealt an unprecedented blow to the government’s claims, when three judges in a Washington, D.C., appeals court ruled that the government had failed to establish that Huzaifa Parhat was an “enemy combatant,” and condemned what purported to be evidence in the case for being akin to a nonsense poem by Lewis Carroll, the author of Alice’s Adventures in Wonderland.

Parhat is one of 17 Uighur prisoners — Muslims from China’s Xinjiang province, who had traveled to Afghanistan to escape Chinese oppression but had been sold to U.S. forces after fleeing to Pakistan following the U.S.-led invasion — and in the wake of his victory, the government dropped its case against the rest of the Uighurs, and was then humiliated in a District Court when Judge Ricardo Urbina ordered the men’s release into the United States, because their continued detention was unconstitutional, because they cannot be returned to China, where they face the risk of torture, and because no other country has been found that will accept them. The government appealed, and has so far succeeded in keeping the Uighurs at Guantánamo, but their plight remains a significant blow to what little remains of Guantánamo’s credibility.

The administration was dealt a second blow in November, in a Washington, D.C., District Court, when Judge Richard Leon, an appointee of George W. Bush and one of several judges dealing with the post-Boumediene habeas reviews, dismissed the government’s case against five Bosnians of Algerian descent and ordered their immediate release. In October 2001, the men had been suspected of a plot to blow up the U.S. embassy in Sarajevo, but after the Bosnian authorities arrested them, investigated the claim and found no evidence to justify it, they were kidnapped by U.S. agents on their release and flown to Guantánamo in the prison’s opening weeks.

Disturbingly, the bomb plot was never mentioned in Guantánamo, and the men were, instead, brutalized and exploited for their knowledge of Arabs living in Bosnia, but when their habeas case finally came to court, Judge Leon ordered their release after concluding that the government had provided no credible evidence to justify its only surviving allegation against the men: that they had intended to travel to Afghanistan to take up arms against U.S. forces.

As with the case of Huzaifa Parhat, Judge Leon’s ruling was a vindication for the many critics of the habeas-stripping legislation that was passed by a cowed Congress in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. However, Leon’s decision to deny the habeas claim of the sixth plaintiff, Belkacem Bensayah, hinted at another obstacle to justice that had been largely overlooked in the celebrations following the Supreme Court’s ruling.

Lawyers, human rights activists, and others concerned with due process had spent so long struggling just to get a day in court for the prisoners that they had, for the most part, neglected to scrutinize the fine print of the ruling. The prisoners were given the opportunity to ask a judge why they were being held, and the judges were empowered to order the men’s release if the government failed to establish an adequate case against them, but the Supreme Court had not empowered the courts to question whether the very definition of an “enemy combatant” was sufficient to hold prisoners indefinitely without charge or trial if a plausible case was established that they were “part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the U.S. or its coalition partners,” which “includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

The problem, as Bensayah’s case demonstrated, centered on the catch-all nature of the definition of an “enemy combatant,” which appeared to have been kept deliberately vague by the administration. The definition above, for example, was approved by Judge Leon in October, but it was a sign of how imprecise the whole business is that, seven years after Vice President Dick Cheney and his close advisers came up with the concept of “enemy combatants,” Leon was obliged to clarify the wording — choosing from several different versions — before reviewing any of the cases before him.

According to Leon (PDF), Bensayah fitted the definition of an “enemy combatant” not because he had been involved in a specific al-Qaeda plot, and not because he had raised arms against the United States in Afghanistan or anywhere else, but because the government provided what Leon regarded as “credible and reliable evidence,” from more than one source, establishing that Bensayah “planned to go to Afghanistan to both take up arms against U.S. and allied forces and to facilitate the travel of unnamed others to Afghanistan and elsewhere.” Leon also agreed that this evidence “link[ed] Mr. Bensayah to al-Qaeda and, more specifically, to a senior al-Qaeda operative,” and also demonstrated his “skills and abilities to travel between and among countries using false passports in multiple names.”

Because of the secrecy surrounding the disclosure of classified evidence, Leon was not allowed to reveal what has previously been disclosed elsewhere: that the “senior al-Qaeda operative” was the “high-value detainee” Abu Zubaydah, seized in March 2002, who was held and tortured in secret CIA custody until his transfer to Guantánamo in September 2006. Notwithstanding serious doubts regarding Zubaydah’s status as a “senior al-Qaeda operative,” the difficulty raised by Judge Leon’s endorsement of the government’s evidence is, simply, that it allows the government to continue holding Bensayah indefinitely, without ever putting him forward for a trial, thereby reinforcing the government’s unjustifiable contention that prisoners seized in the “war on terror” are a new category of prisoner who can be held neither as prisoners of war protected by the Geneva Conventions nor as criminal suspects. It is as though the legal wrangling of the last seven years never took place, and today’s date is January 11, 2002.

What makes this scenario even more disturbing is that, on December 30, Judge Leon ruled that two more prisoners — the Yemeni Muaz al-Alawi, and the Tunisian Hisham Sliti — were also correctly detained as “enemy combatants.” In the case of al-Alawi (who is described in court documents as “Moath al-Alwi”), Leon ruled (PDF) that, “by a preponderance of the evidence,” the government had established that he “was part of or supporting Taliban or al-Qaeda forces,” because he “stayed at guest houses associated with the Taliban and al-Qaeda … received military training at two separate camps closely associated with al-Qaeda and the Taliban and supported Taliban fighting forces on two different fronts in the Taliban’s war against the Northern Alliance.”

The problem with Leon’s ruling, of course, is that none of the allegations above relates to “hostilities against the U.S. or its coalition partners.” By Leon’s own account of the evidence, al-Alawi was in Afghanistan before the 9/11 attacks, and was fighting with the Taliban against the Northern Alliance. To counter this, he endorsed the government’s additional claim that, “rather than leave his Taliban unit in the aftermath of September 11, 2001,” al-Alawi “stayed with it until after the United States initiated Operation Enduring Freedom on October 7, 2001; fleeing to Khowst and then to Pakistan only after his unit was subjected to two-to-three U.S. bombing runs.”

In other words, Judge Leon ruled that Muaz al-Alawi can be held indefinitely without charge or trial because, despite traveling to Afghanistan to fight other Muslims before September 11, 2001, “contend[ing] that he had no association with al-Qaeda,” and stating that “his support for and association with the Taliban was minimal and not directed as US or coalition forces,” he was still in Afghanistan when that conflict morphed into a different war following the U.S.-led invasion in October 2001. As Leon admitted in his ruling, “Although there is no evidence of petitioner actually using arms against U.S. or coalition forces, the Government does not need to prove such facts in order for petitioner to be classified as an enemy combatant under the definition adopted by the Court.”

In the case of Hisham Sliti, Judge Leon ruled (PDF) that he too was “part of or supporting Taliban or al-Qaeda forces,” based on claims made by the government that Sliti traveled to Afghanistan as “an al-Qaeda recruit … at the expense of known al-Qaeda associates and on a false passport provided to him by the same,” that he stayed in a guest house and a mosque, and attended a training camp, which also had connections to al-Qaeda, and that he was “instrumental” in “starting a terrorist organization with close ties to al-Qaeda.”

The problem with all of these allegations is that Sliti’s story actually suggests that all these conclusions are based on guilt by association. He may well have been connected with others who were involved in or interested in terrorism, but his own trajectory is that of a junkie rather than a jihadist, or, if you prefer, a tourist rather than a terrorist. Judge Leon disregarded Sliti’s own claim that he went to Afghanistan “to kick a long-standing drug habit and to find a wife,” but it was certainly true that he had been a drug addict in Europe (where he had been imprisoned in various countries on several occasions), and, as his lawyer Clive Stafford Smith has explained, he has a worldly cynicism that is fundamentally at odds with the fanatical rigor of al-Qaeda.

In his book The Eight O’Clock Ferry to the Windward Side: Fighting the Lawless World of Guantánamo Bay, Stafford Smith described Sliti reminiscing at length about the quality of the European prisons compared to Guantánamo. “In Italy the prison was wide open for six hours a day,” he explained. “You could have anything in your room — I had a little fornello, a gas cooker. Can you imagine the Americans allowing that? Here, we call a plastic spoon a ‘Camp Delta Kalashnikov,’ as the soldiers think we’re going to attack them with it.” And in a hearing at Guantánamo, Sliti recounted at length his various exploits in Europe, and told the board that he only ended up in Afghanistan because he had begun attending mosques in Belgium, where the country had been portrayed as “a clean, uncorrupted country where he could study Sharia and further his religious education,” but that what he found instead was that “I didn’t care for the country. It was very hot, dusty and [the] women were ugly. The atmosphere and environment didn’t agree with me.”

In conclusion, then, those concerned with the rule of law can only be dismayed by Judge Leon’s recent rulings, and can only conclude that the entire basis for holding prisoners as “enemy combatants” must be scrapped as soon as possible. If there is genuinely credible evidence that Belkacem Bensayah and Hisham Sliti were involved in any meaningful way with al-Qaeda, then they should face a trial in a U.S. federal court. As for Muaz al-Alawi, he appears to be one of many prisoners who should have been detained as an enemy prisoner of war in accordance with the Geneva Conventions, to be held until the end of hostilities. We would then be discussing whether it is legitimate for the government to claim that the war in which he was captured is a “war on terror” that may last for generations, or if, in fact, he was captured as part of a specific conflict — namely, the invasion of Afghanistan and the overthrow of the Taliban government — which, in that particular context, came to an end many long years ago.

Note: For further doubts about Muaz al-Alawi’s case, readers may be interested to know that Judge Leon refrained from having to rule on four additional allegations based on demonstrably false confessions made by other prisoners: a claim by an unidentified “al-Qaeda operative” that he had met him at a training camp in 1998 (he traveled to Afghanistan in 2000), a claim that a “source” identified him as being captured in Afghanistan’s Tora Bora mountains (he was captured in Pakistan), a claim that he was observed “pulling security at the Kandahar, Afghanistan airport compound” belonging to Osama bin Laden, and a claim that he was a bodyguard for Osama bin Laden. As I have explained in a previous article, the first of these latter two allegations was produced by a prisoner described as a notorious liar by the FBI, and the second was produced (and later recanted) by Mohammed al-Qahtani, a Saudi who was subjected to a notorious torture program at Guantánamo, during which he falsely accused 30 prisoners of being bodyguards for Osama bin Laden.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press). Visit his website.

Andy Worthington Archives

Seven months ago, when the U.S. Supreme Court, which had granted habeas corpus rights to the Guantánamo prisoners in June 2004, reversed subsequent legislation that purported to strip them of their fundamental right to ask why they were being held, and made their habeas rights constitutional in Boumediene v. Bush, there were high hopes that the subsequent habeas reviews would cut through the web of coerced confessions and dubious intelligence that the administration was using to justify holding the prisoners as “enemy combatants.”

At first, this was exactly what happened. Within a fortnight of the Supreme Court’s ruling, the first case to be reviewed dealt an unprecedented blow to the government’s claims, when three judges in a Washington, D.C., appeals court ruled that the government had failed to establish that Huzaifa Parhat was an “enemy combatant,” and condemned what purported to be evidence in the case for being akin to a nonsense poem by Lewis Carroll, the author of Alice’s Adventures in Wonderland.

Parhat is one of 17 Uighur prisoners – Muslims from China’s Xinjiang province, who had traveled to Afghanistan to escape Chinese oppression but had been sold to U.S. forces after fleeing to Pakistan following the U.S.-led invasion – and in the wake of his victory, the government dropped its case against the rest of the Uighurs, and was then humiliated in a District Court when Judge Ricardo Urbina ordered the men’s release into the United States, because their continued detention was unconstitutional, because they cannot be returned to China, where they face the risk of torture, and because no other country has been found that will accept them. The government appealed, and has so far succeeded in keeping the Uighurs at Guantánamo, but their plight remains a significant blow to what little remains of Guantánamo’s credibility.

The administration was dealt a second blow in November, in a Washington, D.C., District Court, when Judge Richard Leon, an appointee of George W. Bush and one of several judges dealing with the post-Boumediene habeas reviews, dismissed the government’s case against five Bosnians of Algerian descent and ordered their immediate release. In October 2001, the men had been suspected of a plot to blow up the U.S. embassy in Sarajevo, but after the Bosnian authorities arrested them, investigated the claim and found no evidence to justify it, they were kidnapped by U.S. agents on their release and flown to Guantánamo in the prison’s opening weeks.

Disturbingly, the bomb plot was never mentioned in Guantánamo, and the men were, instead, brutalized and exploited for their knowledge of Arabs living in Bosnia, but when their habeas case finally came to court, Judge Leon ordered their release after concluding that the government had provided no credible evidence to justify its only surviving allegation against the men: that they had intended to travel to Afghanistan to take up arms against U.S. forces.

As with the case of Huzaifa Parhat, Judge Leon’s ruling was a vindication for the many critics of the habeas-stripping legislation that was passed by a cowed Congress in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. However, Leon’s decision to deny the habeas claim of the sixth plaintiff, Belkacem Bensayah, hinted at another obstacle to justice that had been largely overlooked in the celebrations following the Supreme Court’s ruling.

Lawyers, human rights activists, and others concerned with due process had spent so long struggling just to get a day in court for the prisoners that they had, for the most part, neglected to scrutinize the fine print of the ruling. The prisoners were given the opportunity to ask a judge why they were being held, and the judges were empowered to order the men’s release if the government failed to establish an adequate case against them, but the Supreme Court had not empowered the courts to question whether the very definition of an “enemy combatant” was sufficient to hold prisoners indefinitely without charge or trial if a plausible case was established that they were “part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the U.S. or its coalition partners,” which “includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

The problem, as Bensayah’s case demonstrated, centered on the catch-all nature of the definition of an “enemy combatant,” which appeared to have been kept deliberately vague by the administration. The definition above, for example, was approved by Judge Leon in October, but it was a sign of how imprecise the whole business is that, seven years after Vice President Dick Cheney and his close advisers came up with the concept of “enemy combatants,” Leon was obliged to clarify the wording – choosing from several different versions – before reviewing any of the cases before him.

According to Leon (PDF), Bensayah fitted the definition of an “enemy combatant” not because he had been involved in a specific al-Qaeda plot, and not because he had raised arms against the United States in Afghanistan or anywhere else, but because the government provided what Leon regarded as “credible and reliable evidence,” from more than one source, establishing that Bensayah “planned to go to Afghanistan to both take up arms against U.S. and allied forces and to facilitate the travel of unnamed others to Afghanistan and elsewhere.” Leon also agreed that this evidence “link[ed] Mr. Bensayah to al-Qaeda and, more specifically, to a senior al-Qaeda operative,” and also demonstrated his “skills and abilities to travel between and among countries using false passports in multiple names.”

Because of the secrecy surrounding the disclosure of classified evidence, Leon was not allowed to reveal what has previously been disclosed elsewhere: that the “senior al-Qaeda operative” was the “high-value detainee” Abu Zubaydah, seized in March 2002, who was held and tortured in secret CIA custody until his transfer to Guantánamo in September 2006. Notwithstanding serious doubts regarding Zubaydah’s status as a “senior al-Qaeda operative,” the difficulty raised by Judge Leon’s endorsement of the government’s evidence is, simply, that it allows the government to continue holding Bensayah indefinitely, without ever putting him forward for a trial, thereby reinforcing the government’s unjustifiable contention that prisoners seized in the “war on terror” are a new category of prisoner who can be held neither as prisoners of war protected by the Geneva Conventions nor as criminal suspects. It is as though the legal wrangling of the last seven years never took place, and today’s date is January 11, 2002.

What makes this scenario even more disturbing is that, on December 30, Judge Leon ruled that two more prisoners – the Yemeni Muaz al-Alawi, and the Tunisian Hisham Sliti – were also correctly detained as “enemy combatants.” In the case of al-Alawi (who is described in court documents as “Moath al-Alwi”), Leon ruled (PDF) that, “by a preponderance of the evidence,” the government had established that he “was part of or supporting Taliban or al-Qaeda forces,” because he “stayed at guest houses associated with the Taliban and al-Qaeda … received military training at two separate camps closely associated with al-Qaeda and the Taliban and supported Taliban fighting forces on two different fronts in the Taliban’s war against the Northern Alliance.”

The problem with Leon’s ruling, of course, is that none of the allegations above relates to “hostilities against the U.S. or its coalition partners.” By Leon’s own account of the evidence, al-Alawi was in Afghanistan before the 9/11 attacks, and was fighting with the Taliban against the Northern Alliance. To counter this, he endorsed the government’s additional claim that, “rather than leave his Taliban unit in the aftermath of September 11, 2001,” al-Alawi “stayed with it until after the United States initiated Operation Enduring Freedom on October 7, 2001; fleeing to Khowst and then to Pakistan only after his unit was subjected to two-to-three U.S. bombing runs.”

In other words, Judge Leon ruled that Muaz al-Alawi can be held indefinitely without charge or trial because, despite traveling to Afghanistan to fight other Muslims before September 11, 2001, “contend[ing] that he had no association with al-Qaeda,” and stating that “his support for and association with the Taliban was minimal and not directed as US or coalition forces,” he was still in Afghanistan when that conflict morphed into a different war following the U.S.-led invasion in October 2001. As Leon admitted in his ruling, “Although there is no evidence of petitioner actually using arms against U.S. or coalition forces, the Government does not need to prove such facts in order for petitioner to be classified as an enemy combatant under the definition adopted by the Court.”

In the case of Hisham Sliti, Judge Leon ruled (PDF) that he too was “part of or supporting Taliban or al-Qaeda forces,” based on claims made by the government that Sliti traveled to Afghanistan as “an al-Qaeda recruit … at the expense of known al-Qaeda associates and on a false passport provided to him by the same,” that he stayed in a guest house and a mosque, and attended a training camp, which also had connections to al-Qaeda, and that he was “instrumental” in “starting a terrorist organization with close ties to al-Qaeda.”

The problem with all of these allegations is that Sliti’s story actually suggests that all these conclusions are based on guilt by association. He may well have been connected with others who were involved in or interested in terrorism, but his own trajectory is that of a junkie rather than a jihadist, or, if you prefer, a tourist rather than a terrorist. Judge Leon disregarded Sliti’s own claim that he went to Afghanistan “to kick a long-standing drug habit and to find a wife,” but it was certainly true that he had been a drug addict in Europe (where he had been imprisoned in various countries on several occasions), and, as his lawyer Clive Stafford Smith has explained, he has a worldly cynicism that is fundamentally at odds with the fanatical rigor of al-Qaeda.

In his book The Eight O’Clock Ferry to the Windward Side: Fighting the Lawless World of Guantánamo Bay, Stafford Smith described Sliti reminiscing at length about the quality of the European prisons compared to Guantánamo. “In Italy the prison was wide open for six hours a day,” he explained. “You could have anything in your room – I had a little fornello, a gas cooker. Can you imagine the Americans allowing that? Here, we call a plastic spoon a ‘Camp Delta Kalashnikov,’ as the soldiers think we’re going to attack them with it.” And in a hearing at Guantánamo, Sliti recounted at length his various exploits in Europe, and told the board that he only ended up in Afghanistan because he had begun attending mosques in Belgium, where the country had been portrayed as “a clean, uncorrupted country where he could study Sharia and further his religious education,” but that what he found instead was that “I didn’t care for the country. It was very hot, dusty and [the] women were ugly. The atmosphere and environment didn’t agree with me.”

In conclusion, then, those concerned with the rule of law can only be dismayed by Judge Leon’s recent rulings, and can only conclude that the entire basis for holding prisoners as “enemy combatants” must be scrapped as soon as possible. If there is genuinely credible evidence that Belkacem Bensayah and Hisham Sliti were involved in any meaningful way with al-Qaeda, then they should face a trial in a U.S. federal court. As for Muaz al-Alawi, he appears to be one of many prisoners who should have been detained as an enemy prisoner of war in accordance with the Geneva Conventions, to be held until the end of hostilities. We would then be discussing whether it is legitimate for the government to claim that the war in which he was captured is a “war on terror” that may last for generations, or if, in fact, he was captured as part of a specific conflict – namely, the invasion of Afghanistan and the overthrow of the Taliban government – which, in that particular context, came to an end many long years ago.

Note: For further doubts about Muaz al-Alawi’s case, readers may be interested to know that Judge Leon refrained from having to rule on four additional allegations based on demonstrably false confessions made by other prisoners: a claim by an unidentified “al-Qaeda operative” that he had met him at a training camp in 1998 (he traveled to Afghanistan in 2000), a claim that a “source” identified him as being captured in Afghanistan’s Tora Bora mountains (he was captured in Pakistan), a claim that he was observed “pulling security at the Kandahar, Afghanistan airport compound” belonging to Osama bin Laden, and a claim that he was a bodyguard for Osama bin Laden. As I have explained in a previous article, the first of these latter two allegations was produced by a prisoner described as a notorious liar by the FBI, and the second was produced (and later recanted) by Mohammed al-Qahtani, a Saudi who was subjected to a notorious torture program at Guantánamo, during which he falsely accused 30 prisoners of being bodyguards for Osama bin Laden.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press). Visit his website.

The Uighurs
then secured a resounding
victory at the start of October, when District Court Judge Ricardo
Urbina ruled that their continued detention in Guantánamo
was unconstitutional, and ordered their release into the United
States, as they cannot be returned to China because of fears that
they will be tortured, and no other country had been found that
was prepared to accept them. When the government appealed Judge
Urbina’s ruling, however, only one of the three appeal court
judges dealing with the case – Judge Judith W. Rogers, a Bill
Clinton nominee – understood the lies and distortions that
the government had put together to prevent their release.

Judicial nominees
do not always ape the opinions of those who appoint them, of course.
Their independence – and their desire to follow legal precedents
rather than political whims – often infuriates those who appointed
them, but it would be fair to say, I think, that judges’ conservative
or liberal tendencies often match those of the Presidents who appointed
them.

In November,
when Judge Richard Leon, a Bush appointee, ordered five Bosnian
Algerians to be released
from Guantánamo because the government had failed to
substantiate its allegations against them, there was genuine surprise,
but the decision in the case of these 17 other innocent men at Guantánamo
was all too predictable, as two other Bush nominees, Karen LeCraft
Henderson and A. Raymond Randolph, proved themselves unable to notice
the government’s dissembling, and endorsed whatever nonsense
was pushed their way.

And nonsense
it was, as Judge Rogers explained, on October 20, in a dissenting
opinion (PDF),
when her colleagues first approved the government’s request
for a stay on the Uighurs’ release pending an appeal. Although
the appeal took place on November 24, the verdict has not yet been
announced, but is expected to endorse the administration’s
self-proclaimed right to extend the Uighurs’ imprisonment in
Guantánamo indefinitely.

In her dissenting
opinion, Judge Rogers drew on Boumediene
v. Bush, the Supreme Court case last June that revived the
prisoners’ habeas corpus rights (first granted in June 2004),
after Congress had attempted to remove them in two flawed pieces
of legislation (the Detainee Treatment Act of 2005, and the Military
Commissions Act of 2006). She noted that the Supreme Court not only
granted Guantánamo prisoners “the privilege of habeas
corpus to challenge the legality of their detention,” but also
held that “a court’s power under the writ must include
‘authority to … issue … an order directing the prisoner’s
release.’”

Noting that
this was “exactly” what Judge Urbina had done, “subject
to conditions to be determined by the district court in light of
the views of the Department of Homeland Security and proffers regarding
housing and supervision made by their counsel,” Judge Rogers
pointed out, unambiguously, that “The court’s release
order was based on findings that are either uncontested by the government
or clearly supported by the record.” She noted that the government
“had filed no returns to the writs filed by ten of the petitioners,
and the returns in response to the remainder consisted only of the
hearing records from the Combatant Status Review Tribunals”
that had been “found wanting” in Parhat v. Gates,
the case in June in which an appeals court had derided the government’s
supposed evidence against one of the men, Huzaifa Parhat, for being
akin to a nonsense poem by Lewis Carroll, the author of Alice’s
Adventures in Wonderland.

Dealing a
final blow to the government’s unprincipled and two-faced claims
that, although cleared of being “enemy combatants,” the
men remained a threat to national security because they had received
weapons training, Judge Rogers added, “Although expressly offered
the opportunity by the district court, the government presented
no evidence that the petitioners pose a threat to the national security
of the United States or the safety of the community or any person.”

Moving on
to the government’s attempts to claim that “under the
separation of powers the decision on whether to admit the petitioners
into the United States ‘rests solely with the political branches,’”
and that “immigration laws preclude a habeas court from ordering
the release of an inadmissible alien into the United States,”
Judge Rogers stated that the first argument “misstates the
law,” because “the Supreme Court has made clear that,
in at least some instances, a habeas court can order an alien released
with conditions into the country despite the wish of the Executive
to detain him indefinitely,” and “It is thus both inadequate
and untrue to assert that the political branches have ‘plenary
powers over immigration.’”

Dealing with
the second argument – that the Uighurs were “inadmissible
aliens” either because they had been “engaged in ‘terrorist
activity’” or were “members of, or received weapons
training from, a terrorist group” – Judge Rogers reiterated
that the government was attempting to defy reality, because it “did
not proffer evidentiary support for this argument in the district
court,” and also explained that, even if this were not the
case, the government’s argument was “problematic,”
because the Supreme Court “had held that even inadmissible
aliens cannot be held indefinitely under the normal immigration
detention status,” whereas the Uighurs “have been imprisoned
for over six years.”

Judge Rogers
also noted that the government had “made no showing” that
the Attorney General had “certified” the Uighurs for “special
alien-terrorist provision, as required by that statute,” and
pointed out that it had, instead, attempted to rely on the same
discredited CSRTs that the Parhat judges had found to “lack
sufficient indicia of … reliability.”

She also explained
that “interpreting the immigration statutes to bar release
from Guantánamo robs the petitioners’ habeas right [as
granted in Boumediene] of meaning,” and chided the government
for misinterpreting a 1953 case, Shaughnessy v. US ex rel. Mezei,
in which the Supreme Court ruled that “inadmissible aliens
have no constitutional rights because they are outside the territory
of the United States,” by explaining that, in Boumediene,
the Supreme Court “explicitly recognized that Guantánamo
detainees have a constitutional right to habeas,” and adding
that “Mezei sought admission to the United States of
his own will while these petitioners require admission because they
were abducted by bounty hunters, brought by force to Guantánamo,
and imprisoned as enemy combatants, which the government has conceded
the petitioners were not.”

In a final
salvo, Judge Rogers tackled the government’s attempts to claim
that allowing the Uighurs to enter the United States would cause
“irreparable harm,” by returning to the lack of any evidence
against them. Noting that, “Having failed to file returns for
many of the petitioners or to proffer evidence to the district court,
the government can point to no evidence of dangerousness,”
she added that “such record as exists suggests the opposite,”
pointed out that the court “found there is no evidence petitioners
harbor hostility toward the United States,” and highlighted
a significant passage from Boumediene to wrap up her dissent:

[T]he writ of habeas corpus is itself an indispensable mechanism
for monitoring the separation of powers. The test for determining
the scope of this provision must not be subject to manipulation
by those whose power it is designed to restrain.

Judge Rogers’
dissent clearly highlights the government’s shameful attempts
to disguise a catalog of grievous errors through tortuous legal
maneuvering, to shirk all responsibility for depriving 17 innocent
men of their liberty for seven years, and to dream up justifications
for continuing to hold them indefinitely. However, the most distressing
result of the craven capitulation of Judges Henderson and Randolph
to the government’s last-ditch demonstration of executive arrogance
was highlighted by Erin Louise Palmer, a member of the International
Human Rights Committee of the American Bar Association’s Section
of International Law, on
a blog maintained by members of the Committee.

Noting that
Judge Randolph had written the Court of Appeal’s decisions
in Al Odah v. United States, Hamdan v. Rumsfeld, and Boumediene
v. Bush, in which the Court of Appeals had deprived Guantánamo
prisoners of their habeas rights and had upheld the validity of
the Military Commissions as a suitable trial system, Palmer pointed
out that the Supreme Court “disagreed with each of these decisions.”
From this a clear inference can be drawn that the Uighurs’
case will not only be taken up by the Supreme Court, but will result
in another bloody nose for Judges Henderson and Randolph.

The
only problem with this scenario, of course, is that it leaves the
Uighurs stranded in Guantánamo with no notion of when they
will ever be released. As I explained in a recent
article, the only other solution is for Barack Obama to step
in and order the men’s release. Given the disgraceful propaganda
peddled by the outgoing administration, this may not be a popular
move, but it is required not only to emphasize that the new government
is committed to upholding the U.S. Constitution, but also as an
important gesture to America’s allies, to encourage them to
accept other prisoners, cleared for release for many years, who,
like the Uighurs, cannot be repatriated because of international
treaties preventing the return of foreign nationals to countries
where they face the risk of torture.

By freeing
the Uighurs to the care of the communities in Washington D.C. and
Tallahassee, Florida, who have already prepared detailed
plans for their welcome, President Obama can show the leadership,
respect for the law and moral courage that is demanded by the plight
of Uighurs and that is, moreover, necessary for him to fulfill his
promise to close
Guantánamo, and to begin the long process of addressing
the many human rights abuses perpetrated by the Bush administration.

January
6, 2009

Andy
Worthington is the author of
The Guantánamo Files: The Stories of the 774 Detainees in
America’s Illegal Prison (published by Pluto Press).
Visit his website.

DIGG THIS

Since the
election of Barack Obama as the 44th President of the United States,
the closure of the “War on Terror” prison at Guantánamo
Bay, Cuba has become a hot topic. Throughout his election campaign,
Obama pledged to close
Guantánamo, and he reiterated his promise during his
first TV interview as president-elect, on November 15.

In recent
weeks, however, a number of commentators – including reporters
at the Weekly
Standard,
and researchers at the Brookings Institution (PDF)
– have stepped forward to warn the president-elect that his
promise will be difficult to fulfill, because, according to the
government’s allegations against the remaining 252 prisoners,
a significant number of them are connected with al-Qaeda, or were
otherwise involved in militant activity.

The problem
with all these reports is that those responsible for compiling them
have taken the government’s allegations at face value, and
have not investigated the many reasons for concluding instead that
the government’s evidence is unreliable. In an attempt to encourage
a much-needed scepticism regarding the government’s claims,
Andy Worthington, the author of The
Guantánamo Files: The Stories of the 774 Detainees in America’s
Illegal Prison,
recently conducted the following interview by phone with Lt. Col.
Stephen Abraham, a man who knows more than most about why the allegations
against the prisoners are fundamentally unreliable.

A veteran
of US Army intelligence, Lt. Col. Abraham served from September
2004 to March 2005 as part of OARDEC (the Office for the Administrative
Review of the Detention of Enemy Combatants), the organization responsible
for conducting the Combatant Status Review Tribunals (CSRTs) at
Guantánamo, as well as compiling the information used by
those tribunals. The CSRTs, which began shortly after the Supreme
Court ruled in June 2004, in Rasul
v. Bush, that the prisoners at Guantánamo had statutory
habeas corpus rights, were introduced as a deliberate attempt to
subvert the Supreme Court ruling, and were widely criticized for
preventing the prisoners from having legal representation and for
relying on secret evidence that was withheld from the prisoners.

However,
it was not until Lt. Col. Abraham filed a statement
in connection with one of the Guantánamo cases that a former
insider confirmed that the gathering of materials for use in the
tribunals was severely flawed, consisting of intelligence “of
a generalized nature – often outdated, often ‘generic,’
rarely specifically relating to the individual subjects of the CSRTs
or to the circumstances related to those individuals’ status,”
that “what purported to be specific statements of fact lacked
even the most fundamental earmarks of objectively credible evidence,”
and that the whole system was geared towards rubber-stamping the
detainees’ prior designation as “enemy combatants.”
In a subsequent statement,
Abraham also pointed out that, because the tribunals had little
or no access to the intelligence agencies, “Most of the information
collected … consisted … of information obtained during interrogations
of other detainees” (and may, therefore, have been made through
the use of torture, coercion or bribery).

Andy Worthington:
Good day, Stephen. It’s a pleasure for me to conduct this interview
with you, as I have been following your story since it first broke
last June. To begin, I was hoping that you could briefly describe
your background.

Stephen
Abraham: I’m 47 years old, and I was commissioned in the
U.S. Army as a second lieutenant in 1981, just after my 21st birthday.
I was a reserve officer on active duty for the first six years,
and I was an intelligence officer the entire time. I spent some
time in Europe, as a HUMINT [human intelligence] officer working
on issues involving terrorism, sabotage, treason and espionage.
From this we may presume that I am not altogether unfamiliar with
the composition of the respective intelligence services and other
organizational interrelationships of relevance to the present subject.

I then planned
to attend law school, but I was mobilized in support of “Operation
Desert Storm,” and spent the time in Washington, working closely
with different national intelligence components. I then went to
law school, remained in the reserves, thought everything was going
along fine, and then someone collapsed two buildings and the “War
on Terrorism” began in earnest.

Andy Worthington:
And how did you come to be involved in the tribunals at Guantánamo?

Stephen
Abraham: Shortly after September 2001, I was mobilized for one
year to the Joint Intelligence Center in the Pacific, where I served
as lead terrorism analyst. I then returned to my family, my home
and my livelihood [as a civilian attorney] until I was asked if
I would consider working at OARDEC for six months. I said yes, viewing
the offer, as the organization was described to me, as an opportunity
of historic dimensions.

I was communicating
back and forth with the individual who invited me, and during that
time I was conducting a great deal of research regarding what I
anticipated would be the scope of my duties. It was an expectation
that fell short, and an enthusiasm that was dampened within a short
time of my arrival.

Andy Worthington:
I’ve read a lot about your experiences, but I’ve never
heard you say before that it took such a short amount of time to
become disillusioned. Can you explain more?

Stephen
Abraham: Let’s begin by understanding very clearly the
context in which I was to perform whatever duties would subsequently
be assigned. OARDEC is an organization under the Secretary of the
Navy, but which was mobilized very quickly in the wake of the Supreme
Court’s two decisions in June 2004 [Rasul v. Bush and
Hamdi
v. Rumsfeld]. OARDEC had been set up to conduct annual review
boards, and was dealing with what I call aspects of detention preliminary
to war crimes tribunals – or, as we know them, the Military
Commissions – but there was no institutionalising of the process
used to determine whether individuals were “enemy combatants.”
Until the Supreme Court made its ruling, there was no reason for
them to do it.

Very quickly,
in July 2004, the authorities realized that they now needed to hold
what we refer to in shorthand as tribunals – the Combatant
Status Review Tribunals (CSRTs). So they took the preexisting organization
and said, we will have it do the CSRT process. At that point OARDEC
became responsible for conducting tribunals. Slight problem: OARDEC
had never conducted a tribunal, didn’t know how to conduct
a tribunal, and was woefully understaffed to be able to do all of
the things necessary to conduct a tribunal.

So whereas
before you might have had officers determining whether someone is
now a “nice guy” – by taking current information,
contemporaneously collected; that is, information relating to their
detention, and trying to make subjective decisions abut it –
now suddenly you’re having to collect information that relates
to periods of time perhaps years before the board is convening.
The board was now going to have to consider information that might
be collected from host nations, from other agencies, that might
speak to moments years in the past. So OARDEC had to be able to
collect information, process it, assimilate it, evaluate it and
ultimately make decisions based on it.

The problem
was that the organization only had a few individuals who were actively
engaged in the information gathering functions of OARDEC and now
they were handed a Herculean task. They very quickly increased the
numbers of individuals that were assigned to the unit, but all the
while the reserve components were stretched intolerably thin, which
means essentially that the authorities were putting out calls not
for the most qualified individuals, but for anybody who could spare
six months of their lives. What this also means, with no disrespect
intended towards any of the individuals who volunteered, is that
they had whoever was available, whenever they could be available,
and no matter what their skill set. So they got merchants, they
got non-intelligence professionals, they got accountants, they got
postal workers, they got anybody who was available. The organization
got individuals with incredible military skill sets, but, unfortunately,
skills geared towards conventional military tasks, not the legal
tasks thrust upon the organization.

Andy Worthington:
This sounds very much like what I’ve heard about the recruitment
of personnel elsewhere in the “War on Terror.” In 2003,
in a report produced for the Pentagon by the Center for Army Lessons
Learned (PDF),
the Center’s director, Lt. Col. Bob Chamberlin, concluded that
the lack of competent interpreters “impeded operations”
in Afghanistan and Iraq. “Laugh if you will,” he wrote,
“but many of the linguists with which I conversed were convenience
store workers and cab drivers, mostly over the age of 40. None had
any previous military experience.” Most of the linguists, he
insisted, only had “the ability to tell the difference between
a burro and a burrito.” This, I think, is an example of a situation
similar to what you were talking about at OARDEC, and, like your
experiences, it demonstrates that whether or not there was any intention
of establishing a high ideal, what was actually involved was simply
making the most of whoever was available.

Stephen
Abraham: Exactly. I should not have been surprised that there
simply wasn’t going to be a readily available pool of skilled
intelligence professionals, and if they had made the decision to
create an organization, rather than to assign the task to an already
existing organization, it might have been different. But as it was,
the people with the skill sets required to jump right in and perform
the function to the degree suggested by the Supreme Court were not
available. So essentially what OARDEC did was the equivalent of
insisting that an all-volunteer staff with limited relevant experience
run before they walk or even crawl.

They were
going to take people who for the most part, with few exceptions,
had no experience reading and applying Supreme Court decisions.
And to these people what they attempted to do was to give a layer
of insulation. They said, “You don’t need to understand
the legal nuances of what the Court was addressing. We’re going
to give you implementing guidelines and regulations and that will
be good enough. And then you will be able to perform all the functions
of OARDEC.”

The problem
is: if, as Secretary of the Navy, Gordon England said, at the very
outset, they didn’t have the facilities, they didn’t have
the resources, they didn’t have the budget, they didn’t
have the manpower to do all these things, and they didn’t have
the authority to task agencies to provide information, something
was going to have to yield, and in this case it was, at its simplest
level, any regard or any respect for the Supreme Court decision.
So they could create an organization, they could give it a task,
they could tell it, as if these were autonomic functions, what it
would do, how it would wave its hands, how it would move paper from
the left side to the right, but they couldn’t expect an independent,
fact-finding and decision-making body. For it to do anything that
reached the level of a competent tribunal, it wasn’t possessed
of the ability to do that.

Andy Worthington:
OK, so there’s a couple of fundamental problems here with the
set-up, one of which is that you’re explaining that the personnel
recruited were not able, in general, to do the job, but the other
is to do with the information you were allowed, or not allowed access
to –

Stephen
Abraham: Absolutely. Bear in mind, in our discussion at this
point, we have only touched upon general aspects of the organization.
We haven’t even gotten to what are some of the more profound
and serious issues that plagued the organization and in fact rendered
its ability to perform its duties impossible. The best way, perhaps,
to leap forward and describe that is to describe the environment
in which most of the intelligence organizations work, and by this
what I’m referring to are the organizations that, by necessity
or function, would have dealt with the kind of information that,
in all likelihood, would have related to the detainees or the environment,
context or setting in which they presumably operated.

Most of that
information – timely, raw information collected by a myriad
of sources relating to their activities, at a human level –
would have been some of the most classified pieces of information
that you would expect to see. Not finished products, not analysis,
but raw reports, highly classified and fairly sensitive. Now if
I were to ask you, what did so-and-so do or what were the conversations
he had on a particular day or at a particular location, or what
corroborative information do you have relating to these activities,
it might involve the use of very sensitive sources. Right away,
the question is: what did OARDEC have access to? Directly, OARDEC
had access to none of that information. Put a big zero there. Couldn’t
have gotten it, couldn’t have seen it, couldn’t have had
direct access to it, couldn’t in all likelihood have even requested
it.

Andy Worthington:
Because you weren’t allowed access to the agencies that had
this information?

Stephen
Abraham: What we didn’t have was the architectural capability
to directly access the information. Now the argument might be made
that very few people would have access to this type of information,
but that’s rubbish, because, in the year that I was in the
Pacific Theater, I had access that was appropriate to respond to
the tasks assigned to me, and the fact is, if I was told to do something,
I had access to the information needed to perform those tasks.

However, at
OARDEC, for the vast majority of the people there, they were largely
unaware of the sort of sources of information that should have been
made available for them to be able to competently perform their
tasks. They didn’t even know that many of these organizations
existed, and even if they did they had no ability to get the information.

Andy Worthington:
Do you think that this was deliberate on the part of the administration,
that they weren’t actually seeking any quality of review of
any information?

Stephen
Abraham: There are two ways of looking at it, the result of
which, from either perspective, is exactly the same. One, as you
say, is that they always understood that, in some twisted Machiavellian
way, if they gave the job to a non-functional organization, which,
by any number of criteria, was incapable of performing its work
as described, this would further a particular agenda.

The other
way of looking at it is that they are blazingly incompetent. You
know, if I tell you that you need to write a top secret report,
but I don’t give you access to top secret information, or systems,
or to an architecture that allows you to have access to that information,
we can say, “I intended for you to fail,” just as we can
also say that the deprivation of resources would render the task
impossible. In either case, the end result is the same: you can’t
do what I’ve asked you to do.

Andy Worthington:
So do you think it was bit of both, if that’s possible?

Stephen
Abraham: I think that either one is certainly plausible. If
anyone who was responsible for setting up the organization insists
that they had the knowledge to appreciate and understand fully what
would have been required to perform the duties, then I have to ascribe
to them a more sinister motive. On the other hand, if you take a
less intellectually invested approach to it, and say, “Gosh,
all I knew is that I had to run these tribunals,” then perhaps
we can ascribe to them a degree of incompetence – or a failure
to appreciate the degree of sophistication that needed to be incorporated
into the construction of the organization. You can’t seriously
believe that you can take a hundred people off the street, not vest
them with the authority to request or to collect information –
essentially, put them at the mercy of providers of information who,
without any suggestion of common courtesy, need not respond to those
requests – and expect them to be able to do their job.

If I task
you with conducting a tribunal, but you have no experience conducting
tribunals, you’ve never worked with intelligence organizations,
you’ve never worked with this kind of information before –
in other words, this is in every way alien to you – and I say,
“Go search on the system for information relating to the detainees,”
you don’t even know how to begin the search, and you ultimately
come to the conclusion that there’s no information on the detainee
within your system, so that there’s nothing you can physically
do by yourself.

But then I
say, “Don’t worry, we’ll request information from
the other intelligence agencies,” but they have no obligation
to respond to the requests, and you have no ability to confirm the
diligence of their searches, and so, as you assess your ability
to succeed at this mission, to what conclusions do you come? I would
be fairly quick in saying, “I hope I’m not being paid
or rated based on substantive performance markers, because this
is a mission doomed to failure.”

I hate to
say it, but within a very short period of time, as I spoke with
one of the civilians who was there, and who was responsible for
also engaging in this liaison function – you know, asking him,
“Have you talked with this agency, with that agency? Where
are the terminals that will allow access to particular categories
of information?” – I was told, “We don’t have
them.”

Of course,
I could tell from the building itself, and its setting – I
knew that they would have no access to that sort of information.
When I asked what invested liaison officers there were from these
other organizations, the answer was, “none.” When I asked
what the timeline was for the collecting of information for requests
and responses, it was woefully short and inadequate. There was no
hammer, so to speak, if an agency decided not to participate.

Andy Worthington:
But this, surely, was part of the process in which everything was
expedited, whereby all 558 tribunals were supposed to take place
in as short an amount of time as possible?

Stephen
Abraham: Yes, but whether they had said three days, 30 days
or 300 days, the bottom line is, if you had no ability to assess
the completeness of information, then when you started the tribunal
– in terms of your assessment of the quality of the record
with which you’d be going forward – it was largely a futile
exercise. After all, no matter how much time you spent developing
a record, to what extent could you say that it was complete, that
it was accurate, comprehensive, that it tended to draw an accurate
picture of the detainee who was facing the tribunal? You just simply
couldn’t. It was a random collection of information in almost
every instance.

Andy Worthington:
So what you have expressed in the past, about how generic information
was put into the pot, because there was very little specific information
relating to the prisoners in question, you’ve expressed this
very well. Moreover, I understand from my sustained study of the
prisoners’ stories for The Guantánamo Files that
it is valid to look at the tribunals as a pale and mocking echo
of the Article 5 battlefield tribunals that are supposed to take
place close to the time and place of capture, according to the Geneva
Conventions, so that people who know whether those captured are
farmers or soldiers can come and give evidence, and say, “This
is a farmer, you’ve got the wrong man.” This, of course,
is what happened in all U.S. wars since the Second World War, including
“Operation Desert Storm.”

So the tribunals
are a horribly dysfunctional echo of the battlefield tribunals,
in which everything was expedited, and requests for outside witnesses,
which were supposed to be part of the architecture of the tribunals,
were never
fulfilled – not a single outside witness was called –
and my feeling is that no depth was really required in the tribunals
because, as you’ve said, the impression that you came away
with, having undergone this six-month experience, was that it was
designed to rubber-stamp the prisoners’ prior designation as
“enemy combatants.”

Stephen
Abraham: What it was designed to do – and in that regard,
let’s be clear, it succeeded beyond most people’s wildest
expectations – was to get the outside lawyers off the administration’s
asses. Let me explain what I mean by that. You had two Supreme Court
decisions in 2004, saying – first O’Connor, then Stevens
– you have to have some kind of a hearing that comports with
notions of due process, and it’s not just limited to American
citizens.

So the administration
then very quickly had to create this tribunal process. What they
had to be able to do was to represent to the world that the process
exists, and that they were capable of performing the functions described
within the context of the organization committed to that process.
Now what I just said is utterly meaningless. It’s like a ne’er-do-well
saying, “I have this capability of working.” The fact
is, he sits on his ass doing nothing. So the administration had
an organization that was capable of conducting a hearing –
not particularly well, but it could certainly conduct a hearing
– and, as you and many others have seen, it had the capability
of conducting hundreds of hearings.

The problem
was that, if you take the moment that the organization decides to
have a hearing – Day One – and it sends out notices to
the countries [with which the prisoners may, in some way, be involved],
saying, “We’re going to hold a hearing,” the country
itself has no duty, obligation or even a motive to respond. Essentially,
their reaction to the letter is, “So what?” You also send
the letter to different organizations outside of your own –
outside of the Department of the Navy, in many instances outside
of the Department of Defense – and you say, “We’re
going to hold a hearing in 30 days,” to which they respond,
“So?”

But you go
further. You ask for information. And let’s keep this real,
pragmatic. Let’s talk about what motivates responses. In a
theoretical sense, you might expect the answer to be, “We’re
all on the same side, we’ll get you what you need.” But
that’s not a response that was received by OARDEC. Responses,
though not always expressed openly, were motivated by a number of
primary questions: “Who’s paying for this? What assets
do I have available? What are you asking me to do? What’s your
authority for asking me to do it? Have I programmed your request
into my annual resource budget? Is this something I have that’s
available because somebody else has already asked for it, so I can
give you a copy, or are you asking me to do new work? How long is
it going to take me to do it, and how will that interfere with other
missions for which I have organizational or even statutory obligations?”

Andy Worthington:
I understand that, and it’s very interesting on the level of,
“Where’s the budget for my responsibility?”

Stephen
Abraham: But not just, “Where’s the budget?”
but, “Where’s my ability to do it?” And that then
leads to the other organizations looking at OARDEC and saying, in
essence, “Why do you think that I’m forced to respond
to you?”

Andy Worthington:
I’d like to ask you one more specific question about the gathering
of information for the tribunals. In your declaration last November,
you explained that, because OARDEC had little or no access to the
intelligence agencies, “Most of the information collected …
consisted … of information obtained during interrogations of other
detainees.” This is a point that I think is particularly relevant
as the moment, as various pundits begin looking at the Unclassified
Summaries of Evidence and raising alarms about how dangerous the
remaining prisoners are, and how very carefully Barack Obama should
tread. Now I know, from my own study of the documents and from my
knowledge of Guantánamo’s history, that the many allegations
made by unattributed “al-Qaeda lieutenants” and “al-Qaeda
operatives,” and other unidentified “sources,” are
unreliable because they may have been made through the use of torture,
coercion of bribery (the promise of better treatment in exchange
for “confessions”), but I wondered if you could elaborate
a little on your experiences of the information obtained from other
prisoners.

Stephen
Abraham: Though it would be wrong to characterize all of the
information obtained from detainees as being the product of “torture,
coercion or bribery,” it is important to consider the information
both discretely and in the aggregate. What I mean by that is to
look at the totality of the information on the one hand. How was
it obtained? What were the motivations of the sources? What issues
might have colored the testimony, such as fading memories over time,
bias on the part of the witness, or promises of favors? Also, to
what degree would comparisons of different pieces of evidence tend
to belie assurances of legitimacy where the claims of a detainee
against one particular detainee mirrored other claims against other
detainees?

The problem
is not just the issues we easily raise now, years after the tribunals
were held, but the fact that the tribunal members never knew of
these issues and never considered them in weighing the information
presented at the hearings. Simply put, tribunal members were told
to trust all of the information presented against the detainee without
hesitation or question, and to distrust any inconsistent testimony
or other information. That is not the hallmark of a fair hearing
and not a hearing in which we, citizens of a nation of laws, should
put any faith.

Andy Worthington:
Moving on the judicial decisions in the last six months, I wondered
if you could talk a little about the Supreme Court’s ruling,
in June, in Boumediene
v. Bush, that the prisoners had constitutional habeas
corpus rights, and another important ruling in the same month, when,
in Parhat
v. Gates, an appeals court ruled that the evidence against
Huzaifa Parhat, one of 17 Uighurs at Guantánamo (Muslims
who had traveled to Afghanistan to escape Chinese oppression in
their home province, had been caught up in the chaos of the US-led
invasion in October 2001, and had then been sold to US forces) was
inadequate, and that the government had failed to establish that
he was an “enemy combatant.”

Stephen
Abraham: These two decisions represent a remarkable moment in
our history, not merely for what they have to say about the rights
of a few detainees, but, instead, because of what they say about
us, individually and as a nation. In Boumediene, the Supreme
Court upheld the habeas rights of the detainees. But what was implied
in the opinion is the notion that such a right can be denied no
one, if not a detainee. Importantly, from this emerges the principle
that certain rights really are inalienable, that they are not created
by governments, that they are not indulgences to be dispensed and
easily withdrawn, and that they may be abridged only under the most
extraordinary circumstances.

Parhat
represents, perhaps, an even more extraordinary moment, because
of the judges’ comment that the government was not to be taken
at its word. That is, just because it was said does not make it
so. This statement resonated strongly with me because of the presumptions
that overshadowed everything done at OARDEC. The tribunals were
conducted in the shadow of irrebuttable presumptions, rules of play
that could not be challenged. We were to presume the information
we were given to be complete, accurate, uncontestable, and applicable.
With that as the starting ground for the tribunals – or, for
that matter, any administrative or judicial hearing – how could
you possibly have an outcome other than was dictated by the convening
authority, in this case the very government intent on keeping the
detainees indefinitely?

If you’re
engaging in a criticism of the administration, the CSRTs are such
a small thing that they’re barely noticeable, but if you talk
about Parhat as the clearest demonstration of hubris, of
indifference to the Constitution, of antagonism towards constant
principles, it is perhaps, in the eight years of this administration,
the best example you will ever find, and probably the best example
in the history of our nation.

These two
decisions, separately and together, represent an incredible moment
in our history, a moment when our government was reminded of the
fact that it was and is not an institution above the laws by which
we all exist and not an institution beyond the limits that we as
citizens granted.

Andy Worthington:
As you and I know, Parhat was one of the hollowest stories
of the lot, but in general I know that the whole saga of the “classified
evidence” is also hollow in so many cases, and that the vast
majority of the prisoners were either completely innocent men caught
in the wrong place at the wrong time or a bunch of Taliban foot
soldiers who knew nothing about al-Qaeda.

Stephen
Abraham: OK, but if what you want to do is make the story of
Guantánamo about people wrongfully held, then to my mind
it is not only ultimately not a compelling story, it’s not
a very significant story. By that I mean, this world has seen millions
of injustices. Even now, we could limit it to a day and find a million
injustices. What is so amazing about this story is that a President,
an administration – with the complicity of every citizen –
was allowed to absolutely shred the limitations on executive power,
and in doing so show a flagrant disregard for fundamental human
liberties. Not just rights, but the very essence of what entitles
a human being to be respected as such.

Think of Guantánamo
as the first experiment in a much larger experiment, in which the
ultimate conclusion that the administration hoped to reach was that
human beings are little more than vassals, that they exist, they
stand on the earth, only as the result of a royal indulgence. I
mean, that’s really the issue. And as Parhat demonstrated,
the presumptions of the validity of the evidence melted away. Finally,
here was a Court that got it. Just because the government says it’s
so doesn’t make it so.

Andy Worthington:
Well, exactly, but also because it took so long to get to point
where a court was enabled to review the evidence.

Stephen
Abraham: What we ultimately need to get to, where you have an
adversarial process, is a declaration by a court that there are,
firstly, no irrebuttable presumptions, that irrebuttable presumptions
are an anathema in a system that, at its core, relies on, and claims
to give regard to due process. You can’t have due process and
irrebuttable presumptions, which lead to the certainty of a conviction,
or a designation [as an “enemy combatant”]. Secondly,
with respect to rebuttable presumptions, there must be certain limitations:
they cannot relate to the weight of the evidence, to the quality
of the evidence. You can’t say, “I presume this
evidence to be valid, I presume the source to be beyond reproach,”
because in that regard all you’ve done is give another name
to an irrebuttable presumption.

And this is
what OARDEC did. You can say anything you want as a detainee, but
you may not contradict any of our “facts.” Why participate?
That was the truly offensive element of what was going on. It wasn’t
that we were told to reach a decision; rather it was that we were
told to reach a decision based on a one-sided presentation of evidence
that we were not allowed to question. And our tribunal – the
tribunal I served on – said no.

Andy Worthington:
Could you explain just a little bit about the tribunal that you
served on, in which you and your fellow tribunal members decided
that the prisoner in question was not an “enemy combatant”?
This is another extremely important aspect of the rigged nature
of the tribunals, of course, because you were then asked to change
your opinion, and when you refused, you were never asked to serve
on a tribunal again, and a new tribunal was convened which reversed
your decision.

Stephen
Abraham: Deciding the fate – what we thought would be deciding
the fate of a Libyan of no particular significance [Abdul
Hamid al-Ghizzawi, still imprisoned at Guantánamo]. We
were given information relating to, or what I presumed would be
relating to the individual that was the subject of our tribunal.
The information related in very few respects to his pre-detention
history. It spoke in very general terms of the organization of which
he was said to be a member [the Libyan Islamic Fighting Group].
The information on the organization was extremely generic. It related
to an organization that was antithetical to the interests of the
standing government of Libya, a rather curious situation, in that
I always thought that the enemy of my enemy is my friend. And yet,
for whatever reason, it had been listed as an organization associated
with terrorist activities. There was absolutely nothing in the information
to suggest that he had in any way been closely associated with,
or had acted in any way that facilitated or contributed to terrorist
activities. Nor was there any information that was linked to him
directly, or that linked him to al-Qaeda, to the Taliban, or to
anything else.

Andy Worthington:
So there was not even any kind of thread drawn to any terrorist
organization?

Stephen
Abraham: No, it was absurd. Six Degrees of Separation.

Andy Worthington:
But with Huzaifa Parhat, for example, the allegation was that the
Uighur resistance group (the East Turkistan Independence Movement)
was associated with al-Qaeda by two degrees of separation, even
though there was no evidence linking Parhat or any of the other
Uighurs to the group itself. Was it not the same with the LIFG?

Stephen
Abraham: Let me give you an extraordinary connection, the very
nature of which I think is irrefutable. I was in Paris in 1975.
So was Ayatollah Khomeini. Do I need to go any further?

Andy Worthington:
But this is interesting as well, Stephen. Just to digress for a
moment, the study of the prisoners that the Seton Hall Law School
undertook (PDF)
– and I also covered this topic in The Guantánamo
Files – established that prisoners were accused of associations
with supposed terrorist groups that weren’t on any official
terrorist exclusion lists.

Stephen
Abraham: OK, but I have to say this: We need to be very careful,
because, in having tallied the indicators of criteria that were
set forth within the Unclassified Summaries of Evidence that were
presumed to form part of the basis for the determination of whether
somebody was or was not an “enemy combatant,” what people
need to understand is that many of the criteria that were used came
from a static checklist. So in terms of a more refined narrative,
there in fact might have been no indicators that the criteria used
were most appropriate. The problem was that they were the only criteria
that were available, so they essentially were checked off. They
were close enough.

So we have
to be very careful not so much for the individuals for whom there
was an absence of the criteria, but those for whom there is alleged
to have been a presence of the criteria, because to say that somebody
is associated with the Taliban is fine as a checklist response,
but the problem is that, unless you know what the evidence is that
led to that conclusion you really can’t even decide from the
presence of the checkmark in that box that it is a valid assessment.
And the problem is that for most of the detainees, even the criteria
by which they were ultimately concluded to be “enemy combatants”
are, I think, based on incomplete information – on information
that doesn’t rise to the level of probative, competent, material
evidence – and a lot of false syllogisms.

Andy Worthington:
And you know, presumably, about the “low evidentiary hurdle”
that was established as part of the tribunals.

Stephen
Abraham: The evidence – you know, I wish that we would
stop using the word “evidence” because we give to the
material that presented the imprimatur of validity. Most of the
information, most of the material didn’t rise – in terms
of a lawyer’s perspective, a litigator’s perspective –
to the level of evidence, either qualitatively or quantitatively.

I think if
we want to describe what OARDEC did, first it’s OK to call
it a tribunal, but I think there are other words that should not
be used. I think “findings” should not be used. For example,
you can reach a conclusion on fundamentally or inherently unreliable
information, but I wouldn’t call it a finding of fact. I wouldn’t
call what was done a legal process. I would avoid using words that
really are terms of art within the legal community, because they
give a false sense of comfort: “They received evidence, so
it must have been OK.” No, they didn’t receive evidence;
they received material, the quality of which was never competently
vetted. Nobody could speak for any of the necessary elements of
information before it would be admitted in any court, and it’s
fine to say, “well, this isn’t a court of law,” but
at the very least it was a body – presumably of sound reason
and of judgment well exercised – and if that was going to be
the case you would certainly not have expected that what would be
accepted would be the word of anybody who could just walk off the
street and say, “That man’s guilty.” What is this,
the Queen of Hearts?

Andy Worthington:
That’s a very good point. And given that this was not supposed
to be a legal process, but was supposed to be an administrative
process that would stand up to outside scrutiny and that would justify
itself, the important thing that you did, as somebody who had taken
part in the process, was to say, “this does not stand up to
any outside scrutiny whatsoever, so how could this possibly be any
substitute for a valid legal process?”

Stephen
Abraham: And really, in your last comment, you make the point.
Let’s get rid of the notion of an administrative board, because,
you know, it’s terms of art again. It’s a board that’s
going to reach a decision based upon the presentation of factual
matters. At the end of the day it has to be only one thing: fair.
It only has to be fair. The problem was, these hearings were never
set up to be fair, and when there is the risk that a hearing will
not be fair, it is important that it be transparent, it is important
that it be capable of review, it is important that the processes
can be evaluated for the degree to which they comport with clearly
defined procedures established before the hearings begin. You can’t
take a person and say, “I will now give you the kind of proceeding
to which you’re entitled based on what I’ve already decided
about you.”

Andy Worthington:
Moving on, I wanted to ask if you thought that your statement about
the tribunals, which was included as a submission to the Supreme
Court, made a difference to what the judges decided about the rights
of the prisoners in Boumediene.

Stephen
Abraham: I don’t know. Unfortunately, the Supreme Court
didn’t decide that the tribunal proceedings – which were
the subject of its review – were a sham. The judges didn’t
argue the quality of the evidence. If they had, I would have said,
“My God, I guess my submission made a difference, because I
said the stuff was a joke.” All I can say is that the Supreme
Court had denied the petition for review, had denied the petition
for writ for certoriori, then there was the request to reconsider.
Now these are always denied, but in this case it wasn’t.

My declaration
was not on the first brief. It was on the last brief. It was after
the government had responded. You know, you look to what is unique
about this, that in some way affected the minds of two justices
– or at least one – and you know the declaration was unique,
but it spoke to facts, and I know, as somebody who’s practiced
before the Supreme Court, that they rarely listen to the factual
pleas. They want to know something broader, they want to know something
that relates to legal issues, constitutional issues, and here’s
this crazy brief that’s arguing facts. Certainly, it’s
different, and I wonder how many petitioners are now going to submit
declarations with their petitions for reconsideration, but the fact
is that I don’t know if it had any influence. What I do think
is that the justices looked at all of the briefs together, with
all the materials that were submitted, and they said, “Enough
is enough.”

Andy Worthington:
Excellent. I really wanted to ask about that, because it was my
understanding that you came from a slightly different field from
the habeas lawyers, and you were somebody who had been there –
inside the tribunal process – who said, “By the way, while
you’re thinking about this, you might want to read my dozens
of reasons that I’m going to put before you explaining why
the whole tribunal process was a sham.”

I think we’re
going to have to wind up soon, Stephen, so thank you very much indeed
for your time. Before we finish, however, is there anything we haven’t
touched upon that you wanted to mention?

Stephen
Abraham: I was thinking about habeas corpus, and I was thinking
that when we say habeas corpus, we understand it to be inseparable
from notions of fundamental human rights, and when the Supreme Court
was discussing
this, a year ago, six months before they delivered their verdict
in Boumediene, I couldn’t understand how they were having
a debate for a half-hour about what I think was, by the nature of
their discussion, a profound limitation of that right. To ask what
the statutory basis is, or what the common law basis is, for the
notion that a person is not born free, and does not have an immutable
right to dignity and liberty (absent the legitimate exercise of
the powers of state) was, I thought, a confession of the absence
of the appreciation of that right.

Andy Worthington:
Do you not think that Justice Scalia was playing into the hands
of Dick
Cheney and David Addington, and their desire to institute unfettered
executive power? What struck me most about some of the exchanges
in the oral hearing last December was that to varying degrees some
of the justices were perturbed or outraged about the fact that they
understood that that’s what the executive was trying to do,
that the executive branch was trying to eliminate their part in
the balance of powers in the United States.

Stephen
Abraham: And that was really the funniest thing. If you look
at what the Supreme Court did, 50 years from now people are going
to wonder how this case should be characterized. And it will not
be a fundamental liberties case; it will be a separation of powers
case. And that’s the problem with it, because what gave rise
to Boumediene was an administration that was turning an immutable
right into a conferred right. That is the danger of the exercise
of power, manifested by Guantánamo. Guantánamo’s
merely an example of it, but the fact is that the moment you make
liberty a conferred right you can eliminate it, you can suspend
it, you can terminate it, but more importantly you can identify
the moment of its creation.

That’s
the worst part about it, because our government exists not by right
but by consent, and it never had the power to create the right of
liberty and of due process. Those are constraints on its exercise
of power, and what the administration did was it reversed that,
it said we have due process because we give it to you, because we
created it and we can take it away. You have liberty, not because
it is an immutable, fundamental right, but because we created it,
and we gave it to you and we can take it away. And I hope that the
five justices understood that to be the linchpin, the core, the
thrust of the decision, and not a separation of powers issue.

The
administration will change. Change is inevitable. But like a stream,
the passage of water alone does nothing to change the nature of
the water itself. If we make the issues of the last eight years
the fault of particular men in a particular time and at a particular
location, we will have missed an important lesson of what happened.

The rights
of individuals were denied, the essence of those rights disparaged.
This happened not because men made it happen, but because we let
it happen. It happened not because we surrendered our rights but
because we allowed others to redefine them in a way that foreclosed
their exercise by others. It happened not because Guantánamo
existed but because we allowed such institutions to be created.
Closing Guantánamo is a symbolic act that will do nothing
to eliminate the ground on which tyranny gains its foothold.

As we are
reminded in the words of Martin
Niemöller, each of us has the duty to speak for those for
whom no one else has spoken. Where silence reigned, injustice found
foothold. It is up to each of us to speak. It is up to us to ensure
that institutions beyond the reach of laws exist nowhere on this
earth. But more importantly than the bricks and mortar by which
we build prisons, it is up to us to demand respect of law by all
who govern and the dignity of all humans by all who are governed.

December
30, 2008

Andy
Worthington is the author of
The Guantánamo Files: The Stories of the 774 Detainees in
America’s Illegal Prison (published by Pluto Press).
Visit his website.

DIGG THIS

As rumors continue
to fly regarding Barack Obama’s plans to close
the notorious “war on terror” prison at Guantánamo
Bay, one country in the European Union, Portugal, took the opportunity
offered last Wednesday by the 60th anniversary of the Universal
Declaration of Human Rights – one of whose Articles declares,
“Everyone has the right to seek and to enjoy in other countries
asylum from persecution” – to announce that it was prepared
to accept prisoners cleared from Guantánamo who are unable
to be repatriated, and to urge other EU countries to do the same.

In a letter
to other EU leaders, Lus Amado, Portugal’s foreign minister,
declared,

The time has come for the European Union to step forward. As a matter
of principle and coherence, we should send a clear signal of our
willingness to help the U.S. government in that regard, namely through
the resettlement of detainees. As far as the Portuguese government
is concerned, we will be available to participate.

The Portuguese
offer addresses a problem that has plagued Guantánamo for
years, and that is, moreover, one of the major obstacles to Barack
Obama’s promise
to close the prison: what to do with the prisoners who have been
cleared for release from Guantánamo after multiple military
reviews but who cannot be freed because of international treaties
preventing the return of foreign nationals to countries where they
face the risk of torture?

These men,
numbering at least 60 of the remaining 255 prisoners, are from such
as Algeria, China, Libya, Tunisia, and Uzbekistan. They are no longer
regarded as a threat to the United States or its allies, but they
remain in Guantánamo because, until now, only one country
has stepped forward to give new homes to cleared prisoners. Albania
accepted eight cleared prisoners – five
Uighurs (Muslims from China’s oppressed Xinjiang province)
in May 2006, and three
others (an Algerian teacher, an Egyptian cleric and a refugee
from the former Soviet Union) in December 2006.

A week after
Barack Obama’s election victory, a number of human rights groups
– including Amnesty International and Human Rights Watch –
launched
a campaign in Berlin aimed at persuading European governments
to accept cleared prisoners, but until the Portuguese government
spoke out last week, the response had been lukewarm.

On November
13, Amnesty International announced
that Switzerland had refused asylum applications by three cleared
prisoners from Algeria, China, and Libya,
and on December 12 the Irish
Times confirmed that Justice Minister Dermot Ahern had stated
that the Irish government was “not contemplating the resettlement
of any Guantánamo inmates,” apparently dashing the hopes
of Uzbek refugee Oybek Jamoldinivich Jabbarov, who was sold to U.S.
forces in Afghanistan seven years ago, that he might finally be
released from Guantánamo.

In addition,
the legal-action charity Reprieve,
whose lawyers represent around 30 Guantánamo prisoners, has
so far failed to interest the British government in accepting the
return of Algerian national Ahmed
Belbacha, even though he lived in the UK for two years and only
left Algeria because he was threatened by Islamist militants, and
has also had no success in persuading the French government to accept
Nabil
Hadjarab, a former resident with family in France, and in resettling
six
Tunisians and an Egyptian
who had all been residents in Italy. One other country, Sweden,
which was widely perceived as sympathetic to refugees, dashed all
hopes that it would lead the way in repatriating Guantánamo
prisoners in June this year, when it refused asylum to Adel
Abdul Hakim, one of the five Uighurs freed in Albania. Hakim
had applied for asylum in November 2007, after securing a visa to
visit his sister, who is part of a Uighur community in Stockholm.

One of the
major obstacles to European support, of course, has been the Bush
administration’s unwillingness to accept responsibility for
its own mistakes by working to secure the release of cleared prisoners
into the United States. For several years, State Department officials
have been touring the world, attempting to persuade third countries
to accept some of these men, but without success. Their failure
is partly because the administration refuses to concede that any
prisoners seized in the “war on terror” are innocent men
captured by mistake – choosing instead to refer to them as
“No Longer Enemy Combatants” or “enemy combatants”
who have been “approved for transfer” – but it is
also because the administration has taken a hectoring tone with
other countries, chastising them for failing to help, rather than
addressing them in a conciliatory manner.

Unfortunately,
comments made since the Portuguese announcement by the State Department’s
legal adviser, John Bellinger, have done nothing to suggest that
the prevailing attitude has changed. Speaking to Reuters,
Bellinger called Luis Amado’s letter “extraordinarily
significant.” He revealed, “It is the first time that
any country except Albania has privately or publicly stated that
they are prepared to resettle Guantánamo detainees who are
not their own nationals.” This was not strictly accurate, as
Germany,
Spain,
and the UK
have also accepted the return of legal residents, but what made
Bellinger’s comments particularly troubling was when he added,
“It really is the first crack in the ice of what has been European
opposition to helping with Guantánamo in any way. For five
or six years there has been consistent criticism but no constructive
offers to help … Europe need to stop simply calling for its closure
but to step up and actually help with its closure.”

As a result
of these unhelpful comments, it seems probable that the plight of
Guantánamo’s refugees in limbo is unlikely to change
until Barack Obama takes over from George W. Bush in January, when
he will, hopefully, be able to muzzle State Department criticism
of U.S. allies and secure cooperation as part of his honeymoon period.
However, good will alone may not be enough to persuade other countries
to help the new president to close Guantánamo. Speaking to
the Washington
Post, Jennifer Daskal, senior counterterrorism counsel for
Human Rights Watch, suggested that the Portuguese announcement might
be “the start of a trend,” but added that she believed
European cooperation would hinge on a willingness by the United
States to take cleared prisoners as well. “The new Obama administration,”
she said, “is going to have to jump-start this by accepting
some of the detainees.”

In particular,
President Obama will need to address the plight of the 17 remaining
Uighurs in Guantánamo. With the exception of five
Bosnian Algerians, whose release was ordered last month by federal
district court Judge Richard Leon, after he was allowed to review
the government’s evidence against the men, and ruled that the
administration had failed to establish a case for holding them,
the Uighurs are the only prisoners at Guantánamo who have
been cleared of being “enemy combatants.”

In June, when
an appeals court was finally allowed to review the case against
one of the men, Huzaifa
Parhat, the judges demolished the government’s allegations,
ruling that Parhat’s status as an “enemy combatant”
was invalid, and comparing the government’s evidence to a nonsense
poem by Lewis Carroll, the author of Alice’s Adventures
in Wonderland. In the months that followed, the government abandoned
trying to prove that any of the Uighurs were “enemy combatants,”
and when their case reached the Washington, D.C., district court
in October, Judge Ricardo Urbina ruled
that their continued detention was unconstitutional, and ordered
their release into the United States, as no other country had been
found that would accept them.

Unfortunately
for the Uighurs, the government, which was still drunk on the dreams
of unfettered executive power that had sustained it for over seven
years, refused to accept that the Supreme Court’s momentous
ruling in June, which granted the Guantánamo prisoners
“the privilege of habeas corpus to challenge the legality of
their detention,” also held that “a court’s power
under the writ must include ‘authority to … issue … an order
directing the prisoner’s release.’”

Effectively
arguing that the whims of the executive trumped the ruling of a
judge, the government also attempted to resuscitate claims that
the Uighurs were involved in militancy, even though it had been
established without a doubt that they had only one enemy –
the Chinese government – and even though the administration
itself had abandoned any claims of militancy when it accepted that
none of the men were “enemy combatants.”

The appeals
court judges have yet to deliver a final ruling on the Uighurs,
but in the meantime it became apparent last week, in comments that
John Bellinger made to the BBC,
that he supports the government’s unprincipled and unjustifiable
opinions, when he stated that the Uighurs were “properly detained,”
because, although they “wanted to fight the Chinese,”
they “were in training camps.”

Bellinger’s
words not only suggest, incredibly, that the administration believes
it is justified in holding anyone as an “enemy combatant”
who has attended any kind of military training camp (even those
that have no connection whatsoever with al-Qaeda or the Taliban);
they also cut off any hope that another country will be prepared
to accept the Uighurs. For Barack Obama to succeed in closing Guantánamo,
he will not only need to repudiate opinions like these, but will
also need to find the courage to follow Judge Urbina’s ruling
that holding the Uighurs is unconstitutional, and to secure their
release to the communities in Washington, D.C., and Tallahassee,
Florida, which have already made detailed
plans to welcome them. Anything less, and his mission to close
Guantánamo and regain America’s moral standing may well
be doomed.

December
17, 2008

Andy
Worthington is the author of
The Guantánamo Files: The Stories of the 774 Detainees in
America’s Illegal Prison (published by Pluto Press).
Visit his website.

DIGG THIS

On the evening
of March 28, 2002, an armed group of FBI agents and Pakistani commandos,
accompanied by a hundred local police, stormed
Shabaz Cottage, an apartment in a quiet neighborhood in the
city of Faisalabad, Pakistan. Their target, who had been tracked
by the careless use of a satellite phone, was Zayn al-Abidin Muhammad
Husayn, more commonly known as Abu Zubaydah. Acknowledged as a facilitator
for recruits attending the Khaldan training camp in Afghanistan,
Zubaydah was regarded by the CIA as a far more significant figure.

Apprehended
as he attempted to flee the house, Zubaydah reportedly received
gunshot wounds in his stomach, one of his legs, and his groin, and
after his capture was immediately rendered to a secret CIA prison
in Thailand, where, as General Michael Hayden, the CIA’s director,
acknowledged in February this year, he was subjected to the ancient
torture technique known as waterboarding,
a form of controlled drowning. He was later transferred to other
secret prisons – in Poland,
and possibly on the island of Diego
Garcia – until his eventual transfer to Guantánamo,
along with 13 other “high-value detainees,” in September
2006.

Disputes within
the U.S. administration over Zubaydah’s alleged significance
have never been resolved. Dan Coleman, a senior FBI operative, maintains
that he was “insane, certifiable, split personality,”
based on an analysis of his dairies, which revealed mundane accounts
of life as recorded by three different personalities, and according
to Ron Suskind, in his book The
One Percent Doctrine, other officials confirmed that
Zubaydah appeared to know nothing about terrorist operations, and
was, instead, a minor logistician. Nevertheless, the CIA took over
his interrogations from the FBI and subjected him to torture, and
after he arrived at Guantánamo, President Bush took the opportunity
to declare,
“We believe that Zubaydah was a senior terrorist leader and
a trusted associate of Osama bin Laden.”

While the
story of Abu Zubaydah has been reported extensively in the media,
there has been far less coverage of the seven men seized with him
during the Faisalabad raid, and almost no mention whatsoever of
16 other men seized in a raid on another house in Faisalabad that
same evening, even though the stories of two of these prisoners
shed light on the CIA’s policy of rendering terror suspects
to third countries for torture, and others cast doubt on the Pentagon’s
justifications for holding prisoners in Guantánamo.

Information
about the two suspects who were rendered to torture was provided
by the journalist Stephen Grey in his book Ghost
Plane, following an interview with Abdullah
Almalki. A joint Syrian-Canadian national, Almalki was seized
by Syrian intelligence agents in May 2002, at the request of the
Canadian authorities, and imprisoned and tortured for 22 months
in the notorious military prison known as the “Palestine Branch,”
before being released without charge. He explained to Grey that
two suspects seized with Zubaydah – Omar Ghramesh and an unnamed
teenager – were rendered to the “Palestine Branch”
on May 14, 2002, along with Abdul Halim Dalak, a student seized
in Pakistan in November 2001. Ghramesh, he said, had explained to
him that in Pakistan U.S. agents had shown him photos of Abu Zubaydah
looking battered and bruised, and had told him, “If you don’t
talk, this is what will happen to you.”

As in the
cases of dozens of other “ghost prisoners,” the U.S. government
has never acknowledged its role in the rendition and torture of
Ghramesh, Dalak and the unnamed teenager, and their current whereabouts
are unknown.

However, more
is known about the prisoners who were transferred to Guantánamo.
Four of the men seized with Zubaydah – Ghassan al-Sharbi and
Jabran al-Qahtani (both Saudis), Sufyian Barhoumi (an Algerian)
and Noor Uthman Muhammed (a Sudanese) – were put forward for
trial
by military commission in June this year, accused of various
plots involving explosives, and, in Muhammed’s
case, of being the deputy emir of the Khaldan training camp.

Their cases
are notable because the charges against them were dropped
by the Pentagon in October, after their prosecutor, Lt. Col. Darrel
Vandeveld, resigned,
stating that the trial system was designed to prevent the disclosure
of evidence essential to the defense, and citing examples in one
of the cases he was prosecuting, that of an Afghan prisoner named
Mohamed
Jawad. The Pentagon gave no explanation for dropping the charges,
but commentators suggested that officials were concerned that, if
the cases proceeded to trial, Vandeveld would cause them further
embarrassment by testifying for the defense.

It is not
known whether Vandeveld possesses information that undermines the
Pentagon’s claims against these men, but the recent release
from Guantánamo of another prisoner captured with Abu Zubaydah
indicates that not everyone seized in the Faisalabad raids was connected
with al-Qaeda.

Labed Ahmed,
a 50-year-old Algerian (also identified as Abdallah Husseini), was
repatriated on November 10, after being “approved for transfer”
by a military review board. During a review in 2006, he explained
that he had ended up at Zubaydah’s house by accident.

A former drug
dealer in Europe, Ahmed told the military panel that he had been
imprisoned many times in Germany and Italy, and explained that he
decided to go to Afghanistan in March 2001, after someone he met
at a mosque in Hamburg recruited him by showing him videos of mujahideen
in Afghanistan and Chechnya, although he added that he actually
hoped to buy heroin to sell in Europe so that he could buy his own
nightclub.

Ahmed said
that he arrived in Afghanistan at the start of September 2001, trained
at al-Farouq (the main camp for Arabs) for 12 days until the camp
closed in the wake of the 9/11 attacks, and then fought with the
Taliban until December, when he left for Pakistan with a group of
20 other people, staying for three months in safe houses in Bannu
and Lahore. He said that he was then told to go to Faisalabad, where
some people would come to give him his passport and send him back
to Germany. He explained that he was with two other people, a Russian
and a Yemeni, but that, after they arrived at Shabaz Cottage, they
were told that they had been brought there by mistake and would
be moved to another house after the evening prayer.

Ahmed insisted
that he didn’t want to leave, because the previous houses had been
crowded, whereas this house was “big and nice” and “everybody
had their own room,” and explained that he refused to leave
in the vehicle that was brought in the evening. Several days later,
he said,

The guy from al-Qaeda, Daoud [identified in the hearing as Zubaydah]
questioned me as to who I was, what I was doing here and who brought
me. I said I’m from Germany waiting on my passport. When I get it,
I will leave. He said, no problem, you can stay here for a week.
I stayed there for about 12 days and the Pakistani police came.
They took us to prison. Daoud was arrested with us, you can ask
him about us.

The house
to which Ahmed and his companions were supposed to have been delivered
was the Crescent Mill guest house (also referred to as the “Issa”
guest house, after its owner, and “the Yemeni house,”
after most of its guests), and it was here that the Russian and
the Yemeni who arrived at Shabaz Cottage with Ahmed were seized,
along with another 14 prisoners. Mostly aged between 18 and 24,
there were 11 Yemenis, an Algerian, a Palestinian, and a Saudi,
and all are still in Guantánamo, with the exception of Ali
Abdullah Ahmed al-Salami, one of three prisoners who died
in Guantánamo in June 2006, apparently after committing
suicide.

Of the remaining
15 prisoners, only one has been approved for release from Guantánamo,
even though there is little in any of the men’s stories to
suggest that they were involved in any kind of militant activity.
Ten of the 17 have maintained that they were students at Salafia
University, run by the vast missionary organization Jamaat-al-Tablighi,
and that the guest house was a university dorm, two have stated
that they traveled to receive medical treatment, and another, Fahmi
Ahmed, said that he went to Pakistan to buy fabrics, taking money
that he had borrowed from his mother, but explained that he actually
spent most of his time “like a wild man,” drinking and
smoking hashish. The prisoner cleared for release, Mohammed Hassen,
was not even living at the house, and was caught up in the raid
after visiting for dinner and staying the night.

Only three
of the men have admitted that they ever set foot in Afghanistan:
Ahmed Abdul Qader, a Yemeni, who said that he went to Afghanistan
for charitable work, and Ravil Mingazov and Jamil Nassir, the Russian
and Yemeni who were taken to Abu Zubaydah’s house by mistake
just two weeks before the raid. Nassir’s story involves conflicting
claims that he either undertook military training in Afghanistan,
was a humanitarian aid worker, or had traveled to Pakistan for medical
treatment, and Mingazov, a former ballet dancer, fled religious
persecution in his homeland, and has stated that he was with Jamaat-al-Tablighi
in Lahore when he joined Labed Ahmed on the ill-fated trip to Faisalabad.

The allegations
made against these prisoners give little reason to doubt their stories.
They contain claims by the U.S. authorities, as with many other
prisoners involved with Jamaat-al-Tablighi, that the organization
was “used to mask travel and activities of terrorists,”
but this allegation has never been regarded as legitimate outside
Guantánamo. For the most part the prisoners’ insistence
that they traveled from their home countries to study in Faisalabad
via Karachi (and often via Jamaat-al-Tablighi mosques in Lahore
and Raiwand, where the organization has its headquarters) is at
odds with a catalog of other allegations made under unknown circumstances
by unidentified “al-Qaeda operatives” and other unidentified
“sources,” who claimed to have seen the men at various
times in Afghanistan.

With
Labed Ahmed now released, it is unclear how the Pentagon can maintain
that it has any reason to hold the 16 other prisoners seized in
the Crescent Mill guest house. One particular comment that Ahmed
made during his military review, when he stated that, because he,
Mingazov and Nassir “did not have a connection or relationship
with Abu Zubaydah,” they “should have been placed in the
Yemeni house,” indicates that, although Abu Zubaydah had some
sort of contact with the house, it was not a place that had any
connection with terrorism, and was, at best, a place where a few
foreigners fleeing from Afghanistan could be concealed alongside
a group of students.

Mohammed Hassen’s
lawyer, David Remes, says his client has paid dearly for being at
the wrong place at the wrong time: “Mohammed has spent a quarter
of his life behind bars because he made the mistake of visiting
a friend at a guest house the night it was raided.” Noting
that Mr. Hassen was cleared for release nearly three years ago but
remains imprisoned at Guantánamo, Remes added,

This is more than injustice. It’s a nightmare. My client is particularly
unfortunate, because he was not even living at the house, but nothing
I have either seen or heard, in my discussions with other lawyers
and my analysis of Mr. Hassen’s case, indicates that any of these
men constitutes a threat to the United States.

December
9, 2008

Andy
Worthington is the author of
The Guantánamo Files: The Stories of the 774 Detainees in
America’s Illegal Prison (published by Pluto Press).
Visit his website.

DIGG THIS

In the real
world outside the U.S. Naval Base at Guantánamo Bay, Cuba,
Barack Obama’s pledge
to close Guantánamo and scrap the military commissions (the
system of trials for “terror suspects” that was established
in the wake of the 9/11 attacks) has provoked a rare outburst of
frenzied media coverage.

With no concrete
plans announced by the President-elect’s transition team, pundits
and off-the-record officials of all political hues have stepped
in to fill the void with speculation
about the significance of the remaining 255 prisoners, some shrill
demands for legislation endorsing “preventive detention,”
some equally shrill warnings that robust techniques will be needed
in the future to deal with captured terrorists, and a range of opinions
about whether the Guantánamo prisoners regarded as a genuine
threat to the United States (estimates
range from several dozen prisoners to around 80) should be transferred
to the U.S. mainland to face trials in federal courts or in another
brand-new system.

Some of these
opinions are genuinely troubling, and reveal the extent to which
the government’s fear-filled “war on terror” rhetoric
of the last seven years has permeated the U.S. psyche. Proposals
to create new legislation authorizing “preventive detention,”
for example, actually seek to justify much of what the Bush administration
has been doing at Guantánamo, and it beggars belief that
citizens in a civilized society founded on the rule of law could
attempt to justify imprisoning people not for what they have done,
but to prevent what they could conceivably do in future.

The proposal
is doubly disturbing because the government’s assertions that
some of the prisoners may be dangerous comes not from evidence that
can be tested in a court of law, but from intelligence reports that
may or may not be reliable, and from hearsay and confessions –
made by other prisoners, or by the prisoners themselves – that
may have been produced through the use of torture or other forms
of coercion, or through bribery (a well-chronicled “rewards”
system for prisoners regarded as “cooperative”).

In addition,
calls for robust techniques to deal with terror suspects captured
in the future are clearly influenced by the Bush administration’s
arguments that prisoners seized in the “war on terror”
constitute a threat of a kind never encountered before, and that
this threat justifies its attempts to redefine torture, and its
endorsement of the use of torture by U.S. forces. For the record,
torture, as defined in the UN
Convention Against Torture (to which the U.S. is a signatory)
is defined as “any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person,”
and not, as the U.S. administration claimed in its notorious “Torture
Memo” of August 2002, an act producing pain which is “equivalent
in intensity to the pain accompanying serious physical injury, such
as organ failure, impairment of bodily function, or even death.”

Those endorsing
greater latitude to deal with terror suspects in the future have
presumably forgotten the extent to which the administration has
belittled the intelligence agencies’ skilled interrogators,
who contributed to 107
successful terrorist prosecutions in U.S. federal courts without
resorting to the use of torture, and its disdain for the psychological
techniques enshrined in the Army Field Manual, which not only prohibits
the use of torture, but of any kind of physical violence. Both,
however, have a proven track record of success, unlike the torturers,
whose activities constitute war crimes, however much the Bush administration
has attempted to disguise them, and are also morally corrosive and
counter-productive, producing, at best, ripples of truth in a sea
of false confessions, with no practical way of separating fact from
fiction.

Much of this
has been confirmed by Dan Coleman, a senior FBI interrogator who
worked on several high-profile terrorism cases before the 9/11 attacks.
Coleman is on record as stating that “people don’t do
anything unless they’re rewarded.” In an interview in
2006 with the New
Yorker’s Jane Mayer, he acknowledged that brutality
may “yield a timely scrap of information,” but is “completely
insufficient” in the longer fight against terrorism. “You
need to talk to people for weeks. Years,” he explained.

When it comes
to proposals to establish a new trial system for terror suspects,
those putting forward such ideas have obviously failed to scrutinize
the failures of the system conceived by Dick
Cheney and his close advisers in November 2001. Thrown out by
the Supreme Court in June 2006, the commissions were revived by
Congress later that year, but have struggled to establish their
legitimacy, primarily because the government-appointed military
judges are empowered to accept evidence obtained through coercion,
to prevent all mention of evidence obtained through torture, and
to blur the distinction between the two, and also because, as I
reported at length in a previous
article, a growing body of evidence indicates that the entire
system is rigged, with Pentagon representatives who are supposed
to be impartial actually taking their orders from the heavily biased
Office of the Vice President.

It remains
to be seen how this chain of command – which pivots on the
role played by retired judge Susan Crawford, the Commission’s
“Convening Authority,” and a close friend of both Dick
Cheney and his chief of staff David Addington – will survive
the transition to the Obama administration, but enthusiasts for
the creation of another brand-new system should really take on board
the sustained opposition to the commissions that has been mounted
from within.

Those who
have become implacably opposed to the system are not only the military
defense lawyers, who have been prepared to sacrifice
their careers in defense of justice, but also Col. Morris Davis,
the former chief prosecutor, and several former prosecutors, including,
most recently, Lt. Col. Darrel Vandeveld, who turned from being
a “true believer to someone who felt truly deceived” by
the system, when he discovered that evidence vital to the defense
was being routinely withheld in the case of Mohamed
Jawad, an Afghan teenager accused of a grenade attack on U.S.
forces in December 2002.

In the meantime,
while enthusiasts for a new trial system indulge their largely abstract
musings, the reality of the commissions themselves continues to
confound reality, as those in charge of the process persist in behaving
as though it is business as usual.

On the eve
of the presidential election, the failure of the commissions to
deliver anything approaching justice was demonstrated when Ali Hamza
al-Bahlul, a self-confessed member of al-Qaeda, received a life
sentence for conspiracy and providing material support for terrorism,
which is supposed to be served in total isolation at Guantánamo.
Al-Bahlul was convicted after a disgraceful one-sided show trial
in which, because of the ill-defined rules governing the commissions,
he was allowed to score what was effectively a propaganda victory
for al-Qaeda by refusing to mount a defense.

Since then,
the commissions have stumbled on as though nothing changed with
the elections on November 5. On November 17, the chief judge, Marine
Col. Ralph Kohlmann, who had been overseeing the meandering pre-trial
proceedings for Khalid
Sheikh Mohammed and four other men accused of involvement in
the 9/11 attacks, announced his immediate
retirement, scuppering any possibility that the commissions’
flagship trial would take place before the Bush administration leaves
office.

At a hearing
in September, Kohlmann had admitted that he was due to retire
in April 2009, prompting Mohammed to ask him to disqualify himself
from the case, on the basis that he “might inappropriately
rush the proceedings.” Any kind of “rush” is now
completely out of the question, of course, and instead, as Lt. Cmdr.
James Hatcher (the lawyer for one of the accused, Walid bin Attash)
explained, Kohlmann’s departure means that “a new round
of pretrial hearings [will] be required and the new judge [will]
be forced to reexamine earlier rulings,” which will “make
an already complex case even more complex.”

The departure
of Kohlmann, a no-nonsense operator who has been involved in the
commissions since December 2005, will certainly not make the trial
system’s work any easier, especially as his chosen successor,
Army Col. Stephen Henley, has “shown more patience” with
defense attorneys than his predecessor (as the Miami
Herald described it), and was, at the time of his appointment,
the only judge to have ruled that a major part of the prosecution’s
evidence in one case – that of Mohamed Jawad – was inadmissible,
because it had been extracted through the use of torture.

Jawad’s
trial is scheduled to begin on January 5, 2009, but the day after
Henley’s appointment to the trial of Khalid Sheikh Mohammed
and his alleged co-conspirators, he struck another blow to the prosecution
in Jawad’s case by ruling that a second confession, made in
U.S. custody the day after his Afghan confession, was also inadmissible,
partly because, as the Associated
Press described it, “the U.S. interrogator used techniques
to maintain ‘the shock and fearful state’ associated with
his arrest by Afghan police, including blindfolding him and placing
a hood over his head.” As Henley explained in his ruling,

“The
military commission concludes the effect of the death threats which
produced the accused’s first confession to the Afghan police had
not dissipated by the second confession to the U.S. In other words,
the subsequent confession was itself the product of the preceding
death threats.”

Elsewhere
in the commissions, developments in two other cases also failed
to advance the trial system’s legitimacy. In the case of Ibrahim
al-Qosi, a Sudanese prisoner arraigned on November 19, the major
claim against him – that he was responsible for al-Qaeda’s
payroll in Khartoum, before Osama bin Laden and his entourage moved
back to Afghanistan in 1996 – has been dropped by the government,
and all that remains are claims that he worked at an al-Qaeda compound
from 1996 to 1998, that he fought “as an al-Qaeda mortar man
near Kabul from 1998 to 2001,” and that he sometimes worked
as a driver and bodyguard for bin Laden.

Moreover,
al-Qosi’s civilian lawyer, Lawrence Martin, has a take on his
client’s role, which, for the government, must sound uncomfortably
similar to that of Salim Hamdan. A Yemeni, and one of seven drivers
for bin Laden, Hamdan has just been repatriated
to serve out the last month of the meager
sentence he received in August, after his military jury threw
out the conspiracy charge against him, accepting that he knew
nothing about the workings of al-Qaeda. At al-Qosi’s arraignment,
Martin declared, “Mr. al-Qosi, far from being a war criminal,
was a cook,” adding, “He was not even a cook for bin Laden,
but a cook for a compound where bin Laden was sometimes a visitor.”

The other
arraignment on November 19 – that of Mohammed Hashim, another
Afghan prisoner – was even less justifiable. Hashim was charged
in June with spying for al-Qaeda in Afghanistan and conducting a
rocket attack on U.S. forces, even though he was, at best, a minor
Afghan insurgent. As in the cases of two
other
Afghans (in addition to Mohamed Jawad), it is difficult to work
out how the administration construes these charges as “war
crimes.” His case is complicated by the fact that his publicly
available testimony – which is sprinkled with implausible references
to his knowledge of the 9/11 attacks (via a member of the Northern
Alliance, the implacable enemies of both al-Qaeda and the Taliban),
his supposed relationship with Osama bin Laden and purported links
between al-Qaeda and Saddam Hussein – suggests that he either
has mental health problems, or has dreamt up the biggest lies possible
to secure more favorable treatment.

Despite all
these dubious developments, the most worrying sign that the commissions
continue to operate in a parallel reality also came on November
19, when Col. Lawrence Morris, the chief prosecutor, announced that
charges against Mohammed al-Qahtani, which were dropped without
explanation in May, were to be filed again, and that charges against
five other prisoners, which were dropped last month, would also
be filed again in the near future.

The case of
Mohammed al-Qahtani is one of the most shocking in the whole of
Guantánamo’s long and ignoble history. Regarded as the
proposed 20th hijacker for the 9/11 attacks, until he was turned
away by immigration officials in Orlando, Florida, al-Qahtani was
apparently being questioned by the FBI with some success (through
the old-school techniques favored by Dan Coleman), when the Pentagon,
in the fall of 2002, grew impatient with the FBI’s results.

After securing
approval from Defense Secretary Donald Rumsfeld for a range of “enhanced
interrogations techniques,” al-Qahtani was interrogated for
20 hours a day over a 50-day period in late 2002 and early 2003,
as Time magazine revealed in an interrogation log (PDF)
made available in 2005. The techniques used – beyond the persistent
sleep deprivation – included extreme sexual humiliation and
“forced grooming” (shaving his hair and beard), and he
was also threatened by dogs, strip-searched and made to stand naked,
and made to bark like a dog and growl at pictures of terrorists.
On one occasion he was subjected to a “fake rendition,”
in which he was tranquilized, flown off the island, revived, flown
back to Guantánamo, and told that he was in a country that
allowed torture.

In addition,
as I explained in my book The
Guantánamo Files, “The sessions were
so intense that the interrogators worried that the cumulative lack
of sleep and constant interrogation posed a risk to his health.
Medical staff checked his health frequently – sometimes as
often as three times a day – and on one occasion, in early
December, the punishing routine was suspended for a day when, as
a result of refusing to drink, he became seriously dehydrated and
his heart rate dropped to 35 beats a minute. While a doctor came
to see him in the booth, however, loud music was played to prevent
him from sleeping.”

Until Col.
Morris made his announcement, it had been widely presumed that the
charges against al-Qahtani had been dropped because – unlike
the interrogations in the secret CIA prisons in which Khalid Sheikh
Mohammed and other “high-value detainees” were held, which
can be excluded from their trials – the details of al-Qahtani’s
interrogations are not only publicly available, but were declared
to be “degrading and abusive” by a Pentagon inquiry in
2005 (PDF).

However, in
the parallel world of the military commissions, where the Bush administration’s
attempts to redefine torture are clearly still embraced with enthusiasm,
none of this seems to matter. Announcing his intention to charge
al-Qahtani again, Col. Morris declared, as the New
York Times explained, that “prosecutors had decided there
was ‘independent and reliable’ evidence that Mr. Qahtani
had been plotting with the Sept. 11 hijackers.”

Col.
Morris also declared his intention to file new charges against the
five prisoners whose charges
were dropped in October, which is almost as bewildering. When
the charges against Noor Uthman Muhammed, Ghassan al-Sharbi, Jabran
al-Qahtani, Sufyian Barhoumi and Binyam
Mohamed were dropped, it was widely assumed that this was because
their prosecutor, Lt. Col. Vandeveld, who had just testified for
the defense in Jawad’s case after turning against the government,
had more revelations about the machinations of the prosecutors that
would undermine their cases. This may well be true, especially in
relation to Binyam Mohamed, a British resident who was sent to Morocco
in 2002 so that proxy torturers could spend 18 months extracting
a false confession from him regarding his role in a non-existent
“dirty bomb” plot.

Mohamed is
currently involved in legal
wrangling over evidence of his rendition and torture in courts
on both sides of the Atlantic, and it is, therefore, yet another
sign of the commissions’ detachment from reality that Col.
Morris is planning to file new charges against him. What it demonstrates
above all, however, as with the case of Mohammed al-Qahtani, is
that Barack Obama will need to act swiftly and decisively after
January 20 if he is to demonstrate that, under his administration,
the use of torture – and of confessions obtained through torture
– will no longer be tolerated.

December
4, 2008

Andy
Worthington is the author of
The Guantánamo Files: The Stories of the 774 Detainees in
America’s Illegal Prison (published by Pluto Press).
Visit his website.

DIGG THIS

On Thursday,
in the U.S. District Court in Washington, D.C., Judge Richard Leon,
an appointee of President George W. Bush, delivered a major blow
to the outgoing administration's u201Cwar on terroru201D detention policies
by ordering the immediate release of five Algerian-born Bosnian
prisoners at Guantnamo, after concluding that the government had
provided no credible evidence that, as was alleged, the men intended
to travel to Afghanistan to take up arms against U.S. forces.

The case of
the Bosnian Algerians has long been one of the more surreal episodes
in Guantnamo's long and undistinguished history of wanton cruelty
and intelligence failures. The story
began (PDF) in October 2001, when the U.S. embassy in Sarajevo
asked the Bosnian government to arrest six men – Lakhdar Boumediene,
Mohammed Nechla, Hadj Boudella, Mustafa Ait Idr, Sabir Lahmar and
Belkacem Bensayah (all aged between 32 and 40) – because of
a suspicion that they were involved in a plot to bomb the U.S. embassy.
The Americans’ request took the form of a diplomatic note, which
contained no evidence to support the allegation, and the Bosnians
refused to comply until the Americans threatened to close their
embassy and withdraw peacekeeping forces unless the men were arrested.
Human-rights activist Srdjan Dizdarevic noted
that u201Cthe threats from the Americans were enormous. There was a
hysteria in their behavior.u201D

Unwilling
to defy the Americans, the Bosnians then arrested the men, but after
a three-month investigation, in which they conducted extensive searches
of their apartments, their computers and their documents, they found
u201Cliterally no evidenceu201D to justify the arrests. The Bosnian Supreme
Court ordered their release, and, with rumors circulating that the
Americans were going to seize them anyway, the Bosnian Human Rights
Chamber ruled that they had the right to remain in the country and
were not be deported. On the night of January 17, 2002, a huge crowd
of supporters gathered outside the prison in Sarajevo to protect
them on their release, but riot police dispersed the crowd with
tear gas, and at dawn, as the men emerged, they were seized by American
agents, hooded, handcuffed and rendered to Guantnamo.

After they
arrived in Guantnamo, the embassy plot was never mentioned. Instead,
the six men were subjected to relentless allegations that they were
associated with al-Qaeda. Although they had all traveled to Bosnia
during the 1992–95 civil war to fight on behalf of the oppressed
Muslim population, they were then granted citizenship, married Bosnian
women and spent the next six years working with orphans for various
Muslim charities, including the Red Crescent – and, in the
case of Lahmar, an Islamic scholar, the Saudi High Committee for
Relief – and maintained that they had no connections whatsoever
with terrorism.

When lawyers
were finally allowed to meet the men, following the Supreme Court's
ruling, in June 2004, that the Guantnamo prisoners had habeas corpus
rights (the right to ask a judge why they were being held), they
discovered that a possible source of the allegations against the
men was Lahmar’s embittered ex-brother-in-law, who had run a u201Csmear
campaignu201D against him. The only allegation that they were unable
to counter – because the U.S. authorities refused to substantiate
it – was that Bensayah had made 70 phone calls to Afghanistan
after the 9/11 attacks and was u201Cthe top al-Qaeda facilitatoru201D in
Bosnia.

On Thursday,
seven years and one month after the men were first arrested by the
Bosnian authorities, and six years and ten months after they were
cleared and then kidnapped by U.S. agents and flown to Guantnamo,
Judge Leon finally addressed the allegations against the men in
a U.S. courtroom. This unconscionable delay was the result of legislation
passed in the wake of the Supreme Court's habeas verdict in June
2004 (the Detainee Treatment Act of 2005 and the Military Commissions
Act of 2006), which purported to strip the prisoners of the habeas
rights upheld by the Supreme Court. It was not until June this year,
when the Supreme Court revisited the prisoners' rights, and ruled
that their habeas rights were constitutional, that the cases of
the Bosnian Algerians – and of most of the 255 prisoners still
held in Guantnamo – made their way to the District Court.

In his Memorandum
Opinion (PDF),
issued on November 20, Judge Leon's crucial verdict concerned the
government's allegation that the men had u201Cplanned to travel to Afghanistan
to take up arms against U.S. and allied forces,u201D and that this constituted
u201Csupportu201D of al-Qaeda under the definition of an u201Cenemy combatantu201D
that Judge Leon had decided
four weeks previously (it is a sign of the chaotic imprecision of
the government's detention policies that no single definition existed
until Leon ruled that an u201Cenemy combatantu201D is someone u201Cwho was part
of or supporting Taliban or al-Qaeda forces, or associated forces
that are engaged in hostilities against the U.S. or its coalition
partners. This includes any person who has committed a belligerent
act or has directly supported hostilities in aid of enemy armed
forcesu201D).

Countering
this, the prisoners contended that the government had u201Cnot shown
by a preponderance of the evidence that any of the petitioners planned
to travel to Afghanistan to engage U.S. forces, and, even if the
government had shown that petitioners had such a plan, a mere plan,
unaccompanied by any concrete acts, is not – as a matter of
law – u2018supporting' al-Qaeda within the meaning of the Court's
definition of u2018enemy combatant.'u201D

Ruling on
behalf of the prisoners, Judge Leon declared that the government
had u201Cfailed to show by a preponderance of the evidence that any
of the petitioners, other than Mr. Bensayah, either had, or committed
to, such a plan.u201D He explained that the government had relied u201Cexclusively
on the information contained in a classified document from an unnamed
source,u201D but stressed that this information – u201Cthe only evidence
in the record directly supporting each detainee's alleged knowledge
of, or commitment to, this supposed planu201D – was inadequate,
because, although the government had u201Cprovided some information
about the source's credibility and reliability,u201D it had not u201Cprovided
the Court with enough information to adequately evaluate the credibility
and reliability of this source's information.u201D As an example, Leon
pointed out that u201Cthe Court had no knowledge as to the circumstances
under which the source obtained the information as to each petitioner's
alleged knowledge and intentions.u201D He also noted that u201Cthe Court
was not provided with adequate corroborating evidence that these
petitioners knew of and were committed to such a plan,u201D and added,
with a clear note of regret, that u201Cdue to the classified nature
of government's evidence, I cannot be more specific about the deficiencies
of the government's case at this time.u201D

Judge Leon
also noted that, although the source's information was u201Cundoubtedly
sufficient for the intelligence purposes for which it was prepared,u201D
it was manifestly u201Cnot sufficientu201D as the basis for detaining the
men as u201Cenemy combatants.u201D Referring to Hamdi v. Rumsfeld (a case
dealing with the detention on the U.S. mainland of a U.S. citizen
initially held at Guantnamo, which was decided by the Supreme Court
in June 2004, at the same time as Rasul v. Bush, which granted the
prisoners habeas rights), he concluded, u201CTo allow enemy combatancy
to rest on so thin a reed would be inconsistent with this Court's
obligation under the Supreme Court's decision in Hamdi to protect
petitioners from the risk of erroneous detention.u201D

And then,
after sidestepping the question of whether committing to a plan
to travel to Afghanistan to fight U.S. forces would be enough to
constitute u201Csupportu201D for al-Qaeda, Judge Leon delivered the final
blow. Declaring that, u201Cbecause the government has failed to establish
by a preponderance of the evidence the plan that is the exclusive
basis for the government's claim that Messrs. Boumediene, Nechla,
Boudella, Ait Idr, and Lahmar are enemy combatants, the Court must,
and will, grant their petitions and order their release.u201D

There was,
however, some consolation for the government, as Judge Leon also
ruled that, in Belkacem Bensayah's case, the government had provided
u201Ccredible and reliable evidence,u201D from a number of sources, u201Clinking
Mr. Bensayah to al-Qaeda and, more specifically, to a senior al-Qaeda
facilitator,u201D and also stated, u201CThere can be no question that facilitating
the travel of others to join the fight against the United States
in Afghanistan constitutes direct support to al-Qaeda in furtherance
of its objectives and that this amounts to u2018support' within the
meaning of the u2018enemy combatant' definition governing this case.u201D

Even so, it
would scarcely be possible to underestimate how crucial Judge Leon's
verdict is in discrediting the government's basis for holding prisoners
for nearly seven years without charge or trial, for three particular
reasons: it assumes enormous symbolic resonance as the first habeas
case to be decided in a courtroom; it comes at a time when Barack
Obama's transition team is beginning to look at a review
of the Guantnamo cases; and it was delivered with some stern advice
for the government from Judge Leon himself.

Evidently
drawing on his disdain for the quality of the classified information
used to detain the five men for nearly seven years, Judge Leon implored
the Justice Department, the Defense Department and the intelligence
agencies not to appeal his verdict, which would u201Cat a minimum, constitute
another 18 months to two years of their lives.u201D He added, u201CIt seems
to me that there comes a time when the desire to resolve novel,
legal questions and decisions which are not binding on my colleagues
pales in comparison to effecting a just result based on the state
of the record.u201D

While I will
not be content with Judge Leon's ruling until Lakhdar Boumediene,
Mohammed Nechla, Hadj Boudella, Mustafa Ait Idr and Sabir Lahmar
have actually been released from Guantnamo and are reunited with
their wives and children, I am also obliged to draw the attention
of readers to the extraordinary brutality to which these men have
been subjected in the last six years and ten months, and to ask
if their release – when it comes – will be sufficient
to eradicate the administration's crimes.

As three British
prisoners – Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed, the
so-called u201CTipton Threeu201D – explained (PDF
) after their release from Guantnamo in 2004, the Bosnian Algerians
u201Cwere treated particularly badly. They were moved every two hours.
They were kept naked in their cells. They were taken to interrogation
for hours on end. They were short-shackled for sometimes days on
end. They were deprived of their sleep.u201D All the men were routinely
abused, but Mustafa Ait Idr seems to have been singled out for particularly
harsh punishment.

During one
cell search, u201Cguards stuffed his face into the toilet and repeatedly
pressed the flush button,u201D and on another occasion u201Ca garden hose
was pushed into his mouth and the water turned on until [it] came
out of his mouth and nose and he couldn't breathe.u201D During an assault
by the Extreme Reaction Force (ERF), a group of armored guards responsible
for dealing brutally with even the most minor infringements of the
rules, he had two knuckles broken, and was thrown onto crushed stones
while a man jumped on the side of his head with his full weight,
which led to him suffering a stroke that left one side of his face
paralyzed. Despite requesting a hospital visit after this assault,
he did not receive medical treatment for ten days.

Even
after the sleep deprivation, isolation and use of painful stress
positions came to an end, the men were not free from pointless interrogations
and false allegations. At the time I was writing my book, The
Guantnamo Files, new allegations had sprung up to plague
them, of which the most ludicrous was a claim that Hajj Boudella
was with Osama bin Laden during the Tora Bora campaign in Afghanistan
in November 2001, when of course, he was in jail in Sarajevo, but
the real reason that the men were still in Guantnamo was because
of the authorities' belief that they had ongoing intelligence value.

This was unexpectedly
revealed by Condoleezza Rice in March 2005, when she responded to
a request for their release from the Bosnian prime minister by stating
that it was not possible because u201Cthey still possess important intelligence
data,u201D and it was explicitly stated by Mustafa Ait Idr in the military
tribunal at Guantnamo in 2004 that concluded that he was being
correctly detained as an u201Cenemy combatant.u201D Ait Idr explained, u201CThe
interrogator told me I was there to give up informationu201D about Arabs
living in Bosnia, to which he replied, u201CThe story on the outside
was I was captured because of terrorism, and now here you are telling
me you want me to give up information about rescue organizations
and Arabs and how the Arabs are living.u201D

Judge Leon
may have done the right thing, but harvesting false allegations
and holding prisoners to mine them for their supposed intelligence
value remain an intrinsic part of the regime at Guantnamo, and
it is crucial that the government's supposed evidence is tested
as thoroughly in future habeas cases. The prisoners at Guantnamo,
who have always sought nothing more than a day in court, deserve
nothing less as the seventh anniversary of the opening of Guantnamo
approaches.

November
26, 2008

Andy
Worthington is the author of
The Guantánamo Files: The Stories of the 774 Detainees in
America’s Illegal Prison (published by Pluto Press).
Visit his website.

DIGG THIS

As
Barack Obama and his transition team begin looking at ways to fulfill
the President-elect’s relented,
ruling that the lawyers should be allowed to visit the block to
“inspect the defendant’s conditions of confinement as part
of an inquiry into his mental health.”

10) Mustafa
al-Hawsawi. A Saudi, who was captured with KSM, al-Hawsawi is
accused of sourcing funding for the 9/11 attacks from Dubai. In
his tribunal at Guantánamo, he admitted providing support
for jihadists, including transferring money for some of the 9/11
hijackers, although he denied that he was a member of al-Qaeda.
At the arraignment in June, it appeared that KSM and some of al-Hawsawi’s
other co-defendants put pressure on him to refuse the services of
his lawyer, Army Maj. Jon Jackson, but at the pre-trial hearing
in September Jackson was still arguing his client’s corner.
Explaining that his client “doesn’t understand about a
quarter of the court proceedings because of incomprehensible interpretation,”
he complained that the government had opposed a request for “transcripts
of each day’s proceedings to be made available in English and
Arabic so that they can go over each day’s events with their
clients and make corrections for the record,” adding, “I
could not believe my government would not provide transcripts in
the native language of the accused that it wants to put to death.”

11) Ali
Abdul Aziz Ali. Also known as Ammar al-Baluchi, he is a nephew
of KSM, and was captured in Pakistan with Walid bin Attash (see
below) in April 2003. In his tribunal at Guantánamo last
year, he admitted transferring money on behalf of some of the 9/11
hijackers, but insisted that he was a legitimate businessman, who
regularly transferred money for Arabs, without knowing what it would
be used for. At the arraignment and the pre-trial hearing, he has
spoken little, but has demonstrated a firm command of English, and
a desire to highlight the inadequacies of the system and his torture
at the hands of U.S. forces. At the arraignment, he responded to
Col. Kohlmann’s assurance of his right to legal assistance
by stating, “Everything that has happened here is unfair and
unjust,” and added, referring specifically to the offer of
free legal representation, “Since the first time I was arrested,
I might have appreciated that. The government is talking about lawyers
free of charge. The government also tortured me free of charge all
these years.”

12) Walid
bin Attash. A Saudi, who lost a leg in Afghanistan before 9/11,
bin Attash stated in his tribunal at Guantánamo that he was
the link between Osama bin Laden and the Nairobi cell during al-Qaeda’s
African embassy bombings in 1998, and admitted that he played a
major part in the bombing of the USS Cole in 2000, explaining
that he “put together the plan for the operation for a year
and a half,” and that he bought the explosives and the boat,
and recruited the bombers. Like KSM and Ali Abdul Aziz Ali, he has
chosen to represent himself, although he is able to take advantage
of the assistance of attorneys. In early October, Col. Kohlmann
ruled
that the men should be provided with “enough battery power
to use their prison camp laptops [which contain the government’s
unclassified evidence against them] 12 hours a day,” but stopped
short of allowing them to “surf the Internet.”

Initially
charged with the five men above, Mohammed al-Qahtani, a Saudi who
was reportedly intended to be the 20th hijacker for the 9/11 attacks,
but was refused entry into the United States by immigration officials,
was tortured for several months at Guantánamo in late 2002
and early 2003. The charges against him were dropped
in May, when the others were formally charged, either because evidence
of his torture is admissible (whereas that obtained in secret prisons
by the CIA is not), or because of a pronounced deterioration in
his mental health since he was first charged, which led to a number
of suicide
attempts. It is unlikely that he will be charged again.

13) Ahmed
Khalfan Ghailani. A Tanzanian, and one of the 14 “high-value
detainees” transferred to Guantánamo from secret CIA
prisons in September 2006, Ghailani, who was captured after a gun
battle in Gujrat, Pakistan in July 2004, is accused
of being a coordinator of the African embassy bombings, and of running
a document-forging operation for al-Qaeda in Afghanistan. In his
tribunal, he described himself as a peripheral character in the
African embassy bombings, who was duped by others around him, although
he admitted forging documents for al-Qaeda in Afghanistan.

On October
22, Ghailani was formally arraigned. Judy Rabinovitz, an observer
for the American Civil Liberties Union, reported
that the occasion “was not particularly enlightening,”
and that the judge “essentially followed a script,” advising
Ghailani that he had “a right to obtain civilian counsel in
addition to his assigned military counsel,” and “repeatedly
asking [him] if he understood what was going on.” A trial date
is scheduled for February 2009. As Rabinovitz also noted, Ghailani
was indicted in the United States ten years ago for the same crimes
with which he is now being charged, “and several of his co-defendants
in the federal proceedings have already been convicted
and sentenced,” whereas Ghailani faces a dubious trial
following years of mistreatment in secret CIA custody.

14) Mohammed
Kamin. An Afghan seized in 2003, Kamin’s case is one of
the more farcical cases put forward for trial. He is not charged
with harming, let alone killing U.S. forces, and is, instead, accused
of receiving training at “an al-Qaeda training camp.”
For his arraignment
in May, he refused to leave his cell, and was dragged to the court
by guards, arriving with bruises, cuts and a swollen eye. The judge,
Air Force Col. W. Thomas Cumbie, explained that he was handcuffed
and shackled because he had “attempted to spit on and bite
one of the guards” on his way to the courtroom. Kamin then
refused to be represented by a U.S. military lawyer, and called
the charges “a lie and a forgery.”

On October
23, a pre-trial hearing took place, although Kamin was not present.
Judy Rabinovitz noted,
“The officer who had been responsible for bringing him to court
said that when she went to Kamin’s cell to notify him of the hearing,
he ripped up the notice, began kicking and hitting the cell door
and stated that he was innocent and it was President Bush who should
be on trial.” She added that a prosecution motion “to
compel Kamin’s presence by ‘forcibly extracting’ him from
his cell was denied after defense lawyers objected on the grounds
that it would put Kamin and others at risk,” although it was
clear that the motion was denied in particular because the judge
did not want a repeat of May’s proceedings.

The rest of
the hearing was farcical. Rabinovitz explained that a mental status
evaluation had found that Kamin was competent to participate in
the proceedings, even though the two military doctors “had
never met or observed the defendant,” and one, Col. Elspeth
Cameron Ritchie, “has been criticized for assisting in the
interrogation process.” As with other cases – including
that of Omar Khadr – the defense sought to appoint an independent
psychiatric expert, a proposal which was vigorously opposed by the
prosecution, and also raised the issue of obstruction, which was
timely, in the wake of Lt. Col. Vandeveld’s resignation. Although
they accused the intelligence agencies of a “systemic failure”
to cooperate with their requests for discovery, and asked the judge
to dismiss the case, “as a sanction for the government’s failure
to comply with the discovery process in a timely manner, but also
as a deterrent to the intelligence agencies that continue to drag
their feet, jeopardizing the integrity of the process,” the
judge refused.

15) Mohammed
Hashim. Another minor Afghan insurgent (at best), Hashim was
charged
in June with spying for al-Qaeda in Afghanistan and conducting a
rocket attack on U.S. forces. As with the case of Mohammed Kamin,
it is difficult to work out how the administration construes these
charges as “war crimes,” and in Hashim’s case this
is complicated by the fact that his publicly available testimony
– which is sprinkled with implausible references to 9/11, Osama
bin Laden and links between al-Qaeda and Saddam Hussein – suggests
that he either has mental health problems, or has dreamt up the
biggest lies possible to secure more favorable treatment. Despite
this, Susan Crawford approved the charges against Hashim on October
21.

16) Abdul
Rahim al-Nashiri. A Saudi, and another of the 14 “high-value
detainees” transferred to Guantánamo from secret CIA
prisons in September 2006, al-Nashiri, who was seized in the United
Arab Emirates in November 2002, was charged
at the start of July for his alleged role in the attacks on the
USS The Sullivans and the USS Cole in 2000, and the
French tanker Limburg in 2002. What will undoubtedly complicate
his case, should it come to trial, is the fact that he is one of
three “high-value detainees” whom CIA director Michael
Hayden admitted had been subjected to waterboarding in secret CIA
custody, and in his tribunal at Guantánamo last year he made
a point of mentioning that he had made up false confessions after
being tortured. “From the time I was arrested five years ago,”
he said, “they have been torturing me. It happened during interviews.
One time they tortured me one way, and another time they tortured
me in a different way. I just said those things to make the people
happy. They were very happy when I told them those things.”

17) Abdul
Ghani. Yet another minor Afghan insurgent, Ghani was charged
at the end of July with firing rockets at U.S. forces, planting
“land mines and other explosive devices on more than one occasion
for use against U.S. and coalition forces,” attacking Afghan
soldiers, and “accept[ing] monetary payments, including payment
from al-Qaeda and others known and unknown, to commit attacks on
U.S. forces and bases.” As I wrote at the time, “Apart
from the inclusion of the magic words ‘al-Qaeda,’ there
was nothing in Abdul Ghani’s charge sheet to indicate that
he should find himself in the same trial system as those accused
of involvement in the 9/11 attacks, the African embassy bombings
of 1998 or the bombing of the USS Cole in 2000, or even,
in fact, that he should have been sent to Guantánamo at all.”

18) Obaidullah.
If anything, the case against Obaidullah, another Afghan, is even
less explicable. In September, he was charged
with hiding explosives, which he “knew or intended” would
be “used in preparation for and in carrying out a terrorist
attack.” The charges were astonishing, because he was not actually
accused of attacking U.S. forces, and, according to the transcripts
of his tribunal and review boards at Guantánamo, he made
it clear that he had come up with false confessions while being
threatened by U.S. forces in a prison at the airport in Khost, in
eastern Afghanistan.

19) Faiz
al-Kandari. The first of two Kuwaitis to be put forward for
trial, al-Kandari was charged
with conspiracy and providing material support for terrorism on
October 22. Seized during the Tora Bora campaign in December 2001,
when members of al-Qaeda and the Taliban were holed up in the Afghan
mountains near Pakistan, and numerous other civilians were attempting
to flee the chaos of war, al-Kandari has always maintained that
he traveled to Afghanistan to provide humanitarian aid, but is accused
or providing instruction to al-Qaeda members and trainees at the
al-Farouq camp (the main training camp for Arabs), serving as an
adviser to Osama bin Laden, and producing “recruitment audio
and video tapes which encouraged membership in al-Qaeda and participation
in jihad,” even though he only arrived in Afghanistan a month
before the 9/11 attacks.

20) Fouad
al-Rabia. Also charged
with conspiracy and providing material support for terrorism, al-Rabia,
a businessman – and a father of four who was 42 years old when
he was seized – is accused of raising funds for al-Qaeda, and
being “in charge of an al-Qaeda supply depot at Tora Bora,”
where he “distributed supplies to al-Qaeda fighters.”
He has never denied meeting Osama bin Laden, but has explained that,
as a good Muslim who undertook humanitarian aid missions every year,
he was introduced to bin Laden in 2001 while visiting Afghanistan
to research the opportunities for proving aid to the region.

He has also
explained that he only ended up in Tora Bora as part of a vast exodus
of people – civilians like himself, as well as members of al-Qaeda
and the Taliban – who were fleeing the chaos of Afghanistan
after the U.S.-led invasion of October 2001, but had conceded that
a senior figure in al-Qaeda forced him to look after the “issue
counter,” where supplies – food and blankets, rather then
weapons – were being handed out, in exchange for arranging
for him to leave the mountains, when he was promptly sold by local
villagers to the Northern Alliance.

In
conjunction with the continuing setbacks described above, the one-sided
show trial of Ali Hamza al-Bahlul, investigations into the alleged
misconduct of the commissions’ former legal adviser (described
here),
and the continuing threat to the credibility of the system that
is posed by Lt. Col. Vandeveld, the latest charges do nothing to
suggest that the life of the military commissions should be extended
beyond January 20, 2009.

President
Obama should press Congress to repeal the Military Commissions Act,
as he promised, and should rapidly establish an objective and intelligent
body capable of reviewing the cases of those facing (or scheduled
to face) trial by military commission, stripping out the juveniles
and insignificant Afghan insurgents (who should be freed) from those
regarded as genuinely dangerous terrorists involved with al-Qaeda
and/or the 9/11 attacks, who should be moved to the U.S. mainland
to face trials in federal courts.

After the
crimes of the Bush years, no solution is perfect (and these trials
will inevitably involve a messy compromise over the use of torture),
but I can see no other practical solution. Talk of moving prisoners
to the federal court system has already provoked
a rash of commentators to step forward and talk about the need for
new legislation creating another new trial system or providing a
mandate for special “preventive detention” for “terror
suspects,” but all such innovations should be resisted. I can
only wonder how it is that those proposing such ideas have managed
to learn nothing at all from the abuse of the Constitution over
the last seven years.

November
18, 2008

Andy
Worthington is the author of
The Guantánamo Files: The Stories of the 774 Detainees in
America’s Illegal Prison (published by Pluto Press).
Visit his website.

DIGG THIS

When is a child
not a child? Apparently, when he is Omar
Khadr, a 15-year-old Canadian who was shot in the back after
a firefight in Afghanistan in July 2002. Omar has been in U.S. custody
ever since, first at a prison at Bagram airbase in Afghanistan,
and for the last six years in Guantánamo. Disturbingly, he
has never received any treatment befitting his status as a juvenile
– someone under the age of 18 when the crime he is accused
of committing took place – even though the United States is
a signatory to the Optional Protocol to the UN Convention on the
Rights of the Child (on the involvement of children in armed conflict),
which stipulates that juvenile prisoners “require special protection.”
The Optional Protocol specifically recognizes “the special
needs of those children who are particularly vulnerable to recruitment
or use in hostilities,” and requires its signatories to promote
“the physical and psychosocial rehabilitation and social reintegration
of children who are victims of armed conflict.”

Shamefully,
the United States is not the only country to turn its back on the
Optional Protocol in the case of Omar Khadr. As his lawyers never
tire of pointing out, Omar is the only citizen of a Western country
still held at Guantánamo, in part because the Canadian government
has persistently failed to exert sufficient pressure on U.S. authorities
to secure his return to Canada. This is particularly shocking, because,
as well as also being a signatory to the Optional Protocol, the
Canadian government has been a pioneer when it comes to the rehabilitation
of child soldiers from other countries (Sierra Leone, for example).

Sadly, Canada’s
disregard for Omar’s fate stems largely from his family background.
His father, who was killed in a firefight in Pakistan in October
2003, was a fundraiser for the mujahideen who had fought the Soviet
Union in Afghanistan, and was also close to Osama bin Laden, and
he regularly ferried his entire family – his wife, his daughter
and his four sons, including Omar – to Afghanistan and Pakistan
as they were growing up. Nevertheless, the rules on the treatment
of juveniles are clear, and they do not include opt-out clauses
based on condemning children for the sins (or perceived sins) of
their family. In fact, the opposite is true, as the Protocol’s
recognition of “the special needs of those children who are
particularly vulnerable to recruitment or use in hostilities”
demonstrates.

In Canada’s
defense, it is obviously difficult to secure the release of prisoners,
like Omar, who are regarded as so significant by the U.S. administration
that they have been put forward for trial by Military
Commission (the much-criticized system of trials for “terror
suspects” that was conceived in the Office of Vice President
Dick
Cheney in November 2001). Even so, it took the Canadian government
many years to fulfill its most basic obligations to Omar, by sending
officials to visit him in Guantánamo on “welfare visits.”

At first,
as was revealed this summer, the Canadians who visited Omar in Guantánamo
were largely unconcerned with his welfare. As the result of a decision
in May by the Supreme Court of Canada and a decision in June by
the Federal Court of Canada, videotapes were released
showing his interrogation by representatives of Canada’s Air
Force Office of Special Investigations, which visited Omar in February
2003, when he was just 16.

The release
of the tapes was a PR disaster for the Canadian government, as they
showed Omar displaying his wounds, weeping uncontrollably, and pulling
at his hair in despair, while the interrogators remained largely
indifferent to his suffering, quizzing him about his father and
al-Qaeda, and noting afterwards that his allegations of torture
at the U.S. prison in Bagram, which have subsequently been verified
by numerous sources, “did not ring true.”

The Canadian
“welfare visits”

Last week,
however, the Canadian government was shown in a more positive light
when Michelle Shephard of the Toronto
Star wrote an article drawing on reports of eight “welfare
visits” by representatives of the government’s Foreign
Affairs Department – one in 2006, two in 2007, and five this
year – which were made public by Omar’s Canadian lawyers,
Dennis Edney and Nathan Whitling, as part of their lawsuit against
the federal government, and were aimed at forcing the government
to demand Omar’s repatriation.

As Shephard
reported, Omar’s “incarceration in 2006 and 2007 was some
of the worst he faced,” as he was isolated in Camps 5 and 6,
modeled on blocks in maximum-security prisons on the U.S. mainland.
As a result, his lawyers “worried he was suicidal.” Shorn
of interaction with other people, and of any kind of emotional,
psychiatric or medical support, he had become paranoid, believing
that his American lawyers were working for the U.S. government.

He also complained
about the quality of the food (a recurring complaint), and about
health problems that were not being addressed, including the authorities’
refusal to give him sunglasses, even though he is blind in his left
eye because of shrapnel, and his vision is “gradually deteriorating
in his right eye because of a piece of shrapnel embedded in the
eye’s membrane,” and stated that he “would like to
see the interrogators again because they give him books, magazines,
crayons, movies etc.” Although he also recognized that there
was “a risk in meeting with the interrogators” because
“they can exploit information they get out of him,” he
regularly referred to the privileges – “whole piles of
chips; candies etc.” – that prisoners who were cooperating
in their interrogations received.

He also stated
that he “feels the guards hate him,” and, in a sign that
the lack of psychiatric care was having a profound effect on him,
reported that “he sleeps a lot but it is messed up. He sleeps
during the day and is awake during the night. He still has nightmares
about the events in Afghanistan and his father.” In a sign
of the severity of his isolation, a member of staff, whose name
was redacted, “suggested that the [Canadian] Prime Minster
inquire about Omar’s solitary confinement with President Bush.”

By the time
of a visit in August 2007, Omar’s situation had clearly improved,
as he had been moved to Camp 4, the only part of the prison with
communal facilities, where the privileged prisoners slept five to
a room, the doors to their “pods” were open in the daytime,
and they were allowed two hours of recreation every day. The visitor
noted that Omar had “been sleeping well since he has been doing
more activities,” but he still complained of medical neglect,
and it was also obvious that he was still not receiving psychiatric
support, as he stated that the nightmares were returning, and that
they “were identical as before: Captivity, running, trauma
of Afghanistan. He dreams of his father as well.”

Throughout
the rest of the visits, from November 2007 to June 2008, the reports
include examples of a handful of privileges that clearly meant a
lot to Omar. He had become an avid reader, for example, and thought
that Harry
Potter and the Deathly Hallows was “the best book he
had ever read.” There were also poignant interludes, such as
the time that the screens were taken off the perimeter fence during
Hurricane Noel, and the prisoners “could see their surroundings,
the hills and the ocean.” “I could even see cars moving
around, it was great,” Omar said, adding, “This is really
a very beautiful place.”

There were
also clear examples of his immaturity – pre-trial hearings
for his Military Commission proceeding were taking place at this
time, but he found them “boring” – and many moments
of pointless obstruction on the part of the authorities, such as
when he was prohibited from keeping “flexible pens in his cell”
(unlike the prisoners who were cooperating in their interrogations),
so that he could not “write and draw when he wants to.”

In addition,
the visitor in March this year remarked on her inability to understand
why he was prevented from having, “inter alia, a pillow, an
extra blanket, Velcro shoes, [an] Origami book and sheets, flexible
pens and a warm covering for court,” where, it was noted, the
room was “freezing cold.” A partial – and stupefying
– reply came in April, when the visitor was told that “pillows
were only handed out as incentives for detainees being interrogated
and that since Mr. Khadr had lawyers and was no longer subject to
interrogation, he was not eligible for one.”

Above all,
however, what leaps out from the reports is the fact that Omar’s
desire for education is not being met by the authorities. Although
his Canadian visitors were regularly bringing him books on English,
math and science, he was often struggling to study without supervision.
The only classes belatedly provided (for prisoners in Camp 4 only)
were basic English (which was useless for Omar) and classes in Arabic
and Pashto, but as the visitor in April noted, “Although there
is a classroom … there are currently no teachers.”

What the Guantánamo
doctors proposed

But while
these are fascinating reports, what has not been remarked upon is
another document, filed alongside the reports of the “welfare
visits” on the Star’s Omar
Khadr page, which serves as a succinct condemnation of the administration’s
policies towards juvenile prisoners at Guantánamo –
not just Omar, but the 21 other prisoners that the Pentagon’s
own records reveal were also juveniles at the time of their capture.
Entitled “Recommended Course of Action for Reception and Detention
of Individuals Under 18 Years of Age,” this document (PDF),
dated 14 January 2003, was put together by four doctors at Guantánamo,
and was clearly an adaptation of an earlier document, as it includes
passages deleted or amended by the authors, relating to its specific
use at Guantánamo.

The doctors’
document began by noting, “All efforts should be made to keep
those in the pediatric age range [those under 18] from undergoing
detention at Guantanamo Bay, Cuba,” and pointing out, “People
less than age 18 years are emotionally, psychologically, and physically
dynamic and complex. If it is determined that they must be detained,
then all aspects of their transport, in-processing, and detainment
should be specific for this age group.” They added, as a stark
warning, “Exposure of pediatric detainees to adult detainees
will have a high likelihood of producing physical, emotional, and
psychological damage to the pediatric detainee. As such, all activities
of the pediatric detainee, prior to and including detention, should
be isolated by sight and sound from the adult population of detainees.”

The rest of
the seven-page document spells out these requirements in painstaking
detail. Several sections are of particular interest: one which explains
“Residence Specifications,” and others laying out the
educational and nutritional needs of juvenile prisoners. The doctors
advised, for example, that juvenile prisoners should be provided
with “a primary living space with a minimum space of 20ft by
30ft,” that their beds should have a thick mattress, several
sheets and two blankets, that an “open, outside recreation
area,” measuring at least 50ft by 50ft, should be “easily
accessed from the primary living space area,” and that they
“should be allowed to play in the recreation area a minimum
3 hours per day.” That added that, if more than one juvenile
is held, “Limited, closely observed interaction … would likely
be allowed.”

When it came
to the educational needs of juvenile prisoners, the doctors advised
that a “designated educator should be assigned to each pediatric
detainee for a minimum of 4–6 hours per day for educational
pursuits,” and that, outside these times, a psychiatric technician
should be assigned “to assist in socialization and other constructive
activities.” They also advised that interpreters should be
available 24 hours a day, and that they should be “present
on site to maximize communication and to minimize confusion of the
pediatric detainee to his/her circumstances,” and also advised
that a pediatrician or family physician, a pediatric psychiatrist/psychologist,
a social worker (“experienced with children”), an audiologist,
a speech therapist, a development pediatrician, and an occupational/physical
therapist might also need to be available, and concluded that all
personnel “should refrain from wearing military uniforms and
utilize appropriate civilian attire.”

And finally,
the doctors advised that a nutritionist “should be available
for evaluation of each pediatric patient and implementation of a
nutritional plan,” and that a “minimum of three well balanced
meals and two snacks should be made available to all paediatric
detainees daily in order to facilitate normal growth and development.”

“These
are not children”

Clearly, as
is demonstrated by Omar’s history in Guantánamo, the
doctors’ recommendations were ignored by those higher up the
chain of command, despite their obvious enthusiasm for the plans.
As they wrote at the very start of the document, under the heading,
“Objective,” their assumption was that the “Recommended
Course of Action” would become a “SecDef directive”
(a directive from Donald Rumsfeld, the Secretary of Defense). Although
they noted that their advice regarding educational programs was
“more onerous than GCIII [the Geneva Conventions] requires
for pediatric detainees fifteen and above,” because “GCIII
only pertains to children under the age of fifteen,” they can
have had no idea that, with the exception of three Afghans aged
between 11 and 14 at the time of capture, who were given some kind
of appropriate treatment before their release in January 2004, none
of the other juveniles received any benefit from their advice.

As far as
the administration was concerned, the age of the Guantánamo
prisoners was completely irrelevant. This was confirmed by Donald
Rumsfeld at a press conference in May 2003, after the story first
broke that juveniles were held at Guantánamo, when he stated,
“This constant refrain of ‘the juveniles,’ as though
there’s a hundred children in there – these are not children,”
and General Richard Myers, the chairman of the Joint Chiefs of Staff,
added that they “may be juveniles, but they’re not on
the Little League team anywhere. They’re on a major league
team, and it’s a terrorist team, and they’re in Guantánamo
for a very good reason – for our safety, for your safety.”

Today,
as two of the former juveniles – Omar Khadr and the Afghan
Mohamed
Jawad – face trials by Military Commission, the administration’s
disregard for the Geneva Conventions remains as clear as ever –
and its disdain for the Optional Protocol, with its requirement
to rehabilitate children caught up in war, is so pronounced that
it has never even been mentioned. Instead, the gulf between the
doctors’ recommendations and the administration’s actions
demonstrates, with an appalling clarity, what happens when a rogue
administration, devoted to unfettered executive power, refuses to
be bound by the law.

What makes
this conclusion particularly bleak is that Omar, described by the
military as “non-radicalized” and a “good kid,”
has stated that he is “in Guantánamo because of his
family,” and that he “wants to train for a job which will
allow him to play a useful role in society by helping others,”
but has also “expressed concerns about having spent his formative
years (in reference primarily to his time in Guantánamo Bay)
surrounded by only adults, some of whom he saw as good and some
as bad.” Or, as another military figure put it, “extended
detention in Guantánamo [runs] the risk of turning him into
a radical.”

October
22, 2008

Andy
Worthington is the author of
The Guantánamo Files: The Stories of the 774 Detainees in
America’s Illegal Prison (published by Pluto Press).
Visit his website.