(Left to right) Senators Joseph Lieberman, Carl Levin, chair, Senate Armed Services Committee, and John McCain. The controversial provisions in the National Defense Authorization Act were hatched in secret by Levin and McCain. Army photo by D. Myles Cullen

The shameful dinosaurs of the Senate — hopelessly out of touch with reality, for the most part, and haunted by specters of their own making — approved, by 93 votes to 7, the passage of the National Defense Authorization Act (PDF), which contains a number of astonishingly alarming provisions — Sections 1031 and 1032, designed to make mandatory the indefinite military detention of terror suspects until the end of hostilities in a “war on terror” that seems to have no end (if they are identified as a member of al-Qaeda or an alleged affiliate, or have planned or carried out an attack on the United States), ending a long and entirely appropriate tradition of trying terror suspects in federal court for their alleged crimes, and Sections 1033 and 1034, which seek to prevent the closure of Guantánamo by imposing onerous restrictions on the release of prisoners, and banning the use of funds to purchase an alternative prison anywhere else. I have previously remarked on these depressing developments in articles in July and October, as they have had a horribly long period of gestation, in which no one with a grip on reality — and admiration for the law — has been able to wipe them out.

The four sections are connected, as cheerleaders for the mandatory military detention of terror suspects want them to be sent to Guantánamo, and have done, if I recall correctly, at least since Umar Farouk Abdulmutallab, the failed Christmas plane bomber in 2009, was arrested, read his Miranda rights, and interrogated by the FBI. Recently, Abdulmutallab, who told his interrogators all they wanted to know without being held in military custody — and, for that matter, without being tortured, which is what the hardcore cheerleaders for military detention also want — was tried and convicted in a federal court.

Hundreds of other terror suspects have been successfully prosecuted in federal court, throughout the Bush years, and under Obama, but supporters of military custody like to forget this, as it conflicts with their notions, held since the aftermath of 9/11 and the Bush administration’s horrendous flight from the law, that terrorists are warriors. Underpinning it all is the Authorization for Use of Military Force (AUMF), the founding document of the “war on terror,” passed the week after the 9/11 attacks. This authorizes the President to pursue anyone, anywhere who he thinks was involved in the 9/11 attacks, and it is a dreadfully open-ended excuse for endless war whose repeal I have long encouraged, but which some lawmakers have been itching to renew, even after the death of Osama bin Laden, and the obvious incentives for the winding-down of the ruinous, decade-long “war on terror.”

The fundamental opposition to the provision for the mandatory military custody of terror suspects

Depressingly, when it came to passing the Act, the world was treated to the unedifying spectacle of lawmakers arguing about whether the existing law — the AUMF, plus the Supreme Court’s 2004 ruling in Hamdi v. Rumsfeld that it authorizes detention until the end of hostilities — actually applies to Americans, and whether, on that basis, this new legislation does too. Their compromise was that it would authorize whatever already exists, which only made them look rather stupid, frankly. For evidence, check out this comment from Sen. Carl Levin,  as mentioned in the New York Times. “We make clear that whatever the law is, it is unaffected by this language in our bill,” he said.

However, one of the even more extraordinary things about the Senate’s custody provisions is not only that they are a mangled, scrambled mess, but also that no one who will be required to obey them wants anything to do with them. The executive branch, the military, the FBI and the CIA — no one asked for this new policy. As Spencer Ackerman noted for Wired:

Defense Secretary Leon Panetta opposes the maneuver. So does CIA Director David Petraeus, who usually commands deference from senators in both parties. Pretty much every security official has lined up against the Senate detention provisions, from Director of National Intelligence James Clapper to FBI Director Robert Mueller, who worry that they’ll get in the way of FBI investigations of domestic terrorists.

Also opposing the bill’s unwanted provisions are Department of Defense General Counsel Jeh Johnson, Obama Counterterrorism adviser John Brennan, 16 former interrogators and counterterrorism professionals, and 26 retired military leaders who, on Tuesday, urged Senators to support an amendment by Sen. Mark Udall, backed by Sen. Jim Webb, to strip all the troublesome provisions from the legislation (and also see Sen, Udall’s eminently sensible Washington Post op-ed). Despite this, the Udall amendment was defeated by 61 votes to 37 (with 16 Democrats voting against the amendment — see the breakdown of votes here).

In addition, President Obama has threatened to veto the bill, although whether he will remains to be seen. The mandatory military custody provisions, after all, have a get-out clause, as Andrew Cohen noted for the Atlantic a month ago, when he wrote:

Section 1032, to be applied in concert with Section 1031, contains a mandatory detention requirement for anyone “determined” (by the military) to be a member of al-Qaeda or its affiliates. It allows the executive branch, however, to “waive” this requirement by having the “Secretary of Defense … in consultation with the Secretary of State and the Director of National Intelligence” submit to Congress a written certificate that the waiver is in the “national security interests of the United States.” The executive branch, in other words, would practically have to do a song-and-dance on Capitol Hill to prosecute a terror suspect in civilian court.

Obama, of course, is no great defender of due process, as he had Osama bin Laden killed in a Wild West style and also approved the execution without any kind of charge or trial of Anwar al-Awlaki, an American citizen, in Yemen, where he was producing irritating jihadist material in English on the Internet. However, it seems likely that his defense secretary, Leon Panetta, will indeed be forced to jump through hoops if the custody provisions are not removed.

I honesty find it hard to believe that these proposals even made it as far as they did, especially as Sen. Carl Levin was involved in drafting the legislation with the usual deranged suspects — Sens. John McCain, Lindsey Graham and Joe Liebermann — plus torture advocate Sen. Kelly Ayote, who attempted to specifically reintroduce torture as official US policy in her own deranged bill, which was recently defeated. Astonishingly, the Senate Armed Services Committee, where this toxic brew was created, conjured it up in secret, which did not go down well with some of the lawmakers’ colleagues. Although Senate Majority Leader Harry Reid initially found his spine and spoke up against it, he soon remembered that it is his job to cave in on matters of importance, which he duly did, although others were not so easily swayed.

Vermont Sen. Patrick Leahy, as Andrew Rosenthal explained in the New York Times, noted with horror that the provisions were “hashed out behind closed doors without consultation with his committee [he is the chairman of the Senate Judiciary Committee], or the Intelligence Committee, or the Defense Department, the FBI or the intelligence community.” In addition, as Andrew Cohen explained:

Leahy, and California’s Dianne Feinstein, chairwoman of the Senate Select Committee on Intelligence, wrote Sen. Reid a letter requesting that the controversial provisions be removed from the NDAA. “We concur with the Administration’s view that mandatory military custody is ‘undue and dangerous,’” they wrote, “and that these provisions would ‘severely and recklessly undermine’ our Nation’s counterterrorism efforts.”

The provisions relating to Guantánamo and why they are also important

However, while a host of critics are lined up against the mandatory military custody aspects of the bill, far less attention, unfortunately, has been paid to the provisions preventing the closure of Guantánamo. As Andrew Cohen lamented a month ago, “I think Section 1034 [banning the use of any funds to buy an alternative prison] may be the worst of the lot — a triumph of fear and prejudice over pragmatic solutions. But it doesn’t appear to have raised the hackles of even those senators who are opposed to some of the other provisions. Go figure.”

Go figure, indeed. It may, perhaps, be slightly cynical of me to note that the story of Guantánamo involves foreigners and that Americans only wake up in any kind of numbers when legal monstrosities might apply to American citizens, but there does appear to be some truth in it. If it could be demonstrated that no American could possibly end up in mandatory military custody as a result of the Senate’s mad provisions, I would be prepared to wager that hardly any Americans would bat an eyelid.

As it is, I can only hope that the two sections relating to Guantánamo, and two other sections specifically criticized by the President’s advisors (in which Congress demanded detainee reviews from the executive branch) are subjected to a veto. To make it clear, Section 1033 (which ramps up unjustifiable restrictions already implemented by lawmakers) is entitled, “Requirements for certifications relating to the transfer of detainees at United States Naval Station, Guantánamo Bay, Cuba, to foreign countries and other foreign entities,” and it stipulates that no transfer out of Guantánamo will be allowed “if there is a confirmed case of any individual who was detained at [Guantánamo] who was transferred to such foreign country or entity and subsequently engaged in any terrorist activity.”

As noted above, Section 1034 (which repeats previous bans imposed by lawmakers) is entitled, “Prohibition on use of funds to construct or modify facilities in the United States to house detainees transferred from United States Naval Station, Guantánamo Bay, Cuba,” prevents the closure of Guantánamo by stopping the President from buying or modifying an alternative facility elsewhere, and then there are the two other provisions, both new, and both largely unnoticed.

Section 1035, entitled, “Procedures for periodic detention review of individuals detained at United States Naval Station, Guantánamo Bay, Cuba,” requires the Secretary of Defense “to submit a report to Congress for implementing the periodic review process” established in the executive order of March this year, which, outrageously, authorized the indefinite detention without charge or trial — but with periodic reviews — of 46 of the remaining 171 prisoners, on the unacceptable basis that they were too dangerous to be released, but that there was insufficient evidence to put them on trial.

Section 1036, entitled, “Procedures for Status Determinations,” states that, “Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth the procedures for determining the status of persons detained pursuant to the Authorization for Use of Military Force (Public Law 107–40) for purposes of section 1031″ — meaning that it is supposed to establish, to the satisfaction of Congress, who will be subjected to mandatory military custody.

The response of the President’s Office, in its letter threatening a veto, spells out the administration’s opposition to these sections, and is of interest. The President’s advisors noted:

The certification and waiver, required by section 1033 before a detainee may be transferred from Guantánamo Bay to a foreign country, continue to hinder the Executive branch’s ability to exercise its military, national security, and foreign relations activities. While these provisions may be intended to be somewhat less restrictive than the analogous provisions in current law, they continue to pose unnecessary obstacles, effectively blocking transfers that would advance our national security interests, and would, in certain circumstances, violate constitutional separation of powers principles. The Executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.

Section 1034′s ban on the use of funds to construct or modify a detention facility in the United States is an unwise intrusion on the military’s ability to transfer its detainees as operational needs dictate.

Section 1035 conflicts with the consensus-based interagency approach to detainee reviews required under Executive Order No. 13567, which establishes procedures to ensure that periodic review decisions are informed by the most comprehensive information and the considered views of all relevant agencies.

Section 1036, in addition to imposing onerous requirements, conflicts with procedures for detainee reviews in the field that have been developed based on many years of experience by military officers and the Department of Defense.

The President’s advisors concluded:

In short, the matters addressed in these provisions are already well regulated by existing procedures and have traditionally been left to the discretion of the Executive branch.

Broadly speaking, the detention provisions in this bill micromanage the work of our experienced counterterrorism professionals, including our military commanders, intelligence professionals, seasoned counterterrorism prosecutors, or other operatives in the field. These professionals have successfully led a Government-wide effort to disrupt, dismantle, and defeat al-Qaeda and its affiliates and adherents over two consecutive Administrations. The Administration believes strongly that it would be a mistake for Congress to overrule or limit the tactical flexibility of our Nation’s counterterrorism professionals.

This is not quite the end of the road for the NDAA, as it must now be consolidated with the version previously passed by the House of Representatives, which I wrote about here and here. However, it is almost certain that the President will soon be required to make clear what he thinks.

If Obama is wavering, as is his habit, I would suggest that he takes note of the fact that the election season is nearly upon us, and that, as we approach that frenzy of hype and hyperbole, he needs do something to make his progressive supporters remember why they might want to vote for him, rather than just hoping — or presuming — that they will not vote against him. In short, the President needs to veto this bill, and stand up for US justice, and the still-pressing need to close Guantánamo, rather than doing as he has so often on national security issues, and caving in to pressure.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

In June 2004, for a brief moment, George W. Bush’s excesses were checked by the Supreme Court, which, in Rasul v. Bush, took the unprecedented move of granting habeas corpus rights to prisoners seized in wartime, after recognizing that the Bush administration had shunted aside the Geneva Conventions in favor of a unprecedented system of arbitrary detention.

In this system, the US government decided that all its actions relating to terrorism and the perceived threat from al-Qaeda and the Taliban (essentially regarded as interchangeable with al-Qaeda because they had “hosted” Osama bin Laden in Afghanistan) constituted part of a “war on terror,” and decided that everyone seized could be held, without anyone bothering to ascertain whether they had been seized by mistake, as “illegal enemy combatants,” who literally had no rights whatsoever, either as human beings or as prisoners.

For the Bush administration and for Congress, however, although the Supreme Court’s ruling was inconvenient, as it allowed lawyers to take on prisoners as clients, and to meet with them, it was not the end of their adherence to arbitrary detention, and they largely fought back against it. The President introduced a hastily invented review process for the prisoners (the Combatant Status Review Tribunals), which was heavily weighted in favor of the presumption that they had been correctly designated as “enemy combatants” on capture, and Congress went further, passing laws in 2005 and 2006 — the Detainee Treatment Act and the Military Commissions Act — that purported to strip the prisoners of their habeas corpus rights.

It was not until June 2008 that the Supreme Court once more took the opportunity to reassert its authority (in Boumediene v. Bush), arguing that the habeas-stripping provisions of the DTA and MCA were unconstitutional, and reiterating that the prisoners had habeas corpus rights, and that, this time around, they were constitutionally guaranteed.

For opponents of Guantánamo and the “war on terror,” what followed was a golden period for accountability, as, between October 2008 to July 2010, 38 out of 52 prisoners won their habeas corpus petitions, as judge after judge in the District Court in Washington D.C. concluded that the government had failed to meet its spectacularly low burden of establishing, “by a preponderance of the evidence,” that the prisoners were involved with al-Qaeda and/or the Taliban.

In the majority of cases, the government accepted defeat, releasing — or not opposing the release — of 31 of these men, and 26 were subsequently released. The other five are Uighurs (Muslims from China’s oppressed Xinjiang province), who are at risk of torture if repatriated, and who are still seeking a new home.

Beginning in January 2010, however, judges in the D.C. Circuit Court started pushing back against the lower court’s rulings, at first by advocating for unfettered executive power in wartime (which the Obama administration had not even asked for), and then by whittling away at the requirements for ongoing detention decided by the District Court judges (who largely agreed that prisoners had to be demonstrably part of a chain of command).

The Circuit Court judges, led by Senior Judge A. Raymond Randolph, who was notorious, under George W. Bush, for supporting every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court, also pushed to reduce, if not to eliminate entirely, the burden on the government to establish that its evidence was trustworthy, and the result, from July 2010 onwards, has been that five successful habeas petitions have either been reversed (three cases) or vacated, and sent back to the lower court to reconsider (two cases). In addition, the District Court judges, who were, essentially, ordered to lower the burden of proof and regard the government’s alleged evidence as reliable, have, since July 2010, turned down the last eleven habeas petitions submitted by the prisoners. Details and links are in my article, Guantánamo Habeas Results: The Definitive List.

Fadel Hentif, a Yemeni, loses his habeas petition for having a watch and staying in a guesthouse

I have, previously, written about eight of these rulings, but have not provided any updates since summer, when I wrote about how Khairullah Khairkhwa, a former Taliban minister, lost his habeas petition in June. The next prisoner to lose was Fadel Hentif (also identified as Fadil Hintif), a Yemeni whose habeas petition was refused by Judge Henry H. Kennedy Jr. on August 1, 2011, although a heavily redacted version of the opinion was not made available until mid-September (PDF).

Hentif claimed to have traveled to Afghanistan to perform humanitarian aid work, which he said, “would be a chance to do something good in memory of his deceased father.” After staying briefly in a guesthouse in Kandahar, he said that he was directed by the owner of the guesthouse to stay with a Yemeni in Kabul, who provided medical supplies to Afghans in need. Hentif said that he worked with this man for a while, and then traveled to Logar province and the city of Jalalabad before leaving for Pakistan, where he was seized and transferred to US custody.

In challenging his story, the US government claimed, primarily, that the guesthouse was affiliated with al-Qaeda, that Hentif had attended a training camp, that two men he met in Kabul were also affiliated with al-Qaeda, and that he had been present at the battle of Tora Bora at the end of 2001, which was a showdown between al-Qaeda and the Taliban, on the one hand, and US forces and their Afghan proxies on the other.

However, while Judge Kennedy found no evidence that Hentif had attended a training camp or had been at Tora Bora, and also found no evidence confirming his connection with suspicious individuals in Kabul, he was required, by a Circuit Court precedent, to conclude that “staying at an al-Qaeda guesthouse is ‘overwhelming’ evidence of an affiliation with al-Qaeda.”

Shockingly, in reaching his conclusion that the respondents (the government) had “carried their burden by a preponderance of the evidence,” he was also convinced by a piece of alleged evidence that, throughout Guantánamo’s history, has been mocked by commentators; namely, his possession of a model of Casio watch allegedly linked to the detonation of IEDs (improvised explosive devices). Influenced, again, by the Circuit Court, which declared that “evidence that a detainee had a Casio watch on his person at the time of his capture was a ‘telling fact,’” Judge Kennedy noted, “Although Casio watches of this model are not unique, the fact that Hentif possessed one is further support for respondents’ contention that Hentif was part of al-Qaeda or the Taliban.”

What made the ruling particularly depressing was that, in January 2007, as was revealed in the classified military files released by WikiLeaks in April this year, Rear Adm. Harry B. Harris, Jr., the commander of Guantánamo at the time, recommended Hentif’s release, based on assessments made by the Joint Task Force at Guantánamo. Nevertheless, he was not released by President Bush, was not released by President Obama, and, moreover, appeared to be a victim of the Justice Department’s general indifference to the fate of the prisoners, as government lawyers could easily have been instructed not to challenge the habeas corpus petitions of any of the prisoners cleared for release by President Bush, or by President Obama’s Guantánamo Review Task Force.

Abdul Qader Ahmed Hussein, a Yemeni, loses his habeas corpus petition for handling a gun in Afghanistan

On October 12, Judge Reggie B. Walton denied the habeas corpus petition of Abdul Qader Ahmed Hussein (also identified as Ahmed Abdul Qader), another Yemeni (PDF). Just 18 years old at the time of his capture, he was one of 15 prisoners seized in a guesthouse in Faisalabad, Pakistan, on the same night — March 28, 2002 — that a supposed “high-value detainee,” Abu Zubaydah (actually the mentally damaged gatekeeper of a training camp that was not associated with al-Qaeda), and a handful of other allegedly significant prisoners were also seized from another completely different location.

Hussein was one of the few prisoners in the guesthouse to explain that he had spent time in Afghanistan, as most of the others said that they had traveled to Pakistan to study, or, in a few cases, to receive medical treatment. Whether under Bush or Obama, the administration has never been happy to accept this argument, claiming that everyone in the house had been in Afghanistan in some sort of military capacity, but officials do not have a good track record when it comes to establishing their story.

Of the 15, for example, although one died in Guantánamo in June 2006, in a disputed triple suicide, five of the remaining 14 have been released. Two of these men — Alla Ali Bin Ali Ahmed and Mohammed Hassan Odaini — were freed after convincingly winning their habeas corpus petitions, and the others were freed after administrative reviews. In addition, a sixth man, a Russian named Ravil Mingazov, won his habeas corpus petition in May 2010, only to have the ruling challenged by the government. See here for a report by his attorney on his 18-month wait for what will almost certainly be a successful appeal on the part of the government, because of the Circuit Court’s bias.

In Hussein’s case, he said that he went to Afghanistan “to help the needy and the poor,” and tried unsuccessfully to establish a charity organization. He admitted that he visited the “back line,” encouraged by friends connected to the Taliban, but insisted that he “never participated in any kind of military activities.” After leaving Afghanistan before the US-led invasion began, he said that he ended up in the house in Faisalabad, where he became friends with Fahmi Ahmed, another Yemeni, who is still held. “We shared the same vision and he has the same opinions,” Ahmed said of him, adding, “He used to use hashish with me,” whereas the other students in the house “were trying to inspire me to do the religious things, like look at my religion, because most of the students were studying the Koran and all things related to religious studies.”

Reviewing his case, in light of the Circuit Court’s rulings, Judge Walton denied Hussein’s habeas petition for a variety of reasons that do not exactly encourage overwhelming support for the direction the habeas hearings have taken. Following a previous Circuit Court ruling (in the case of a Yemeni called Hussein Almerfedi), it was considered significant that Abdul Qader Ahmed Hussein had stayed at two mosques in Pakistan run by the vast and apolitical missionary organization Jamaat al-Tablighi, which is regarded, by Justice Department lawyers and the Circuit Court, as a front for terrorism, even though it has millions of non-terrorist members worldwide, and using it to justify detention is akin to imprisoning Catholics for the actions of the IRA.

It was also considered significant that, while in Afghanistan, he was handed a Kalashnikov rifle “from three Taliban guards in an area near the lines of battle between the Taliban and Northern Alliance,” and was shown how to use the gun by one of the Taliban guards. Judge Walton was also not impressed that it took him so long to leave Afghanistan, despite professing a desire to return home, and that he failed to enrol in university while staying in Faisalabad, despite claiming that he intended to do so.

Judge Walton concluded, “These facts, when viewed together, are more than sufficient to constitute the level of ‘damning’ circumstantial evidence that is needed to satisfy the government’s burden of proof in this case,” which, to my mind, only demonstrates that the Circuit Court’s tampering with the burden of proof has had disastrous results, as Hussein now finds himself consigned to permanent imprisonment at Guantánamo, possibly for the rest of his life, based on little more than innuendo.

Karim Bostan, an Afghan, loses his habeas petition for alleged insurgent activities in summer 2002

On the same day as he delivered his ruling in Hussein’s case, Judge Walton also denied the habeas petition of Karim Bostan (also identified as Bostan Karim), an Afghan whose case demonstrates another peculiarity of Guantánamo — the desire, on the part of successive US administrations, to hold, in a prison supposedly associated with terrorism, Afghans allegedly involved in minor acts of insurgency against the US occupation of their country (PDF).

In Bostan’s case, the evidence has always been thin, to put it charitably. A preacher and a shopkeeper, he was seized on a bus that traveled regularly between Afghanistan and Pakistan, and was reportedly “apprehended because he matched the description of an al-Qaeda bomb cell leader and had a [satellite] phone,” which he had apparently been asked to hold by a fellow passenger, Abdullah Wazir (who was released from Guantánamo in December 2007). Other allegations were made by another Afghan, a young man named Obaidullah, who said in Guantánamo that he had made false allegations (and had also falsely incriminated Bostan), while he was being abused by US soldiers in Khost and Bagram. As he explained:

The first time when they [US soldiers] captured me and brought me to Khost they put a knife to my throat and said if you don’t tell us the truth and you lie to us we are going to slaughter you … They tied my hands and put a heavy bag of sand on my hands and made me walk all night in the Khost airport … In Bagram they gave me more trouble and would not let me sleep. They were standing me on the wall and my hands were hanging above my head. There were a lot of things they made me say.

Despite this, Obaidullah lost his habeas corpus petition in October 2010, and is also a candidate for a trial by military commission, for which both the Bush and Obama administrations have decided that it is somehow appropriate to stretch the meaning of “war crimes” to include a young Afghan who allegedly stored and concealed explosives that could have been used to attack US forces, but never were.

In Bostan’s case, Judge Walton’s ruling revealed, shockingly, that his ongoing detention, possibly forever, was justified because he “was a member of the Jamaat al-Tablighi,” and “met Obaidullah and Wazir through the Jamaat al-Tablighi,” and because he took Abdullah Wazir’s phone on the bus and apparently attempted to hide it and the “most likely explanation” for doing so “was his knowledge that the telephone could be used to detonate explosive devices.”

Judge Walton decided that “these facts, when viewed collectively, demonstrate that the petitioner was more likely than not a ‘part of’ al-Qaeda,” and just to reiterate how far the Circuit Court has drifted from any notions of fairness and proportion, it is worth noting that he specifically stated, “As the Circuit found in Almerfedi, a detainee’s membership in Jamaat al-Tablighi, together with other ‘damning’ circumstantial evidence, is sufficient as a matter of law to justify the detainee’s detention.”

The Circuit Court’s overreach, in reversing the successful habeas petition of Adnan Farhan Abdul Latif

If these rulings should have reduced anyone who believed in US justice to some sort of state of despair, worse was to come on October 14, when the D.C. Circuit Court delivered its ruling in the government’s appeal against the successful habeas corpus petition of Adnan Farhan Abdul Latif, a Yemeni who won his petition in July 2010, reversing his successful petition in a shocking ruling that has finally seen the Circuit Court’s scandalous destruction of habeas corpus picked up on by the mainstream media (PDF).

As the New York Times noted in an editorial last Sunday, the Supreme Court’s 2008 habeas ruling in Boumediene v. Bush “has been eviscerated by the Court of Appeals for the District of Columbia Circuit,” whose “wrongheaded rulings and analyses, which have been followed by federal district judges, have reduced to zero the number of habeas petitions granted in the past year and a half.”

The Times followed up by urging the Supreme Court, which has refused to consider any significant Guantánamo appeals filed since Boumediene, to “reject this willful disregard of its decision in Boumediene v. Bush, which, the editors added, “it can do so by reviewing” Latif’s case.

In analyzing that ruling, the Times lamented that the Circuit Court had shamefully dismissed the considered opinion of the District Court judge in Latif’s case, who, ironically, was Judge Kennedy. As the Times explained, it is “undisputed” that Latif “was in a car accident in Yemen in 1994 and sustained head injuries,” and, in 2001, “went to Pakistan to seek free medical treatment, and eventually traveled to Kabul to find a Yemeni man who had promised to help him.” Moreover, although the government contended that he “was recruited by an al-Qaeda operative and fought with the Taliban,” Judge Kennedy “found that the government’s evidence did not sufficiently support its contention, that incriminating evidence was not corroborated and that Mr. Latif had a plausible alternative explanation for his travels.”

Crucially, however, in reversing Judge Kennedy’s decision, the majority judges in the Circuit Court ruling, Judge Janice Rogers Brown and Judge Karen LeCraft Henderson (who have a history of extreme decisions in Guantánamo cases), “improperly replaced the trial court’s factual findings with its own factual judgments,” as the Times explained, noting also that the court “unfairly placed the burden on Mr. Latif to rebut the presumption that the government’s main evidence was accurate,” because “the government should bear the burden of proving by a preponderance of the evidence that his detention is warranted.”

What this means, in practical terms, is not only that the Circuit Court has stepped way beyond its mandate, but, specifically, that the majority judges argued that “the government’s intelligence report on the Latif case should have been given ‘a presumption of regularity’ and that unless there is ‘clear evidence to the contrary,’ trial judges must presume that this kind of report is accurate.”

By this rationale, of course, the already severely lowered bar for detention would disappear completely, effectively making it impossible for the prisoners to argue against anything the government alleged against them. The irony, of course, is that the court had already gutted habeas of all meaning, but with this particular overreach may finally provoke a much needed and long overdue backlash. As Judge David Tatel, the third judge in the panel, noted in a strongly worded dissent, there was no reason whatsoever for his colleagues to make such an assumption about the intelligence report, which was “produced in the fog of war, by a clandestine method that we know almost nothing about.”

In addition, Judge Tatel noted that it was “hard to see what is left of the Supreme Court’s command” that the habeas review process be “meaningful,” and the Times concluded by stating that “the appeals court has gone off on the wrong track,” and reiterating that the justices of the Supreme Court “need to reaffirm the right of prisoners in Guantánamo to seek justice in federal court and to explain firmly and clearly what that entails.”

It is to be hoped that the Circuit Court’s shameful overreach will finally prompt the justices to act, and to restore the meaningful remedy that habeas was for the Guantánamo prisoners until 16 months ago.

In addition, there should be justice for Adnan Farhan Abdul Latif in particular, in part because he has well-documented mental health issues, as I explained when he won his petition, but also because he, like Fadel Hentif, was also cleared for release under George W. Bush, in December 2006, in a recommendation that was cited in an updated recommendation in January 2008 released by WikiLeaks, and issued by Rear Adm. Mark H. Buzby, who was the commander of Guantánamo at the time.

As with Hentif, the Bush administration’s failure to release him has been compounded under President Obama, who has failed to instruct the Justice Department to stop challenging the petitions of prisoners cleared for release, and, it seems clear, has been content to use the Yemeni prisoners as part of his political maneuvering.

With Yemen off-limits since January 2010, when Obama issued a moratorium on any further prisoner releases to Yemen following a hysterical response to the news that the failed Christmas plane bomber, Umar Farouk Abdulmutallab, had been trained there, it has suited the administration — with one notable exception — to prevent any political difficulties by appealing every successful habeas petition won by a Yemeni, regardless of whether there was any genuine reason for doing so, or whether, as in the cases of Fadel Hentif, Adnan Farhan Abdul Latif and the other 17 Yemenis cleared for release between 2004 and 2007 but still held, they are nothing but pawns in a political game.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Omar Khadr/Photo: Wikimedia

Last week, Omar Khadr, the Canadian citizen and former child prisoner, was supposed to leave Guantánamo after nine years and three months in US custody.

No one thought that Khadr would return to Canada as a free man, as he has another seven years to serve in a Canadian jail as part of a plea deal he made at Guantánamo a year ago, but it was reasonable to expect that he would be transferred to Canadian custody this week, as the plea deal was for an eight-year sentence — with one year to be served in Guantánamo, followed by seven in Canada.

However, as Canada.com explained last Friday, “It could be as many as 18 months before Omar Khadr steps foot in Canada even though he becomes eligible for transfer from Guantánamo Bay on Monday” (October 31).

Throughout this entire story, the behavior of the United States government, first under President Bush, and then under President Obama, has been disgraceful. Khadr was abused, and was never rehabilitated according 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 — those under 18 at the time their alleged crime takes place — “require special protection,” and obliges its signatories to promote “the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.”

In addition, Khadr was put forward for a trial by military commission — a war crimes trial — even though he was a child at the time of his capture, even though it is not clear that he had killed a US soldier by throwing a grenade, as alleged, and even though the entire premise of the trial was wrong.

It was deeply disturbing that the US government was willing to suggest to the world that those who raise arms against US forces in wartime, and in a country where the US is engaged in a war, can actually be defined as war criminals, even if their only target is members of the US military.

And yet this, of course, is exactly what happened to Khadr, when, a year ago, he signed the plea deal that was supposed to guarantee his release, in which he admitted to being an “alien unprivileged enemy belligerent,” who had no right, under any circumstances, to engage in combat with US military forces, and who, as a result of doing so, was a war criminal.

That was shocking enough, and it was no more reassuring that, on October 31, 2010, Khadr was given a 40-year sentence by a military jury after a week of hearings at Guantánamo. This was supposed to reassure supporters of Guantánamo and the military commissions that Obama was tough on terrorism, while the plea deal was supposed to send the message to critics of Guantánamo that he was fair. However, from the point of view of fairness and the law, the entire process was an abomination, and represents a low point for US justice and for any reputation for fairness that President Obama hoped to bring to his Presidency.

For Khadr, the plea deal was obviously supposed to be a lifeline, which is what makes the news from Canada so upsetting. The Canadian government’s behavior has been shameful ever since Khadr was first captured. Intelligence agents were sent to interrogate him, even though that was a clear violation of his rights, given the disturbing circumstances of his confinement in Guantánamo, and a series of challenges in the Canadian courts culminated in the Supreme Court ruling that the government had indeed failed to protect Khadr’s rights, although the Court refused to order the government to seek his return, and the government responded by ignoring the ruling.

Now, however, the signs are that the Canadian government looks set to fail Khadr again. Canada.com noted that the closest the government had come to guaranteeing that Khadr would be coming back to Canada to serve the rest of his sentence was “a diplomatic note between US and Canadian officials,” which stated that the Harper government  was “inclined to favourably consider” a request for Khadr’s transfer back to the country of his birth.

Several weeks ago, Khadr’s Canadian lawyers confirmed that “the transfer process had been initiated,” but Michael Patton, a spokesman for Public Safety Minister Vic Toews, said that securing the return of a prisoner from another country was a “big process.” He explained that the Correctional Service had to “determine whether the applicant is eligible for a transfer,” then the government holding the prisoner had to agree to it, and then the Correctional Service had to “put together a recommendation to the Minister who must review and approve it.”

Patton said, “These files normally take about 18 months to come to a decision,” and Canada.com claimed that Khadr’s case was “unlikely to be expedited or treated differently,” even though the government has obviously had an entire year to prepare for Khadr’s return.

In the Globe and Mail, Paul Koring discussed other options, noting that the Harper government could “approve and quickly facilitate” Khadr’s return, possibly within months, if he were to “agree to abandon any further constitutional challenges,” according to “lawyers familiar with his case.”

On the other hand, some lawyers told the Globe and Mail that Khadr could be free “in less than a year if he takes his case again to the Canadian courts.” These lawyers believe Khadr could challenge both his war crimes conviction and the sentence he was given, on the basis that “both were illegal under international law.”

Koring noted that a constitutional challenge by Khadr “could embarrass the government and force public disclosure of the role its agents played” in his interrogations at Guantánamo, although it would also “cast him again in the spotlight,” which might be damaging for his cause in Canada. This is because part of the basis for Khadr’s shameful treatment has been that many Canadians have been prepared to ignore his immense ill-treatment by making him the object of punishment for the perceived sins of his father, Ahmed Khadr, who allegedly raised funds for Osama bin Laden.

As Paul Koring also noted, “the Harper government has so far shown no interest in getting Mr. Khadr freed or back in Canada.” This shameful situation must end as soon as possible, and Khadr, I believe, should be freed on his return to Canada, as a gesture of support from a government that shamefully abandoned him for the best part of a decade.

Khadr’s release from Guantánamo will also focus attention once more on what should be an abiding source of shame for Barack Obama, but has been largely overlooked — the continued presence of 171 prisoners at Guantánamo, even though the government conceded, after a year-long review in 2009, that it did not wish to hold over half of these men.

With their release blocked by Congress, and by judges in the Court of Appeals in Washington D.C., who have gutted habeas corpus of all meaning when it comes to the Guantánamo prisoners, Omar Khadr’s release would also remind the world of some of these other men, unjustly overlooked as the 10th anniversary of the opening of Guantánamo approaches.

Originally published on the website of the Future of Freedom Foundation.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

mam Anwar al-Awlaki in Yemen October 2008. Photo: Muhammad ud-Deen/Wikimedia.

What a strange and alarming place we’re in, when the US government, under a Democratic President, kills two US citizens it dislikes for their thoughts and their words, without formally charging them with any crime, or trying or convicting them, using an unmanned drone directed by US personnel many thousands of miles away.

And yet, that is what happened on Friday, when Anwar Al-Awlaki (aka al-Awlaqi, or Aulaqi) and Samir Khan, both US citizens, were killed in a drone strike in Yemen, along with several companions. Al-Awlaki, an imam who had left the US in 2002, had aroused the US government’s wrath because his anti-American sermons were in English, and readily available online, and because he openly advocated violence against the United States.

It has also been widely reported that he apparently met three of the 9/11 hijackers, that he had been in email contact with Major Nidal Malik Hasan, the sole suspect in the killing of 13 military personnel at Fort Hood, in Texas, in November 2009, who he later reportedly described as a “hero,” and that he was allegedly involved in planning the failed plane bombing on a flight into Detroit on Christmas Day 2009, for which a Nigerian, Umar Farouk Abdulmutallab, was arrested.

In December 2009, when the US first claimed to have killed al-Awlaki in a drone strike that killed 30 other people — all, conveniently, described as “suspected militants” by Yemeni security and government sources — the Washington Post reported that US officials said that al-Awlaki had been “moving up the ranks” of Al-Qaeda in the Arabian Peninsula, “having recently been promoted to regional commander.” However, the officials also “described him less as an operational leader than an inspirational one, whose contacts with members took place largely online.”

This is an important distinction, but it is one that has largely been overlooked when al-Awlaki has been discussed in the mainstream media in the US, even though Americans, through the First Amendment to the US Constitution, are supposed to be uniquely placed to understand the difference between free speech and action.

The other US citizen to be killed on Friday, Samir Khan, was also deeply disliked by the US government. A former “Internet Jihadist” in the US, as the New York Times revealed in an interview with him in 2007, he moved to Yemen in 2009, where he became the editor of Al-Qaeda in the Arabian Peninsula’s online English language magazine, Inspire. Despite this, he, unlike al-Awlaki, had not even been put on a hit list at the time of his death, relegating him to the same kind of non-status as the foreigners — Afghans, Pakistanis and others — who are regularly killed by drone strikes in Pakistan.

There are three main problems with the killings — one, as hinted at above, involves the use of drones in general, the second involves the legality and wisdom of assassinations in other countries, and the third involves the legality and wisdom of assassinating US citizens.

Are drone killings legal?

In the first instance, the killings mark an expansion of the US government’s program of using remotely-controlled drones to kill its enemies — or its perceived enemies — which is pushing at the limits of what can legitimately be regarded as warfare — if, indeed, it has not already exceeded those limits.

No one seems to have any accurate estimate of how many people have died in the drone killings, which have been taking place since 2004, but whose use has increased dramatically under President Obama, although there have reportedly been at least 270 attacks, and anywhere between 1,600 and 2,600 casualties. Moreover, in July 2009, Daniel L. Byman, a Senior Fellow at the Saban Center for Middle East Policy, noted in an article for the Brookings Institution that, according to estimates, “for every militant killed, 10 or so civilians also died,” adding that, “Beyond the humanitarian tragedy incurred, civilian deaths create dangerous political problems.”

Byman also noted that, in Pakistan, the last thing the Pakistani government needs are American efforts that backfire on them, which, of course, may also be fatally counter-productive for American aims. He quoted counterterrorism expert David Kilcullen, who said at a conference on Pakistan’s future in Washington D.C. in 2009, “When we intervene in people’s countries to chase small cells of bad guys, we end up alienating the whole country and turning them against us.”

In October 2009, Philip Alston, the UN Special Rapporteur on Extrajudicial Executions, questioned whether Obama’s drone-killing program was legal. Alston told a conference, “My concern is that drones/Predators are being operated in a framework which may well violate international humanitarian law and international human rights law.” Having submitted a report to the UN General Assembly (PDF), he said, “The onus is really on the United States government to reveal more about the ways in which it makes sure that arbitrary extrajudicial executions aren’t in fact being carried out through the use of these weapons.”

Alston highlighted three particular problems, stating, “I would like to know the legal basis upon which the United States is operating, in other words … who is running the program, what accountability mechanisms are in place in relation to that.” He also asked for disclosure of the “precautions the United States is taking to ensure that these weapons are used strictly for purposes consistent with international humanitarian law,” and also asked “what sort of review mechanism” there was “to evaluate when these weapons have been used.”

No answer was forthcoming, and the program not only continued, but expanded into other countries — including, of course, Yemen. However, although the Obama administration is obviously not troubled by what it is doing, a warning was sounded in the Washington Post on October 2 by John Bellinger, legal adviser for the State Department from 2005 to 2009.

Bellinger wrote that, although the drone program had been “highly effective in killing senior al-Qaeda leaders,” the administration “needs to work harder to explain and defend its use of drones as lawful and appropriate — to allies and critics — if it wants to avoid losing international support and potentially exposing administration officials to legal liability.”

As he proceeded to explain, the justification for the program (as with the occupation of Afghanistan, illegal wiretapping and the detention program at Guantánamo) is the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, which empowered the President to use “all necessary and appropriate force” against nations, organizations or persons who planned, committed or aided the 9/11  attacks. Bellinger also noted that the US government “believes that drone strikes are permitted under international law and the United Nations Charter as actions in self-defense, either with the consent of the country where the strike takes place or because that country is unwilling or unable to act against an imminent threat to the United States.”

As he also noted, however, “the US legal position may not satisfy the rest of the world,” because no other government “has said publicly that it agrees with the US policy or legal rationale for drones,” and it would be wise for President Obama “to try to build a broader international consensus.”

Is Obama’s assassination program legal and/or appropriate?

Closely related to the question of the drone program’s legality are questions about the Obama administration’s reintroduction of an assassination program. A source of huge internal wrangling in the Reagan, Bush Sr. and Clinton administrations, assassination was largely ignored by the Bush administration, which became obsessed with a global web of torture prisons and “extraordinary rendition,” sending its alleged terrorism-related enemies to be tortured or “disappeared” in other countries. However, as Obama demonstrated in May, with the killing of Osama bin Laden in Pakistan, assassination by death squad was another part of his contentious anti-terror arsenal.

As with the drone program, international criticism of the assassination of Osama bin Laden was muted to non-existent. In his Washington Post op-ed, John Bellinger accurately noted that “European allies, who vigorously criticized the Bush administration for asserting the unilateral right to use force against terrorists in countries outside Afghanistan, have neither supported nor criticized reported US drone strikes in Pakistan, Yemen and Somalia. Instead, they have largely looked the other way, as they did with the killing of Osama bin Laden.”

While questions about the legality of killing bin Laden are likely to resurface the more assassinations take place, the problem is also, as with the drone strikes, that it might be hugely counter-productive politically, further inflaming tensions in Pakistan or Yemen, for example, where military options cannot possibly be the only measure of success, as battles for hearts and minds also need to be won. As Daniel Byman wrote about the use of drones in Pakistan, “The real answer to halting al-Qaeda’s activity in Pakistan will be the long-term support of Pakistan’s counterinsurgency efforts,” and, for Yemen, a similar answer must apply.

Is the assassination of US citizens legal and/or appropriate?

Moving from the assassination program to the killing of Americans in particular, the addition of US citizens to the list of targets could hardly be more contentious had it been designed by George W. Bush and Dick Cheney. As Guantánamo shows, Americans are supposed to be protected from the excesses of their own government, while foreigners have no protection whatsoever — although John Walker Lindh, judicially sacrificed as the “American Taliban,” was excluded in the early days of the “war on terror,” when he received a 20-year sentence as part of a punitive plea deal that involved him agreeing not to talk about the torture he had suffered at the hands of US soldiers.

After Lindh, the only other precedents for abusing Americans as though they were foreigners are the cases of the three Americans imprisoned as “enemy combatants” on the US mainland under George W. Bush — Yaser Hamdi, Ali al-Marri and Jose Padilla. Hamdi, born in the US but living in Saudi Arabia since he was a child, was held briefly at Guantánamo and then transferred to the US, where he was tortured and then released, and al-Marri was a legal US resident who was also tortured as an “enemy combatant,” although he was moved into the criminal justice system under Obama, and tried and convicted of charges relating to terrorism in 2009.

Until last Friday’s assassinations in Yemen, the most alarming case of an American stripped of his rights in the “war on terror” was Jose Padilla, a US citizen who was held by his own government for three and half years in chronic isolation until he lost his mind, and then transferred into the criminal justice system, where he was tried and convicted for little more than a thought crime, and sentenced to 17 years and four months in prison — a sentence that, two weeks ago, an appeal court judged too lenient.

Technically, al-Awlaki’s inclusion on a target list maintained by the US military’s shadowy Joint Special Operations Command (JSOC), and the decision, in April 2010, to add him to “a list of suspected terrorists the CIA is authorized to kill,” which “required special approval from the White House” (as the Washington Post described it), is legal, because, in December last year, Judge John D. Bates of the District Court in Washington D.C. dismissed a lawsuit contesting President Obama’s “targeted killing” policy, which was submitted on behalf of al-Awlaki’s father.

Judge Bates ruled that “the plaintiff did not have legal standing to challenge the targeting of his son,” and also concluded, alarmingly, “that there are circumstances in which the Executive’s unilateral decision to kill a US citizen overseas is ‘constitutionally committed to the political branches’ and judicially unreviewable.”

This was unacceptable to the ACLU and the Center for Constitutional Rights, acting on behalf of al-Awlaki’s father, who asked three particular questions that I found important:

Outside of the context of armed conflict, should it not be the case that the government can only carry out the “targeted killing” of an American citizen “as a last resort to address an imminent threat to life or physical safety”?

Why did the court not order the government to disclose the legal standard it uses to place US citizens on government kill lists?

How is it that judicial approval is required when the United States decides to target a US citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a US citizen overseas for death?

These questions were unanswered, and they remain unanswered now, prompting John Bellinger to recommend that the Obama administration “should provide more information about the strict limits it applies to targeting and about who has been targeted,” and rendering more chilling the words of Jameel Jaffer, Deputy Legal Director of the ACLU, back in December, when, after Judge Bates’ ruling, he said:

If the court’s ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation. It would be difficult to conceive of a proposition more inconsistent with the Constitution or more dangerous to American liberty.

As Jaffer also noted:

It’s worth remembering that the power that the court invests in the president today will be available not just in this case but in future cases, and not just to the current president but to every future president. It is a profound mistake to allow this unparalleled power to be exercised free from the checks and balances that apply in every other context. We continue to believe that the government’s power to use lethal force against American citizens should be subject to meaningful oversight by the courts.

In America today, however, when the courts have demonstrated that they are generally even more unwilling to challenge executive power when wielded by President  Obama than they were under George W. Bush, one of the bizarre results is that the approval for the killing of Anwar al-Awlaki really did take place in an executive bubble, apparently approved by a secret Justice Department opinion, but unrelated to what anyone else thinks, not just in America but anywhere else in the world. And this, I think, is as troubling as the assassination program itself and the new policy of waging war remotely, which appear to be permanently evading scrutiny.

Originally published the Future of Freedom Foundation.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

The military commissions, which were last used on Nazi saboteurs in World War II, were brought back from the dead by Vice President Dick Cheney almost ten years ago — in an alarming military order dated November 13, 2001 — as a means of swiftly trying and executing terror suspects seized in the “war on terror” without the impediment of due process or a ban on evidence derived through the use of torture.

Ruled illegal by the Supreme Court in June 2006, the commissions were then resuscitated by Congress, and although Barack Obama froze them temporarily when he took office, he soon thawed them out again, even though the wisest of his advisors recommended him not to, as the primary charges in the commissions — conspiracy and providing material support to terrorism, for example — were appropriate crimes to be tried in federal courts, but had only been invented as war crimes by Congress.

Reviving the commissions left President Obama with a two-tier system of justice for those held at Guantánamo, with both federal court trials and military commissions on the table, and it led him into unseen difficulties, when, after he announced in November 2009 that Khalid Sheikh Mohammed and four other “high-value detainees” in Guantánamo would face a federal court trial in New York for their involvement in the 9/11 attacks, those who opposed his plan struck back.

Because of President Obama’s refusal to consign the commissions to a legal grave, his critics could point to them as a viable alternative to a federal court trial, especially as the administration, when announcing the 9/11 trial, had also announced that five other Guantánamo prisoners would be tried by military commission.

As a result, Obama’s critics in Congress ultimately succeeded in passing legislation preventing any Guantánamo prisoners from being brought to the US mainland for any reason (even to to face a federal court trial), and have now embarked on their most audacious and inappropriate measure yet — threatening to pass legislation making it mandatory for any foreign terror suspect to be held in military custody rather than being tried in federal court for the crime of terrorism.

Ten years after 9 /11, it is truly depressing that the misguided “war on terror” not only lives on, but may get a new lease of life, and at Guantánamo, where part of this struggle to keep Dick Cheney’s malevolent dreams alive is particularly focused, the authorities are gearing up for new activity.

Last week, in an attempt to market what the Miami Herald described as “a new era of transparency” at Guantánamo, Army Brig. Gen. Mark Martins, the new Chief Prosecutor of the military commissions, told the Weekly Standard that the commissions will “feature new measures to ensure transparency, including a venue enabling victims and media to observe proceedings near-real-time in the continental United States.” The Herald added that the transmissions “won’t be live because the feeds will be broadcast on a ’40-second delay to ensure safeguarding of national security information.’”

In the Miami Herald article, Carol Rosenberg, who has been following the military commissions since they first began, called the proposed new system “vastly different” from what has been in place to date, whereby “reporters and other spectators were required to fly to Guantánamo on specially arranged Pentagon flights,” and then “faced strict limitations on where they could go and what they could report,” which “helped cut the number of news organizations covering events there.”

The changes, if implemented, will certainly increase transparency, and that is to be commended, but huge and, I believe, insurmountable problems remain for the commissions.

Chief amongst these is how transparency can be balanced with what remains an obsessive need for secrecy on the part of the government. Having decided not to even investigate the Bush administration’s official torture program (despite the requirement to do so under the terms of the UN Convention Against Torture and America’s own domestic torture statute), the Obama administration will be obliged to continue making sure that, when those to be tried were tortured, discussion of the time they spent in secret CIA prisons, where the use of torture was widespread, is severely limited.

As Carol Rosenberg noted, “The CIA still forbids the public to hear what they did and where they did it, even when captives have described their treatment at pre-trial proceedings,” and these requirements also protect “the identities of CIA agents and contractors who carried out interrogations.”

This is of relevance not just in the case of Khalid Sheikh Mohammed and his co-accused, but, more pressingly, in the case of Abd al-Rahim al-Nashiri, the alleged mastermind of the attack on the USS Cole in 2000, who had his case officially referred for trial by military commission by the commissions’ Convening Authority, Retired Adm. Bruce MacDonald, on Wednesday, in what were the first capital charges put forward for trial in the commissions.

The problem, for the government, is that al-Nashiri was, notoriously, one of three “high-value detainees” waterboarded by the CIA. In a report on the referral to trial in the Washington Post, it was noted, coyly, that “waterboarding was sanctioned by Justice Department lawyers,” when what should have been noted was that Justice Department lawyers — John Yoo and Jay S. Bybee — purported to approve its use, even though there are no grounds whatsoever for lawyers to attempt to justify the use of torture.

There are further complications. As the CIA Inspector General concluded in a report on detainee treatment in 2004 (PDF), al-Nashiri was also threatened with mock executions when CIA operatives held a power drill and a gun to his head while he was hooded and naked in a secret prison in Thailand — actions that exceeded the guidelines laid down by Yoo and Bybee — and al-Nashiri’s lawyers argued in submissions to the Convening Authority that no case should be brought against their client because of his torture, because of the delay in his case, and also because of the destruction of evidence. Videotapes of al-Nashiri’s waterboarding were among the tapes destroyed by the CIA, in spite of a court order demanding that they be preserved, and his lawyers argued that the destruction of the tapes deprives the defense team of important and potentially exculpatory evidence.

In addition, although the government “cannot use any statements obtained under torture,” and “prosecutors are unlikely to rely on any statements Nashiri made while in CIA custody,” in the Post‘s words, one of his lawyers, Navy Lt. Cmdr. Stephen Reyes, stated that he intended to summon the CIA operatives involved in his client’s interrogation to the trial.

In the submission, his lawyers stated, “The United States should not be permitted to kill a man it has brutally tortured and subjected to cruel, inhuman and degrading treatment.”

Further afield, the European Parliament submitted a declaration in June stating that al-Nashiri should not be subject to the death penalty because of his treatment by the CIA, and human rights groups have also spoken out against the plans. In addition, al-Nashiri’s treatment in a secret CIA prison in Poland, where he was sent after his ordeal in Thailand in November and early December 2002, is regarded as so severe that, although there has been no official acknowledgement that a secret prison existed in Poland (either by the US or the Polish governments), the Polish prosecutor investigating his case was so alarmed by documents, which, evidently, he had access to, that he officially designated him — and Abu Zubaydah, another tortured “high-value detainee” — as a “victim.”

One last problem with the commissions was inadvertently revealed in the Weekly Standard article, when the Pentagon’s General Counsel Jeh Johnson said that Brig. Gen. Martins was “a recognized superstar” who, as the Miami Herald put it, “would focus not on getting the most convictions but on making the war court credible and sustainable.” This is the same Jeh Johnson who, in testimony before the Senate Armed Services Committee in July 2009, when the revival of the commissions was being discussed, urged the committee to drop the charge of material support, because the administration believed that it would be overturned on appeal, as it was “not a traditional violation of the law of war” — and, as mentioned above, was invented by Congress.

Al-Nashiri does not face a material support charge, but the charges he does face include conspiracy and murder in violation of the laws of war, and the latter charge also has a non-existent history as a war crime, having also been dreamt up by Congress when the military commissions were first revived after the Supreme Court ruled them illegal in 2006.

As al-Nashiri’s case finally proceeds to trial, all but the most blinkered enthusiasts for the commissions should be deeply troubled that, despite amendments, a system dedicated to evading all mention of torture in the case of a tortured man is going ahead with barely a murmur of dissent, even though this deeply flawed system contains invented war crimes, intended to turn a crime (terrorism) or engagement in warfare into violations of the laws of war, when they are no such thing.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

JTF Guantanamo photo by Army Sgt. Joseph Scozzari

Many Americans probably think that the “War on Terror” began on September 11, 2001, when the terrible terrorist attacks took place, whose 10th anniversary has recently been marked. However, the “War on Terror” actually began on September 14, 2001, when Congress passed the Authorization for Use of Military Force, which authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

This open-ended document is the bedrock of the occupation of Afghanistan, which began on October 6, 2001, and of the detention of prisoners in Guantánamo, as the Supreme Court confirmed in June 2004, in Hamdi v. Rumsfeld, when the Court also confirmed that the AUMF authorizes the detention of those held as a result of the President’s activities.

It has also been “cited as an authority for him to engage in electronic surveillance against possible terrorists without obtaining authorization of the special Court created by the Foreign Intelligence Surveillance Act (FISA) of 1978,” as the Congressional Research Service (CRS) noted in a report on the AUMF in 2007.

This fascinating report (PDF) also reveals that the AUMF could have been far worse, in the sense of allowing the President powers to behave as he saw fit, without the possibility that Congress could constrain him. On September 12, 2001, the White House gave a draft joint resolution to the leaders of the Senate and the House, and, as the report states, “This White House draft legislation, if it had been enacted, would have authorized the President (1) to take military action against those involved in some notable way with the September 11 attacks on the US, but it also would have granted him (2) statutory authority ‘to deter and pre-empt any future acts of terrorism or aggression against the United States.’”

Noting the gravity of the Bush administration’s intentions, the CRS explained:

This language would have seemingly authorized the President, without durational limitation, and at his sole discretion, to take military action against any nation, terrorist group or individuals in the world without having to seek further authority from the Congress. It would have granted the President open-ended authority to act against all terrorism and terrorists or potential aggressors against the United States anywhere, not just the authority to act against the terrorists involved in the September 11, 2001 attacks, and those nations, organizations and persons who had aided or harbored the terrorists.

As a result, the section which would have allowed the President “to deter and pre-empt any future acts of terrorism or aggression against the United States” was “strongly opposed by key legislators in Congress and was not included in the final version of the legislation that was passed.”

This was significant, and the scale of the President’s ambitions were glimpsed when, after the death of Osama bin Laden in May, some Republican lawmakers, led by Rep. Buck McKeon (R – Calif.), wanted to revive the AUMF with a much broader scope (in line with the Bush administration’s original plans), rather than accepting that, with the death of al-Qaeda’s leader, the AUMF was no longer needed. The difference was that Rep. McKeon envisaged Congress in the driving seat, but it was still alarming that he was calling for what Spencer Ackerman of Wired described as “a big expansion of executive authority.”

I discussed the outrageous position taken by these lawmakers in an article at the time, entitled, “No End to the ‘War on Terror,’ No End to Guantánamo,” in which I also discussed the need for the AUMF to be scrapped as a justification for holding prisoners at Guantánamo neither as prisoners of war nor as criminal suspects.

This has been a long and lonely campaign on my part, as it is outrageous that, ten years after the 9/11 attacks, the legacy of the Bush administration’s reckless decision to declare a war instead of a crime on September 11, 2001, and to insist that it was appropriate to hold soldiers and terror suspects as “illegal enemy combatants” without rights, still exists at Guantánamo.

When President Obama found it difficult to close the prison, he was, at least, reassured that there was nothing illegal about continuing to hold prisoners at Guantánamo, because of the AUMF, and so, ten years after 9/11, it continues to be regarded as acceptable that the soldiers held in Guantánamo are not allowed to ask when the “war” in which they were seized will come to an end, and that the actual terror suspects — a few dozen men, including those accused of masterminding and being involved in the 9/11 attacks — are supposed to be subjected to trials by military commission, while every terror suspect not held at Guantánamo is tried in federal court.

In the Nation this week, John Nichols was the only mainstream journalist to take an interest in the 10th anniversary of the AUMF. He wrote that, on the eve of the 9/11 attacks, he was at a conference in Brussels, “Journalism in the Shadow of Terror Laws,” with Mary Robinson, the former Irish president and UN High Commissioner for Human Rights, whose words struck a chord with Nichols.

“I remember,” she said, “the loneliness of speaking out against the declaration of a ‘war on terrorism.’” She added, as Nichols described it, that:

The language we use to characterize events defines our response to them and when crimes against humanity were defined as acts of war, then an appropriate demand that those responsible for horrific violence be brought to justice was replaced with the overwrought and overarching demands of “a perpetual war of terror.”

Homing in on the Congressional approval of the AUMF on September 14, 2001, Nichols noted that this “perpetual war” has not only had a massive human cost, but has also been a political disaster, losing “both good will and authority over the past decade,” and has also involved a staggering financial cost — more than $7.6 trillion in defense and homeland security spending, according to “new accounting by the National Priorities Project.”

Nichols understands that America’s military-industrial complex would have found ways to try and bankrupt America without the “War on Terror,” although he is correct to explain that this “permanent war” has redefined America just as James Madison worried when he wrote in 1795, “Of all the enemies to public liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other,” and when, in particular, he wrote, “No nation could reserve its freedom in the midst of continual warfare.”

In the US, Congresswoman Barbara Lee was the only lawmaker to speak out against he AUMF back in September 2001, when she warned, “[We] must be careful not to embark on an open-ended war with neither an exit strategy nor a focused target. We cannot repeat past mistakes.”

Barbara Lee was threatened and ridiculed for being the sole lawmaker to vote against the AUMF, but she has now submitted legislation calling for the AUMF to be repealed. “In reflecting on the rush-to-war in Afghanistan and President Bush’s misguided war-of-choice in Iraq,” she said, “my worst fears have unfortunately been realized.” She added:

Over the past [decade], this broad authorization of force has had far-reaching implications which shake the very foundations of our great nation and democracy. It has been used to justify warrantless surveillance and wiretapping activities, indefinite detention practices that fly in the face of our constitutional values, extrajudicial targeted-killing operations, and a policy of borderless and open-ended war that threatens to indefinitely extend US military engagement around the world.

Lee concluded, “It is time for Congress to reexamine, and ultimately repeal this flawed authorization. The alternative, to concede Congress’s constitutional responsibilities and blindly accept the persistence of war without end, is unacceptable.”

It remains to be seen whether the mainstream media will pick up on Barbara Lee’s proposal, or whether they will continue to allow themselves to be distracted by the self-serving lies of former Vice President Dick Cheney. This time around, as John Nichols explained, she has the support of 14 co-sponsors for her bill — 13 Democrats and one Republican.

This is an improvement, but much more interest is needed, if this dreadful legislation — the justification for “perpetual war,” indefinite detentions at Guantánamo, and the warrantless wiretapping of US citizens — is to be repealed, bringing the brutal and lamentable “War on Terror” to an end.

Note: Also see David Swanson’s article here.

Originally published on the Future of Freedom Foundation.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

As a result, Cheney knew that, on the tenth anniversary of the terrorist attacks that launched the “war on terror” that he is still so concerned to defend, his voice would be echoing in the ears of millions of his countrymen and women, helping to disguise a bitter truth: that, following the 9/11 attacks, Cheney was largely responsible for the abomination that is Guantánamo, and for the torture to which prisoners were subjected from Abu Ghraib to Bagram to Guantánamo and the “black sites” that littered the world.

Alarmingly, while Cheney has been largely successful in claiming that the use of torture was helpful, despite a lack of evidence that this was the case, what strikes me as even more alarming is that many Americans are still unaware of the extent to which the torture for which Cheney was such a cheerleader did not keep them safe from terrorist attacks, but actually provided a lie that was used to justify the invasion of Iraq in March 2003.

As a long time believer in unfettered executive power, Cheney’s fingerprints are all over the Bush administration’s response to the 9/11 attacks, along with those of his legal counsel, David Addington. The two men had met while defending Ronald Reagan during the Iran-Contra scandal, on the basis that the President should be beyond criticism, and it was Cheney and Addington who were behind a military order issued by George W. Bush on November 13, 2001, which established the President’s right to hold those he regarded as terrorists as a new type of prisoner (who later became the infamous “enemy combatants”), and, if he wished, to prosecute them in trials by military commission, which were designed to secure easy convictions and to use evidence derived through the use of torture.

It was Addington, no doubt after consultation with Cheney, who wrote the memo to President Bush on January 25, 2002, signed by White House Counsel Alberto Gonzales, which claimed that the Geneva Conventions contained “quaint” provisions, and that the circumstances in which the “war on terror” was being waged rendered “obsolete” the Conventions’ “strict limitations on questioning of enemy prisoners.” The memo advised the President to discard the Geneva Conventions for the prisoners at Guantánamo, which had opened two weeks earlier.

The purpose was to allow coercive interrogations, and even the use of torture, and this became official policy on August 1, 2002, when another of Cheney’s colleagues, John Yoo, a lawyer in the Justice Department’s Office of Legal Counsel, which is supposed to provide the executive branch with impartial legal advice, wrote two memos known as the “torture memos,” which attempted to redefine torture — including the use of waterboarding, a form of controlled drowning — so that it could be used by the CIA.

With the help of another of Cheney’s circle of close colleagues — Jim Haynes, the Pentagon’s General Counsel — the torture techniques chosen were reverse-engineered from those taught in US military schools to help US military personnel resist interrogation if captured by a hostile enemy. Haynes had made the first approach to the organization responsible for the program, known as SERE (Survival, Evasion, Resistance and Escape), and he also played a role in the spread of torture techniques to Guantánamo, as approved by defense secretary Donald Rumsfeld in November 2002, which then spread to Iraq, leading to the horrors that were revealed around the world when the Abu Ghraib scandal broke in April 2004.

Even so, Cheney’s biggest crime, to my mind, remains the way in which, while pretending to use torture to protect the American people from further terrorist attacks, he actually used it to attempt to justify the illegal invasion of Iraq in March 2003. This bleak story involves Ibn al-Shaykh al-Libi, who ran a training camp in Afghanistan — Khalden — that was shut down by the Taliban in 2000 after he refused to allow Osama bin Laden to take it over.  Al-Libi was initially interrogated by the FBI, but they were brushed aside by the CIA, who flew al-Libi to Egypt, where the torturers of Hosni Mubarak’s savage regime secured a patently false confession that Saddam Hussein had met with two al-Qaeda operatives to discuss the use of chemical and biological weapons.

Al-Libi recanted the false confession obtained through torture — which apparently included waterboarding — in 2004, although the Defense Intelligence Agency (DIA) had concluded at the time of the confession, in February 2002, that al-Libi had misled his torturers. However, no one told Colin Powell, who used it in the presentation he made to the UN Security Council in February 2003, a month before the invasion. This is alarming enough, but as it is clear that Dick Cheney knew about the DIA’s analysis that al-Libi had lied, the only conclusion that can be drawn is that, while pretending to protect the American people, Cheney was actually responsible for using a lie obtained through torture to justify an illegal war that would lead to the deaths of thousands of US military personnel, and of hundreds of thousands of Iraqi civilians.

Torture is a crime, for which Dick Cheney should pay, on the 10th anniversary of the 9//11 attacks, rather than being feted as some sort of entertainingly opinionated elder statesman. Above all, however, the al-Libi episode reveals the former Vice President not only as a torturer, but also as some sort of a traitor, making his continued ability to walk free, and to continue spreading his self-serving lies, a damning state of affairs for America as a whole, and one that should make decent Americans recoil in shame and horror from what they and their country have become.

Note: For more on the bleak story of Ibn al-Shaykh al-Libi, see Ibn al-Shaykh al-Libi Has Died In A Libyan Prison and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi. For more on the malignant influence of Dick Cheney, see Dick Cheney: invisible tyrant, Dick Cheney: more horrors from the ‘Vice-President for Torture’, The Ten Lies of Dick Cheney (Part One), The Ten Lies of Dick Cheney (Part Two), Prosecuting the Bush Administration’s Torturers and Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low.

Originally published on the Future of Freedom Foundation.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

The courts’ failure has come about largely because a number of judges in the D.C. Circuit Court, where appeals against the habeas rungs are filed, have revealed themselves to be at least as right-wing as the architects of the “War on Terror” in the Bush administration. Led by Judge A. Raymond Randolph, whose previous claim to fame on national security issues was that he supported every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court, the Circuit Court has, in the last year, succeeded in gutting habeas corpus of all meaning, when its relief is sought by any of the 171 men still held at Guantánamo.

Throughout this year, I have followed, with despair, the Circuit Court’s rulings, which are distressing on two fronts: firstly, because judges have whittled away at the lower courts’ demands that the government establish its case “by a preponderance of the evidence,” which is a very low standard in the first place; and secondly, because the Circuit Court has reinforced the misconception at the heart of the “War on Terror,” almost delighting, it seems, in failing to acknowledge that soldiers are different from terrorists.

In fact, despite the Supreme Court’s attempt to grant rights to the prisoners, both soldiers and terrorists are still, essentially, held at Guantánamo as a category of human being with almost no rights at all — what George W. Bush notoriously referred to as “unlawful enemy combatants.”

Last month, just after the Boumediene anniversary, on June 23, Judge Ricardo Urbina delivered the 60th Guantánamo habeas ruling, turning down the habeas petition of Khairullah Khairkhwa, an Afghan prisoner (PDF). This was unsurprising, as Khairkhwa was the governor of the western province of Herat under the Taliban, and had also served as the Taliban’s Minister of the Interior. Crucially, Khairkhwa’s defense turned on his claim that he did not have a military role, but Judge Urbina agreed with the Justice Department that there was evidence indicating that “he served as a member of a Taliban envoy that met clandestinely with senior Iranian officials to discuss Iran’s offer to provide the Taliban with weapons and other military support in anticipation of imminent hostilities with US coalition forces.”

This may well be the case, although it does not detract from the ongoing, and largely unchallenged absurdity of holding prisoners at Guantánamo who were involved in military activity, rather than those who were involved with acts of international terrorism. Unless Khairkhwa was involved in the planning and execution of the 9/11 attacks, he should, I contend, have been held as a prisoner of war, and not as an “enemy combatant,” and, very possibly, tried in Afghanistan for the war crimes of which he has been accused. These took place in 1998, when he was in charge as the Taliban took the northern Afghan city of Mazar-e-Sharif, and proceeded to massacre thousands of its inhabitants, the Hazara and the Uzbeks, who, along with Tajiks and Pashtuns, make up the four main ethnic groups in Afghanistan.

It is to no one’s credit that, nearly ten years after the 9/11 attacks, the deliberate confusion at the heart of the “War on Terror” — designed by senior Bush administration officials to allow them to set up an illegal interrogation camp at Guantánamo, and to coercively interrogate those it held, and even to torture them — still exists, imprisoning soldiers, and even military commanders like Khairkhwa, in an experimental prison associated with terrorism, possibly for the rest of their lives.

Last Friday, July 22, the Circuit Court reinforced its position, denying the appeal of Muaz al-Alawi (known to the authorities as Moath al-Alwi), who lost his habeas petition 18 months ago, in January 2009. Al-Alawi was one of the first prisoners to lose his habeas petition, and his case was emblematic of the distortions required to equate soldiers with terrorists.

At the time Judge Richard Leon turned down his habeas petition, the Court first had to establish that, in order to be detained, prisoners were required to be “part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the US or its coalition partners,” which included “any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.” As I explained at the time:

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 US 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 at US or coalition forces,” he was still in Afghanistan when that conflict morphed into a different war following the US-led invasion in October 2001. As Leon admitted in his ruling, “Although there is no evidence of petitioner actually using arms against US 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.”

Given the confused definition of who can legitimately be detained at Guantánamo, and the impact, in the last year, of the Circuit Court’s repeated assaults on the lower courts’ rulings, it was obvious that al-Alawi’s appeal would fail (PDF), but that is no cause for celebration.

As with the case of Khairullah Khairkhwa, the wrong questions are still being asked. Rather than asking whether these men can legitimately be held, what those who are disturbed by the ongoing existence of Guantánamo need to be asking instead is why the courts are justifying the ongoing — and possibly indefinite — detention of the Guantánamo prisoners, when that is inappropriate.

The majority of those still held were soldiers, who should be able to argue now that the conflict in which they were seized was finite, and cannot be an endless “War on Terror,” and the rest, accused of involvement with terrorism, should be tried for their alleged involvement in criminal activities.

Originally published on the Future of Freedom Foundation.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Superficially, the Detainee Assessment Briefs appear to cotton allegations against numerous prisoners which purport to prove how dangerous they are or were, but in reality the majority of these statements were made by the prisoners’ fellow prisoners, in Kandahar or Bagram in Afghanistan prior to their arrival at Guantánamo, in Guantánamo itself, or in the CIA’s secret prisons, and in all three environments, torture and abuse were rife.

I ran through some of the dubious witnesses responsible for so many of the claims against the prisoners in the introduction to Part One of this new series, and, while this is of enormous importance in the cases of many of the men still held (and also in the cases of some of those released), it is not particularly relevant to the overwhelmingly insignificant prisoners released between 2002 and September 2004, whose detention was so pointless that the authorities didn’t even bother trying to build cases against them through the testimony of their fellow prisoners.

As a result, the stories of these prisoners are particularly important in demonstrating how many innocent men or insignificant foot soldiers for the Taliban, engaged in combat with the Northern Alliance before the 9/11 attacks, and unconnected with international terrorism, were held at Guantánamo (and specifically how this latter category included many unwilling Afghan recruits).

What is also worth bearing in mind (and which is not spelled out in these documents) is that many prisoners were pointlessly rounded up because the Bush administration ordered the military not to screen the prisoners on capture, leading to a dragnet of “Mickey Mouse” prisoners, as was noted by Maj. Gen, Michael Dunlavey, a commander of the prison in 2002, and also offered substantial bounty payments for al-Qaeda and Taliban suspects to the US military’s Afghan and Pakistani allies.

In a five-part series, “WikiLeaks and the Unknown Prisoners of Guantánamo,” I began analyzing, transcribing and condensing the stories revealed in the documents released by WikiLeaks, looking at 84 stories of prisoners released between 2002 and September 2004 that had never been told before. The work of extracting information from the files and presenting it in edited form, with commentary based on my extensive research and experience, is a project that will take up the rest of the year. The next step is this ten-part series revisiting the stories of the 114 other prisoners released between 2002 and September 2004. That was the point at which the Combatant Status Review Tribunals (CSRTs) began, a military review process that, in turn, led to the first official release of documents relating to the prisoners in 2006, providing the material that I analysed and transcribed for my book The Guantánamo Files.

While this ten-part project is underway, I also propose to begin examining closely the files relating to the 171 prisoners still held, supplementing the series of articles that I produced last fall, entitled, “Who Are the Remaining Prisoners in Guantánamo?” This is important not just because the remaining prisoners have largely been abandoned by the mainstream media, even though 89 of the 171 have been cleared for release, and only 36 were recommended for trials by President Obama’s interagency Guantánamo Review Task Force, but also because, in the US, attorneys for the prisoners have only just won the right to look at the files (and not to download, save or print them), and the media in general is unwilling to subject them to much scrutiny because of how they became public in the first place.

So with thanks to WikiLeaks — and whoever leaked these documents — the third part of my ten-part analysis of the 114 prisoners released between 2002 and September 2004 (in addition to the 84 stories covered in my previous series) is below. When lies and distortions are covered up on this scale, and an experimental prison built on torture and abuse remains open, even under a Democratic President who promised to close it, everyone who believes in justice should publicize what has been revealed, and, if you agree, I hope that you will share this information widely. Also see Part One and Part Two of this series.

Ejaz Ahmad Khan (ISN 135, Pakistan) Released November 2003

In “The Guantánamo Files: Website Extras (7) – From Sheberghan to Kandahar” (one of 12 additional online chapters, telling stories that were not available in The Guantánamo Files, either for reasons of space, or because they were not known at the time), I told Ejaz Ahmad Khan’s story, based on an article by Tom Lasseter for an important series on 66 former Guantánamo prisoners that was published by McClatchy Newspapers in 2008.

Lasseter had interviewed Khan — identified as Ijaz Khan — in Islamabad, and stated that he had been 26 years old when he was seized in northern Afghanistan after the fall of Kunduz, and transported to a prison in Sheberghan run by Northern Alliance commander General Rashid Dostum, on a journey that is known as “the convoy of death,” because thousands of prisoners died, mainly of suffocation, in containers that were used to transport them.

Khan admitted to Lasseter that he had traveled to Afghanistan as a fighter, and explained that he had ended up in “the convoy of death” after surrendering to General Dostum’s men at Kunduz. “They threatened to kill us,” he said. “They pointed their guns like they were going to shoot us, then they made us get in the containers. When I woke in the morning, there were piles of bodies lying around me; I don’t know if they were dead or alive.” On arrival at Sheberghan, after he had “stumbled over the mounds of bodies and out into the daylight,” Dostum’s men, he said, “herded the prisoners” through the gates “by hitting them with sticks and iron rods.”

He added, “The commanders were treated differently than the common Taliban. They were taken away for three days, and when they came back they were unable to lie down, they were urinating on themselves … they had injuries all over them, they had bruises on every part of their skin. The normal fighters like me were hit with sticks and punched and kicked. They would take me out of the cell to beat me; it was too crowded to do it in the cell. They beat me unconscious many times.”

After a month, he said, he was taken to Kandahar, where he was stripped naked, thrown to the ground, so that “gravel tore into his skin,” and subjected to an anal probe. He also explained how the prisoners had tried to resist the everyday brutality of the guards. “We protested,” he said, “we made a lot of noise. We were shaking the fence walls of our cells. It gave us some kind of release. I’m not a human? Why did they keep me in this cage? I’m not an animal. I don’t keep my pets in a cage in my house. But the Americans caged us.” He added, “Luckily I have not lost my mental balance, because it was nothing short of madness.”

Although he declined to talk about Guantánamo, he made it clear that his experiences in Kandahar had tainted the rest of his life. He said that he “frequently lost his temper and that he was very angry about how the Americans had treated him,” and added, as an example of his lingering fury, that “he once saw a guard at Kandahar toss a Koran into a bucket that detainees used as a toilet. The Koran, he said, is at the very center of his life; it is the reason he lives.” He told the reporter, “You can imagine what I felt when I saw this.”

In his Detainee Assessment Brief, dated August 2, 2003, it was noted that he was born in 1975, and was “diagnosed with Chronic Hepatitis B,” but was “otherwise in good health.” After identifying him as a graduate with a mechanical engineering degree “from an unidentified university in Pakistan,” who had worked as “a natural gas pump attendant and a natural gas plant operator,” the Task Force confirmed that he had traveled to Afghanistan to fight for the Taliban, stating that, on November 6, 2001, he left his home, “bound to fight in the jihad.” By “word of mouth,” he then joined a group of Taliban fighters in Kunduz, in northern Afghanistan, where he “fought on the front lines for two days and was then shot in the right thigh at which time he was taken to the hospital in Kunduz.”

Soon after, he was told that the Taliban were surrendering, and was also told that, “after surrendering, the Mujahideen/Taliban would be permitted to go home.” He and 10-12 others then set off for Mazar-e-Sharif to surrender, but encountered the forces of Northern Alliance commander General Rashid Dostum at Yanghareq, on the outskirts of Kunduz, where they were seized. The “convoy of death” was not mentioned in his assessment, but what was mentioned instead was that, on June 11, 2002, he was sent to Guantánamo, allegedly “because of his knowledge of routes of travel into AF [Afghanistan].”

However, as I explained in a recent article, How to Read WikiLeaks’ Guantánamo Files (originally published on WikiLeaks’ website when the Guantánamo files were first published, as part of my work liaising between WikiLeaks and its media partners):

[T]he “Reasons for Transfer” included in the documents, which have been repeatedly cited by media outlets as an explanation of why the prisoners were transferred to Guantánamo, are, in fact, lies that were grafted onto the prisoners’ files after their arrival at Guantánamo. This is because, contrary to the impression given in the files, no significant screening process took place before the prisoners’ transfer. As a senior interrogator who worked in Afghanistan explained in a book that he wrote about his experiences, every prisoner who ended up in US custody had to be sent to Guantánamo, even though the majority were not even seized by US forces, but were seized by their Afghan and Pakistani allies at a time when substantial bounty payments for “al-Qaeda and Taliban suspects” were widespread.

In its assessment, the Joint Task Force stated that it “consider[ed] the information obtained from and about him as not valuable or tactically exploitable,” and added, “Based on current information, detainee [135] is assessed as being neither affiliated with al-Qaida nor a Taliban leader. Moreover … the detainee has no further intelligence value to the United States and will not be seen for further intelligence purposes. [He] has not expressed thoughts of violence nor made threats toward the US or its allies during interrogations or in the course of his detention. Based on all the above, detainee poses a low threat to the US, its interests and/or its allies.” As a result, Maj. Gen. Geoffrey Miller, the commander of  Guantánamo at the time, recommended that he be “considered for release or transfer.”

Salahuddin Ayubi (ISN 138, Pakistan) Released September 2004

In “The Guantánamo Files: Website Extras (7) – From Sheberghan to Kandahar,” I explained how Salahuddin Ayubi, who was 27 years old when he was captured, was one of 35 Pakistani prisoners released from Guantánamo on September 17, 2004 and subsequently held for questioning in Pakistan. Speaking to the Associated Press on his release from Pakistani custody in June 2005, he said, “During interrogation, whenever I would make a reference to the Koran, they would hit me in the face with a copy. They would tear it into pieces. They would tell me that Koran teaches us terrorism. They would throw the Koran against the roof, which would tear it into pieces, and they would say, ‘This is the real source of terrorism.’”

Speaking to the Nation, he reiterated his complaints, saying, “American soldiers having nefarious designs against Muslim Ummah, have been committing desecration of the holy Koran at Guantánamo,” and in the Pakistan Daily Times it was reported that he joined with Mohammed Hanif (ISN 305, see Part Four), who was 19 years old when he was seized, and another freed prisoner, Hafiz Ehsan Saeed (ISN 98, see Part Two of this series) in saying that the prisoners were prevented from practicing their religion for the first year of their imprisonment, but that they were “given some religious freedom after the Red Cross’s intervention.”

In his Detainee Assessment Brief, dated January 25, 2003, it was stated that his name was Salahodin Ayubi and that he was born in 1974. It was also stated that he had “latent tuberculosis, [was] a chronic Hepatitis B carrier, ha[d] constant pain in the left shoulder due to a previous shrapnel injury, and suffer[ed] from general anxiety,” but was “otherwise in good health.”

It was also stated that, in July 2001, he had traveled to Kunduz to participate in Jihad against the Northern Alliance,” and “was trained to provide medical assistance to Pakistani military personnel associated with the Jaish-e-Mohammed (JEM) Organization,” a Pakistani militant group. He explained that he received 10 days’ training before traveling to Kunduz, and then “worked at a JEM clinic” until November 26, 2001, when it was damaged during the allied bombing campaign. He then fled to Khawaja Ghar, but was wounded by a mortar explosion, and taken to hospital in Kunduz for a week, and then to a JEM clinic for two weeks. He was then seized by Northern Alliance soldiers and sent to Sheberghan, perhaps having avoided “the convoy of death.” After a month in Sheberghan, he was transferred to US control, and was sent to Guantánamo on approximately January 17, 2002, on the spurious basis that it was “because of his knowledge of the Jaish-e-Mohammed Organization.”

In its assessment, the Joint Task Force stated that it “consider[ed] the information obtained from and about him as not valuable or tactically exploitable,” and added, “Based on current information, detainee [138] is assessed as neither affiliated with al-Qaida nor as being a Taliban leader. Moreover … the detainee has no further intelligence value to the United States and will not be seen for further intelligence purposes. [He] has not expressed thoughts of violence nor made threats toward the US or its allies during interrogations or in the course of his detention. Based on the above, detainee does not pose a future threat to the US or US interests.” As a result, Maj. Gen. Miller recommended that he be “considered for release or transfer to the control of another government.”

It was also noted that, “During a visit to Guantánamo Bay, Cuba, from 3 to 10 August 2002, Pakistani Intelligence officers interrogated [ISN 138] and concluded that he had little or no intelligence value They stated that their government would accept custody of [him] if released by the US government.”

Hafiz Liaqat Mansoor (ISN 139, Pakistan) Released November 2003

In “The Guantánamo Files: Website Extras (7) – From Sheberghan to Kandahar,”, I told Hafiz Liaqat Mansoor’s story, based on an article by Tom Lasseter for an important series on 66 former Guantánamo prisoners that was published by McClatchy Newspapers in 2008.

Mansoor, described in the interview as Hafiz Liaqat Manzoor, was 24 years old when he was captured by troops loyal to General Dostum, and was interviewed in Islamabad, where, over four years after his release from Guantánamo, he was a third-year law student. He explained that, after being seized, he was held for about three weeks in Sheberghan, and was then transferred to the US prison at Kandahar airport, which was used to process the prisoners for Guantánamo. His recollections match those of many other released prisoners who have described how brutal the regime was at Kandahar (and which is discussed at length in Chapter 8 of The Guantánamo Files).

The McClatchy report noted that Manzoor said that, on the plane to Kandahar, “US soldiers struck him with their guns every time he moved his head.” After he landed, “a soldier shaved off his beard,” and he spent his first night “naked and shackled, sleeping on the floor of an airport hangar with about ten other men, surrounded by concertina wire.” The next day, “guards gave him clothes and a number, 18, and told him that was his new name.” He explained that he spent about 17 days in Kandahar, but “was interrogated only once — he was asked basic questions such as his name and place of birth — then was left sitting in a tent outside for the rest of the time,” although he added that other prisoners “often came back bleeding” after interrogations. He also noted that on one occasion, “during a search of the tent next to his, a guard threw a Koran into a bucket that detainees used as a toilet.”

Describing his experiences at Guantánamo, he said, “They caged us there, in cages similar to what we use for poultry,” and proceeded to explain that, in his first interrogation, about 20 days after he’d arrived, “I told them I went to Afghanistan for the fight … They said, ‘You have been fighting against us. Do you know that?’ I said, ‘Yes, I know that; I accept that.’” Despite this admission, he said he “wasn’t interrogated again for about six months, when he was called in to repeat his previous remarks,” and stated, “I said that I will only tell the truth: I was there fighting you.” Several months later, after a new prisoner was moved into the neighboring cell, he was interrogated again, when he was informed that his new neighbor was telling interrogators that he was “a top Taliban commander.” He explained that he denied the allegation, “asking why he’d acknowledge being a jihadi fighter in his first questioning only to lie later.”

Manzoor was clearly fortunate to be a Pakistani, as the Pakistani government’s cooperation with the US facilitated the return of prisoners even when, as in Manzoor’s case, they had traveled to Afghanistan to engage US forces. Had he been from another country, it’s probable that he would have been held for much longer, and would also not have been so easily able to shrug off the allegation that he was a Taliban leader.

At the conclusion of the interview, he explained that he was imprisoned for about a year after his return, but that he then decided to devote himself to the law. As the report described it, “The only lesson he learned, he said, was the importance of the law; it was something that occurred to him during his days of sitting in a cell at Guantánamo without a lawyer or a trial.” He added, “Whatever I have been through so far in my life suggests that law is the only field” for working toward justice.

In his Detainee Assessment Brief, dated January 25, 2003, it was stated that his name was Lequat Manzur and that he was born in 1977. It was also stated that, although he had “latent tuberculosis and chronic pain in the right knee,” he was “otherwise in good health.”

It was also stated that, in early August 2001, he “traveled by truck from his home in Islamabad” to “participate in Jihad against the Northern Alliance.” Reaching Kunduz, he worked as a guard at a Taliban compound, both in Kunduz and in Khawaja Ghar, before surrendering to Northern Alliance forces on or around November 26, 2001, which was essentially where the account he gave to Tom Lasseter began.

Despite being thoroughly insignificant, he was sent to Guantánamo on or about January 16, 2002 on the spurious basis that it was “because of his knowledge of a specific Harakat Al-Jihad Al-Islamic [sic] Training Center, where he received training in 1998, and of the Taliban guard force in Kunduz.” It is not known who was the neighbor who falsely — if understandably — told interrogators that he was “a top Taliban commander.”

In its assessment, the Joint Task Force stated that it “consider[ed] the information obtained from and about him as not valuable or tactically exploitable,” and added, “Based on current information, detainee [139] is assessed as neither affiliated with al-Qaida nor as being a Taliban leader. Moreover … the detainee has no further intelligence value to the United States and will not be seen for further intelligence purposes. [He] has not expressed thoughts of violence nor made threats toward the US or its allies during interrogations or in the course of his detention. Based on the above, detainee does not pose a future threat to the US or US interests.” As a result, Maj. Gen. Miller recommended that he be “considered for release or transfer to the control of another government.”

It was also noted that, “During a visit to Guantánamo Bay, Cuba, from 3 to 10 August 2002, Pakistani Intelligence officers interrogated [ISN 139] and concluded that he had little or no intelligence value They stated that their government would accept custody of [him] if released by the US government.”

Mohammad Saghir (ISN 143, Pakistan) Released October 2002

A 49-year old woodcutter from Pakistan’s North West Frontier Province, Mohammad Saghir (also identified as Mohammed Sagheer), was, as I explained in Chapter 3 of The Guantánamo Files, “also a missionary with Jamaat-al-Tablighi, a vast worldwide proselytizing organization whose annual gatherings in Pakistan and Bangladesh attract millions of followers. Over the years he had been involved in numerous preaching missions to Afghanistan, but on this occasion he and nine other missionaries were seized by Northern Alliance troops” after the fall of Kunduz. After his release, his story was told in association with a lawsuit he filed against the US government, in an article by James Meek in the Guardian in December 2003, and in an article in Newsline in February 2004.

The lawsuit, for $10.4 million, was because of “his illegal detention and suffering, torture and humiliation at the hands of US forces,” as Newsline described it. Saghir explained that he was “mired in debts accrued by his family — including his wife, six sons and three daughters — during his year-long absence. His sons spent whatever the family had on their sojourns to Afghanistan in search of their father … To provide for the family’s daily expenditure they took loans which they now need to pay back.” Saghir added, “The business is closed and it’s hard to cope with the situation. It’s difficult to make both ends meet.”

After his capture, Saghir was held for a night at Yanghareq, where the thousands of soldiers and civilians who surrendered after the fall of Kunduz were held, before their transfer to Sheberghan on “the convoy of death,” Saghir explained after his release that he “witnessed wounded and injured men buried alive with the dead,” and was then taken to Qala Zeini [en route to Sheberghan] and herded into a container. “The journey took five hours,” he said. “It was dark, hot and suffocating as there was not enough air in the container. Fifty out of the 250 prisoners died on [the] way.”

At Shebarghan jail, “he spent one-and-a-half months along with other prisoners from Kunduz,” as Newsline explained. Saghir stated that “[t]he conditions inside the prison were poor and the attitude of the troops extremely bad,” explaining, “We were given six loaves of bread and one pot (lota) of water for 70 persons. Our bodies were searched and we were deprived of all our belongings there as well.”

From Shebarghan he was taken along with 15 other prisoners to the US prison at Kandahar. He told James Meek that he “had not even had a cursory interview at Sheberghan before he was bound hand and foot, blindfolded and helicoptered to Kandahar,” where, he said, “They would just pick us up and throw us out [of the plane]. Some people were hurt, some quite badly.” He also explained how, before being flown to Guantánamo, the prisoners were shaved, ostensibly because they had picked up lice. “We resisted, but four or five commandos came and they had a machine and just shaved off my beard and moustache,” Saghir said.

On arrival in Guantánamo, after a 24-hour flight, Saghir said that, as with the arrival at Kandahar, the prisoners “were thrown off the plane on arrival.” He stated that “some had their noses broken,” and added, “I got a bruise under my left eye where my face hit the ground.”

In Camp X-Ray, Saghir told James Meek that “there was little tolerance for the practice of Islam, with its requirement of prayer five times a day.” He said, “In the first one-and-a-half months they wouldn’t let us speak to anyone, wouldn’t let us call for prayers or pray in the room. We were only given 10 minutes for eating. I tried to pray and four or five commandos came and they beat me up. If someone would try to make a call for prayer they would beat him up and gag him. After one-and-a-half months, we went on hunger strike.” Saghir also stated that he was locked up in solitary confinement, and also subjected to collective punishment, after “an Arab spat at a guard and the entire line of 24 cages was punished with solitary.” Speaking to Newsline, he said that he was held in solitary confinement on two occasions — once for two days and the second time for 16 days. “There was no light in the solitary confinement cell and they used to pump cold air inside the cell,” he explained.

Saghir also confirmed that the interrogators’ questions were monotonously repetitive. “They would ask: ‘Where is Osama? Do you know any of the al-Qaida leaders? Have you met them?’ Things like that,” he told James Meek. “They would not get angry with my answers. We would ask them and they would say: ‘We don’t know when you will be let free. Only our bosses know, we are here to do our job.’”

In 2008, Saghir traveled to Islamabad to speak to Tom Lasseter for McClatchy Newspapers’ report on 66 released prisoners, when much of what he had stated in his earlier interviews was confirmed. The interview also included an explanation of how his lawsuit had come to nothing, and how, on his return to Pakistan, he had “found out that he was responsible for 1.2 million rupees — almost $20,000 — in loans that his family had taken out to survive without his income and to finance trips to Afghanistan to search for him.” He added, “My family thought I had been killed in Afghanistan; people came to pay their respects,” until letters arrived from the International Committee of the Red Cross. Saghir also told Lasseter that he had “worked for more than five years and sold all his land to pay off the debt,” although he still owed some 400,000 rupees” — about $6,000.

Presenting additional information to that in the previous accounts, Saghir told Lasseter that, in Sherberghan, “he watched many around him die of infections,” and also spoke more about his time in Guantánamo, explaining that, when he” joined a hunger strike to protest rules that forbade detainees from talking to one another and prohibited prayer, and he went for three days without food,” the guards, in his own words, “came in with riot shields, grabbed me by the neck and gave me an injection. I fell down unconscious and woke up in the hospital. They had put a tube in me.”

In his Detainee Assessment Brief, dated September 27, 2002, his account was largely confirmed. The Task Force described him as “a farmer and missionary,” and also noted, contrary to his own statements, that his “missionary trip to Afghanistan with nine other individuals was the first time he left Pakistan,” for which he also “receiv[ed] his spouse’s permission.” The Task Force also stated that he had planned to preach for between two and four months, but was seized by General Dostum’s forces “while he was fleeing Kunduz for Pakistan after the bombing campaign started.” He was sent to Guantánamo on January 17, 2002, and the spurious reason given for his transfer was because of “his knowledge of General Dostum’s treatment of captured personnel transported from Kunduz to Sheberghan” — a low point in the feeble reasons given for transfer to Guantánamo, as it involved US forces suggesting that they took him halfway round the world to an experimental prison outside the law simply to find out more about how their close ally had been murdering prisoners of war.

In its assessment, the Joint Task Force stated that it “consider[ed] the information obtained from and about him as not valuable or tactically exploitable,” and added, “Based on current information, detainee [143] is assessed as not affiliated with Al-Qaida, and as not being a Taliban leader. Moreover … the detainee has no further intelligence value to the United States and will not be seen for further intelligence purposes. [He] has not expressed thoughts of violence nor made threats toward the US or its allies during interrogations or in the course of his detention. Based on the above, detainee does not pose a future threat to the US or US interests.” As a result, Maj. Gen. Miller recommended that he be “considered for release or transfer to the control of another government.” It was also noted that the Pakistani government had “stated it [was] willing to accept the custody of [ISN 143], if released by the US government.”

Mohammed Ilyas (ISN 144, Pakistan) Released September 2004

In Chapter 9 of The Guantánamo Files, Ilyas was briefly mentioned as being 59 years old at the time of his capture, and I also noted that he was probably seized with two other recruits from villages in Sindh province — 20-year old Abid Raza (ISN 299), and 21-year old Mohammed Anwar (ISN 524).

In his Detainee Assessmernt Brief, dated May 28, 2004, his name was noted as Mohammed Euas, born in 1942, and it was also stated that he had “significant” medical issues, having been “diagnosed with diabetes mellitus type II, hypertension and hyperlipidemia,” all of which had apparently been “stabilized with medications.”

It was also stated that, on November 20, 2002, Maj. Gen. Geoffrey Miller, the commander of Guantánamo at the time, had recommended that he be “considered for release or transfer to the control of another government,” on the basis that he “was not affiliated with Al-Qaida or a Taliban leader, and [did] not pose a future threat to the US or US interests.”

After that, however, new information evidently derailed his release — specifically, a claim that, although he had “stated in May 2001 he went willingly to Afghanistan (AF) to preach the teachings of Islam,” he did so as part of Jamaat al-Tablighi, the vast missionary organisation, with millions of members, which, nevertheless, was regarded by the US authorities — at Guantánamo, if nowhere else — as “a Tier 2 NGO target.” These were helpfully described as organizations that “have demonstrated  the intent and willingness to support terrorist organisations and are wiling to attack US persons or interests.” Disgracefully, the Task Force added, “JT is a NGO that has direct ties to Al-Qaida.”

In addition, the Task Force claimed that a Saudi, Majid al-Harbi (ISN 158, released in February 2007), identified Ilyas as “an imam named Mohammed Elias in Lahore, Pakistan (PK), who issued a fatwah against US and Northem Alliance forces,” even though it was almost inconceivable that a Saudi, picked up crossing from Afghanistan into Pakistan, would know anything about him. The Task Force also claimed that a Pakistani, Fazaldad (ISN 142, released in September 2004), claimed that Ilyas was “one of the recruiters and leaders at the Mansehra Jihad Training Camp” in Pakistan, which was reportedly controlled by Harakat Ul-Mujahideen Al-Alami (HUMA), described as “a Tier 1 terrorist target.” It was also claimed that Fazaldad had described Ilyas as “a leader of the Taliban in Kunduz,” because he saw him “using a walkie-talkie to communicate with and direct Taliban guards,” although, as with the Saudi allegation, there was no reason to presume that there was any truth in Fazaldad’s claims.

As a result, Ilyas was upgraded to “a high risk,” who “may possibly pose a threat to the US, its interests and allies,” and was “of medium intelligence value.” Even so, the Task Force recommended that he “be transferred to the custody of another country for continued dentition,” but the Criminal Investigative Task Force (CITF) disagreed. On May 19, 2003, “CITF stated that they were unable to make a risk assessment,” and as a result, JTF GMTO and CITF were unable to agree about his disposition, until someone gave the go-ahead for his transfer just four months later.

Hamood Ullah Khan (ISN 145, Pakistan) Released September 2004

As I explained in “The Guantánamo Files: Website Extras (7) – From Sheberghan to Kandahar,” Khan, identified as Hamoodullah Khan, was interviewed by Tom Lasseter in Karachi in 2008 for McClatchy Newspapers’ major report on 66 former Guantánamo prisoners. Seized by Northern Alliance troops towards the end of 2001, when he was 30 years old, he told Lasseter that he was then “transferred to a series of Pakistani prisons and jails for nine and a half months,” and claimed that he had traveled to Afghanistan because he was a pharmaceutical sales representative, and was “trying to set up a business.”

Lasseter seemed doubtful, noting that, because Khan was released before the tribunals were convened, there was “no transcript that lays out the military’s case against him or any indication of what American interrogators thought about the credibility of his claim that he decided to take a business trip to Afghanistan in November 2001, when battles raged between Taliban and al-Qaeda fighters on one side and American troops and their Afghan allies on the other.” For his part, Khan seemed unperturbed by any doubts the authorities might have had towards him. He explained that “the interrogators told him that he was lying, but they didn’t seem too upset as they asked the same questions and he gave the same answers in one session after the next.”

His treatment had not always been so benign, however, and his account of his treatment in US custody in Afghanistan echoed that of Hafiz Liaqat Manzoor. He explained that, as the helicopter taking him to Kandahar from Sheberghan banked and his body “slumped over,” an American soldier “kicked him and yelled, ‘Don’t move!’ His body shifted again as the helicopter pitched downward toward the landing zone, he said, and the soldier hit him with a rifle butt and screamed at him to sit still.” He added, “After we landed they told us to get on the ground. A soldier sat on me and another soldier came up, grabbed my hair and beat my face into the ground. My nose started bleeding, then I passed out. When I woke up, I was naked. They gave me some clothes.”

After less than three weeks at Kandahar — where, “on the way to and from interrogations, walking in shackles with hoods on, ‘the guards would slam us against the walls, punch us on the stomach’” — Khan was transferred to Guantánamo, enduring random violence on the plane, on the bus to Camp X-Ray, and on arrival at the prison. He said he “got the message,” and spent the rest of his time as “a model prisoner. He didn’t participate in hunger strikes. He didn’t argue with guards. He remained quiet, kept to himself and looked at the ground when soldiers walked by his cell.” As a result, he said, “he was never hit or kicked in his cell,” although “he saw it happen to other detainees all the time.” Citing the example of Juma al-Dossari, the joint Saudi-Bahraini national released in July 2007, who attempted suicide on at least 13 occasions, he said that he’d “seen what happened when men stepped out of line … The psychological effects of repeated trips to isolation cells and regular beatings, he said, drove some detainees out of their minds.”

Khan spent the last year in Camp Four, where compliant prisoners shared rudimentary dorm-like facilities, and explained, “They said that my behavior was good, that I was not a danger to them.” He noted that the authorities were “particularly pleased” with prisoners who refused to take part in hunger strikes. “I never participated in the hunger strikes,” he said. “There was no use … the hunger strikes would not free us, so why go on a hunger strike?” Instead, he “spent most of his time at Camp Four the same way he had in his previous cellblocks: memorizing the Koran and praying.”

In 2008, Khan taught at a madrassa, and had only one abiding question about his imprisonment. “There is still one big question that remains in my mind,” he said. “Why was I there? I keep wondering about that.”

In his Detainee Assessment Brief, dated July 9, 2003, it was stated that his name was Hamood Ullah Khan and that he was born in 1971, and it was also noted that he had latent tuberculosis, in common with many of the prisoners, and also “serological evidence of prior Hepatitis B infection,” although it was stated that he was “not currently infectious,” and was “otherwise in good health.”

Reinforcing the story that he later told to Tom Lasseter, Khan told his interrogators that he and “a long-time friend, Abdul Kareem, owned a pharmaceutical business in Pakistan,” and that they “decided to travel to Afghanistan to sell pharmaceutical products there because of the high profit potential.” Khan said he was “concerned about going to Afghanistan because of the ongoing war,” but Kareem, whose parents were Afghans, was confident because of his “numerous trips” there, and because he had “the language skills and contacts necessary to do business in Afghanistan.”

According to Khan’s account, the two men arrived in Pul-i-Khumri in Baghlan province in November 2001, but he (Khan) became ill, and stayed indoors in a house while Hakeem sold all the pharmaceuticals. Hakeem then said he would visit relatives before heading back to Pakistan, but he did not return, and Khan, instead, sought help from a stranger, Muhammad Arif, who turned out to be a member of the militant group Jaish-e-Mohammed, who informed him that all the roads to Pakistan were closed, but said that he would help him.

The two men took public transport to Kunduz, “where they went to an abandoned school controlled by 10-15 members of Jaish-e-Mohammed,” and where Khan remained “for approximately one week and worked by helping the doctor dispense over-the-counter medication.” Khan added that, after a week, he and Arif departed for Kandahar, where they were seized by Northern Alliance troops. He was then taken to Sheberghan, perhaps on “the convoy of death,” and was sent to Guantánamo on January 14, 2002, on the spurious basis that it was “because of his knowledge of a Taliban training school in Kunduz; biographical information on Muhammad Arif; the Amson Pharmaceutical and Biological Company in Karachi where he had previously worked; the quantity and quality of medications available in Afghanistan and Pakistan; and on pharmaceutical products available in Pakistan for black market distribution in Afghanistan.”

That was quite a list of reasons for detention grafted onto his largely random presence in US custody, but primarily doubts arose because of his presence in Kandahar and because of one comment made by an unattributed fellow prisoner, who apparently “recognised” Khan as “being an associate affiliated with al-Qaeda,” even though, on November 20, 2002, Maj. Gen. Miller had recommended that Khan “be considered for release or transfer to the control of another government.” The Task Force acknowledged that “the source did not know his name or any further information concerning” Khan, but was worried about how he could have been captured in Kandahar, when the Northern Alliance was not, at that time, operating that far south.

The Task Force also worried that, at university, he had been “affiliated” with the Muhajir Quami Movement  (MQM), described in the DAB as “an extremist group, which has been tied to the murder of two Americans in Pakistan, in 1995,” even though the organisation is actually the student wing of the Muttahida Qaumi Movement, the third largest political party in Pakistan, and the largest liberal and secular political party. It was also noted that, after university, Khan “moved inexplicably to Malaysia (possibly fleeing Pakistan),” where he “lived for five years and continued his affiliations with MQM,” even though an innocent explanation was provided in the assessment, when it was noted that Khan “has relatives” in Malaysia.

This was a typical failure of intelligence on the part of the US authorities, but it contributed to Khan’s reassessment as someone who was “affiliated with several extremist groups that either have Al-Qaida links or who have targeted Americans,” and the decision to consider him “a serious threat to the United States” who “should be detained for further intelligence purposes.” He was, furthermore, described as “possess[ing] a confirmed high threat to the US, its interests, and its allies.” As a result, it took another 14 months until he was released.

Mourad Benchellali (ISN 161, France) Released July 2004

As I explained in Chapter 7 of The Guantánamo Files, Mourad Benchellali, who was 19 years old when he was seized, traveled to Afghanistan in summer 2001 from Venissieux, a poor suburb of Lyons, with his friend Nizar Sassi (ISN 325, see Part Four). He told his story to Le Figaro in February 2006, and in an op-ed in the New York Times in June 2006, and, according to these accounts, after attending a training camp, Benchellali and Sassi spent some time in Jalalabad, where they met up with Hervé Djamel Loiseau, a convert to Islam from Paris. Loiseau was a close friend of another French prisoner, Brahim Yadel, a Parisian who arrived in Afghanistan in July 2001, accompanied by Redouane Khalid, who was also from Paris. Completing the connections between the men, Khalid traveled in Afghanistan with Khaled bin Mustafa, from Lyons, who had met him at his wedding in Paris. Yadel, like Benchellali and Sassi, was released in July 2004, while the others were freed in March 2005.

From Jalalabad, where the men had been living before the US-led invasion, they fled to Pakistan in two groups. Benchellali explained that he had seen Osama bin Laden in Jalalabad, when the remaining Arabs in Afghanistan were asked to choose whether “to leave Afghanistan, or to take up arms,” and said that, having chosen to leave, “More than a thousand of us left by way of the mountains to get to Pakistan.” He and Sassi travelled with Loiseau, but their companion died on the way. When they arrived in Pakistan, they were captured by locals and handed over to the Pakistani army, who sold them for $5,000 each to the Americans.

When it came to his motivations, Benchallali acknowledged that he came from a family with aspirations to fight in defense of Muslims facing oppression. As I explained in The Guantánamo Files:

His father was a radical imam who had tried (and failed) to fight in Bosnia, his brother Menad had tried (and failed) to fight in Chechnya, and his brother, his father and even his mother had all spent time in French prisons, but he insisted that he went to Afghanistan for “an adventure” and as a way of enhancing his status, hoping that he would be “viewed differently” in his neighbourhood, and that his reputation might “match” that of his brother. He admitted that his sense of adventure was “misguided and mistimed,” and blamed his brother for encouraging him to go, and for arranging for him to attend a training camp. “For two months, I was there,” he wrote after his release, “trapped in the middle of the desert by fear and my own stupidity.”

Benchellali also described the abuse to which he and other prisoners were subjected in US custody in Kandahar and Guantánamo, which involved some very damaging claims:

[In Kandahar] they hit us. They piled us one on top of the other. Sometimes, they took photos of us completely naked. We were interrogated several times a day. They handcuffed us to hurt us. I was tied to a bar placed above my head or then they tied me up very low on my back. Americans peed on detainees. I saw the Red Cross, but its representatives told me that there was nothing they could do.

Then, in January 2002, I was transferred to Guantánamo. I was beaten up on the bus that was taking us to the camp. We were treated differently depending on whether or not we responded to questions. Those who did not “cooperate” were awakened every hour with the aim of preventing them from sleeping at all costs. They might put us in a room with the music very loud broadcast through large speakers or make us endure flashes of light for several hours at a time. Sometimes, they left us handcuffed for hours to a chair or then they turned down the air conditioning. The humiliations were numerous, in particular of a sexual nature. The Americans had prostitutes come into the camp. One of them planted herself in front of a Saudi — they were in the majority at Guantanamo — and smeared her menstrual blood on his face. The searches were constant and humiliating. They tied the Koran above us and took pleasure in batting it around.

In an interview with Matthew Schofield in 2008 for McClatchy Newspapers’ major report on 66 former Guantánamo prisoners, Benchellali reiterated that his trip to Afghanistan had been an “adventure,” and denied claims that he was driven psychologically to prove himself. He told Schofield, “It was June 2001, and I thought I’d take a vacation, be back in time for classes in September. Later, the papers would say I was a desperate outsider, trapped looking in on an uncaring nation. But that’s not true. I was happy. I was getting an education. I had a job. I had a fiancee. I just thought I wanted a bit of adventure.”

The interview also provided further information about the training camp that Benchellali and Sassi had attended, after he had been persuaded to go to Afghanistan by his brother. He stated that “there wasn’t much available to them” in Afghanistan, because “[t]hey didn’t speak a word of the local languages, Dari and Pashtu, nor Arabic, so they stumbled around for a few days before they met some Algerians who spoke French,” and who “suggested that they spend part of the summer at a Muslim camp.”

This was an al-Qaeda camp — the al-Farouq camp that provided basic training — but Benchellali reiterated that he felt “trapped.” He told Schofield that he and Sassi “studied the Quran, ate not quite enough and did physical training, which consisted of a lot of running and exercises.” He also said that they studied weapons, although he “claimed that he was never allowed to use one,” and talked about jihad.

Adding that they were “terrified,” he explained that they “realized that the only people who were able to leave were those who got sick, so they pretended to be sick.” However, there was a hospital in the camp, and it was only when Sassi really got sick, losing 45 pounds, that he was sent to a hospital in Kandahar, leaving Benchellali alone. It was at that point, he said, that “everyone was really excited, talking about how a great man was coming to speak to us.” He added that he “was ushered into an open area with 200 others,” where “everyone was chanting, ‘Osama, Osama,’ but because he “didn’t understand a word,” he “went back to his tent.”

In his Detainee Assessment Brief, dated March 27, 2004, it was stated that he was born in July 1981, and the Task Force ran through the story that Benchellali himself told after his release — how he was encouraged to travel to Afghanistan by his brother, how he and Nizar Sassi traveled first to London, and then to Islamabad on June 29, 2001, and how they then attended the al-Farouq training camp, and fled to Pakistan after the US-led invasion. The Task Force explained that, “along with several other French-speaking Arabs,” Benchellali and Sassi “traveled across the Pakistan border until they reached a large village where the local inhabitants locked them in the mosque. Pakistani officials arrested them the following morning, 15 December 2001, without incident.” Unsubstantiated in all this was a claim that they “likely participated in fighting against US and allied forces.”

No specific reason was given to purportedly justify Benchellali’s transfer to Guantánamo, although it was noted that he “possesses intelligence information.” Referring to how the Bush administration perceived its naval base in Guantánamo Bay, it was noted, under the heading, “Reasons for Continued Detention in Another Country,” that he had “possible connections” to the the Salafist Group for Prayer and Combat (GSPC). Also mentioned were the supposed terrorist connections of the owner of “the Algerian House,” a house he stayed in in Jalalabad, and extensive information about his family which had come from the French intelligence services.

In its assessment, the Task Force stated that it regarded Benchellali as “a member of Al-Qaida and having several ties to other global terrorist networks,” who had “demonstrated a commitment to Jihad, ha[d] links to key facilitators in Al-Qaida’s international terrorist network, ha[d] participated in terrorist training and hostilities against the US and coalition forces [this was never proved, of course], and maintain[ed] the capability to continue to do so.” He was, additionally, “assessed as a high threat because of his close ties with active elements of Al-Qaida, including several members of his immediate family who are known terrorists and who are active in the procurement and use of chemical weapons” (again, something that was not proved). As a result, JTF GTMO determined that he posed “a high risk, as he [was] likely to pose a threat to the US, its interests and allies,” but, nevertheless, recommended that he “be transferred to the control of another country for continued detention,” despite knowing that the French government would not be able to hold him — or the other ex-prisoners — without charge or trial.

Since their release from Guantánamo, Benchellali and four of the other ex-prisoners — Nizar Sassi, Brahim Yadel, Khaled bin Mustafa and Redouane Khalid — have faced a long ordeal in the French courts, although they did not, of course, face “continued detention,” as envisaged by the Bush administration. In 2007, they were convicted of “criminal association with a terrorist enterprise,” and given one-year sentences, but they were not imprisoned because of the time they had already spent imprisoned in Guantánamo. However, their convictions were overturned on appeal on February 24, 2009, because, as the New York Times explained, “The court ruled that information gathered by French intelligence officials in interrogations at Guantánamo Bay, Cuba, violated French rules for permissible evidence, and that there was no other proof of wrongdoing.”

On February 17, 2010, the Court of Cassation, a higher court, ordered a re-trial of the five men, and that trial began on January 20 this year, with lawyers drawing on US diplomatic cables released by WikiLeaks to argue that the case should be dropped. As the Miami Herald reported, “defense lawyers presented at least three US diplomatic cables citing French anti-terrorist investigators,” and “argued that it was inappropriate for French investigators to have discussed the ex-inmates’ cases with American authorities.” In April, it was noted by a French researcher for Cageprisoners that the men’s conviction had been upheld by the Court of Cassation.

After his release, Benchellali also wrote a book about his experiences, Voyage Vers L’Enfer (published in May 2006).

Imad Kanouni (ISN 164, France) Released July 2004

Unlike the five French prisoners whose stories were somehow connected (see Mourad Benchellali, above), Imad Kanouni, who was 24 years old at the time of his capture, said that he traveled to Afghanistan “to pursue religious education,” as I explained in Chapter 7 of The Guantánamo Files, drawing on an Associated Press report that dealt with the start of the former prisoners’ trial in July 2006, at which his lawyer, Felix de Bellay, called the trial “intellectually as well as legally shocking.” Although Kanouni admitted that he was “ready to die for a good cause, [to] defend people who were attacked in their countries,” he insisted that he did not agree with the ideas of Osama bin Laden and had never visited a training camp.

When five former prisoners were convicted of “criminal association with a terrorist enterprise” in December 2007, Kanouni was acquitted, as the Associated Press reported. The AP report on the trial, reiterating Kanouni’s own account, stated that he “said he went to Afghanistan for spiritual reasons” and “was acquitted, as the prosecutor had recommended.” The report added that Felix de Belloy “said he would try to seek reparations on behalf of Kanouni, though he did not elaborate on how he planned to do so.”

In his Detainee Assessment Brief, dated December 27, 2003, he was described as Imad Achab Kanouni, born in March 1977, and he was also described as a Moroccan national, even though he is a French citizen. The Task Force broadly accepted his reason for traveling to Afghanistan, as stated after his release, but injected it with suspicion. After stating that he “claim[ed] he immigrated to Afghanistan (AF) in March 2000 to further his studies of Islam and live in a purist Islamic state,” the Task Force noted that, on arrival in Kabul, he “stayed at the Wazir Akbar Khan Mosque,which [had] been visited by many extremists and [was] in the same neighborhood as several Al-Qaida and Taliban safehouses, including one that Osama Bin Laden used,” where he met Abu Bilal, described as “a potential Al-Qaida facilitator, who helped him find an apartment.” The Task Force also attempted to shine a suspicious light on Kanouni’s claim that “he spent his time attending classes given by Sheik Abu Walid Ansari at Ansari’s home,” which, as the Task Force saw it, “may have been the Al-Ansar guesthouse, an Al-Qaida guesthouse located in Kabul.”

Dealing with the circumstances of his capture, the Task Force noted that, after the 9/11 attacks, he “claim[ed] he fled Kabul with 10 Arabs,” including two French prisoners described as being “connected to Al-Qaida,” staying briefly at “the Algerian guesthouse in Jalalabad,” before fleeing with other Arabs to Pakistan, where they were seized. He was flown to Guantánamo on February 11, 2002, on the spurious basis that it was “because of his knowledge of Al-Qaida and Taliban facilities and personnel in the Kabul, AF, area, as well as persons known to associate [sic] or support the Taliban or Al-Qaida in the Kabul, AF, area.”

Mostly, however, the Task Force was suspicious about Kanouni in general. The authorities were worried about his statement that, “in the winter of 1999, he briefly left Germany to fight against the Serbs in Albania but returned to Germany in early 2000, [and] advised he left Germany for good in March 2000, where he decided to study Islam in Afghanistan through his own funding.” The authorities were also concerned that, “though cooperative,” Kanouni had “not been completely forthright,” and had “failed to explain the circumstances surrounding his travels to Albania to fight against the Serbs,” and had “been careful not to incriminate himself through his associations with any extremists he may have connections to through his attendance of several mosques in Germany,” which, according to the authorities, “were known at the time to promote jihad.” It was also noted that he “reportedly traveled extensively in the United Kingdom” but had “yet to explain those travels,” and suspicions were also expressed about his connections with the other French prisoners.

As a result, Kanouni was “assessed as being a possible member of Al-Qaida,” who was “of intelligence value to the United States,” and posed “a medium risk, as he may possibly pose a threat to the US its interests or its allies,” and Maj. Gen. Miller recommended that he be “Retain[ed] under DoD control.” It was, however, also noted that the Task Force “notified the Criminal Investigative task Force of this recommendation on 8 December 2003,” and, “In the interest of national security and pursuant to an agreement between the CITF and JTF GTMO Commanders CITF will concur with JTF GTMO’s assessment that the detainee poses a medium risk,” which perhaps indicates that CITF were not convinced. Whatever the case, he was freed seven months later.

Mehdi Ghezali (ISN 166, Sweden) Released July 2004

As I explained in Chapter 7 of The Guantánamo Files, Mehdi Ghezali, who was 22 years old at the time of his capture, told Reuters after his release that he had traveled to Pakistan to study Islam in August 2001, and was visiting a friend in Jalalabad when the US-led invasion began. He decided to return to Pakistan when he heard that Afghan villagers were selling foreigners to the US forces, but was captured in a village near Peshawar by locals who sold him to the Pakistani police, who in turn sold him to the Americans.

Ghezali also explained that, in Guantánamo, he had initially cooperated with his interrogators, but “stopped talking” when they “kept asking the same questions.” He added that, in April 2004, “the military changed their tactics,” subjecting him to the “enhanced interrogation techniques” that were applied to at least one in six of the prisoners.

“They put me in the interrogation room and used it as a refrigerator,” he said, adding, “They set the temperature to minus degrees so it was terribly cold and one had to freeze there for many hours — 12 to 14 hours one had to sit there, chained.” After explaining that “he had partially lost the feeling in one foot since then,” he also said he was “deprived of sleep, chained for long periods in painful positions, and exposed to bright flashes of light in a darkened room and loud music and noise.”

“Speaking of the chaining in painful positions — known as “short-shackling” — he said, “They forced me down with chained feet. Then they took away the chains from the hands, pulled the arms under the legs and chained them hard again. I could not move.” After “several hours” of this, “his feet were swollen and his whole body was aching.” As he explained, “The worst was in the back and the legs.”

In his Detainee Assessment Brief, dated April 10, 2004, it was stated that he had traveled to Portugal in 1999, where he was reportedly “jailed for theft,” and had then traveled to Saudi Arabia for the Hajj (pilgrimage to Mecca) in January 2000. Back in Sweden, he met a man who convinced him to travel to London with him, and from there they flew to Islamabad, and then traveled to Afghanistan. Ghezali told his interrogators that he stayed in a house near Jalalabad for approximately five months, and stated that “all he did for those five months ‘was to study the Koran and go for walks.’”

Ghezali said that, after the coalition bombing began, he left Jalalabad “with a group of women and children in fear of being captured and executed by the Northern Alliance because he was a foreigner of Arab descent,” although it was also stated that the man in whose house he was staying arranged for “Ali (a Moroccan) and Ismael (a Tunisian)” to take him to Pakistan. After a month, he and his companions were seized by the Pakistani authorities after crossing the border. Ghezali stated that “the Pakistani authorities confiscated his passport, driver’s license, and an unknown amount of money.” He was sent to Guantánamo on January 17, 2002, on the spurious basis that it was to “provide general-to-specific information on the cultural, religious, and ethnic recruitment of Muslim foreign nationals attending the Haj in Saudi Arabia.”

When it came to the “Reasons for Continued Detention in Another Country,” it was stated that he had been “uncooperative, unforthcoming and deceptive during interrogations,” and that he had “systematically recanted both the original and later versions of his story.” Various terrorism-related allegations were dug up from Sweden, and it was also claimed that he was “captured with 23 other Arabs from various countries to include Denmark, Yemen, Saudi Arabia and Bahrain, some of whom have admitted to being Al-Qaida or members of and associated with other Tier 1 terrorist organisations,” described as “terrorist groups,especially those with state support, that have demonstrated the intention and the capability to attack US persons or interests.”

In its assessment, the Task Force described Ghezali as “a possible Al-Qaida member,” who “had gone to Afghanistan to support the Taliban.” It was also noted that he posed “a medium risk, as he may possibly pose a threat to the US, its interests and allies,” and Brig. Gen. Mitchell R. Leclaire, the Deputy Commander of Guantánamo, recommended that he “be transferred to the control of another country for continued detention.” It was also noted that the Criminal Investigative Task Force (CITF) had “not evaluated” him at all.

In September 2009, Ghezali was seized in Pakistan, with initial reports claiming that he had been captured with eleven other men, on suspicion of being involved with terrorism. It later transpired that he had been seized with two other Swedish citizens, “28-year-old Munir Awad and 19-year-old Safia Benaouda, and their two and a half-year-old boy,” and the three stated that they had traveled to Pakistan at short notice, as part of a tour of Muslim countries, and had been planning to meet up with representatives of the vast missionary group Jamaat al-Tablighi when they were captured.

The Swedes were released and flown back home on October 10, 2009, and Ghezali’s lawyers subsequently explained that, “despite Ghezali being released from Guantánamo in 2004 without being accused of any wrong doing, he and his family have been under the surveillance of Swedish security service Säpo ever since.” In an op-ed, the lawyers wrote, “The situation seems familiar to all of us who’ve read Franz Kafka,” adding that they felt that the Swedish media’s coverage of Ghezali was marked by “xenophobic undertones,” and stating, “As no government agency has ever accused him of terrorism or spying, it seems a reasonable request that the Swedish press corps can also abstain from formulating those types of accusations.”

Ravil Gumarov (ISN 203, Russia) Released February 2004

Ravil Gumarov, a former businessman, who sold fertiliser, is a Tatar from Bashkortostan, north of Kazakhstan, and was 39 years old at the time of his capture. He was one of four prisoners from the former Soviet Union who survived the Qala-i-Janghi massacre in northern Afghanistan in November 2001 (see Rasul Kudayev in Part One, and Shamil Khazhiyev and Ruslan Ogidov, below).

The massacre came about after several hundred prisoners had surrendered, as part of the fall of the city of Kunduz, apparently on the basis that they would be allowed to return home after doing so. However, after being transported to the fort, some of the men started an uprising, because of their betrayal, or because they feared that they were about to be killed, which was then suppressed savagely. Gumarov and the other survivors (86 in total) hid in the basement for a week, where they were bombed and, finally, flooded.

As I explained in Chapter 2 of The Guantánamo Files, drawing on an article in the St. Petersburg Times in December 2002:

Gumarov’s father said that his son’s desire to live under Islamic law grew so strong that, in 2000, he abandoned his wife, four children and elderly parents to travel to Afghanistan. “When I asked him what he would do abroad,” his father said, “Ravil said he was ready to tend sheep if he could live under the rule of Islam.”

Leonid Syukiainen, a Russian academic, drew parallels between the Russian prisoners and the idealistic Westerners who moved to the Soviet Union after the 1917 Revolution to help build a socialist society. “Of course, there had to be a combination of reasons for these people to flee to Afghanistan,” he said, “but I believe that their strongest motive was that they sincerely sought a fair Islamic society there.”

Igor Tkachyov, the head of a team of Russians who visited the prisoners at Guantánamo, made even more specific comments about what happened to the men. He said that [all but two of the eight Russian prisoners] traveled via Tajikistan, where members of the Islamic opposition to President Rahmonov helped them get to Afghanistan, and added that once they were there they “found themselves in a kind of totalitarian sect commanded by the Taliban … They were not allowed to be alone and had to do everything together, obeying strict regulations that left no time for anything but prayers.”

In his Detainee Assessment Brief, dated December 5, 2002, it was stated that his name was Karji Omar Gumarof and he was born in 1962. It was also noted that he “arrived [in Guantánamo] with several bone fractures in his legs that have been treated and still require regular dressing changes, but they are steadily healing and he no longer requires inpatient care.” The Task Force also stated, explicitly, that he “traveled to Afghanistan to pursue religious freedom,” but that, on arrival in Afghanistan, “Uzbek soldiers detained and imprisoned” him, and “he was held prisoner in Kabul from August 2000 until August 2001,” when he “was tasked to repair and perform general vehicle maintenance.”

According to this account, he was “moved to Kunduz in August 2001, and to Mazar-e-Sharif late in November of 2001.” No mention was made of the Qala-i-Janghi massacre, but it did not appear from this account that the Task Force considered that he had been responsible for his own movements in Afghanistan. He was sent to Guantánamo on or about February 11, 2002, and the spurious reason given for his transfer was that it was “based on his knowledge of several detainment facilities, and of Tahir Ildash, the leader of the detention facility in Afghanistan.” This was presumably a reference to Tahir Yoldash, the leader of the Islamic Movement of Uzbekistan, although there may have been some confusion with Juma Namangani, the previous leader of the IMU, who was reportedly killed in the Qala-i-Janghi massacre.

In its assessment, the Joint Task Force stated that it “consider[ed] the information obtained from and about him as not valuable or tactically exploitable,” and added, “Based on current information, detainee [203] is assessed as not affiliated with al-Qaida nor as being a Taliban leader. Moreover … the detainee has no further intelligence value to the United States and will not be seen for further intelligence purposes.”

It was also noted that, that, “During a visit to Guantánamo Bay, Cuba, from 14 to 19 November 2002, Russian Intelligence officers interrogated [ISN 203] and stated that their government would accept custody of [him] if released by the US government.” Crucially, it was also noted that, “Since the Russian government has agreed to incarcerate [him] upon his transfer, he poses no future threat to the US or its allies. In addition, the Russian government has agreed to share all intelligence derived from him while under their control with the United States.” As a result, Maj. Gen. Miller recommended that he be “considered for transfer to the control of the Russian government.”

After their return to Russia, these punitive demands were not exactly followed, although the men suffered at their own government’s hands. All seven ex-prisoners “were initially held in a detention center in the southern town of Pyatigorsk that is run by the FSB, the domestic successor of the KGB,” as the Washington Post explained in an article in September 2006. The Post further explained that all seven were released in June 2004, “after prosecutors said there was insufficient evidence to hold them,” but also noted that their release “did not end official interest in the men.”

This was confirmed in “The Stamp of Guantánamo,” a report by Human Rights Watch in March 2007 in which it was noted:

Faced with the return of seven former detainees from Guantánamo, Russian law enforcement might legitimately have been expected to keep an eye on whether the men were engaged in any suspicious activity after they got home. Such surveillance could have been conducted while also respecting the ex-detainees’ human rights. It was not.

The detainees and their family members uniformly complained of being frequently called, followed, and threatened by the FSB, UBOP [Russia's brutal organized crime squad], and other police officials after their return.Some family members reported that their homes were searched without warrants, in violation of Russian and international law. Some reported, in fact, that their homes were so frequently searched that they were unable to provide exact dates of those searches.

Ravil Gumarov told Human Rights Watch that officials from the FSB and UBOP called him at least once a week, beginning right away after he returned home from the Pyatigorsk prison to Naberezhnyi Chelny. They frequently requested that he come down to their offices for questioning, and a car followed his every movement outside the home for about a month after he returned. Two investigators from the FSB and the UBOP called so often that Gumarov’s mother recognized their voices and knew their names and telephone numbers.”They called Ravil in all the time, whenever anything happened. There was a shooting somewhere, and they called him in; somebody committed a murder somewhere, and again they called him in.”

After this harassment, Gumarov was finally detained on April 1, 2005, on suspicion of participating with Timur Ishmuratov (another former Guantánamo prisoner) in a gas pipeline explosion in January 2005. Human Rights Watch explained that “he confessed to the pipeline explosion as a result of torture by FSB and UBOP officials, even though he later recanted that confession in court testimony.” Nevertheless, he was convicted and sentenced to 13 years’ imprisonment.

He told Human Rights Watch that he was “deprived of sleep for seven or eight days after his arrest,” and “was kept in a tiny cage, about one meter by half a meter, where he was allowed to sit on a tiny bench during the day while being interrogated, but at night he was fastened by one handcuff to the bars of the cage over his head.” He also explained that he “was continually asked to confess to the pipeline explosion.” Human Rights Watch also explained:

After a week or 10 days he was transferred to a room in the administrative building housing the FSB in Bugulma. There he was tortured using a common technique of Russian law enforcement: a gas mask is put over the detainee’s head and then the oxygen is turned off, producing the beginnings of asphyxiation and a sense of panic. This form of torture is known in Russia as “little elephant,” or “slonik,” because the tube dangling from the front of the mask resembles the trunk of an elephant.

Gumarov also told Human Rights Watch that investigators had “pulled hairs from his beard, and on one occasion poured an entire bottle of vodka down his throat, a particularly offensive form of mistreatment for an observant Muslim.” He said, “I hadn’t had any alcohol for seven years, they poured a bottle in me and I was out of it.”

He also told a Moscow press conference that:

[A]t one point, while he was being beaten on his back to force a confession, he said, “What are you doing? This is like 1937 [the height of Stalin's repression],” and they answered, “If this were 1937, you’d have been shot a long time ago.” He told his mother that investigators had drugged him with a special kind of tea to get him to sign a confession. Eventually, he did. In a handwritten letter that was smuggled out of the detention facility in Bugulma and brought to his mother, Gumarov wrote, “Mama, don’t listen to the authorities, no matter what they say about me My nerves gave in, I couldn’t take it. I spoke against myself and the worst thing is that I spoke against others. Everyone has a limit for what they can take, and many break sooner or later. They broke me too. It seems I’m destined to serve time for something I didn’t do.”

Shamil Khazhiyev (ISN 209, Russia) Released February 2004

Also a Tatar from Bashkortostan, north of Kazakhstan (like Ravil Gumarov, above), Shamil Khazhiyev (also identified as Shamil Khazhiev) was a police lieutenant, and was 30 years old when he was seized. He too was a survivor of the Qala-i-Janghi massacre, but less is known about him. According to the St. Petersburg Times, his colleagues said that, in 1999, “he was studying law at Ufa State University by correspondence and, upon finishing the course, he expected a career promotion.” Yamil Mustafin, the acting head of the town’s police force, was at a loss to explain what happened next. “We don’t know what happened to him or how to explain his escape to Afghanistan,” he said.

In the classified military assessments released by WikiLeaks, all that exists in Khaziyev’s case is a one-page memo, described as a “Deferment Assessment,” dated December 6, 2003, in which, after noting that his name was Almasim Rabilavich Sharipugg, the Task Force noted a disagreement between itself and the Criminal Investigative Task Force (CITF). On December 5, 2002, JTF GTMO “completed an assessment [and] concluded that he was a medium threat,” recommending him for transfer, whereas on December 6 CITF’s Behavioral Science Consultation team (BSCT) “completed a risk assessment [and] concluded that he [was] a high threat.” As a result, the Task Force noted, “In the interest of national security and pursuant to an agreement between the CITF and JTF GTMO Commanders, JTF GTMO will defer to the CITF assessment that the detainee poses a high threat.” Nevertheless, “The JTF GTMO recommendation for the transfer to the control of another government for continued detention remains unchanged.”

After his release from Russian custody in June 2004, as Human Rights Watch explained:

Shamil Khazhiev returned to Uchali, a small town in the Russian republic of Bashkortostan, where his family lived. Human rights activist Alexandra Zernova, who met with Khazhiev on several occasions, said that he was repeatedly questioned by local FSB and UBOP officials after his return, and was briefly detained in Ufa, the Bashkortostan capital, in December 2004, on suspicion of membership in Hizb ut-Tahrir. He was released without charge. In September 2005, while riding on a train, he was questioned by UBOP officials from Samara. According to Zernova, Khazhiev has been unable to secure employment since his return from Guantánamo. He left Russia in March 2007.

According to Human Rights Watch, in a report in February 2009, Khaziyev “sought refuge in the Netherlands in 2007. The Dutch authorities subsequently granted [him] political asylum based on the harassment and abuse he suffered at the hands of the Russian intelligence services upon his return to Russia from Guantánamo.”

Ruslan Ogidov (ISN 211, Russia) Released February 2004

The fourth of the Russian survivors of the Qala-i-Janghi massacre, Ruslan Ogidov (also identified as Ruslan Odizhev) was a Balkar from Nalchik, in Kabardino-Balkaria. 28 years old at the time of his capture, he reportedly left home partly because he had been tortured by the Russian intelligence services in 1999, but little else was known of his case until the WikiLeaks documents were released.

In his Detainee Assessment Brief, dated December 5, 2002, it was stated that his name was Ruslan Otijev, and that he was born in 1973. It was also noted that, as well as having latent tuberculosis, (in common with many of the prisoners), he suffered from “panic disorder,” and had been “diagnosed with posttraumatic stress disorder, for which he received inpatient psychiatric care but was later released in November 2002″ although he was, reportedly, “otherwise in good health.”

As with Ravil Gumarov, the Task Force stated, explicitly, that he “traveled to Afghanistan for religious freedom reasons.” He had, apparently, “traveled to Chechnya on previous occasions to join in the fight for religious freedom, and to assist the anti-Russian resistance movements,” and had “moved from Chechnya to Kabul, Afghanistan, in November or December of 2000.” Soon after this, he “became ill with tuberculosis and was hospitalized, after which he was turned over to General Dostum’s forces,” and was “taken first to Mazar-e-Sharif” — a veiled reference to Qala-i-Janghi — “and after that to Sheberghan before being transferred to US forces,” although there was no clue in this narrative as to who had turned him over to Dostum’s forces in the first place. He was sent to Guantánamo on June 13, 2002, on the spurious basis that it was because of “his knowledge of Chechnya [sic]fighters in Afghanistan, interactions between Chechnya fighters and the Russian military, and information regarding Islamic Movement of Uzbekistan safe houses in Afghanistan.”

In its assessment, the Joint Task Force stated that it “consider[ed] the information obtained from and about him as not valuable or tactically exploitable,” and added, “Based on current information, detainee [211] is assessed as not affiliated with al-Qaida nor as being a Taliban leader. Moreover … the detainee has no further intelligence value to the United States and will not be seen for further intelligence purposes.”

It was also noted that, that, “During a visit to Guantánamo Bay, Cuba, from 14 to 19 November 2002, Russian Intelligence officers interrogated [ISN 211] and stated that their government would accept custody of [him] if released by the US government.” Crucially, as with Ravil Gumarov, it was also noted that, “Since the Russian government has agreed to incarcerate [him] upon his transfer, he poses no future threat to the US or its allies. In addition, the Russian government has agreed to share all intelligence derived from him while under their control with the United States.” As a result, Maj. Gen. Miller recommended that he be “considered for transfer to the control of the Russian government.”

After his release from Russian custody in June 2004, he returned to his family’s home in Nalchik. According to his mother, who spoke to Human Rights Watch:

[T]he harassment began immediately: “They came all the time, threatening, calling him all the time to the department, the first department, the sixth department [the UBOP, which was] well-known to us, the Gestapo.” She drew aside the curtain at the apartment’s window to point out to Human Rights Watch researchers where a modest, unmarked car used to be always parked, so the FSB could keep an eye on their movements.

His mother also explained that he was “unable to obtain his internal passport (national identity document), which was necessary to obtain formal work,” and she expressed her belief that “pressure from the FSB kept the local police from giving him the document because it was only through the intervention of a friendly FSB officer that Odizhev finally did receive his passport in spring 2005. However, he went into hiding soon thereafter, never having had a formal job after his release from Guantánamo.”

On June 27, 2007, he was killed in the centre of Nalchik, apparently while resisting arrest, although Geydar Dzhemal, of the Islamic Committee of Russia, stated that his guilt had not been established and that he could have been captured alive. A Pentagon report, citing the Russian authorities, claimed that he “had taken part in several terrorist acts including an October 2005 attack in the Caucasus region that killed and injured several police officers,” and that he “was found with pistols, a grenade, and homemade explosive devices on his body.”

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

British Supreme Court judges.

In a triumph for the principles of open justice, and a snub to the Tory-led coalition government, the British Supreme Court ruled unanimously on Wednesday that the government and the intelligence agencies cannot use secret evidence in court to prevent open discussion of allegations that prisoners were subjected to torture.

The appeal, by lawyers for MI5 — but with the explicit backing of the government — sought to overturn a ruling in the Court of Appeal last May, when judges ruled that the intelligence services could not suppress allegations, in a civil claim for damages submitted by six former Guantanamo prisoners, that the British government and its agents had been complicit in their ill-treatment. The six are Bisher al-Rawi, Jamil el-Banna, Richard Belmar, Omar Deghayes, Binyam Mohamed and Martin Mubanga, and they argued, as the Guardian put it, that “MI5 and MI6 aided and abetted their unlawful imprisonment and extraordinary rendition.”

The ruling last May precipitated a huge crisis in the government, as the first of hundreds of thousands of classified documents emerged from the court, revealing the extent to which Tony Blair and Jack Straw were up to their necks in wrongdoing, preventing consular access to a British citizen in Zambia, in Tony Blair’s case, and in Straw’s, approving the rendition of British citizens to Guantanamo the day before the prison opened in January 2002. I covered this story in detail in my article, UK Sought Rendition of British Nationals to Guantánamo; Tony Blair Directly Involved.

As a result, ministers scrambled over each other in their rush to shut down further damaging leaks from the court by arranging for the former prisoners to accept compensation claims in exchange for dropping the civil claim for damages, persuading them that they would not be able to afford to proceed with their case if they did not accept the offer.

The settlement was announced in November, but the government immediately responded not with a dignified silence, which would have been appropriate as they wheedled their way out of the court-ordered release of evidence of complicity in torture at the highest levels of government, but with a provocative announcement by justice secretary Kenneth Clarke, who chose the very moment that the payments were announced to also announce that, in future, the work of Britain’s security services would be “permanently hidden from court hearings,” as the Guardian explained.

Kenneth Clarke told MPs that a government green paper, supposedly to be published this summer, would “contain specific proposals designed to prevent the courts from releasing the kind of information that has emerged from recent Guantánamo cases in the English courts.” A Whitehall official told the Guardian, “It will absolutely eliminate [the possibility of] the process happening again.”

The Guardian also explained that ministers had been “convinced by MI5 and MI6 that disclosing information held by the security and intelligence agencies — and notably information provided by foreign agencies such as the CIA –compromises Britain’s national security,” and that, as a result, they were planning to use a secret evidence and the system of speoial advocates, used in domestic terrorism cases, which has alarmed believers in open justice for many years.

To introduce secret evidence into the courts for cases involving domestic terror suspects, the government set up a ludicrous situation whereby special advocates are appointed to represent defendants in closed sessions in which secret evidence is discussed, but they are unable then to discuss anything that they see or hear with their clients, tying their hands and conjuring up the spirit of Franz Kafka, as I have discussed at length in previous articles — see, for example, Britain’s Guantánamo: Calling For An End To Secret Evidence, Calling Time On The Use Of Secret Evidence In The UK, Control Orders: Solicitors’ Evidence before the Joint Committee on Human Rights, February 3, 2010 and Control Orders: Special Advocates’ Evidence before the Joint Committee on Human Rights, February 3, 2010.

In the cases of British nationals and foreign nationals held on control orders (a form of house arrest) on the basis of secret evidence, the Law Lords — the precursors to the Supreme Court — ruled in June 2009 that the system of secret evidence and special advocates infringed the men’s right to a fair trial under Article 6 of the European Convention on Human Rights, so it was alarming that the government wanted to expand this system as a blanket ban on any future discussion of wrongdoing on the part of the security services.

The appeal that was decided by the Supreme Court on Wednesday was essentially testing the waters for the new proposals regarding secret evidence and the security services, and, a a result, the government’s plans are thoroughly discredited. See here for the judgment (120 pages, PDF), and see here for a brief summary issued by the Court.

Delivering the judgment, Lord Dyson said, “There are certain features of a common law trial which are fundamental to our system of justice, both criminal and civil. First, subject to certain established and limited exceptions, trials should conducted and judgments given in public. The importance of the open justice principle emphasised many times. The open justice principle is not a mere procedural rule. It is a fundamental common law principle.”

“Secondly,” Lord Dyson stated, “trials are conducted on the principle of natural justice,” and he warned that allowing a “closed procedure” in “an ill-defined way” could “be the thin end of the wedge,” adding, “This would be a big step for the law to take in view of the fundamental principles at stake. In my view this is a matter for parliament and not the courts.”

Lord Hope also had some powerful advice for the government, and a stirring defense of the law. “There comes a point,” he said, “where the line must be drawn between procedural choices which are regulatory only and procedural choices that affect the very substance of the notion of a fair trial. Choices that cut across absolutely fundamental principles — such as the right to be confronted by one’s accusers and the right to know the reasons for the outcome — are entirely different. The court has for centuries held the line as the guardian of these fundamental principles.”

He added, “Any weakening in the face of advances in the methods and use of secret intelligence in a case such as this would be bound to lead to attempts to widen the scope for an exception to be made to the principle of open justice.”

As the Guardian explained, Lord Brown warned that cases involving closed procedures “would mean that claims concerning allegations of complicity, torture and the like by UK intelligence services abroad would be heard in proceedings from which the claimants were excluded, with secret defences they could not see, secret evidence they could not challenge, and secret judgments withheld from them and from the public for all time.”

Lord Kerr added that, under the proposals put forward by the security services, “all the material goes before the judge and a claim that all of it involves national security or some other vital public interest will be very tempting to make.”

However, although the decision is “a significant victory for open justice,” as the Guardian explained, the nine judges “pointed out that parliament could change the law to permit such ‘closed material procedures’ in future.”

That should not be necessary, as, in the Supreme Court’s judgment, all nine judges “rejected the security service’s main submission that a court has a common law power to order a closed material procedure as an alternative to the more conventional public interest immunity (PII) certificate,” as the Guardian put it. They argued that such a power “would contravene fundamental and long-established principles of open and natural justice.”

If there is any valid area for discussion, it is with the “mission creep” of a secondary proposal by the security services –  that “a court has a common law power to order a closed material procedure as an add-on to a conventional PII in certain exceptional cases.” When pushed on fundamental problems with their cavalier attitude to the law as it relates to the perceived threat of terrorism, governments have tended to resort to introducing their dangerous innovations in “exceptional cases,”and as a result it is worth keeping a close eye on how the government responds to this particular point.

Nevertheless, this is, in general, a judgment to be savoured, and confirmation, yet again, that British judges are capable of maintaining their independence, despite intense political pressure, when it comes to dealing with issues involving terrorism and “national security.” In response to the judgment, Eric Metcalfe, of the all-party law reform group JUSTICE, which was involved in the case, said, “The ruling has confirmed that secret evidence has no place in the common law. It is a clear setback for the government’s plans to extend the use of secret evidence and secret hearings in our courts. Although it is open to parliament to legislate further, today’s ruling sets a high hurdle for any MP seeking to cut across centuries of common law tradition.”

Let us hope that Eric Metcalfe is correct, and, if not, that those of us who have had enough secrecy and complicity in torture in the last ten years, can say to Parliament that enough is enough, and that we do not want the expansion of the secrecy state, and do not want politicians and the intelligence services to have new opportunities to hide their wrongdoing under the feeble guise of “national security.”

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.