Detainees sit around the exercise yard in Camp 4, the medium security facility within Camp Delta at Naval Station Guantanamo Bay, Cuba. In Camp 4, highly compliant detainees live in a communal setting and have extensive access to recreation. Photo by U.S. Army Sgt. Sara Wood

Congratulations to the Swiss Canton of Jura, which recently accepted the asylum claims of two Uighur prisoners at Guantánamo, and to the Swiss federal government for agreeing to accept Jura’s decision on Wednesday.

The two men in question — Arkin Mahmud, 45, and his brother Bahtiyar Mahnut, 32 — were seized with 20 other Uighurs in December 2001. The US authorities realized almost immediately that all of these men, who are Turkic Muslims from China’s Xinjiang province, had only one enemy — the Chinese government — and had been seized (or bought) by mistake. However, although the majority of the men were cleared for release by 2005, the Bush administration accepted that it could not return them to China, because of fears that they would face torture or other ill-treatment, but then struggled to find another country that would take them instead.

In May 2006, Albania was persuaded to take five of these men, but the other 17 had to wait until October 2008, when Judge Ricardo Urbina, a US District Court judge, ruled on their long-delayed habeas corpus petitions, and ordered their release into the United States, because no other country had been found that would take them, and because their continued detention was unconstitutional.

Predictably, the Bush administration appealed, and in February 2010 the Obama administration, to its eternal shame, followed suit, backing a ruling by the Court of Appeals, which overturned the lower court ruling, and hurled the Uighurs back into limbo.

In June 2009, the State Department managed to find new homes for four of these men in Bermuda, and in November the Pacific island of Palau took another six. As a result, seven Uighurs remained in Guantánamo, but by taking the brothers, the Swiss government has not only dared to take on the might of the Chinese government, which threatens any country that dares to entertain the prospect of taking any of the men from Guantánamo, but has also helped President Obama out of what appeared to be an intractable problem.

In a statement, the Swiss Justice Ministry said, “Today the Federal Council decided to admit for humanitarian reasons two Uighurs with Chinese citizenship, who have been imprisoned in Guantánamo for years by the United States without being charged with a crime nor [convicted].” Brushing aside the threats that the Chinese government had made last month, when Chinese officials warned that Switzerland should avoid damaging “overall Sino-Swiss relations,” the Justice Minister Eveline Widmer-Schlumpf added that Switzerland has a “stable, good relationship with China, and we want to keep it that way.”

Not mentioned publicly was the fact that, until Jura accepted the men’s asylum claims, one of them, Arkin Mahmud, appeared to stuck at Guantánamo, his only way out being to hope that the Supreme Court, which agreed to hear the Uighurs’ case last year, would overturn last February’s appeals court ruling, and allow cleared prisoners who cannot be repatriated into the United States.

The problem is that Palau had refused to take Arkin Mahmud, because, as the Washington Post noted in an editorial in October, he “suffers from serious mental health issues because of his detention and lengthy periods of solitary confinement.” As a result, Bahtiyar Mahnut turned down Palau’s offer of a new home for himself, in order to stay with his brother, and, as the Post noted, “Unless another country accepts the brothers, they could remain in custody indefinitely — a prospect that is unconscionable and that no doubt informed the justices’ decision to hear the matter.”

As I explained in an article at the time:

[T]he Supreme Court was faced with a tricky legal decision, because the justices will be considering whether, in defense of habeas corpus, and in reference to the unique position in which the Guantánamo prisoners are held, they are being asked to decide whether a judge has the power to order the release of prisoners into the US, when all the precedents, as the Court of Appeals made clear, establish that the admission of foreigners into the US is a matter for the executive and legislative branches of government.

At the time, the Post reached a principled conclusion with profound implications for the government, arguing that the “moral and ethical imperatives” were “clear and compelling,” and that the government should introduce “narrowly crafted legislation that would allow Mr. Mahmud and Mr. Mahnut into the United States, where they could remain together and Mr. Mahmud could get the medical help he needs.”

This “narrowly crafted legislation” will not now be needed, but it remains to be seen if the imminent release of Arkin Mahmud and Bahtiyar Mahnut will affect the Supreme Court’s planned deliberations about the remaining five Uighurs.

The Supreme Court has scheduled argument for March 23 to decide whether to overturn the precedents regarding the admission of foreigners into the US, when, as in the cases of the Uighurs, these men are held in Guantánamo because it is not safe to repatriate them, and no other nation will take them.

The men’s lawyers will argue, as they have consistently, that the Supreme Court ruling in June 2008, granting constitutionally guaranteed habeas corpus rights to the prisoners, is meaningless if a judge cannot actually order prisoners to be released.

As the Associated Press explained on Wednesday, the government could now try to argue that the Supreme Court should drop the case, because the remaining Uighurs were apparently offered new homes in Palau but turned down the offer. Sharon Bradford Franklin, senior counsel at The Constitution Project, told the AP that she feared this outcome. “I would not be surprised,” she said, “if the administration says that the Uighurs themselves are at fault that they have not been resettled to Palau.”

However, Sabin Willett, an attorney who has represented the Uighurs for many years, was more hopeful, telling the AP by email that he “expects the case to go forward.” I tend to share Willett’s optimism, but not, of course, if the remaining five men are miraculously resettled in some other country, perhaps just days before the March 23 deadline.

If there is one thing we have learned from the Obama administration, since the President shelved plans made last April by his counsel, Greg Craig, to bring the Uighurs to live in the US, it is that, regardless of whether senior officials may agree in private that resettling the Uighurs in the US would be the right thing to do, they are not prepared to tackle their critics — and the Bush administration’s poisonous legacy — head-on. Instead, senior officials prefer not only to avoid confrontation, but also, sadly, to avoid doing anything that would demonstrate to the American public that enormous mistakes were made at Guantánamo, and that the rhetoric of Dick Cheney and his thriving acolytes is disturbingly mistaken.

I can think of no finer way to demonstrate this than to allow the Uighurs to walk free on the streets of, say, Washington D.C., but it remains clear that this is not something that the administration will undertake willingly, and in the meantime, the people of Bermuda and Palau have been learning this instead, and are soon to be joined by the people of Switzerland.

President Obama is fortunate to have such kind allies, but he himself is the loser, the longer he refuses to tackle those who insist, in the face of overwhelming evidence, that everyone who was held at Guantánamo was a “terrorist,” and that it is somehow appropriate to continue to deprive innocent men of their liberty in Guantánamo, rather than giving them new homes in the country that, through cruelty and incompetence, deprived them of so many years of their lives.

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 President began well, freezing the much-criticized Military Commissions trial system on his first day in office, and, on his second day, issuing executive orders requiring Guantánamo to be closed within a year, and upholding the absolute ban on torture that had been so cynically manipulated by the Bush administration.

Almost immediately, however, these bold plans hit a brick wall. The interagency Guantánamo Review Task Force, established in the executive orders, and charged with reviewing all the prisoners’ cases to decide who should be charged and who should be released, discovered, as a senior official explained to the Los Angeles Times in February, that the process would “not be simple,” because information on the prisoners was “scattered in multiple locations,” and “there is not, and may never be, a single file for each detainee.”

This should not have been a surprise. In June 2007, Lt. Col. Stephen Abraham, a veteran of US intelligence, who worked in 2004-05 on the tribunals at Guantánamo — the Combatant Status Review Tribunals — which were responsible for compiling the material that was used to establish that the prisoners were “enemy combatants,” explained, in a submission that eventually made its way to the Supreme Court, that some material consisted of intelligence “of a generalized nature — often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status,” and that “what purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence.”

He added that most of the unclassified evidence consisted of “information obtained during interrogations of other detainees” (and was often produced in circumstances that were not conducive to voluntary confessions), and that the classified evidence, which was particularly relied upon by the government, was no more coherent. In July 2007, he told the New York Times that it “was stripped down, watered down, removed of context, incomplete, and missing essential information.” He also reiterated his complaints about evidence obtained from other prisoners, stating, “Many detainees implicated other detainees, and there was often no way to test whether they had provided false information to win favor with interrogators.”

In addition, as the Task Force convened, attorneys for the prisoners were asked to contribute, and although their submissions were not delivered publicly, it is obvious that they would have pointed out that the majority of the prisoners were seized not by the US military, but by their Afghan and Pakistani allies, at a time when bounty payments for al-Qaeda and Taliban suspects were widespread.

They would also have pointed out that the prisoners were not given Article 5 competent tribunals under the Geneva Conventions, which are convened when those seized are not part of a regular army. Held close to the time and place of capture, and championed by the US military in every war since Vietnam, these allow prisoners whose status is in doubt to call witnesses to verify whether they are combatants or civilians. In the first Gulf War, following 1,196 tribunals, 886 men were subsequently released.

In Afghanistan, however, the military was prevented by defense secretary Donald Rumsfeld (on the advice of Vice President Dick Cheney) from holding Article 5 tribunals, with the result that those who ended up in Guantánamo were never adequately screened, a sorry state of affairs that persists to this day in the cases of many, if not most of the 198 prisoners still held.

Confronted with this disarray, the Task Force responded not with robust skepticism of the Bush administration’s claims, but with extreme caution. By September, just 75 prisoners had been cleared for release, even though as many as 36 of these men had previously been cleared for release by Bush-era military review boards, and another 18 had been cleared by the courts, after judges granted their habeas petitions. Moreover, in Obama’s first year in office, just 42 prisoners were released.

The habeas petitions actually represented the best hope for a just outcome at Guantánamo, as the District Court judges, empowered by the Supreme Court to examine the prisoners’ cases, proved adept at perceiving “generalized” and “generic” material masquerading as evidence, and the extent to which “detainees [had] implicated other detainees” (and, it should be noted, themselves), so that, by the end of the year, when the administration announced that 116 prisoners had now been cleared for release by the Task Force, the prisoners had won 32 out of 41 habeas petitions.

Sadly, the judges made their rulings in spite of obstruction from Justice Department lawyers, who behaved as though George W. Bush was still in power, and were severely criticized by a number of the judges. The reasons for this obstruction have never been adequately explained, but it has always seemed to me that senior officials were more interested in their own executive review (involving the Task Force’s slow and careful deliberations) than they were with the District Courts’ objective and authoritative findings.

This was a great shame, of course, because however much senior officials may have intended to clear up the shame of Guantánamo through their own review process, they actually proved overly sensitive to political maneuvering in a manner that did not affect the courts. In April, after bowing to pressure from the White House counsel, Greg Craig (the architect of the executive orders), President Obama accepted a court order to release the notorious memos issued in 2002 and 2005 by lawyers in the Justice Department’s Office of Legal Counsel, which purported to redefine torture, but caved in when critics savaged him for doing so.

Rapidly backpedaling, he refused another court order to release photos of the abuse of prisoners in US custody in Afghanistan and Iraq, and followed up by quashing Craig’s plan to rehouse a number of cleared Guantánamo prisoners on the US mainland, who could not be repatriated because of fears that they would be tortured on their return. These men, the Uighurs, were Muslims from Xinjiang province, whose only enemy was the Chinese government, and their release into the US had been ordered by a judge in October 2008, even though the Court of Appeals, supported by both the Bush administration and the incoming Obama administration, had stayed that ruling later in the month and overturned it in February 2009.

By refusing to act on the Uighurs’ behalf, Obama not only allowed opportunistic lawmakers to exploit his weakness (passing a law preventing any cleared prisoner being rehoused in the US), but also made it difficult for America’s allies in Europe to take any of the dozens of cleared men — from Algeria, Libya, Syria, Tunisia and Uzbekistan, as well as China — when the United States had so blatantly refused to help clear up its own mess.

Spiraling into compromises that betrayed the bold promises with which he had come into office, President Obama followed up by reinstating the Military Commissions (slightly rejigged by Congress), as a second tier of justice to accompany federal court trials for some of the men accused of terrorism, and announcing that he would also hold others indefinitely without charge or trial. This, he said in a major national security speech in May, was because the men in question “cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States.”

By choosing to accept “tainted” material — in other words, information that was obtained through torture — as a basis for signing up to the very policy of “indefinite detention” that had been established by George W. Bush, and that was forever associated with Guantánamo, Obama conceded the moral high ground that he had promised to regain, and, moreover, demonstrated that his justification for not prosecuting senior Bush administration officials for implementing torture was nothing more than a convenient pose.

Even before he took office, Obama explained, in response to calls to appoint a special prosecutor to investigate the Bush administration’s crimes, that “we need to look forward as opposed to looking backwards.” By May, therefore, he appeared to overlook the fact that, by seeking to use the torture of prisoners at Guantánamo as a reason to hold them indefinitely, he was resolutely looking back, but was choosing to side with Bush and Cheney rather than remaining dedicated to the thorough repudiation of their policies.

From then, it was all downhill. Having refused to challenge his critics head-on, Obama narrowly avoided a vote by lawmakers in October preventing any prisoner being moved to the US mainland (even those facing trials), and also met resistance when he sought funds to move prisoners to the Thomson Correctional Center in Illinois.

The final climbdown took place just two weeks ago, when, having finally found the courage to release six cleared Yemenis, Obama faced an onslaught of largely misplaced criticism following claims that Omar Farouk Abdulmutallab, the failed Christmas plane bomber, had connections with an al-Qaeda-inspired group in Yemen.

Ironically, this group apparently contained two Saudi prisoners who had been released from Guantánamo by George W. Bush — against the advice of the intelligence services — but instead of playing on this, Obama caved in again, suspending the release of any more cleared Yemenis for an unspecified amount of time, and casting a dark shadow over the deadline for the closure of Guantánamo this Friday, which will be marked not with international praise, but with fears that this vile blot on America’s reputation will still be open a year from now.

This report was 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.

Throughout 2009, the interagency task force President Obama established by executive order on January 22, 2009, has been reviewing the cases of all the detainees being held at Guantánamo in order to determine who should be prosecuted and who should be released.

There are currently 198 prisoners still being held, 86 of whom — or 43 percent — are from Yemen.

In October, the Task Force reported that 78 prisoners had been cleared for release, including 27 Yemenis, and last month the total number of prisoners cleared had been revised upwards to 116, indicating that 40 to 45 Yemenis had been cleared (the administration did not provide exact figures this time around).

One of these men, Alla Ali Bin Ali Ahmed, a student seized in a Pakistani guest house whose release had been ordered by a District Court judge in May, after she granted his habeas corpus petition, was released in October, and six more men were released the week before Christmas.

Then, on Christmas Day, a Nigerian man named Umar Farouk Abdulmutallab allegedly tried but failed to blow up a plane bound for Detroit by setting off a bomb concealed in his underwear.

Initial reports suggested that Abdulmutallab had connections with an al-Qaeda-inspired group in Yemen, which included prisoners released from Guantánamo. And that was enough for critics of Obama’s decision to close the prison to demand that no more Yemenis should be released.

Although Obama’s top counterterrorism adviser John Brennan mounted a solid defense of the administration’s plans last weekend, on Tuesday the White House succumbed to continuing criticism and announced that no more transfers to Yemen would take place until some unspecified point in the future.

The problem with the argument that new information precludes their release is that none of it has anything to do with men who have been held in Guantánamo for the past eight years, entirely out of circulation, and obviously with no links to any terrorist group that has emerged in recent years. Moreover, the Obama administration has been reviewing the cases of the Yemenis in Guantánamo with some diligence, and had no intention of releasing men who might pose a danger. It has also been coordinating its efforts with the Yemeni government.

Furthermore, conclusions are being reached based, at least initially, on a poorly researched ABC News report, which indicated that two former prisoners had assumed leadership positions in al-Qaeda in the Arabian Peninsula (AQAP), the group that claimed responsibility for the failed attack. However, these connections have not been verified, and, moreover, one of the two former prisoners identified by ABC News had actually handed himself in to the Yemeni authorities in February last year, long before Abdulmutallab arrived in Yemen.

Indeed, what’s actually significant about these new developments is how the nationality of these men and who was responsible for releasing them in the first place have been overlooked in all the hysteria. The fact that these men were Saudis, and not Yemenis, has, rather shamefully, been ignored by the lawmakers and pundits calling for an end to the Yemeni transfers. Even more damning is the fact that they — and a handful of other released Saudis who are reportedly associated with terrorism — were released not by President Obama but by George W. Bush, after military review boards in which representatives of the intelligence services concluded that they should not be released, because they still posed a threat to the U.S.

The inescapable conclusion from all this is that the refusal to release any more Yemeni prisoners, whose cases have been studied in depth by numerous government representatives, represents nothing less than a capitulation to the most dismal kind of hysteria.

One of the most astonishing arguments in this entire debate has been that Guantánamo inmates such as these Yemenis, even if they were innocent to begin with, have been radicalized by their false imprisonment and brutal treatment and are now dangers to the U.S. But this kind of thinking must be vigorously countered.

Back in October, when the administration was attempting not to release Alla Ali Bin Ali Ahmed — despite a judge ordering his release — officials told the New York Times: “Even if Mr. Ahmed was not dangerous in 2002 … Guantánamo itself might have radicalized him, exposing him to militants and embittering him against the United States.”

But as I argued at the time, only at Guantánamo can fear trump justice to such an alarming degree. If the rationale for not releasing any of the Yemenis from Guantánamo was extended to the U.S. prison system, for instance, it would mean that no prisoner would ever be released at the end of their sentence. It would also, of course, lead to no prisoner ever being released from Guantánamo.

If prisoners are not going to be released, despite being cleared by Obama’s own Task Force (and, in some cases, by the U.S. courts), the entire system is revealed as a mockery of justice. And in its capitulation to the unprincipled fearmongering following the failed Christmas bomb plot, it seems to me that the Obama administration has played into the hands of those whose only wish is to keep Guantánamo open forever.

Background

Eighty-six of the remaining 198 prisoners are Yemeni (that’s 43 percent). In common with the rest of the prisoners — and in contrast to the Bush administration’s claims that they were “the worst of the worst” and were all “captured on the battlefield” — they were seized in a variety of locations.

Around 22 were seized in Afghanistan, another 35 were seized crossing from Afghanistan into Pakistan in December 2001, 25 were seized between February and September 2002 in house raids in Pakistan (including Ramzi bin al-Shibh, one of the alleged 9/11 plotters), and four were seized in other countries — Egypt, Georgia, Iran and the United Arab Emirates. Like two of the prisoners seized in Pakistan, including bin al-Shibh, these four were held in a number of secret prisons before their transfer to Guantánamo.

Ascertaining what these men were doing in Afghanistan and Pakistan remains a challenge. Some, encouraged by fatwas issued in their homeland, had traveled to Afghanistan to help the Taliban establish what was described as a “pure Islamic state.” This involved helping the Taliban defeat their enemies (the Northern Alliance) in an inter-Muslim civil war that began many years before the 9/11 attacks and had nothing to do with al-Qaeda. Others, however, had traveled for other reasons: to teach the Koran, or to provide humanitarian aid, and, in the cases of those who had traveled to Pakistan, some were students or were visiting in search of cheap medical treatment. Few are accused of any direct involvement in terrorism.

Part of the problem is that the Bush administration deliberately confused a war (against the Taliban) with the attempt to destroy al-Qaeda (a terrorist organization), holding everyone seized as “enemy combatants.” Instead, those accused of aiding the Taliban should have been held as prisoners of war, and protected by the Geneva Conventions, and those accused of aiding al-Qaeda should have been held as criminal suspects and put forward for federal court trials, as happened with Ramzi Yousef, the original World Trade Center bomber, the 1998 African embassy bombers, the shoe bomber Richard Reid, and the would-be 9/11 hijacker Zacarias Moussaoui.

It did not help that the majority of the prisoners (86 percent at least) were seized not by US forces, but by their Afghan and Pakistani allies, at a time when bounty payments, averaging $5,000 a head, were widespread, as researchers at the Seton Hall Law School demonstrated in 2006, through an analysis of the Pentagon’s own allegations.

Nor did it help that, despite the US military’s intentions, none of the prisoners received competent tribunals under Article 5 of the Geneva Conventions. Held close to the time and place of capture, and used in every war from Vietnam onwards, the tribunals were designed to allow prisoners whose status was in doubt (because they were not wearing uniforms, for example, or did not have a regular command structure) to call witnesses, to establish whether they were combatants or civilians caught by mistake. In the first Gulf War, 1,196 hearings were held, and 886 men were released. In Afghanistan, however, the need for tribunals was dismissed by the administration, with the result that, in the words of Maj. Gen. Michael Dunlavey, the commander of Guantánamo in 2002, the prison began filling up with “Mickey Mouse prisoners,” who had no involvement whatsoever with terrorism.

This column was originally published on the website of Nieman Watchdog.

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.

This is certainly progress on the part of the administration, as it continues to work out how to close Guantánamo. Since the last announcement, senior officials have also made decisions about who to put forward for trial, announcing on Nov. 13 that five men — including Khalid Sheikh Mohammed — will face federal court trials for their alleged involvement in the 9/11 attacks, and another five will be put forward for trial by Military Commission. Officials also briefed journalists that the number of prisoners expected to face any kind of trial would not exceed 40.

Based on the current population of Guantánamo (211 prisoners), this means that, deducting the 116 prisoners cleared for release and those scheduled to face trials, just 55 men remain in the most contentious category of all: those who will not face a trial, but who are not scheduled to be released either. Back in May, cowed by attacks from ranting Republicans and cowardly members of his own party, President Obama first began to waver dreadfully on Guantánamo, and not only proposed reviving the much-criticized Military Commissions as a parallel (or second-tier) judicial system for the prisoners, but also, to what should be his eternal shame, explained his intention to continue to hold some prisoners without charge or trial.

In a major national security speech, he described these prisoners as those who “cannot be prosecuted yet who pose a clear danger to the American people,” apparently oblivious to the fact that, by doing so, the administration was ignoring an inconvenient truth; namely, that, if senior officials find themselves unable to prosecute someone in Guantánamo, it is because the information they are using does not rise to the level of evidence, or is otherwise tainted by torture, and is therefore inherently unreliable.

As commentators, human rights groups and lawyers tore into Obama for even considering enshrining “preventive detention” in law, following his national security speech, another sub-text also eluded the administration: that officials were only proposing legislation that would, in effect, justify the Bush administration’s central conceit of the “War on Terror,” as a by-product of their difficulties in deciding whether to charge or release prisoners whose predicament had arisen solely because of the Bush administration’s disregard for the law in the first place.

By September, government officials acknowledged that the President would not need to seek legislation to establish a new system of preventive detention for those held in Guantánamo, because existing legislation already allowed the administration to hold prisoners indefinitely. As I explained at the time:

In dropping plans for new legislation … the administration has realized that it can continue to hold prisoners based on the Authorization for Use of Military Force, the Congressional resolution passed the week after the 9/11 attacks, which authorizes the President “to detain persons who he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible” for the attacks.

This is by no means perfect, of course. As the [New York] Times noted, “In concluding that it does not need specific permission from Congress to hold detainees without charges, the Obama administration is adopting one of the arguments advanced by the Bush administration in years of debates about detention policies,” although it added, accurately, that the President’s advisers “are not embracing the more disputed Bush contention that the president has inherent power under the Constitution to detain terrorism suspects indefinitely regardless of Congress.” As the Justice Department explained in a statement, the administration will “rely on authority already provided by Congress” under the AUMF, and “is not currently seeking additional authorization.”

Quite why it took the administration so long to realize this is beyond me, although perhaps it is tied in with the Democrats’ incessant desire to want to appear tough on national security issues. However, it should have been apparent all along, just as it should also have been apparent that, if the administration feared criticism, all it had to do was to leave it to the District Court judges who were ruling on the prisoners’ habeas corpus petitions courts to decide whether those held at Guantánamo met the AUMF’s threshold for detention.

Since June 2008, when the Supreme Court granted the prisoners constitutionally guaranteed habeas corpus rights, District Court judges have been examining the government’s evidence and, in 31 of the 39 cases in which they have reached a ruling, have concluded that the government has failed to establish, by a preponderance of the evidence, that these men were involved with al-Qaeda or the Taliban.

Of the 55 prisoners that the administration currently fears releasing, despite lacking the evidence to put them forward for a trial, eight are those who lost their habeas corpus petitions, and it would, therefore, make sense for the administration to allow the other 47 cases to proceed, secure in the knowledge that, whatever the outcome, the government can blame the courts, rather than accept responsibility itself.

This is no comfort to those who have already lost their habeas petitions, as they are waiting for a new conversation to begin, which, at present, shows no sign of starting up. This, in essence, involves asking whether it is justifiable that the AUMF, which fails to distinguish between al-Qaeda (a terrorist group) and the Taliban (the government of Afghanistan at the time of the US-led invasion in October 2001), can legitimately be used to endorse the indefinite detention of those who may have done nothing more than cook for Arab forces supporting the Taliban, or attend a military training camp in Afghanistan for one day only.

It seems to me that the answer may well be that the AUMF needs to be abandoned, as it is effectively the mechanism that was used to establish Guantánamo in the first place, and that, instead, those responsible for directing US policy need to decide whether those held at Guantánamo who have lost their habeas petitions were soldiers (in which case they should be held as prisoners of war, with the protections of the Geneva Conventions) or terrorists, who should face trials.

At present, however, these are nothing more than thoughts for the future. Right now, the administration needs to reconcile itself to the fact that the only way of dealing with the 47 prisoners about whom it has unverifiable doubts is to let judges test the basis of their detention, as ordered by the Supreme Court 18 months ago, especially as, on that occasion, the justices made a point of stressing that “[T]he cost of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.”

When it comes to the 116 men who have now been cleared for release from Guantánamo, the administration needs to do more than just send Robert Gates to the Senate to make announcements that sound as though they mean something. Since May, when President Obama personally dropped a plan, engineered by his counsel, Greg Craig, to bring two cleared prisoners from Guantánamo to settle on the US mainland (as ordered by a District Court judge in October 2008), the struggle to close Guantánamo has become noticeably harder, as European countries, pushed to take cleared prisoners themselves, have found themselves unable to resist asking why they are being obliged to clean up America’s mess when America is doing nothing itself.

Being cleared for release means nothing if you remain locked up in Guantánamo forever, and unless the administration has some significant plan up its sleeve, the future of these men is bleak. Since the announcement of the number of cleared prisoners two months ago, it is almost certain that many of the additional prisoners cleared prisoners are Yemenis (as around 95 of the remaining 211 prisoners are Yemeni), so perhaps it is worth reading something into Robert Gates’ refusal to back up the President’s recent admission that Guantánamo will not close by the self-imposed deadline of January 22, 2010, when he told the Senate hearing last Thursday that the President “has every intention of doing this and we will,” and explained, “Principally the logistics of it have proven to be more complicated (than expected).”

A deal on the repatriation of the Yemenis — of whom, I suspect, between 50 and 60 have now been cleared for release — would certainly help fulfill Barack Obama’s ailing promise, and may have been hinted at by Robert Gates. However, I still think that any decent person’s demand — that men cleared for release after their long ordeal should not be held one minute longer than necessary — will not be achieved until the people of the United States accept that it is not enough for Belgium, Bermuda, France, Hungary, Ireland, Palau and Portugal to take the odd cleared prisoner as a favor to President Obama, and for the US to do nothing.

As a result, Congress must be persuaded to drop its opposition to the release of any cleared prisoner into the US (which has complicated the closure of Guantánamo still further), and the American people need to follow the example of the town of Amherst, Massachusetts, which recently voted to accept two prisoners from Guantánamo, and also to tell Congress to drop its ban. The principle is quite simple, and generally well understood, I believe: if you break it, you fix it.

This report was originally published at 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.

This story was originally published on Truthout.org

The Obama administration indicated in court papers it may appeal a federal judge’s ruling ordering the Justice Department to release portions of the transcribed interview between former Vice President Dick Cheney and Patrick Fitzgerald, the special prosecutor appointed to probe the roles Bush administration officials played in the leak of covert CIA operative Valerie Plame Wilson six years ago.

Last week, Jeffrey M. Smith, an attorney in the Justice Department’s civil division, filed an emergency motion in US District Court in Washington, DC, requesting a 30-day stay of the court’s Oct. 1, order that called for the parts of the Cheney interview to be released by Oct. 9.

Smith said the stay, which US District Court Judge Emmet Sullivan granted, was needed “in order to allow the Solicitor General [Elena Kagan] sufficient time in which to exercise her statutory authority to determine whether the [Department of Justice] will file an appeal in this action.”

“This case involves an important issue that will require consultations at high levels of Government,” Smith said, adding that the stay “is necessary to avoid the irreparable harm that would result if the Government is forced to disclose its documents to the public before it has the opportunity to consider whether to pursue its appellate rights.”

The case stems from a Freedom of Information Act lawsuit filed last year by the public interest group Citizens for Responsibility and Ethics in Washington (CREW). The organization has been trying to gain access to Cheney’s interview transcript and has found its efforts thwarted first by Justice Department attorneys in the Bush administration, who had said the interview transcript was being withheld on national security grounds, and now by the Obama administration, whose attorneys said the material, if released, could become “fodder for The Daily Show.”

The resistance from the Obama administration has left some of its supporters shaking their heads. Not only does the obstruction go against President Obama’s pledge of government openness, but it is protecting the reputation of Cheney, one of Obama’s most vocal critics.

It was Smith who argued in July that the transcript of Cheney’s 2004 interview with Fitzgerald about the CIA leak should remain secret for as long as ten more years to protect Cheney from any political embarrassment that would result from the transcript being released.

As previously reported by Truthout, Sullivan rejected Smith’s argument as well as others that claimed releasing the contents of the transcript would derail law enforcement efforts to obtain the cooperation of sitting vice presidents in future criminal probes.

“Any attempt to predict the harm that disclosure of these records could have … is therefore inherently, incurably speculative,” Sullivan wrote in his ruling. “Accordingly, the Court concludes that DOJ has failed to meet its burden of demonstrating that the records were properly withheld.”

Sullivan, however, did agree that the Justice Department can keep under wraps, on national security grounds, statements Cheney had made to Fitzgerald about declassification discussions he had with George W. Bush, conversations Cheney had with former CIA Director George Tenet about Ambassador Joseph Wilson’s February 2002 trip to Niger to investigate allegations that Iraq was seeking to purchase yellowcake uranium, discussions surrounding the 16 words in Bush’s January 2003 State of the Union address that asserted Iraq had attempted to purchase the uranium, talks between Cheney and then National Security Adviser Condoleezza Rice and conversations between Cheney and other Bush officials about how to respond to media inquiries about the Plame Wilson leak.

Senior Bush administration officials disclosed Plame Wilson’s identity to several journalists in June and July of 2003 amid White House efforts to discredit her husband, Ambassador Joseph Wilson, for challenging Bush’s use of bogus intelligence to justify invading Iraq.

Plame Wilson’s CIA employment was revealed in a July 14, 2003, article by the late right-wing columnist Robert Novak, effectively destroying her career. Two months later, a CIA complaint to the Justice Department sparked a criminal probe into the identity of the leakers.

Initially, Bush professed not to know anything about the matter, and several of his senior aides, including political adviser Karl Rove and the vice president’s chief of staff I. Lewis Libby, followed suit.

However, it later became clear that Rove and Libby had a hand in the Plame leak and that Bush and Cheney had helped organize a campaign to disparage Wilson by giving critical information to friendly journalists.

On June 24, 2004, Bush was interviewed by Fitzgerald for 70 minutes about the Plame leak. The only other member of the Bush team in the room during the meeting was Jim Sharp, the private lawyer that Bush hired, according to a press briefing by then press secretary Scott McClellan.

“The President … was pleased to do his part to help the investigation move forward,” McClellan said. “No one wants to get to the bottom of this matter more than the President of the United States.”

A couple of weeks earlier, Cheney was interviewed by Fitzgerald. Cheney retained a private attorney, Terrence O’Donnell, to represent him in the matter.

Fitzgerald’s criminal investigation led to Libby’s indictment in October 2005 and his subsequent conviction in March 2007 on four counts of perjury and obstruction of justice, which Bush later commuted.

During closing arguments at Libby’s trial, Cheney was implicated in the leak, as Fitzgerald acknowledged that Cheney was intimately involved in the scandal and may have told Libby to leak Plame’s status to the media.

Court papers filed by Obama’s Justice Department in July revealed that Bush and Cheney were in contact about the scandal, including what is described as “a confidential conversation” and “an apparent communication between the Vice President and the President.”

That court filing also revealed that Fitzgerald questioned Cheney about his participation in the decision to declassify parts of a 2002 National Intelligence Estimate regarding Iraq’s alleged WMD. It ultimately fell to Bush to clear selected parts of the NIE so they could be leaked as part of the White House campaign to disparage Wilson.

Photo by U.S. Army Sgt. Sara Wood.

In a recent article, I examined the implications of an announcement that 75 of the remaining 223 prisoners in Guantánamo have been cleared for release. This came by way of a list posted in the prison, identifying the prisoners by nationality, and a statement by a military spokesman, Navy Lt. Cmdr. Brook DeWalt, who explained, “It was an opportunity to just provide better communication. There’s a lot of information out there and you get a lot of things from a lot of different angles. It helps put it in a more succinct context for them [the prisoners].”

The list is based on the deliberations of an interagency Task Force, established by President Obama on his second day in office, to determine who should be released, and who should continue to be held, and in my article I looked at the cases of 31 of the prisoners (26 Yemenis, three Saudis and two Kuwaitis, one of whom has since been released), pointing out that, in theory, there was no reason for them not be released immediately.

However, I also pointed out that members of Obama’s own administration had told the New York Times that the government was afraid of releasing the Yemenis (even though they had been cleared for release), because Guantánamo itself might have radicalized [them], exposing [them] to militants and embittering [them] against the United States,” and I should also have added, as former military defense attorney Maj. David Frakt pointed out to me in an email, that the men’s release is also dependent on the whims of Congress, where lawmakers “passed a law this summer that requires the administration to give Congress 15 days notice before releasing anyone from Guantánamo.”

Nevertheless, although Congressional obstruction may well be an additional complication (which I discussed in another article last week, “Lawyer Blasts ‘Congressional Depravity’ On Guantánamo”), it remains apparent that the route out of Guantánamo for these 30 men ought to be easier than it is for the other 44 prisoners cleared for release, as these are men who cannot be repatriated either because of fears that they will face torture or other ill-treatment (including arbitrary detention and show trials) on their return, or because (in the cases of two Palestinians) they are, effectively, stateless refugees.

Who are the 44 prisoners?

Of these 44 prisoners, 15 had their release ordered by judges in US District Courts, as a result of the habeas corpus petitions that were authorized by the Supreme Court in an extraordinarily important ruling in June 2008. 13 of these men are Uighurs — Muslims from China’s oppressed Xinjiang province, whose release was ordered by Judge Ricardo Urbina a year ago, and whose plight I have written about extensively (particularly here and here) — and the others are an Algerian, Sabir Lahmar, whose release was ordered last November, and Abdul Rahim al-Ginco, a young Syrian, tortured and imprisoned by al-Qaeda and the Taliban, whose release was ordered in June this year.

The other 29 are as follows: nine Tunisians, six more Algerians, three more Syrians, two Egyptians, two Uzbeks, two Palestinians, an Azerbaijani and a Tajik. Although their names have not been provided, the identities of the majority of these men can be deduced by a process of elimination (there are, for example, only two Egyptians, two Uzbeks, and one Azerbaijani in Guantánamo), and, in addition, the decision to release the Tajik prisoner, Umar Abdulayev, is known about because it was announced in July.

As I explained at the time, this decision was distressing to Abdulayev and his lawyers for two reasons: firstly, because when government lawyers announced that they would “no longer defend his detention,” they also announced that they “want[ed] US diplomats to arrange to repatriate him,” even though Abdulayev is terrified of returning to Tajikistan, because he was threatened by Tajik agents who visited him in Guantánamo.

Secondly, because the Task Force’s decision also led the Justice Department to ask a judge to drop Abdulayev’s habeas petition, prompting his lawyers to point out that the Task Force’s decision was “not a determination that [Abdulayev’s] detention was or was not lawful,” and that it therefore “does nothing towards removing the stigma of being held in Guantánamo or being accused of being a terrorist by the United States.”

This is actually a widespread problem for those cleared for release who fear repatriation, not only because recent rulings by the Court of Appeals have removed a number of judicial safety nets established by judges to prevent the enforced repatriation of a number of prisoners in Guantánamo (for whom the “stigma” of “being accused of being a terrorist by the United States” is of grave importance). But also because, in a wider sense, the Obama administration is unwilling to state openly that any prisoner was seized by mistake (as one of the prisoners’ lawyers recently explained to me, no lawyer would advise admitting responsibility, as it would open the floodgate to compensation claims). As a result, the administration is doing nothing to facilitate the work of Daniel Fried, the senior diplomat employed in March 2009 as the Special Envoy to Guantánamo, whose unenviable task it is to persuade other countries to accept released prisoners from Guantánamo.

Even putting aside for a moment the difficulties caused by the refusal of the Court of Appeals and Congress to accept cleared prisoners into the United States (which fuels a reluctance to help in European countries, as Fried acknowledged in a recent interview with the BBC), there are disturbing signs that this reticence on the part of the administration to state openly and categorically that colossal mistakes were made by the Bush administration is also undermining the very decisions made by Obama’s own Task Force.

Recently, for example, when Swiss officials visited Guantánamo to investigate the cases of four men cleared for release, in an attempt to work out if they would be prepared to accept any of these men, they returned, not with an honest appraisal, but with weighted conclusions that could only have been presented to them by the US military, who had, in effect, opened up their files and shown them material which purported to be evidence, but which, in other prisoners’ habeas petitions, has been demonstrated, time and again, to be nothing more than false allegations made by other prisoners (under duress or as a result of bribery) or by the prisoners themselves, multiple levels of unacceptable hearsay, and “mosaics” of intelligence that do not stand up to independent scrutiny.

According to reports in the Swiss media, the government representatives concluded that, of the four men they investigated, two Uighurs were “low-risk,” even though they are no risk at all, having persuaded the Bush administration to drop its claims that they were “enemy combatants,” and having been cleared by military review boards under the Bush administration, by a US District Court, and by the Obama administration’s Task Force, and two other men, an Uzbek and a Palestinian — also cleared by Bush-era military review boards and by Obama’s Task Force — were considered “medium-risk” and “high-risk.”

What has the Task Force been doing for eight months?

Beyond these absurd discrepancies, which do nothing to help Obama’s cause, the other conclusion I draw from an analysis of the Task Force’s figures is that, after eight months of reviewing the prisoners’ cases, it has made very little progress, despite detailed consultations with lawyers and other experts, despite detailed searches for information relating to the men, which was scattered throughout numerous departments and agencies in a disturbingly incoherent manner, and despite the establishment of a database bringing all the available information together in one place.

Although exact numbers are impossible to work out, it is clear that, of the 29 men cleared by the Task Force, all but nine (at most) were actually approved for transfer, between 2006 and 2008, by Administrative Review Boards at Guantánamo. When Obama came to power, eight Tunisians, five Algerians, four Uzbeks, three Palestinians, an Egyptian, a Libyan, and Umar Abdulayev, the Tajik, had all been approved for transfer. Some tweaking has taken place — a Palestinian has been removed from the list, and the Azerbaijani, Poolad Tsiradzho, has been added, plus an Algerian, an Egyptian, two Libyans and three Syrians — and, in addition, it is possible that the Task Force has shifted position on a few of those approved for transfer under Bush.

However, when added to the 14 or so Yemenis discussed in the last article, this figure of 25 or so prisoners is hardly a triumph for the Task Force, and indicates, yet again, that when it comes to Guantánamo, the President’s bold start in January, when he issued his executive order regarding the closure of the prison, has been steadily eroded by confusion, extreme caution and indecision.

If this damned icon of the dark years of George W. Bush, Dick Cheney, Donald Rumsfeld and their close advisors is ever to close, it is time for Barack Obama, Eric Holder and Robert Gates to regroup and to accept that confusion plays only into the hands of those haunted by the ghost of Dick Cheney, and that clarity is required. Moreover, despite lawyers’ fears of new waves of litigation, this clarity has to involve the nation’s leaders acknowledging why the District Courts have ruled, in 79 percent of the habeas petitions before them, that the men in question are neither terrorists nor soldiers and should be released.

The truth is out there — and I am only one of many writers who have been explaining it for the last four years — but I will spell it out again: the majority of the prisoners were seized for bounty payments by US allies, were never screened according to the Geneva Conventions to determine whether or not they were combatants of any kind, and are held not because of anything resembling evidence, but through a shamefully poor attempt to build up a case against them in the isolation of Guantánamo, through a combination of torture, coercion and bribery, and the use of raw intelligence masquerading as facts.

Everyone in Guantánamo deserves better than this: both the few dozen men who are genuinely accused of involvement with al-Qaeda, the 9/11 attacks and other acts of international terrorism, who should face trials for their alleged crimes, and the majority of the prison’s population, whose release is still being prevented, or made horrendously complicated, by both the Executive and the lawmakers in Congress — some innocent men, and others who were soldiers in a now almost forgotten civil war between the Taliban and the Northern Alliance, whose ongoing detention is based not on any notions of justice, but on the lingering legacy of the Bush administration’s mistaken decision to equate al-Qaeda with the Taliban.

Note: For more information on the prisoners cleared for release, see my article, “Guantánamo’s refugees,” and also see the following profiles on the Reprieve website: Ahmed Belbacha (Algeria), Nabil Hadjarab (Algeria), Said Farhi (Algeria), Adel Fattough Ali El-Gazzar (Egypt), Sherif El-Mashad (Egypt), Ayman al-Shurafa (Palestine), Adel Hakeemy (Tunisia), Hedi Hammamy (Tunisia) and Saleh Sassi (Tunisia).

This report was first 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.

Ambassador Daniel Fried was tapped by Secretary of State Hillary Rodham Clinton to lead a team to carry out President Obama's commitment to close Guantanamo within one year.

In an exclusive interview with the BBC, Daniel Fried came across as an eminently reasonable man placed in a disturbingly unreasonable position by his bosses.

A senior diplomat, who was the Assistant Secretary of State for European and Eurasian Affairs for four years, Fried was plucked from his job in March 2009 to become the Obama administration’s Special Envoy to Guantánamo, serving as a member of the interagency Task Force charged with reviewing the cases of the remaining Guantánamo prisoners, and responsible, primarily, for finding countries to accept dozens of prisoners who have been cleared for release, either by the Task Force, often based on decisions already taken by Bush-era military review boards, or by the courts, after successful habeas corpus petitions.

These are men who cannot be returned to their home countries because of fears that they will face torture, or further arbitrary imprisonment, on their return, although Fried is also responsible for trying to broker a deal with Yemen, whose nationals make up around 40 percent of the remaining 225 prisoners. Fried spoke mainly to the BBC about negotiations with Europe, but it is apparent that attempts to overcome the long-standing failure to secure a deal with the Yemeni government remains one of the most difficult tasks that he faces.

In an interview for Radio 4’s Today program, which was partly filmed and televised on BBC News, Fried gave Jon Manel a largely spin-free account of the problems he faces, some of which have been exacerbated by the US government’s unwillingness — or inability — to resettle some cleared prisoners in the United States.

To my mind, President Obama missed a golden opportunity to bring 17 prisoners to the US in his early days in office. These men, the Uighurs (Muslims who had fled oppression in China’s Xinjiang province, and who were sold to US forces after being betrayed by Pakistani villagers, following their flight from Afghanistan) had been cleared of any involvement with al-Qaeda, the Taliban or any form of international terrorism by the Bush administration and by the US courts, but the President wavered, allowing Guantánamo’s supporters in Congress (scaremongers inspired by the hateful and false rhetoric of former Vice President Dick Cheney) to gain the upper hand, eventually persuading Congress to pass legislation blocking the transfer of any cleared prisoners to the US mainland.

Fried began by explaining that his job was “miserable,” because he was “cleaning up a problem” inherited from the Bush administration, which had nothing to do with advancing any positive aspects of US policy. “It’s not like we’re advancing liberty or making peace,” he said. He added that working out what to do with the remaining prisoners is “a huge problem and a complicated one,” but according to Manel, although he said that he would “not criticize Congress,” he stated, unambiguously, “It is fair to say, as just an objective statement, that the US could resettle more detainees [worldwide], had we been willing to take in some.”

The interview was also notable for the following frank exchange about the perception of the remaining prisoners as “the worst of the worst,” which included, I believe, the first public admission, by a senior Obama administration official, that some of the prisoners were nothing more than low-level Taliban recruits, in an inter-Muslim civil war (with the Northern Alliance) that preceded the 9/11 attacks and had nothing to do with al-Qaeda or international terrorism, and that they should not have been in Guantánamo for the last seven years:

Daniel Fried: The detainees in Guantánamo run a spectrum. Some really are awful. Some qualify as “the worst of the worst,” and we’re going to put those on trial. Some, frankly, should not have been in Guantánamo for the past seven years.

Jon Manel: So they were innocent?

Daniel Fried: Innocent, guilt … I look at their files and some of them seem relatively benign, and I have in mind the Uighurs, in particular, but others …

Jon Manel: They’re the minority from China …

Daniel Fried: That’s right, the Uighur minority from China, but if I had to describe — if there’s such a thing as an average Guantánamo detainee, it’s someone who was a volunteer, a low-level trainee or a very low-level fighter in a very bad cause, but not a hardened terrorist, not an organizer. Now it is those people whom we’re asking Europeans to take a look at, and each government has to evaluate the background of each individual and make a decision.

Despite his criticism of the implications of the failure to accept any cleared prisoners into the United States, Fried did make the point that “parliamentarians in Europe” — as well as the US – “have raised questions about security, and we have to respect those opinions,” although he was also concerned to publicize the successful resettlement of four of the Uighurs in Bermuda (in June), even though it had apparently brought him into conflict with the British government, because, as the BBC described it, “Bermuda is a British overseas territory and Britain was not informed until the last minute.”

“The British government, it is fair to say, cannot be considered part of the deal. This was worked out between the Americans and the Bermudans,” Fried told Manel, adding, “I will say that I’ve been admonished by the British government in very clear terms.” He insisted, however, that the deal had been successful. “We are very grateful to the Bermudan government and the behavior of the four Uighurs has been exemplary, which really bolsters our contention that they were not any kind of threat,” he said, adding, “These are four people who are enjoying freedom who would otherwise be in Guantánamo.”

This was an important point to make, although I maintain that the Uighurs’ “exemplary” behavior, which “bolsters” the government’s “contention that they were not any kind of threat,” would have had a far more powerful impact if it had happened in Washington D.C., where American citizens would have been able to appreciate, first-hand, that the Uighurs are not, and have never been terrorists.

In conclusion, Fried told Manel that he was “confident” that the President’s January deadline for closing Guantánamo would be met, although he could not guarantee it. “President Obama’s timetable is what we’ve got,” he said, “we don’t have Plan Bs, we’re looking at that timetable. We’ve got a lot of work to do, we need help getting this done, and we’re going to be working hard at it. But you’re not going to have Guantánamo II. Whatever solution we come up with, it will be one based firmly on the rule of law and transparency.”

Fried’s interview coincided with an announcement that Hungary is preparing to take a cleared prisoner from Guantánamo, to add to those already accepted by the UK (Binyam Mohamed, a British resident, in February), France (Lakhdar Boumediene, an Algerian, in May), and Portugal (Mohammed al-Tumani and Moammar Dokhan, both Syrians, last month). Other countries who have agreed to take cleared prisoners are Belgium, Ireland, Italy (although with some disturbing conditions), and Spain, and discussions are apparently ongoing with both Lithuania and Switzerland.

A short video of the BBC interview (featuring the exchange reproduced above) is available here.

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.

Even more crucially, the judges’ rulings were allowing justice to be seen to be done, unlike the secretive interagency Task Force established by Barack Obama on his second day in office, whose deliberations are, sadly, as inscrutable as those of Obama’s predecessor, even though the Task Force has at least taken the time to consult with lawyers and other experts.

As I recently reported in a series of three articles (here, here and here), despite persistent obstruction from the Justice Department, where Bush-era officials have been behaving as though Dick Cheney is still breathing down their necks, judges had, by the end of July, reviewed 33 cases, and in 28 of those had ruled that the government had failed to establish, “by a preponderance of the evidence,” that it was justified in holding the men.

The judges concluded that, amongst other failings, the government was relying on information provided by dubious informers, on multiple levels of hearsay that failed to stand up to outside scrutiny, and on a supposed “mosaic” of evidence from various sources that was also unconvincing.

Nevertheless, although these rulings confirmed what those, like myself, who have been studying Guantánamo in depth for many years, have always maintained — that the majority of the prisoners are either innocent men seized for bounty payments (or through the incompetence of U.S. forces and other government agencies) or low-level Taliban foot soldiers recruited to help the Taliban defeat Afghanistan’s Northern Alliance in an inter-Muslim civil war that had nothing to do with al-Qaeda or the 9/11 attacks — the courts still face a number of peculiar problems.

These problems have arisen not only because almost all of the government’s supposed evidence consists of the inherently dubious statements of informers, of multiple levels of hearsay and of feeble “mosaics” of intelligence (as mentioned above), but also because when the Supreme Court granted the prisoners constitutionally guaranteed habeas corpus rights in June 2008, the justices failed to provide a clear definition of the extent to which prisoners were required to be involved in al-Qaeda and/or the Taliban to have their habeas appeals refused.

The “gossamer thin” case against Adham Mohammed Ali Awad

The resultant confusion was on full display in August, when three rulings were made. In the first, on August 12 (PDF), Judge James Robertson denied the habeas appeal of Adham Mohammed Ali Awad, a Yemeni prisoner, even though he conceded that “The case against Awad is gossamer thin,” and added, “The evidence is of a kind fit only for these unique proceedings and has very little weight.”

This was Robertson’s first habeas ruling, and in the hands of another judge, the ruling may well have tipped the other way. Certainly, the case was as “gossamer thin” as Robertson declared. Awad, who was just 19 years old at the time, was seized in Mirwais Hospital in Kandahar, Afghanistan in late 2001. According to his own account, he had “traveled to Afghanistan in mid-September 2001 in order to visit another Muslim country for a few months,” but in early November 2001 “was injured and knocked unconscious during an air raid while walking through a market in Kandahar.”

When he woke up in the hospital, he said, he discovered that he had lost his right foot, “that he was heavily medicated, floated in an out of consciousness, slept constantly, and could barely sit up.” He added that he “remained in this condition until his capture.”

Over the long years of his detention, as I explained in a profile of Awad last year, the U.S. authorities have claimed that he “stated he went to Afghanistan to become a fighter,” have suggested that he received injuries “in a two-car collision, involving ten individuals, while trying to avoid coalition air strikes,” and have also claimed that he, “along with seven other Arabs suspected of being al-Qaeda, were reportedly armed with weapons and used a hospital as a safe haven to elude coalition forces.”

These allegations, which surfaced in the Unclassified Summary of Evidence during Awad’s Combatant Status Review Tribunal at Guantánamo in 2004, formed the basis of the government’s case in court, even though, by 2006, in a review board at Guantánamo, the authorities had dropped all mention of the car crash, Awad’s supposed al-Qaeda associates, and his involvement in the siege, and, instead, suggested only that he was “captured on 2 November 2001 when he was injured near the airport in Kandahar.”

Judge Robertson perceived that Awad’s case “relie[d] mostly on weaknesses and holes in the government’s evidence,” which, as noted above, he was swift to condemn for its “gossamer thin” nature, but although he noted that the government “relie[d] mostly on newspaper articles” for background information about the hospital siege, which took place from early December to late January and ended with the deaths of the seven al-Qaeda fighters, and although he gave “no weight” to the “only first hand evidence offered by the government” — an interview with a man (whose name was redacted), who “claimed that he led the group that had taken Awad into custody”, whose report he dismissed as “internally inconsistent” and “completely unreliable” — he nevertheless concluded that “it appears more likely than not that Awad was, for some period of time, ‘part of’ al-Qaeda.”

To reach this conclusion, Judge Robertson was required to accept the government’s supposed evidence that Awad had attended Osama bin Laden’s Tarnak Farms training camp, an allegation that was based on a variation of his name, “Waqas” (he was sometimes listed by the Pentagon as Waqas Mohammed Ali Awad), being found on a list associated with the camp.

Although Judge Robertson refused to accept the government’s claim that Awad trained at the camp, finding it to be “unsupported,” noting, “we do not know the purpose of the list or when it was written,” and adding that the translator “claimed only that it was ‘possibly’ a list of trainees,” he returned to the allegations of Awad’s presence at Tarnak Farms to substantiate his conclusion that “it appears more likely than not that Awad was, for some period of time, ‘part of’ al-Qaeda.”

He noted that the names of the other men killed in the siege and Awad’s purported alias, “Waqas,” were closely grouped together on the list, and inferred from statements provided by another man who was present in the hospital and was also taken to Guantánamo (a Saudi released in 2007) that Awad and “Waqas” were one and the same.

Missing throughout all this analysis was any reflection on whether it was true that Awad only arrived in Afghanistan in mid-September 2001, and if, therefore, it was likely that he would have been immediately recruited for training at an advanced facility in the few weeks before the US-led invasion began, which strikes me as close to impossible. Also missing was any recognition that, as the government claimed in 2006, Awad was seized before the siege began, or, if that was a typographical error (as was indicated in court), that he was injured on Dec. 2, when the siege began, and that he was booted out of the hospital by the al-Qaeda fighters inside (or, as the government put it, “Awad’s comrades gave him up because they could not care for his severely injured [redacted]“).

Even with the government’s spin, there is something suspicious about would-be al-Qaeda martyrs sending one of their own to be captured, rather than staying and being martyred instead, but rather than examining these questions, Judge Robertson ruled that “At the very least Awad’s confessed reasons for traveling to Afghanistan and the correlation of names on the list [redacted] clearly tied to al-Qaeda make it more likely than not that he knew the al-Qaeda fighters at the hospital and joined them in the barricade.”

Quite where this leaves Awad is unknown, as the government does not seem to have enough evidence for a trial, and may, therefore, consider him a suitable candidate for its proposal to legislate for new powers of “indefinite detention,” to be reviewed by Congress and judges, which are supposed to provide an acceptable veneer to what is nothing more than a continuation of the Bush administration’s despised policies.

To this end, what may disappoint Awad the most is that, although Judge Robertson described him as a “marginally literate” young man, who “has spent more than seven of his twenty-six years — since he was a teenager — in American custody,” and, moreover, stated, “It seems ludicrous to believe that he poses a security threat now,” he added, limply, “but that is not for me to decide.”

In doing so, he ignored an earlier ruling (PDF), in which Judge Ellen Segan Huvelle noted that the Authorization for Use of Military Force (the legislation passed in the week after 9/11 which authorized the President “to use all necessary and appropriate force” against those “he determines” to have been involved in any way in the 9/11 attacks) “does not authorize the detention of individuals beyond that which is necessary to prevent those individuals from rejoining battle,” and ignored another ruling, in the case of a Syrian prisoner, Abdul Rahim al-Ginco, in which Judge Richard Leon ruled that whatever relationship al-Ginco may have had with al-Qaeda was “utterly destroyed.”

In al-Ginco’s case, this was because he had been tortured by al-Qaeda as a spy, but it was also noteworthy that Judge Leon stated that al-Ginco’s prior experience of al-Qaeda — “five days at a guest house in Kabul combined with eighteen days at a training camp — does not add up to a longstanding bond of brotherhood.”

Instead, however, Judge Robertson raised and dismissed a little-voiced question — whether it is appropriate to continue holding men who were seized in connection with a specific conflict (the overthrow of the Taliban and the installation of a new government, which came to an end years ago) — by stating, “Combat operations in Afghanistan continue to this day and — in my view — the President’s ‘authority to detain for the duration of the relevant conflict’ which is ‘based on long-standing law-of-war principles’ has yet to ‘unravel.’”

Mohammed al-Adahi and the al-Qaeda mirage

One judge who may have dealt more robustly with the “gossamer thin” evidence in the case of Adham Mohammed Ali Aawad is Judge Gladys Kessler, who, on August 21, granted the habeas appeal of Mohammed al-Adahi, a Yemeni who was 39 years old when he was seized on a bus in Pakistan (PDF). I described the broad outline of al-Adahi’s story in my book The Guantánamo Files as follows:

Married with two children, al-Adahi had never left the Yemen until August 2001, when he took a vacation from the oil company where he had worked for 21 years to accompany his sister to meet her husband … As he told his tribunal, “In Muslim society, a woman does not travel by herself.” After flying to Karachi, they traveled to Kandahar, where his brother-in-law was living. Al-Adahi stayed in Afghanistan for a month, “to ease his sister’s transition to life in Afghanistan,” and then made his way back to Pakistan, where he was arrested by soldiers while traveling on a bus. “They were capturing everybody with Arabic features,” he said. “I gave them my passport and that shows that I’m an Arab. They said, ‘why don’t you follow us, we need you at the Center.’ From that point on they brought us over here.”

However, while this was a fair précis, the government believed that it could establish a case that al-Adahi was actually a member of al-Qaeda, for a number of reasons that appeared, on the surface at least, to be plausible. As Judge Kessler explained, “There is no question that the record fully supports the Government’s allegation that Petitioner had close familial ties to prominent members of the jihad community in Afghanistan.”

The brother-in-law, it appears, was “a prominent man in Kandahar,” who had fought the Russians in Afghanistan, and Judge Kessler also noted that it was “undisputed” that Osama bin Laden “hosted and attended [the] wedding reception in Kandahar,” that al-Adahi “was briefly introduced to bin Laden,” and that “A few days later, al-Adahi met bin Laden again and the two chatted briefly about religious matters in Yemen.”

However, Judge Kessler refused to accept the government’s contention that these familial ties and the two brief meetings with bin Laden proved that al-Adahi “was part of the inner circle of the enemy organization al-Qaeda,” and accepted instead that there was no reason to doubt that al-Adahi’s visit was, as he stated, to accompany his sister to her wedding (and also to receive medical treatment for a back problem). She noted also that he had not tried to hide the fact that he had met bin Laden, and that he had, in addition, stated that it was “common for visitors to Kandahar” to do so.

As in May, when she granted the habeas appeal of another Yemeni, Alla Ali Bin Ali Ahmed, Judge Kessler had serious doubts about the manner in which the government established its case, which focused primarily on its claim that its various allegations should be considered as part of a “mosaic” of intelligence, to be viewed as a whole, rather than being examined in isolation.

Dismissing this approach, she stated that, although she understood that “use of this approach is a common and well-established mode of analysis in the intelligence community … at this point in this long, drawn-out litigation the Court’s obligation is to make findings of fact and conclusions of law which satisfy appropriate and relevant legal standards as to whether the Government has proven by a preponderance of the evidence that the Petitioner is justifiably detained.”

She proceeded to stress that “the mosaic theory is only as persuasive as the tiles which compose it and the glue which binds it together,” and that, “if the individual pieces of a mosaic are inherently flawed or do not fit together, then the mosaic will split apart.” Having dealt with the government’s first “tile,” she methodically dismantled the others, refuting a claim that al-Adahi had “stayed at al-Qaeda and/or Taliban guesthouses during his stay in Afghanistan,” and demolishing the government’s “central accusation”: that al-Adahi’s brief attendance at al-Farouq (the main training camp for Arabs, associated with Osama bin Laden in the years before 9/11) helped to confirm that he occupied “some sort of ’structured’ role in the ‘hierarchy’ of the enemy force.”

Noting his claim that he “pursued training at al-Farouq to satisfy ‘curiosity’ about jihad, and because he found himself in Afghanistan with idle time,” she took particular exception to the government’s claim because, “After seven to ten days at al-Farouq, the camp leaders expelled al-Adahi for failing to comply with the rules.”

Referring, incredibly, to the case of Abdul Rahim al-Ginco, the Syrian who was tortured by al-Qaeda (and whose case the Justice Department had pursued in the habeas courts until it was thoroughly humiliated by Judge Richard Leon in June), the government’s lawyers attempted to claim that, because al-Adahi was not imprisoned and tortured as a spy after he was expelled (like al-Ginco), this proved that he was being given preferential treatment because of his ties to al-Qaeda.

However, Judge Kessler concluded instead that it was more likely that he “was being protected by a concerned family member” with considerable influence, and that “it most certainly is not affirmative evidence that al-Adahi embraced al-Qaeda, accepted its philosophy, and endorsed its terrorist activities.”

She was also dismissive of an allied claim — that al-Adahi was an instructor at al-Farouq in February 2000 — noting that the only source for this allegation was another prisoner at Guantánamo, for whom “the record contains evidence that [he] suffered from ’serious psychological issues,’” and dismissed another claim — that al-Adahi was a bodyguard for bin Laden — by pointing out that this claim had been made by another prisoner who “suffers from serious credibility problems that undermine the reliability of his statements.”

It seems probable, from references to a “report of torture by the Taliban” in the case of this witness, that he was Abdul Rahim al-Ginco, who, as Judge Kessler noted, admitted in August 2005 that he had “lied in the past.” She also noted that “interrogators had expressed concern that he was being manipulated by another detainee,” and quoted from a report stating that “before being placed next to that detainee [he] had never made any of the claims that he made to interrogators, including the accusation against al-Adahi.”

With the bulk of the government’s claims dismissed, it remained only for Judge Kessler to destroy the rest of the “mosaic” by noting that, with reference to the rest of al-Adahi’s time in Afghanistan after being expelled from al-Farouq, it was “only speculation” on the part of the government that injuries he received to his arm and leg in Kandahar were the result of combat, and not, as he stated, because of a motorcycle accident.

She also pointed out that, although the government attempted to pin “associational evidence” of militancy on a claim that al-Adahi “was captured while traveling in the company of Taliban fighters” on a bus in Pakistan, the only source for this was something al-Adahi himself had been told after his capture, when he “heard that there were members of the Taliban on the bus.”

Noting, in addition, that he was “unarmed” at the time of his capture, she concluded that “He appeared to be attempting to escape the chaos of that time by any means he could,” and granted his habeas appeal (although, as with all the cases of prisoners whose habeas appeals have been granted, the ruling provides no guarantee that he will actually be released).

Fawzi al-Odah: the Kuwaiti who trained for one day

On August 24, the government secured another shallow victory when Judge Colleen Kollar-Kotelly denied the habeas petition of Fawzi al-Odah, a Kuwaiti prisoner, agreeing with the government that it was “more likely than not” that he “became part of Taliban and al-Qaeda forces in Afghanistan” (PDF). Judge Kollar-Kotelly’s ruling was based on a dubious assemblage of information that relied more on inconsistencies in al-Odah’s account of his activities than it did on anything resembling concrete evidence, as she herself admitted, when she wrote that there were “significant reasons why the Government’s proffered evidence may not be accurate or authentic.”

She explained that some of it was produced “in circumstances that have not allowed the Government to ascertain its chain of custody, nor in many instances even to produce information about the origins of the evidence,” that other evidence was “based on so-called ‘unfinished intelligence,’ information that has not been subject to each of the five steps in the intelligence cycle (planning, collection, processing, analysis and production, and dissemination),” and that other evidence was “based on multiple layers of hearsay (which inherently raised questions about reliability), or is based on reports of interrogations (often conducted through a translator) where translation or transcription mistakes may occur.”

The basic facts of the case, as I explained in an article for the BBC’s website in December 2007, are as follows. Al-Odah, a 24-year old primary school teacher, whose father, a retired air force pilot, fought with US forces during the Gulf War in 1991,

took a short holiday from work and traveled to Afghanistan in August 2001 to teach the Koran and provide humanitarian aid. This was something he had done before, in other countries, and his family had had a history of providing humanitarian aid, establishing libraries and wells in various countries in Africa.

After establishing contact with the Taliban, which he said “was necessary because that was the government in Afghanistan at that time,” Mr. Odah said he had been “touring the schools and visiting families,” teaching the Koran and handing out money, until his activities had been curtailed following 9/11.

He said that in Kandahar the Taliban representative “told me that was a dangerous place because it was the capital for the Taliban,” and had advised him to go to Logar, in the east of the country, where he had stayed with a family for a month, and left his passport and belongings for safekeeping. “If the Afghans saw I had a passport indicating I was an Arab, and they saw the money and the camera I had, I would have been killed,” he added.

He had then moved to Jalalabad, where he had stayed with another family, who had given him an AK-47 assault rifle to protect himself, Mr. Odah said. He had then joined other people crossing the mountains to Pakistan, where he had handed himself in to the border guards, he added. Mr. Odah said he expected to be escorted to the Kuwaiti embassy, but had instead been handed over to US forces.

In dissecting al-Odah’s story, Judge Kollar-Kotelly took exception to apparent inconsistencies in his account of his journey to Afghanistan, suggestions that he had lied about his plans to teach, and about the length of time he intended to stay. She concluded, by comparing his route — to Dubai, and then to Karachi, Quetta, Spin Boldak and Kandahar — with the same route taken by jihadists that the record “supports a reasonable inference that al-Odah may have also been traveling to Afghanistan to engage in jihad, and not to teach the poor and needy for two weeks.”

She followed up by casting doubts on his claim that he innocently “sought to contact a Taliban official upon reaching Afghanistan and that he subsequently moved around the country at the direction of this official,” and on his explanation that he visited a training camp “supervised by the Taliban, where “he took one day of training on an AK-47 rifle.” Following the government’s lead, she suggested that it was “more likely than not” that the camp was in fact al-Farouq, and that al-Odah arrived there on September 10, 2001, the day before the 9/11 attacks, when the camp was closed down.

She also took exception to al-Odah’s apparent inability to explain why he had not left Afghanistan after the 9/11 attacks, why there was at least a month’s gap in his account of what happened afterwards, and why, three months after the attacks, he was captured, armed with an AK-47, having crossed the border into Pakistan from the Tora Bora region (where al-Qaeda and the Taliban had been engaged in combat with Afghan and US forces), in the company of a group of armed men who, according to “credible evidence” provided by the government, included one man “who had substantial ties to al-Qaeda.”

To be fair, it was understandable that Judge Kollar-Kotelly drew the inferences she did from the information provided, as her summing up made clear, when she explained that al-Odah “has admitted that he sought to meet with a Taliban official upon his arrival in Afghanistan; that he was subsequently brought by a Taliban official to a Taliban-operated training camp near Kandahar, Afghanistan; that he took one day of training with an AK-47 at this camp: that the Taliban official sent him to stay with an associate in Logar, Afghanistan, after September 11, 2001; that he surrendered his passport and other possessions to this individual; that he met with individuals who were armed and appeared to be fighters; that he accepted an AK-47 from these individuals; and that he traveled with his AK-47 into the Tora Bora mountains, remained there during the battle of Tora Bora, and was captured shortly thereafter by border guards while still carrying his AK-47.”

From this outline of events, the government certainly had a stronger case than it did with Adham Mohammed Ali Awad, but even if this analysis is correct, the end result is that, nearly eight years after the 9/11 attacks, the United States is still asserting that it has the right to hold a young man who spent just one day at a training camp, who did not flee Afghanistan after the 9/11 attacks (perhaps because he feared reprisals if he was found escaping), who traveled with other men to Kabul, and then to Logar and then to Tora Bora and his eventual capture, with no evidence that he ever used the weapon he was given, and no evidence that his training involved anything more than firing a few rounds from an AK-47 in a practice session.

The long shadow of Salim Hamdan’s freedom

Back in January, when Judge Leon refused the habeas appeal of Ghaleb al-Bihani, a Yemeni who had worked as a cook for Arab forces supporting the Taliban, I made a comparison with the case of another prisoner, Salim Hamdan, which demonstrated to me that, although justice was finally within reach for some of the prisoners at Guantánamo, seven years after the prison opened, it was both farcical and unjust that Hamdan, a man who had worked as a driver for Osama bin Laden, had been tried in a Military Commission in which he was convicted of material support for terrorism, had served a five-month sentence delivered by a U.S. military jury, and was now a free man in Yemen, while al-Bihani, who had never even met bin Laden, and who had, instead, worked as a cook before the 9/11 attacks and had subsequently failed to teleport himself out of the country after the US-led invasion began, continued to languish in Guantánamo, with no end to his detention in sight.

As the eighth anniversary of the 9/11 attacks approaches, I, like all those who oppose Guantánamo and everything it stands for, still hope that the small number of prisoners involved in the attacks, or in other terrorist attacks against the U.S., can be brought to justice, but I fail to see how rulings like those delivered last month in the cases of Adham Mohammed Ali Awad and Fawzi al-Odah contribute to that end.

I believe that, with just four months to go until President Obama’s deadline for closing Guantánamo expires, all concerned would do well to direct their attention towards the few dozen prisoners at Guantánamo who are alleged to have been directly involved in terrorism, and to stop trying to defend the detentions of all the other men still held; men who, at best, were foot soldiers in a specific conflict that, in contrast to Judge Robertson’s words, came to an end no later than November 3, 2004, when Hamid Karzai was elected as the President of post-Taliban Afghanistan.

When Salim Hamdan was freed from Guantánamo, I wrote that his release spelled the end of the Bush administration’s justification for holding prisoners who had no meaningful connection to al-Qaeda or international terrorism. Ten months on, I stand by those words, and note that, although judges have now granted the habeas appeals of 29 of the 36 prisoners whose cases they have considered, nothing about the cases of the other seven men prevents Hamdan’s freedom from casting a longer and longer shadow over their continued detention.

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.

Army Lieutenant Colonel Robert G. Young appeared in the popular Christian reality series "Travel the Road." He was recently promoted to the rank of full colonel.

“The President of the United States has reposed special trust and confidence in the patriotism, valor, fidelity, and abilities of the following officers,” says the order promoting Army Lieutenant Colonel Robert G. Young to the rank of full colonel.

Now, the president can’t be expected to personally vet every military officer who is up for promotion, and, for all but those in the highest ranks, would obviously just rely on the recommendations of the superiors of officers on the promotions lists, but I have to wonder how President Obama would feel about having rubber stamped the promotion of an officer who said that blacks were better off as slaves.

Before getting to Col. Young’s slavery comment, I need to back up and explain how the Military Religious Freedom Foundation (MRFF), the civil rights organization I work for, first became aware of this officer. Back in December, I wrote a piece about the Army allowing two Christian reality TV show missionaries, whose mission was to proselytize Afghan Muslims, to be embedded with the troops in Afghanistan as journalists.

In that piece, I included a video clip from the program, Trinity Broadcasting Network’s Travel the Road, showing these missionaries giving Dari language Bibles to Afghan locals near the base where they were embedded. Just what was in this video clip, found on YouTube, was enough to see that serious violations of the regulations governing embedded journalists and the military regulations prohibiting proselytizing had been committed.

In February, I wrote a follow-up piece. By that time, ABC News Nightline had attempted to obtain the records of the embedding of the Travel the Road missionaries, only to be told that the Army had lost all records of this embedding. By the time I wrote my follow-up piece, I had also bought the DVD box set of the season of Travel the Road containing the three episodes covering the missionaries’ time in Afghanistan. In the third of the three episodes, Tim Scott, one of the Travel the Road missionaries, was shown interviewing Col. Young.

Here’s what I wrote about Col. Young in February, followed by the video:

The final clip in the video below is from the last of the three Travel the Road Afghanistan episodes, filmed in Kandahar. In this clip, Tim Scott interviews LTC Robert G. Young, the commander of the 325th Forward Support Battalion. LTC Young, a committed Christian who lists his interests in his Military.com profile as “Jesus, Wife, Kids, PT,” and belongs to a group called “Rangers 4 Christ,” told Scott that the biggest problem in Kandahar was drought, and that this drought coincidentally began as soon as the Taliban took over the country. He went on to say that we’ve got to “overcome evil with good,” and, literally thumping a Bible, quoted two of its verses in one sentence, saying, “Our weapons aren’t carnal” (Corinthians 10:4) “and no weapon formed against us shall prosper.” (Isaiah 54:17) He said he told an Afghan general that he would ask the American people to pray that God would send rain to Kandahar, and ended by saying that when the people of Kandahar see the rain “they’ll know that our god answers prayers.”

Shortly after I wrote this piece, MRFF began to receive emails telling us that the problems with Col. Young went beyond the typical disregard of regulations prohibiting the promotion of religion and proselytizing by evangelical military officers. We were informed that, among other things, the opinions espoused by Young included a comment to a subordinate officer that blacks were better off as slaves because at least then they knew Christ, and that complaints about his comments had led to him being relieved of his command.

MRFF passed these allegations on to journalist Jeff Sharlet, who was in the process of writing his article “Jesus killed Mohammed: The crusade for a Christian military,” the cover story in the May 2009 issue of Harper’s Magazine. Sharlet called Col. Young to get his side of the story. Young not only confirmed that what was emailed to MRFF was true, but, as the following excerpts from Sharlet’s article clearly show, still doesn’t see any problem with his slavery comment.

I found Lieutenant Colonel Bob Young after MRFF reported on an evangelical reality program, shown on the Trinity Broadcasting Network, that included tape of Colonel Young telling two wandering missionaries about his plan to pray for rain in Afghanistan. I reached him at home in Georgia late one evening. He said he was going to sit on his porch and look at the moon. In the background, I heard dogs barking. He talked for three hours, much of it about what he’d seen in the combat hospital under his command at Kandahar Air Base.

“Kids getting burned,” he recalled. “Bad guys floating in on helicopters. You wouldn’t know who they were.” The base hospital treated 7,000 Afghans that year, and Young, commander of the Army’s 325th Forward Support Battalion, lingered there, watching the bodies. “I want to tell you this. Triage area, guy strapped into gurney, Afghan guy. No shirt, skinny as a rail, sinewy muscle. Restraints on his ankles, his feet, dude is strapped into a wheelchair. He’s got a plastic shield in front of his face because he’s spitting.” A doctor wants to sedate him. “I say, ‘I’ll tell you what’s wrong with him. The guy has demons.’” Young decides to pray over him. “Couple minutes later the general’s son-in-law — the Afghan general’s son-in-law, our translator — comes in. I said, ‘What’s wrong with this guy?’ He says, ‘How do you say in English? He has spirits.’ I say, ‘Doc, there’s your second opinion!’”

On the phone, Young laughed, a harsh “Ha!” Then his voice broke. “I’m telling you, it’s real. Evil is real.”

In the Christian reality show, Young extended that thought to the weather. “Interestingly,” he says, “the drought has been in effect since the Taliban took over.” Young has a high mouth and a low brow, his features concentrated between big ears. “People of America,” he tells the camera, “pray that God sends the rain to Kandahar, and they’ll know that our God answers prayers.”

I asked Young if he wanted to contextualize these remarks, since they seemed, on the surface, to radically transcend his mission as a soldier. “Okay!” he said. “Are you ready?” I said I was.

He told me to Google Kandahar, rain, January 2005. The result he was looking for was an article in Stars and Stripes entitled “Rainfall May Signal Beginning of the End to Three-Year Drought in Afghanistan.” Three and a quarter inches in just two days.

“That’s some real rain,” I admitted.

“That’s what I’m saying, brother!”

I asked him about an allegation made to MRFF by a captain who served under Young: that Young had made remarks that led him to be relieved of his command. It was true that he had been relieved of command, he admitted, but he had appealed and won. And the remarks? “All that was, I was speaking in reference to inner-city problems and whatnot. I said that the irony is that it would be better for a black to be a slave in America — I’m thinking now historically — and know Christ, than to be free now and not know Christ.”

With that cleared up, I then asked Young about another of the captain’s allegations: that he had given a presentation on Christianity to some Afghan warlords. Absolutely not, he said. It was a PowerPoint about America. He emailed it to me as we spoke, and then asked me to open it so he could share with me the same presentation he had given “Gulalli” and “Shirzai.” Since it had been President’s Day, Young had begun with a picture of George Washington, who, he explained, had been protected by God; his evidence was that, following a battle in the French and Indian War, when thirty-two bullet holes were found in Washington’s cloak, the general himself escaped unscathed. Young wanted to show the Afghans that nation-building was a long and difficult journey. “I did stress the fact that in America we believe our rights come from God, not from government. Truth is truth, and there’s no benefit in lying about it.”

There were slides about the Wright brothers, the moon landing, and NASCAR — Jeff Gordon, “a Christian, by the way,” had just won the Daytona 500. And then, the culmination of American history: the twin towers, blooming orange the morning of September 11, 2001. Embedded in the slide show was a video Young titled “Forgiveness,” a collage of stills, people running and bodies falling. Swelling behind the images was Celine Dion’s hit ballad from Titanic, “My Heart Will Go On.” Following the video was a slide of the Bush family, beneath the words: “I believe that God has inspired in every heart the desire for freedom.” …

… The tension between war and faith does not disturb him. “We are to live with anticipation and expectation of His imminent return,” he told me. Look at the signs, said Young: nuclear Iran, economic collapse, President Obama’s decision to “unleash science” upon helpless embryos. He seemed to feel that the military was now the only safe place to be. “In the military, homosexuality is illegal. I don’t want to get into all the particulars of ‘Don’t ask,’ but you can’t act on homosexual feelings. And adultery is illegal. Really, arguably, the military is the last American institution that tries to uphold Christian values. It’s the easiest place in America to be a Christian.”

Nobody reading the article about Col. Young’s promotion on the official Army website would have any idea why his promotion to full colonel was delayed. According to the article, Young merely hit a “speed bump” due to an “adverse officer efficiency report,” which he successfully appealed — a demonstration of this fine officer’s “determination and drive to succeed.” According to the article, “Being promoted to colonel confirmed [Young's] sense that the Army is a good institution and that ultimately, the right things happen.”

Well, Col. Young is right about one thing. The military is “the easiest place in America to be a Christian.” Unfortunately, as the thousands of service members who have contacted MRFF about officers like Col. Young have made abundantly clear, it’s just not so easy a place to be for anyone else.

Chris Rodda is the Senior Research Director for the Military Religious Freedom Foundation (MRFF) and the author of Liars For Jesus: The Religious Right’s Alternate Version of American History.

But as I read his column, my brain seemed to wander, not to health care, but to another major news event of that week: The visit to the White House of Egyptian President Hosni Mubarak.

But why thoughts of this 81-year-old autocrat? Krugman said it: “There’s a point at which realism shades over into weakness.”

I don’t mean that I think Obama should deploy American Crusaders into the Land of the Nile to establish a liberal, pro-Western, American-style democracy. George W. Bush tried that in Iraq and we’ve seen how well that adventure turned out. That’s not realism; that’s hubris.

What I mean is that for a generation, the U.S. has generously bribed Egypt year in and year out for not again trying to invade Israel. And what Egypt has to show for our trouble is, well, zero, zilch, nada. Egypt has done next to nothing to further an Israeli-Palestinian agreement. And it has done nothing to improve the economic, social or political life of its people. Yet we persist in repeating what we’ve always done and expecting a different result.

Some would say that’s a great definition of insanity. But that’s what has passed for realism in our foreign policy in the Middle East.

Today’s rationale for keeping the big bucks flowing to the Mubarak regime is that Egypt will play a major role in finally ending the Israel-Palestine disaster. Except that we’ve seen this movie before. We seem to have a knack for reaching out for the slenderest of reeds to hang onto.

During the years I lived in Cairo, I witnessed the rhetoric of the State-controlled media. It was and is institutionalized government propaganda – always anti-Israeli and often anti-Semitic. (Israel and the Palestinian Authority, of course, constantly add fuel to the fire with their own propaganda machines.)

But the Mubarak regime has repeatedly used the Israeli-Palestinian impasse as a fig-leaf to obscure its own monumental deficiencies – and later used Bush’s “war on terror” mantra as an even more dramatic cover story. Does this sound like the job description of an honest broker?

I also read translations of some of the revisionist-history textbooks used in Egyptian schools – proclaiming, for example, Egypt’s “victory” over the Israelis in Sinai. I talked with upper-class, well-educated college students and members of my own staff about the Holocaust. Some of them denied it altogether; others said it resulted in the destruction of only one million Jews.

And what’s been done with all of our aid? Well, to say Egypt is an economic and political basket-case would be generous to basket-cases. Its continuing stagnation is the result of a toxic combination of overpopulation, lack of proper education and training, the effect of decades of failed economic policies, rampant corruption, and the absence of anything remotely resembling good governance.

Egypt has received more than $50 billion in military and economic aid from the United States since 1977, when it agreed to a peace treaty with Israel. Yet, long before the world collapsed into the current recession, unemployment in Egypt was off the charts – well over 10 per cent in most years. Kids who graduated from schools like Cairo University and the American University in Cairo – many with Master’s degrees – were driving taxis for tourists. And now the tourism industry is on life support. Many other Egyptians have joined the growing brain-drain to Europe and North America.

And the worst is probably yet to come. The labor force is growing at a far faster rate than the demand for labor. So the future looks even bleaker for Egpyt’s 80 million people.

In recent years, Mubarak and his Ministers have made countless speeches about entrepreneurism and how it is alive and well in Egypt. But entrepreurism appears to be only for those with lots of time on their hands. For example, what should be a relatively simple task of starting a new business can and does take months lost in the mother of all Byzantine bureaucracies. And if you happen to be one of those aspiring entrepreneurs, but you don’t happen to belong to one of the country’s “good families,” you can forget about getting a loan from any bank. Banks in Egypt lend to people who don’t need loans.

Corruption – a pandemic in the Middle East – is everywhere in Egypt. Some of it qualifies as petty corruption, like bribing the phone company manager to turn your phone on or paying off the supervisor at the police academy to say that you are three inches taller that you actually are to meet the Academy’s requirements.

But there’s also big-time corruption, like unlawfully importing toxic agricultural chemicals, and relabeling them to secure a higher mark-up. The American Chamber of Commerce in Egypt reports that corruption in the import-export supply chain adds about $30 to every single transaction. That makes Egypt uncompetitive and its Customs officials comfortable.

But it’s political corruption that will be Mubarak’s legacy. In preparation for his visit to Washington, the aging strongman granted an interview with Charlie Rose. Here are a few of the choice statements Mubarak made, with a straight face, and largely unchallenged by the sychophantic Rose:

Mubarak: Look, we are a large country. And we have stability here. We enjoy stability…It is not on my mind to have my son inherit me…the choice and election of the president is open to the population in its entirety. It is the decision of the population to elect who would represent people. It is not for me to decide that. It is the decision of the people to elect the person who they trust… There is freedom of speech…The more good opposition the more stronger our (inaudible).

Rose: Do you think the Bush administration was right to promote democracy in the region in the way that it did?

Mubarak: No…We do not accept pressures in politics or in interior domestic politics from any administration with due respect to all governments. We do not accept pressures on the pretext of domestic reform. It has to be home-grown. Reform has to be home-grown. And it is what the people demand…to accept pressure from an administration or another, no. This pressure might be against the interest of the people. I respond to the demands of the people…Democracy is there in Egypt. We have freedoms that were not there before. We have an election of the president. We have freedom of the press. We have about 600 dailies and weeklies, give or take…We are doing reforms based on the demands of the people.

Rose: It is said that (Obama) will not publicly discuss human rights. He does not want it to be an issue, but that he will bring it up in private.

Mubarak: Your concept of human rights is a merely political one. Human rights are not only political. You have social rights. You have the right to education. You have the right to health. You have the right to a job. There are many other rights. And we are doing well on these fronts…We have a human rights commission…There have been many sentences against people who have breached human rights. It is not merely a political concept. It is social. It is health.

Rose: Much is written about the fact that in the election, the most — the last election in which there were more candidates, that since then, you have moved away and that you have cracked down on the Muslim Brotherhood.

Mubarak: These people whom you are talking about cannot form a political party, because our constitution maintains and stipulates that a political party shall never be based on a religious basis. They cannot form a political party. And this is part and parcel of the constitution as amended by the people. But the Muslim Brotherhood are there as (members of Parliament) as individual (members) within the Parliament. We have about 80 of them.

Rose: You’ve had emergency rule since 1981. Emergency rule. You should be confident enough in your leadership not to have to….

Mubarak: You do not grasp fully the emergency law. It has been there since the days of the British occupation. And it used to be called marshal law. We confine our recourse to the emergency law, to terrorist crimes. Otherwise it is the rule of law under the normal laws through the…courts of law.

Rose: But is it necessary?

Mubarak: We have two choices, either to issue a law to combat terrorism, which will be a permanent law. It was refused because nobody wanted a permanent law. And the second choice is emergency law that will be used exclusively against terrorist crimes. We have not used it for any intent to close down a newspaper or to contain or limit any movement, any freedom of movement.

Rose: The history of Egypt for the last 28 years is the history of one man, Hosni Mubarak…What is your legacy? What are you proud of?

Mubarak: What I will leave behind is that I have been working for — in public service for 60 years. I took part — I saw action. I rebuilt the country after military action. We revamped the entire infrastructure of Egypt. We are improving education. We are expanding education. We are building universities. We are doing many, many other things.

Well, one of the most credible truth-tellers about Egypt is a new organization called Voices for a Democratic Egypt (VDE), on whose Board of Advisors sits one of Egypt’s most courageous human rights advocates — Dr. Saad Eddin Ibrahim, founding chair of the Cairo’s Ibn Khaldun Center for Development Studies.

Ibrahim was arrested in 2000 for accepting a grant from the European Union and using the funds for “defaming Egypt’s national character.” He was imprisoned by the Mubarak regime, acquitted in a second trial, and now lives in exile in the U.S.

VDE aims to provide a forum for activism and a strong platform and voice for those striving for democratic transformation in Egypt. The day before Mubarak had his photo-op with Obama, VDE held a news conference in Washington to unveil a new report on what’s really happening in Egypt.

Here’s some of what the report had to say:

Egypt’s human rights record over the last two years has shown demonstrable regression on all fronts. A state of emergency has been in force since the assassination of President Anwar Sadat in 1981 that suspends basic constitutional protections, and was renewed in May 2008 despite presidential campaign promises to the contrary.

Prisoner Abuse

Dozens of torture cases were documented in 2008 and 2009, including several resulting in death. The Egyptian Organization for Human Rights (EOHR) has documented at least 40 cases of torture since 2008, at least 14 of which ended in death by police officers, more than five times as 2007. It is widely known that most torture cases go unreported and undetected and that torturers largely go unpunished except in a few highly publicized cases. And individual cases of torture at police stations continue to be reported with little to no response from the authorities in investigating incidents or holding the perpetrators accountable.

Press Freedom

Mubarak boasted to Charlie Rose about the growth in free media. But last year, the Arab League — under the leadership of the Egyptian Minister of Media – voted for a new measure “regulating television, radio, and satellite media.”

That document is now paralleled by an Egyptian draft law to “regulate” visual, audio, and electronic media. It prohibits satellite television broadcasts that “negatively affect social peace, national unity, public order, and public morals,” or “defame leaders, or national and religious symbols” of Arab states. Egypt’s state-controlled Nilesat satellite subsequently dropped three channels that broadcast programs featuring government critics and victims of human rights abuses.

Then there’s the continuing harassment of journalists and owners of media outlets. Five newspaper editors were prosecuted for insulting President Mubarak and / or affiliates of the NDP (Mubarak’s National Democratic Party). Plainclothes police shut down the Cairo News Company (CNC) after it supposedly supplied Al Jazeera with images of anti-government protests. An Al Jazeera reporter was convicted of harming “the dignity of the country” with a documentary about torture in Egyptian police stations. Cairo security officers arrested several journalists and bloggers who used the social-networking website Facebook to call for strikes; and security officers in New Cairo stripped and beat one of them for the same activity.

The authorities in Alexandria arrested fourteen members of the “6 April Youth” group and jailed them for two weeks without charge after they sang patriotic songs and refused to disperse when ordered. Several bloggers have been arrested and “disappeared,” including a number affiliated with the April 6 movement, several Islamists, and a Christian blogger. Another blogger was incarcerated for over three months and subjected to torture, including electrical shock, suspension, mental abuse, and solitary confinement. And one other blogger continues to be incarcerated for charges of “insulting religion” and the president.

The Judiciary

Laws affecting a state of emergency and suspending normal constitutional protections continue to undermine the judiciary notably through: (1) imposition of “administrative” detention orders which supersede normal court decisions; (2) trial of civilians in military courts; (3) so-called Hisba lawsuits
brought by “private citizens” affiliated with the ruling National Democratic Party (NDP) against dissidents, writers, artists, etc.; and (4) parallel court systems created through emergency legislation, including state security courts and emergency courts that do not afford due process.

An example of prosecutions of civilians in exceptional courts was the trial of individuals in December 2008 who had participated in the April 6 national strike. In December 2008, the state security emergency court convicted 22 defendants from that strike. Trial in this exceptional court involves denial of due process as well as the right to appeal, and has been decried by Egyptian and international human rights organizations

Freedom of Association

There was continued repression of community organizers, NGOs, and individuals exercising their internationally-protected rights to freedom of association. Several NGOs were dissolved in 2007 and 2008 on arbitrary grounds and without due process, including for “endangering national security” and receipt of foreign funding.

Security officials blocked several meetings held by human rights organizations and acted to block international activities of NGOs. Egypt has also acted to block substantive efforts at the enforcement of human rights through participation in international bodies such as the UN Human Rights Council.

Religious Freedom

The climate for Egypt’s largest religious minority, Coptic Christians, remained difficult. In February 2008, the Supreme Administrative Court ruled in favor of twelve defendants seeking to return to Christianity after previously converting to Islam, but ruled that their national ID cards should indicate that they “used to be Muslim,” which ensures continued hardship and discrimination against the converts.

Other religious minorities, including the Qur’anists, an offshoot of Sunni Islam, and Baha’is, continue to be the targets of discrimination. Baha’is are not allowed to build houses of worship or practice their faith publicly.

The government continues to stall on the passage of a national uniform law on construction of houses of worship that would remedy the hardship Copts face in building or repairing their churches. Copts – who represent about five per cent of the population — continue to suffer from discrimination in public employment and are underrepresented in high leadership positions. And Coptic history continues to be conspicuously absent from educational textbooks.

Don’t you wonder why Charlie Rose failed to challenge so many of Mubarak’s answers? Like “Democracy is there in Egypt.” Or “There is freedom of speech.” Or “I respond to the demands of the people.” Or “We are doing reforms based on the demands of the people.” Or “We have a human rights commission…There have been many sentences against people who have breached human rights.”

I think the Washington Post had it just about right when it said in an editorial on the eve of the Mubarak-Obama meeting, “Middle East ‘realists,’ who seem to abound in the new administration, argue that Mr. Mubarak’s help is needed to deliver an Israeli-Palestinian settlement and to contain pro-Iranian radical groups such as Hezbollah and Hamas. But it’s likely that they, like many U.S. policymakers before them, will be disappointed by the disparity between Mr. Mubarak’s words and actions. For several years now, the Egyptian regime has been promising Washington that it will broker an end to the rift between Hamas and the more moderate Palestinian Authority, end the smuggling of weapons to militants in Gaza and obtain the release of an Israeli soldier held hostage since 2006. It has failed on all three counts.”

WAPO concluded: “No amount of coddling by Mr. Obama is likely to change the behavior of Mr. Mubarak, who has 28 years of experience in deflecting U.S. initiatives…If Mr. Obama focuses his attention today on Mr. Mubarak and his dubious diplomatic contributions — as opposed to the Egyptian people and their legitimate demands for political change — the president will ignore the lessons of history.”

I hope Obama will not ignore the lessons of history. I hope he will not be so focused on Egypt’s potential to help with the Israeli-Palestinian debacle that he will put Mubarak’s widespread repression on a back burner somewhere. I am not proposing a do-over of the blunt-force-trauma approach of George W. Bush. I am suggesting that our aid dollars give us considerable leverage; yet there is a sense that Mubarak now thinks we need him more than he needs us.

That’s a betrayal of hundreds of very courageous Egyptian advocates for human rights and good governance who put their lives and livelihoods on the line every day. The least our president should do is recognize their existence, their sacrifice, and their contributions to “change we can believe in.”

We ignore them at our peril. Because, if participative democracy ever comes to Egypt, it will be these men and women who will drive it.

Meanwhile, as Krugman wrote, “”There’s a point at which realism shades over into weakness.”

William Fisher, a regular contributor to The Public Record, served as a State Department and USAID consultant in Egypt and elsewhere in the Middle East and North Africa. He lived in Cairo for several years.