This picture of Abu Zubaydah was included in his classified Guantanamo Detainee Assessment Brief released last month by WikiLeaks.

This exclusive report was originally published by Truthout on March 30, 2010. It was written by investigative reporter Jason Leopold.

The Justice Department has quietly recanted nearly every major claim the Bush administration made about Abu Zubaydah the alleged al-Qaeda leader who was the first suspected terrorist subjected to the torture of waterboarding and other White House-approved “enhanced interrogation techniques.”

In a federal court filing, Justice backed away from the Bush administration’s statements that Zubaydah was the No. 2 or No. 3 official in al-Qaeda who had helped plan the 9/11 attacks, as well as even earlier claims from the Clinton administration that he was directly involved in planning the 1998 embassy bombings in East Africa.

The US government’s retreat underscores yet another problem with President George W. Bush’s use of torture. Besides its illegality and immorality, torture can be applied to suspected terrorists who have been falsely identified and who thus don’t possess the expected information, which can lead frustrated interrogators to escalate the torture until the subject provides something, whether true or not.

Such false expectations appear to have been a factor in the case of Zubaydah, who was captured in Pakistan on March 28, 2002. He appeared to respond cooperatively to FBI interrogators using “rapport-building” techniques, but his failure to supply details that the CIA had anticipated led the agency to obtain high-level permission to subject him to the near-drowning experience of waterboarding and other torture techniques.

After those techniques were cleared by the Justice Department’s Office of Legal Counsel in mid-summer 2002 – and were sanctioned by Vice President Dick Cheney and other senior Bush administration officials – CIA interrogators applied the methods to Zubaydah In their frustration, they ultimately waterboarded him 83 times before concluding that many of his claims of ignorance were truthful.

In recent months, former Bush speechwriter Marc Thiessen has been on a public relations campaign promoting his book, “Courting Disaster,” in which he defended the torture of Zubaydah, claiming that he reviewed classified intelligence that revealed Zubaydah’s torture produced actionable intelligence that thwarted imminent plots against the United States.

The Justice Department has now backed away from the Bush administration’s more extreme claims in a 109-page court document filed in US District Court in Washington last September in response to 213 discovery requests from Zubaydah’s attorneys in his habeas corpus case, which demands evidence to support his continued detention at Guantanamo Bay, Cuba.

In the filing, the Justice Department asked the judge presiding over the case to deny virtually every discovery request sought by Zubaydah’s attorneys, explaining, in some instances, that the US government no longer relied upon the explosive allegations that President Bush and other top officials made about Zubaydah after he was captured and tortured in 2002.

For instance, the document refutes Bush’s direct statements about Zubaydah, including a claim that he was one of al-Qaeda’s “top operatives plotting and planning death and destruction on the United States.”

For the first time, the government officially admitted that Zubaydah did not have “any direct role in or advance knowledge of the terrorist attacks of September 11, 2001,” and was neither a “member” of al-Qaeda nor “formally” identified with the terrorist organization.

Retreat’s Impact

The government’s retreat also could add to the mounting criticism of US Appeals Court Judge Jay Bybee, who in August 2002 as head of the Office of Legal Counsel signed memos authorizing the torture techniques that were applied to Zubaydah and other “high-value” detainees.

At the time, Bybee asserted, based on information he received from the CIA, that Zubaydah “is one of the highest ranking members of the al-Qaeda terrorist organization,” “has been involved in every major terrorist  operation  carried out by  al-Qaeda,” and was “one of the planners of  the September 11 attacks.” Bybee approved the harsh interrogation as necessary to thwart pending attacks on US interests, which the CIA claimed Zubaydah knew about.

While backing away from the extravagant claims of the Bush era, the Obama administration says Zubaydah should still be detained based on his “actions” as an “affiliate” of al-Qaeda.

The Justice Department filing alleged that Zubaydah “supported enemy forces and participated in hostilities” and “facilitat[ed] the retreat and escape of enemy forces” after the US invaded Afghanistan in October 2001.

The government acknowledged that its case against Zubaydah is based entirely on the first six volumes of his diaries that he wrote beginning in 1992 and an undated “propaganda video [Zubaydah] recorded before his capture in which [he allegedly] appears on camera expressing solidarity with Usama Bin Laden and al-Qaida.”

The government’s new charges, according to the court filing, include allegations that “[Zubaydah] was present in [the Afghan city of] Kandahar in November 2001, and a number of prominent terrorist figures converged on Kandahar around the same time,” including self-professed 9/11 mastermind Khalid Sheikh Mohammed. But the government does not “specify whether any of these figures met during that that time period.”

Zubaydah’s attorneys say the new allegations are baseless and have asked the government for “evidence that would undermine an ‘insinuation that [Zubaydah's] presence in Kandahar … was related to the presence of known terrorists in the city’ is vague and insufficiently specific and is not supported by any allegations about whether [Zubaydah] in fact was present in Kandahar or for what purpose.”

Zubaydah’s attorneys claim that “the persons whom [Zubaydah] assisted in escaping Afghanistan in 2001 included ‘women, children, and/or other non-combatants’” and that the government has evidence to support those assertions. The lawyers also questioned the government’s history of falsehoods about their client.

“The Government’s accounts frequently have been at variance with the actual facts, and the government has generally been loath to provide the facts until forced to do so,” said Zubaydah’s attorney, Brent Mickum, in an interview.

“When the Government was forced to present the facts in the form of discovery in Zubaydah’s case, it realized that the game was over and there was no way it could support the Bush administration’s baseless allegations. So it changed the charges.”

No Formal Allegiance

In seeking to block Zubaydah’s discovery motions, the Justice Department also said the government was no longer contending that Zubaydah “was a ‘member’ of al-Qaida in the sense of having sworn bavat (allegiance) or having otherwise satisfied any formal criteria that either [Zubaydah] or al-Qaida may have considered necessary for  inclusion in al-Qaeda.

“Nor is the government detaining [Zubaydah] based on any allegation that [Zubaydah] views himself as part of al-Qaida as a matter of subjective personal conscience, ideology or worldview. Rather, [the government's] detention of [Zubaydah] is based on conduct and actions that establish [Zubaydah] was ‘part of’ hostile forces and ‘substantially supported’ those forces.”

That retreat contradicts initial claims made by senior Bush administration officials, including Defense Secretary Donald Rumsfeld, who described Zubaydah as a “close associate of [Osama bin Laden], and if not the number two, very close to the number two person in the organization. I think that’s well established.”

Even after Zubaydah’s interrogators apparently apologized to him for that mistaken impression – at his Combatant Status Review Tribunal hearing, Zubaydah said “they told me sorry we discover that you are not number three [in al-Qaeda], not a partner, even not a fighter” – the Bush administration continued to hype his role.

John Bellinger, legal adviser to Secretary of  State Condoleezza Rice, said during a June 2007 briefing about Guantanamo Bay detainees that Zubaydah, who was transferred to Guantanamo in 2006, helped  plan the 9/11 attacks and was “extremely dangerous.”

But the Justice Department now says “the Government has not contended in this [habeas] proceeding that [Zubaydah] had any direct role in or advance knowledge of the terrorist attacks of September 11, 2001, so [to] the extent that this request seeks information ‘tending to show … that [Zubaydah] did not know of the planned attacks of 9/11′, the request seeks evidence about contentions the Government has not made.”

The Justice Department also asked US District Court Judge Richard Roberts, who is presiding over the  habeas case, to deny defense requests for evidence that would “undermine”  government claims that Zubaydah worked on bin Laden’s “military and security plan to confront  an American counterattack” in Khost,  Afghanistan, after 9/11.

“The Government does not rely on any contention that [Zubaydah] did this work as an ‘al-Qaida’ deputy or because he was subject to al-Qaida command,” according to the court document.

Blocking a KSM Interview

And the Justice Department opposed Zubaydah’s lawyers’ request to question Khalid Sheikh Mohammed about whether he met Zubaydah, when the two were allegedly in Kandahar at the same time in November 2001.

“It is difficult to imagine how any answer from Khalid Sheikh Mohammed would substantially help [Zubadyah],” the government filing said. “Even if Khalid Sheikh Mohammed were to say he did not meet with Petitioner while they were in Kandahar, the fact that [Zubaydah's] presence in Kandahar coincided with the presence of major terrorist figures in Kandahar would still weigh in favor of [his continued] detention.”

According to lawyer Mickum, the government’s “entirely new position” about Zubaydah was revealed last year to in a 44-page Factual Return that included more than 2,000 pages of exhibits.

“I’m not surprised at all that the Government has dropped the old charges against our client and is alleging new charges against him,” Mickum said in an interview. “That is their tried-and-true modus operandi. That’s exactly what they did with my client Bisher al Rawi. He was initially charged with associating with a known al-Qaeda figure in London.

“Unfortunately, Bisher was associating with him at the express request of Britain’s MI5 [intelligence service]. After we established that he [Bisher] worked for MI5, the US simply changed the charges against him, alleging that he had terrorist training in Bosnia and Afghanistan.

“Once again, we were able to show those charges were utterly bogus when we proved that Bisher had never left England from 1998 until his fateful business trip to Africa, where he was arrested by the CIA, rendered to the ‘Dark Prison’ in Afghanistan and tortured, tortured at Bagram Air Force base and tortured in Guantanamo.

“What all these cases have in common is torture, and [Zubaydah's] case has that in spades. Given, the government’s history, it is not likely they would simply let him go and apologize. No, when their case falls apart, they re-jigger the evidence, and come up with new charges and [say] ‘we will defend the new charges with the same zeal we defended the earlier bogus charges.’”

Zubaydah’s attorneys argued in his initial petition for habeas corpus filed in February 2008 that he was not a member of al-Qaeda, that he had no knowledge of any terrorist operations, and that the military camp he was alleged to be affiliated with, Khaldan, was closed by the Afghan Taliban after refusing to let it go under the formal control of bin Laden and al-Qaeda.

“We have never deviated from that position, and now the government admits that we were correct all along,” Mickum said.

Indeed, the Justice Department’s response agrees that Khaldan was “organizationally and operationally independent” of al-Qaeda’s camps. The filing also backed off other claims made by Bush administration officials that Zubaydah knew the identities of specific individuals who trained at Khaldan and later went on to al-Qaeda-operated camps and allegedly took part in terrorist activities.

“The Government has not contended in this proceeding that Petitioner selected or knew the identities of specific persons who were selected to leave Khaldan for training at al-Qaida camps,” the filing states.

Undermining 9/11 Report

The US government’s new position also undercuts the 9/11 Commission’s report as it relates to Zubaydah. The report called him the leader of Khaldan.

The 9/11 report added that Zubaydah was a “major figure” in the “Millennium plot,” claiming he was a mastermind behind a plan to bomb a hotel in Jordan and Los Angeles International Airport.

The 9/11 report cited several  intelligence memoranda from then-counterterrorism czar Richard Clarke that Zubaydah was planning “a series of major terrorist attacks” on Israeli and possibly US targets and was working closely with bin Laden. Clarke declined numerous requests for comment.

Terrorist suspicions about Zubaydah predated the 9/11 attacks. Indeed, in the infamous Aug. 6, 2001, Presidential Daily Brief titled, “Bin Laden Determined to Strike in US,” he was identified as bin Laden’s “lieutenant” and alleged to have “helped facilitate” the plot to detonate a bomb at LAX.

FBI officials obtained that information from Ahmed Ressam, who was convicted in the LAX plot in April 2001. In exchange for a lighter sentence, Ressam cooperated with the government and identified alleged terrorists, including Zubaydah, who Ressam said was a key figure in al-Qaeda, ran Khaldan and had close connections to bin Laden. Ressam also said Zubdaydah told him in 1998 that, independent of bin Laden, he was preparing his own attack against the United States. Ressam later recanted his statements.

When asked about what the 9/11 Commission was told regarding Zubaydah, Mickum suggested that the panel was lied to by the CIA.

“After torturing our client, the CIA knew he was never a member of al-Qaeda and that he had no knowledge of any al-Qaeda terrorist activities,” Mickum said. “And this fact was confirmed after other members of al-Qaeda like [Khalid Sheikh Mohammed] and the [alleged mastermind of the USS Cole bombing] al-Nashiri were tortured.”

In an interview last year, Jack Cloonan, a former FBI special agent assigned to the agency’s elite bin Laden unit, said the CIA and the Bush administration were flat wrong in designating Zubaydah as a top official in al-Qaeda.

“To cast him and describe him as the al-Qaeda emir or leader for the subcontinent or worse … I think was a mistake. … Based on his age and ethnicity, [he] would [n]ever be brought into the inner circle of al-Qaeda,” Cloonan said.

There was also the question of Zubaydah’s personality. “My partner had a chance to look at a lot of Abu Zubaydah’s diaries [which forms the basis of the government's case], poems and other things that he has written and he said that after reading this you just come away with the feeling that this is a guy who can’t be trusted or be given huge amounts of responsibility.”

Zubaydah began keeping a diary in 1992, after he suffered a severe head injury while fighting communist forces in Afghanistan. The injury left “significantly impaired both his long- and short-term memory,” states a Jan. 14, 2009, motion his attorneys filed related to his diaries.

“Long after his 1992 injury, once [Zubaydah] had recovered the ability to speak and write, he began to keep a diary. It is his memory. Without it, he is lost.”

The diary now appears to be the chief element of the US government’s remaining case against him.

This is the front cover of a pamphlet produced by a Kuwaiti-based anti-Guantanamo organization to try and win the release of two Kuwaiti prisoners, pictured on the cover of the pamphlet, who are detained at the detention facility. The commander of Guantanamo, Rear Adm. David Woods, accused one of the detainee's attorneys of "smuggling" the pamphlet into Guantanamo three weeks before he issued a widely condemned order calling for a review of detainees' legal mail. Image: Lt. Col. Barry Wingard

This report was written by investigative reporter Jason Leopold and originally published on Truthout.

Early last month, Air Force Capt. Michael Schwartz was summoned into the office of Rear Adm. David Woods, the new commander of Guantanamo, and was accused of “smuggling” into the detention facility an anti-Guantanamo pamphlet that featured the photographs of two Kuwaiti detainees, Fayiz al-Kandari and Fawzi al Odha.

Schwartz, a military attorney and a member of al-Kandari’s legal team, was taken aback.

He flatly denied that he or any other lawyer defending al-Kandari “smuggled” the pamphlet into Guantanamo [al Odha is represented by a civilian attorney but the detainee does not speak with him]. Schwartz told Woods that if he was being accused of committing a crime he wanted to speak with an attorney. Woods dismissed Schwartz and the issue was not raised again.

But then several weeks later, Woods issued an order that authorizes a review team to read all legal mail sent to detainees already charged with war crimes, which includes al-Kandari, and other prisoners who are likely to be prosecuted before military commissions to ensure the material they receive from their attorneys does not contain any “contraband,” such as the anti-Guantanamo pamphlet Schwartz was accused of smuggling into the facility.

A group that calls itself the International Anti-Guantanamo Coalition (IAGC), which is made up of Kuwaiti activists, produced the four-page pamphlet. Al-Kandari’s Kuwaiti-based attorney, Adel Abdulhadi, is a also a member of the IAGC. The organization was launched in November with a stated goal of shutting down Guantanamo and securing the release of al-Kandari and al Odha.

The pamphlet is written in Arabic. It contains photographs of the prison and a picture of the Statue of Liberty dressed in orange prison garb, the color detainees wore when they first arrived at the prison facility. Inside the pamphlet is a picture of Lt. Col. Barry Wingard, the lead attorney on al-Kandari’s defense team, who is quoted about his efforts to free al-Kandari and have him turned over to the custody of the Kuwaiti government. There are also photographs and statements from Kuwaiti government officials and al Odah’s father speaking about the need to shut down Guantanamo.

Wingard, a veteran of the Bosnian and Iraq wars, confirmed the allegation Woods leveled against Schwartz during an interview with Truthout. He said the prison commander never told Schwartz whether the pamphlet was found in al-Kandari’s or al Odah’s cell, but he “certainly implied it.”

Wingard said he described the pamphlet to al-Kandari during a recent visit to Guantanamo recently and al-Kandari denied ever having seen it.

“The first thing I said when I found out about this is ‘someone is planting shit’ and trying to pin it on the attorneys,” said Wingard. “To this date, neither Commander Woods nor anyone else from Joint Task Force-Guantanamo has extended the courtesy of addressing me in this matter and has not shared any conclusions of an investigation, if one was ever conducted.”

A Defense Department spokesman did not return calls or emails for comment.

Still, Wingard doesn’t understand how the pamphlet found its way to Guantanamo in the first place. He and Schwartz first laid eyes on it during a trip they took to Kuwait in November to meet with government officials there to discuss ways to try and “facilitate [al-Kandari's] release back to Kuwait’s state of the art rehabilitation center, built at the request of the Bush administration, which is currently vacant,” Wingard said.

“I saw the pamphlets for the first time as they were being unwrapped from cellophane in Kuwait during the first full week of November,” Wingard said. “We were in Kuwait for two weeks, from November 7 through November 21. My attorney was questioned about smuggling it into Guantanamo during the first few days of December. The pamphlet somehow got to Guantanamo before Capt. Schwartz did.”

Wingard said the pamphlet was first distributed to members of the Kuwaiti Parliament and passed out during a protest in front of the US Embassy in Kuwait on November 20 that attracted hundreds of people. He suspects the pamphlet made the rounds inside the embassy and was subsequently sent to Guantanamo by a US official or someone from “another government agency,” a euphemism used to describe the CIA.

“That’s the only explanation for how this document ended up at Guantanamo,” Wingard said. “When I heard about the incident with Capt. Schwartz I thought something is about to happen at Guantanamo. Why else would they plant a document I had just seen come from the printing press in Kuwait?  Now I think we know. “

Wingard believes the issue surrounding the pamphlet is part of a larger effort orchestrated by the US government to sabotage his efforts to secure al-Kandari’s release from Guantanamo, whose petition for habeas corpus was denied two years ago.

Wingard said it started in late October, when Guantanamo officials began to conduct a “cursory review” of all of al-Kandari’s correspondence with him for reasons that are still unknown.

Then, three days before Wingard arrived in Kuwait last November, the Pentagon released to the media what Wingard characterized as a “propaganda video” that showed several detainees apparently enjoying a life of indefinite detention. One of the detainees in the video, he claims, is al-Kandari.

Still, it’s unclear whether the confrontation between Woods and Schwartz played any part in the Guantanamo commander’s decision to implement new and expanded rules authorizing the review of attorney-client communications.

At a pretrial hearing this week in the military commission of Abd Al-Rahim al-Nashiri, the alleged mastermind of the USS Cole, Navy Cmdr. Andrea Lockhart, a member of the team prosecuting the high-value detainee, told a military judge the reason Woods issued the order was because “material that was getting in, like Inspire magazine, that should not have been getting in.”

Inspire magazine was a slick English-language glossy that was produced by an arm of al-Qaeda and edited by Samir Khan, a Pakistani US citizen who was killed in a drone strike in Yemen last September along with Al-Qaeda in the Arabian Peninsula propagandist Anwar al-Awlaki, another US citizen who the US government placed on a kill list.

Lockhart did not disclose whether the issue of Inspire, first published in June 2010, was found inside a detainee’s cell or somewhere else on the prison grounds. Nor did she say whether Joint Task Force-Guantanamo, which operates the prison facility, launched an investigation to determine how the magazine was brought onto the island. However, Lockhart, like Woods, seemed to suggest a defense attorney was the likely suspect.

A Defense Department spokesman did not respond to emails or phone calls seeking answers to those queries either.

Richard Kammen, al-Nashiri’s chief civilian defense counsel, denied that the detainee was the recipient of Inspire.

Mail Review Originally Limited to High-Value Detainees

Woods’ December 27 order expanding the review of legal mail to a larger segment of the Guantanamo prison population in Guantanamo appears to have been sparked by an unknown incident that took place in early October at Camp 7, the top-secret facility where 14 high-value detainees are held, a month before al-Nashiri’s military commission got underway.

Several attorneys representing detainees in habeas corpus cases learned that month that Woods, who had just been named commander of Guantanamo in August, had ordered a search of the cells and that prison staff had been reading, reviewing and confiscating detainees’ legal mail.

The habeas corpus attorneys, all of who hold top-secret security clearance and operate under a separate set of rules related to the review of legal mail, immediately contacted Justice Department lawyers, objecting to what was then an unwritten policy implemented by Woods. The attorneys noted that his policy violated attorney-client privilege. One habeas attorney was assured by Justice Department that the review only applied to the high-value detainee camp and that his client, who is not a high-value detainee, would be spared.

In a statement provided to Truthout October 14, Lt. Col. Joseph Todd Breasseale, a Defense Department spokesman, explained that Woods “directed that a security search be undertaken of detainee cells and materials in Camp 7.”

“This security search is not in response to any particular security threat and does not involve detainees in other [Joint Task Force-Guantanamo] detention facilities,” Breasseale said at the time.

Nine lawyers representing al-Nashiri and other high-value detainees charged with war crimes responded to Woods’ new directive by sending a letter to William Lietzau, deputy secretary of defense for detainee affairs, demanding he order Woods to “cease and desist the seizure, opening, translating, reading and reviewing of attorney-client privileged communications.”

The legal mail issue then arose at the start of al-Nashiri’s tribunal in November. At that time, Navy Cmdr. Thomas Welsh, the senior legal official at Guantanamo, testified that the search of the high-value detainees’ legal mail was necessary so as to ensure it did not contain “incendiary” magazines, such as Inspire, and other material that could pose a security threat. Welsh did not provide further detail about the circumstances that ultimately led to the crackdown in Camp 7 in October.

But Chief Military Commissions Judge James Pohl ordered prison officials to stop reading al-Nashiri’s legal mail. A month later, just a few weeks after Woods accused Schwartz of smuggling the anti-Guantanamo pamphlet into the prison, Woods issued the order expanding the inspection of legal mail, originally limited to Camp 7, to include about 30 other detainees.

Wingard said, in the past, when he sent mail to al-Kandari at Guantanamo it was received by a Defense Department liaison who “printed it off and put it in sealed envelope which was then given to the government.”

“The government would then unseal the envelope in the presence of Fayiz and hand him the confidential mail,” he said.

Now, Woods order states that a team made up of former government lawyers, translators and Department of Defense and law enforcement officials—a privilege review team—under contract to the Pentagon, would conduct the review of the privileged attorney-client communications and it would be done outside the presence of the detainee. He said attorneys must agree to the new rules in writing in order to communicate with their clients. The policy has since been roundly criticized.

“As a lawyer, I believe that this flagrant violation affecting the privacy of attorney-client, is unconscionable and far below the standards that America once stood for,” said Abdulhadi, al-Kandari’s attorney in Kuwait.

The American Bar Association, in a letter sent to Secretary of Defense Leon Panetta, said the policy needs to be immediately reversed.

“The American justice system depends on the essential role of lawyers in counseling their clients,” wrote ABA President Wm. T. (Bill) Robinson III in a letter sent to Secretary of Defense Leon Panetta, urging that Woods’ order be reversed. “This includes providing zealous and effective counsel, even to those accused of heinous crimes against this nation and its people.”

On the heels of Woods’ December 27 order, Marine Col. Jeffrey Colwell, the Pentagon’s chief defense counsel for military commissions, directed military and civilian attorneys defending detainees before military commissions to immediately stop sending mail to the prisoners and not to comply with Woods’ order because it violates the attorney-client privilege and codes of professional conduct.

The issue threatens to derail the tribunals, which Congress and the Obama administration overhauled in 2009. Pohl, the chief military commissions judge, expects to resolve the matter within the next two weeks.

Guard, Attorney Singles Out Interrogators

If “incendiary” reading material was the true catalyst behind Woods’ order, then it’s likely the interrogators who work at Guantanamo are to blame, a former prison guard said.

“They are the only ones who would have the incentive or motive” to distribute a “magazine like Inspire,” said the former guard, who requested anonymity because he is still on active duty.

During interrogations, the former guard said interrogators, as a way of “building rapport with detainees,” would offer prisoners food, books, magazines, pornography, games, pictures, extra recreation time, and cigarettes.

“This has gone on since Guantanamo opened ten years ago,” the former guard said. “These are things the detainees are not supposed to have in their cells and it’s a major source of frustration for the guard force because it violates the standard operating procedure. The guard force follows the SOP and takes it seriously, but the interrogators break the rules in the SOP all the time without telling anyone. The interrogators run the show.”

The former guard said he recalls two incidents within the past couple of years to back up his claims and both involved interrogators allowing two detainees to hang pictures in their cells, which is prohibited, in exchange for their cooperation. One detainee was given a picture of his hometown and another detainee received a picture of his family.

When a guard walked through the prison block to conduct “shake downs of cells” and saw the photographs, they were confiscated and the guard wrote up a report that was sent to his commanding officer. The detainees, according to the former Guantanamo guard, then complained to their interrogators and the photographs were later returned.

Brent Mickum, a habeas corpus attorney who represents Abu Zubaydah, the first high-value detainee captured after 9/11, said he too believes interrogators are responsible for the distribution of magazines like Inspire.

“The idea that an attorney would take into Guantanamo a periodical or a document that he or she knew to be proscribed is outrageous,” said Mickum, who holds a top-secret security clearance. He and other habeas attorneys already operate under a strict protective order that requires all materials they mail and/or bring to the detainees they represent to first be reviewed and approved by a separate privilege review team based in Washington, DC. “No attorney in the 600 or so I have interacted with over the years would ever do such a thing. No attorney would take the chance of jeopardizing the arduous steps they had to go through to obtain security clearance so prisoners could be represented by defense counsel and risk it by bringing in Inspire magazine. The only way such a magazine or document would get to a prisoner is through an interrogator who was trying to reward him for providing intelligence.”

The former guard and two military intelligence officials said as of late 2011 as many as 300 interrogations per month were still taking place at Guantanamo. Wingard said al-Kandari was interrogated as recently as last July by someone believed to be an interrogator about his thoughts on “world politics and Osama Bin Laden’s death.”

Documents declassified and released by the Pentagon in two years ago to former Secretary of Defense Donald Rumsfeld show that in 2003 he said Guantanamo needed to be turned into a “long-term interrogation facility.”

As far as Woods’ new order, Mickum said he’s not surprised.

“We don’t write [Zubaydah] because we’re worried about the Guantanamo staff reading our mail,” Mickum said. “We’ve been working on the assumption for some time that they will and have already looked at our legal mail, regardless if there’s an order in place now allowing just that.”

Wingard said the “desired effect” of Woods’ order is to “taint the attorneys and harvest intelligence from us by reading our legal mail.”

“What’s astounding,” Wingard added, “is that we are military officers with top-secret security clearances and law licenses who go to war with your sons and daughters. What Commander Woods’ order essentially says is that ‘we don’t trust you or the legal system you are sworn to protect.’”

In the meantime, per Colwell’s instructions, Wingard has not been sending mail to al-Kandari, who has been detained at Guantanamo for a decade, or Abdul Ghani, an Afghani Wingard also represents who has been held at the prison Guantanamo since 2003.

Pfc. Brandon Neely worked as a miitary guard at Guantanamo when the detention camp opened ten years ago today. (Photo courtesy of Brandon Neely)

This report was originally published on Truthout and written by Jason Leopold.

Pfc. Brandon Neely was standing at attention inside Camp X-Ray along with three-dozen or so other active-duty soldiers attached to the 401st Military Police Company from Fort Hood, Texas, during the afternoon of January 11, 2002.

A busload of about 20 “enemy combatants” captured in Afghanistan and Pakistan were soon going to be arriving at the crudely constructed prison camp at Guantanamo Bay and Neely, then 21 years old, was waiting for his assignment.

His platoon sergeant called out his name.

“Pfc. Neely! Bravo Block, escort,” he said, which meant Neely escorted detainees as they were processed into the prison and then to their cells.

Outside the Law

A couple of weeks earlier, Secretary of Defense Donald Rumsfeld explained why the Bush admnistrtion settled on Guantanamo as a prison facility for “war on terror” detainees.

“I would characterize Guantanamo Bay, Cuba, as the least worst place we could have selected,” Rumsfeld said during a December 27, 2001 press briefing. “It has disadvantages, as you suggest. Its disadvantages, however, seem to be modest relative to the alternatives.”

Rumsfeld did not reveal to reporters that a young Justice Department attorney named John Yoo had just finished writing a legal memo that he sent to Pentagon General Counsel William “Jim” Haynes a day later that said Guantanamo was the perfect place location beacuse it was outside the law and it was unlikely US courts would grant detainees habeas corpus rights. Yoo’s analysis was proved wrong nearly a decade later when the US Supreme Court issued a landmark ruling in Boumediene v. Bush granting Guantanamo detainees habeas corpus rights.

Bush administration officials had at one point considered detaining prisoners in Guam, but Justice Department lawyers determined that detainees would be able to challenge their detention in US courts because, as Joseph Hansen wrote in his fascinating book about the history of Guantanamo, Guam would not be immune from federal court oversight and could be accessed by lawyers and journalists

The other dirty secret Rumsfeld did not disclose to the media was that Guantanamo was the ideal long-term interrogation facility the US could use to torture detainees.

Indeed, around the same time Rumsfeld was discussing Guantanamo as a detention center Haynes and other agency officials contacted the Joint Personnel Recovery Agency (JPRA), which runs Survival Evasion Resistance Escape (SERE) schools for teaching US soldiers to resist interrogation and torture if captured by an outlaw regime. The officials wanted a list of interrogation techniques that could be used for detainee “exploitation,” according to a report released by the Senate Armed Services Committee.

Three former military officiasl have referred to Guantanamo as a “battle lab,” meaning the interrogation methods detainees were experimental in nature.

“Worst of the Worst”

Neely’s adrenaline was flowing. Army Col. Terry Carrico, the prison’s commander, and Marine Gen. Michael R. Lehnert, commander, Joint Task Force 160, whose mission was to build and operate the detention camps at Guantanamo, had just told Neely and the other military police (MP) that all of the detainees, who Bush administration officials had publicly characterized as the “worst of the worst,” were involved in the 9/11 attacks and were so dangerous and psychotic that one of them had attempted to gnaw through a hydraulic line on the C-141 en route to Guantanamo.

Neely said he had no idea what to expect. He had never seen terrorists before. He was scared and nervous.

“I really wanted to be in combat fighting in Afghanistan,” Neely said. “I wanted revenge for 9/11. When I found out I was going to Guantanamo to help run a detention facility I was kind of mad because I wanted to go to the front lines to fight not to babysit a bunch of detainees.”

He waited for the bus to arrive near the open-air cages that resembled dog kennels, where the detainees were held for about four months before being moved to Camp Delta, a newly constructed block of prison cells built by Halliburton subsidiary Kellogg Brown & Root, a corporation once headed by Dick Cheney.

“I remember it was a sunny day,” Neely said. “It was January, but it was a lot different than Texas.”

The bus rolled in to the side of Camp X-Ray and the doors opened. The MP canine unit was present and their dogs were snarling. The first detainee to exit, a man Neely recalls was in his 30s and overweight, was missing a leg. A Marine inside the bus threw the man’s prosthetic leg onto the gravel. The MPs nicknamed him “Stumpy.”

That was Neely’s first exposure to the “worst of the worst.”

“I was shocked,” Neely said. “I will never forget that.”

The one-legged detainee hopped toward the holding area flanked by a couple of MPs who were screaming at him to “walk faster,” Neely said. The detainee was wearing an orange jumpsuit; goggles, which were designed to disorient his senses during the flight to Guantanamo from Afghanistan; a surgical mask; earmuffs; and gloves that looked like oven mitts. His leg, at least the one he still had, was shackled. His hands were attached to a chain wrapped around his torso.

The second detainee off the bus was David Hicks, the Australian drifter who was captured by the Northern Alliance in Afghanistan and sold to US forces for about $1,500. [Hicks, who was released in 2007, gave his first interview to Truthout last year.]

Hicks was Neely’s prisoner. At five-foot three inches tall, he hardly looked like the mercenary about which Neely was warned.

“We yelled at him, told him to get on his knees and shut up,” Neely said after Hicks exited the bus. “He was a little guy. He didn’t look like a killer.”

Neely did not know it then, nor did the public, but a vast majority of the prisoners who populated Guantanamo during the prison’s first year in operation were innocent bystanders sold to US forces for hefty bounty payments or were captured and sent to Guantanamo because they wore the same style Casio watch that members of al-Qaeda wore.

Geneva Conventions Did Not Apply

Later in the afternoon of January 11, 2002, Neely was involved in the first violent incident that took place at Guantanamo. It’s an event that he said still haunts him to this day, but it pales in comparison to the brutal torture methods sanctioned by former Secretary of Defense Donald Rumsfeld that would become standard operating procedure at the prison facility later that year.

Neely and another MP were escorting a detainee to his cell. When they arrived, Neely put the detainee, who was still wearing goggles, on his knees and the other MP began to unlock his handcuffs. The detainee, who was in his fifties, flinched. Neely reacted quickly.

“I slammed his face down into the concrete,” Neely said. “He tried to get up and I slammed him down again. I didn’t know what he was trying to do.”

The Immediate Reaction Force Team (IRF), military guards who are trained to use overwhelming force to respond to “disciplinary infractions,” were called in and subdued the detainee. When Neely saw the prisoner again the next day, the side of his face was torn up and scabbed.

Weeks later, Neely learned that the detainee flinched because he thought he was going to be executed when he was told to get down on his knees.

The violence escalated as the weeks passed. There wasn’t a formal standard operating procedure (SOP) that advised guards how to treat detainees, Neely said.

“We were told there was no SOP and the book would be written as we went along,” he said. “If detainees refused medication the IRF team came in and forced them to take medication. I sat there and watched a medic punch a detainee in the face one time as the detainee was chained to the back of his cage in a Jesus Christ pose because the detainee didn’t want to drink his Ensure.”

A day before he left for Guantanamo, Neely said his unit was told “by the company commander, the colonel and platoon sergeant that these people were not Prisoners of War. They were detainees and the Geneva Conventions would not be in effect.”

George W. Bush formally rescinded Geneva Conventions protections for “war on terror” detainees on February 7, 2002. A bipartisan congressional report released three years ago traced the torture of detainees at Guantanamo and Abu Ghraib to that document.

The Pentagon did not respond to Neely’s specific allegations. In the past, Defense Department spokespeople said detainees were treated humanely and all incidents of abuse were investigated.

Neely left Guantanamo in June 2002 with an achievement medal for “exceptional meritorious service” and returned to Fort Hood. By that time, the conversations he had with some of the British detainees about pop culture, such as hip-hop music, led him to doubt the government’s claims that all of the detainees imprisoned at Guantanamo were terrorists.

“I had a feeling I was being lied to,” Neely said. “Some of these guys grew up the same way I did. They listened to the same music. That’s when I started to question it. It was years later when I realized a lot of these guys weren’t guilty of anything at all.”

The government did lie to Neely and did so again in 2003 when he was sent to Iraq to fight a war predicated on ridding the country of its nonexistent weapons of mass destruction. He returned to the US a year later and fell into a deep depression, his mind ravaged by post-traumatic stress disorder.

“I returned to a wife and three beautiful children I did not even know and who didn’t even know the man I came home as,” Neely said, who was only 23 years old when his tour of duty in Iraq ended.

Obama Under Pressure

Neely left the military in 2005. He declined a call to return to active duty in 2007 and received an honorable discharge. He became active in the antiwar movement. Part of his healing process involved making a personal apology to two of the British detainees he had stood guard over during the six months he spent at Guantanamo. He found them via Facebook. Although Neely’s in a better place mentally, he said he’s still not whole.

“There has not been a day that goes by that I have not re-lived what I did or saw in Guantanamo,” he said. “Its time for the Government to close Guantánamo and admit to what took place inside the wire then and only then can this country start to head back towards the morals, values, and principals that it once stood and fought for.”

Carrico, the former Guantanamo prison commander, agrees. So do two-dozen retired generals and admirals who sent a letter to President Obama Monday urging him to fulfill a promise he made after he was sworn into office and shut Guantanamo.

“We understand the political opposition you have faced in closing Guantanamo, but you too bear responsibility for failing to do so,” wrote the retired generals and admirals. “Your policy of holding detainees indefinitely, perhaps forever, without charge or trial, not only stands in the way of closing Guantanamo, but is insupportable in a nation of laws…Terrorists aim to sow fear, and thereby to cause us to change who we are…In the war of ideals, we can only lose if we forfeit ours…We know that you have tried over the past three years to fulfill the important promises you made to the American people in your first days in office, but this is a fight that you and our nation cannot afford to lose.”

At a press briefing Monday, White House Press Secretary Jay Carney told reporters Obama’s commitment to shutting down the detention camp “is as firm today as it was during [Obama's] campaign.”

“We will continue to abide by that commitment and work towards its fulfillment,” Carney said, without elaborating how Obama intended to carry out that promise.

The passage of the National Defense Authorization Act, which Obama signed into law on New Year’s Eve, certainly does not help. The law guarantees Guantanamo will remain open indefinitely as it restricts the transfer of detainees.

Retaliation

Neely, who works in law enforcement in Houston, Texas, said until the prison is closed he will continue to speak critically about the detention facility and talk about the abuses that took place there. He is one of just a a handful of former guards who has come forward over the past decade to talk about Guantanamo.

Truthout has interviewed more than a dozen other former Guantanamo guards over the past year, who have told disturbing stories of abuse they participated in and witnessed, but none will speak on the record because they fear their careers will be ruined or they will be prosecuted by the government for defying a nondisclosure agreement  they signed prior to leaving the detention facility that prohibits them from speaking with the media about Guantanamo. All of the former guards said their service at Guantanamo had traumatized them.

Last year, the US Army told a reservist who spent half his life in the military that he was barred from re-enlisting, asserting he “leaked” classified information to this reporter during an interview in which he spoke candidly about his experiences working as a guard at Guantanamo Bay eight years ago.

For Neely, who also signed a nondisclosure agreement, speaking up has come at a cost.

He said he has been regularly harassed at work, relegated to the night shift and has been accused of being a terrorist sympathizer.

Still, he said he “decided that I needed to tell my story about Guantanamo.”

“How can I as a father tell my children to tell the truth and stand up for what they believe in if I am not willing to do the same?”

Also, please read Jason Leopold’s recent report and watch the video interview he conducted with investigative journalist Joshua Phillips, author of “None of Us Were Like This Before: American Soldiers and Torture,” who talked about his investigation into the 2004 death of Army Sgt. Adam Gray and how it led him to uncover a tragic story about torture’s other victims.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The provisions relating to Guantánamo and why they are also important

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

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

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

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

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

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

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

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

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

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

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

The President’s advisors concluded:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Guantanamo detainee Fayiz al-Kandari

This story was written by Jason Leopold and originally published on Truthout.

A video released by the Pentagon showing several Guantanamo detainees praying, exercising and playing soccer has angered Kuwaitis, who believe one of the prisoners is a citizen of the country and is being used by the US government as a “propaganda” tool in an attempt to demonstrate the humane conditions of nearly a decade of indefinite detention, according to attorneys representing the man.

The one-minute-and-19-second video, according to a Defense Department spokesman, is “B-roll footage” that was shot on November 4 by Joint Task Force-Guantanamo personnel and provided to the media covering the arraignment at the prison of high-value detainee Abd Al-Rahim Al-Nashiri, the alleged mastermind of the October 2000 bombing of the USS Cole.

The video, which does not show the detainees’ faces, was shot in Camp 6, which houses “cooperative” detainees. The detainees, some of whom are wearing sneakers, shorts and beige and white prison garb, are also seen taking what appears to be a leisurly stroll on the prison grounds.

Air Force Lt. Col. Barry Wingard, a military lawyer who is defending Kuwaiti Fayiz al-Kandari against war crimes charges before the military commission at Guantanamo, told Truthout that it took “all but a couple of seconds to identify my client in the video” through other identifying features that the Pentagon did not obscure. Wingard said al-Kandari is the detainee kicking a soccer ball.

Wingard suggested the Pentagon released the video in an attempt to sabotage his work on al-Kandari’s case. He said the video was posted on the Internet a few days before he arrived in Kuwait to meet with government officials to discuss ways to “facilitate [al-Kandari's] release back to Kuwait’s state of the art rehabilitation center built at the request of the Bush administration, which is currently vacant.” [A previously classified State Department cable, released in September by WikiLeaks, says planning for the rehabilitation center began in September 2008, following a discussion between Prime Minister Nasser Al-Sabah and former Secretary of State Condoleezza Rice in Washington "on the possible role of such a center with respect to Kuwait's four [at the time] remaining Guantanamo detainees.”]

“I first saw the video of my client, Fayiz al-Kandari, when I touched down in Kuwait for a scheduled visit,” Wingard said. “My first thought was that there is no way the United States government sank so low as to show my client to the world, caged like a circus animal. Still, there he was, standing in a chain link, kennel-like enclosure, where he has essentially spent the last ten years without every having been charged with a crime.”

Wingard said word quickly spread in Kuwait that one of the detainees in the video was al-Kandari. He said the message that the US government was trying to disseminate – that al-Kandari and the other detainees featured in the video were in “good health” – has backfired.

“As I traveled around Kuwait, I discovered that people were not seeing the positive image the spin doctors had engineered,” Wingard said. “Instead, they saw a man in a dog cage, cut off from his country, and subjected to injustice for a decade without trial. Thus truth has shone through – and it has had an amazing impact on the steadily declining support the United States had taken for granted here in Kuwait. I can tell you without a doubt, this video puts the inhumanity of Guantanamo into motion unlike any still picture I could have shown.”

A State Department spokesperson did not return calls for comment.

The issue of al-Kandari’s indefinite detention and the other Kuwaiti detainee imprisoned at Guantanamo, Fawzi Al-Ouda, was reportedly one of the talking points during a meeting that took place at the White House in September between Vice President Joe Biden and Prime Minister of Kuwait Sheikh Nasser Mohammad Al-Ahmad Al-Sabah.

A statement released to the media in September by Kuwaiti Ambassador to Washington Sheikh Salem Abdullah Al-Jaber said the prime minister called on Biden to take immediate steps to secure al-Kandari and Al-Ouda’s release. The prime minister also discussed the case with Secretary of State Hillary Clinton and told her it is a priority issue for the Kuwaiti government, according to the ambassador’s statement.

Adel Abdulhadi, al-Kandari’s Kuwaiti-based attorney, told Truthout that the video “has angered every single person I’ve spoken with.”

“Whoever thought it might be a good idea to show our son in a dog kennel should be fired,” he said. “When I saw the video I thought, we must do something after ten years without a trial. As a result I’m organizing a protest outside the US Embassy” on Sunday.

Lt. Col. Todd Breasseale told Truthout the government’s only agenda in releasing the video is to show the world that “Defense Department personnel working in detention facilities operate under a high level of scrutiny and consistently provide the most humane and safe care and custody of individuals under their control.

“It’s important to us and to the global community that we continue to be as transparent as possible in all that we do – while still maintaining very necessary operational security – to show current conditions” at Guantanamo, Breasseale said.

But Daphne Eviatar, a senior associate at Human Rights First’s Law and Security Program, also likened the video released by the Pentagon to propaganda and said it is not a realistic portrayal of the detainees’ lives.

“For years, Human Rights First and other human rights observers have refused to take the [Department of Defense] prison press tours for exactly this reason – because it allows the US government to portray the prison as a great place to live where detainees get lots of exercise, take art classes and work on their resumes,” Eviatar said. “Such tours, and the B-roll video, are designed to distract observers from the fact that these men are being imprisoned indefinitely, most without charge or trial, in a faraway prison where they’re completely cut off from their homes, families and communities. Neither the video nor the prison tours reveal the suffering that they or their families endure.”

Eviatar added that the Defense Department has refused to allow human rights observers and journalists to speak to detainees imprisoned at Guantanamo, many of whom have already been cleared for release or transfer, or Bagram, “the other official and much larger detention center” in Afghanistan and “ask them what their lives are really like there.”

“That in itself negates the positive spin they’re trying to put on an inherently deplorable situation,” she added. “The military shouldn’t be surprised to hear that its video is outraging people in other countries who have lost family, friends and community members due to the US indefinite detention scheme.”

Breasseale said the last time B-roll footage was “updated” was more than one year ago, and he noted the Defense Department works closely with the International Committee of the Red Cross, “which has access to all detainees interned by the Department of Defense.”

Wingard, however, does not believe al-Kandari’s presence in the video is coincidental. He said al-Kandari was transferred to Camp 6 a week or so before the Pentagon said the video was shot. Al-Kandari had spent the past five months in solitary confinement for taking part in a hunger strike to protest the seizure of his “personal belongings,” which included” his “attorney/client information folders,” Wingard said.

“I believe he ended up in the video so the US government could show the Kuwaitis that he was in good health after spending months in isolation,” Wingard said.

Al-Kandari, who speaks English, was previously housed in Camp 1 along with ten other detainees who speak English, are well-educated and whom the DoD had segregated because the agency believed they were “troublemakers” and an “influence” on other Guantanamo prisoners, according to several Guantanamo guards.

Guantanamo officials began the process of permanently shuttering camps 4 and 1 in January and moved all of the detainees interned there to camps 5 and 6 in preparation for an executive order signed by President Obama in March establishing a policy of indefinite detention for dozens of Guantanamo detainees.

Wingard, who holds a top-secret security clearance, said since al-Kandari was moved to Camp 6 he was told by Guantanamo officials that prison personnel “will now be doing a ‘cursory’ review of all written  correspondence between [al-Kandari] and me, which even under the Bush administration was treated as off limits.”

Wingard said, in the past, when he sent mail to al-Kandari at Guantanamo it was received by a Defense Department liaison who “printed it off and put it in sealed envelope which was then given to the government.”

“The government would then unseal the envelope in the presence of Fayiz and hand him the confidential mail,” Wingard said. “Now, instead of opening the mail in front of him, they do a ‘cursory’ review before delivering the mail to him and decide what he should and shouldn’t get. Additionally, they have taken all all our past correspondence to conduct a ‘review’ of each item. I have instructed Fayiz, and my other client, [Afghan] Abdul Ghani, to destroy all our legal correspondence going forward to prevent the government from taking it in the future.”

Breasseale was unavailable to respond to follow-up questions about Wingard’s claims.

In the lead up to al-Nashiri’s military commission trial, the new commander of the Guantanamo, Navy Rear Adm. David B. Woods, authorized the seizure and review of high-value detainees’ legal mail and other materials from the top-secret camp where they reside. The military judge presiding over Nashiri’s tribunal has since ordered an end to the practice.

Al-Kandari, a humanitarian aid worker, who said he was in Afghanistan in 2001 to help repair a mosque and build two wells, was captured by the Northern Alliance in December 2001 and sold to US forces for a bounty. US government officials claimed in a November 2008 military commission charge sheet that al-Kandari was was an adviser to Osama bin Laden, training al-Qaeda recruits and “produced recruitment audio and video tapes which encouraged membership in al-Qaeda and participation in jihad.”

US District Court Judge Colleen Kollar-Kotelly denied al-Kandari’s petition for habeas corpus last year, citing inconsistencies in his statements about his reasons for being in Afghainstan even though she said the reliability of the government’s evidence against him was questionable.

The government’s entire case against al-Kandari, who Wingard said was subjected to “hundreds of ‘enhanced interrogation’ sessions, which included “physical assaults,” sleep deprivation, stress positions, loud music and temperature extremes, is based almost entirely on hearsay evidence obtained from other detainees.

Al-Kandari appealed Kollar-Kotelly’s decision. Oral arguments in the case was scheduled to be heard Friday in the Court of Appeals for the District of Columbia Circuit, but was canceled by the court.

UPDATE: Wingard claims this is another video clip of al-Kandari, seen standing in a cage hanging laundry, that the Pentagon released within the past two weeks. The one-minute, thirty-one second video was posted on YouTube November 7, and has has been viewed more than 18,000 times. According to Wingard, this video has also caused an uproar among Kuwaitis who believe the detainee is al-Kandari. Neither Breasseale nor another Defense Department spokesperson was available Saturday to confirm whether the clip was produced by Joint Task Force-Guantanamo and if it was part of the same B-roll footage provided to the media during Nashiri’s arraignment.

When Obama was running for president he made the American people a promise to close Guantanamo Bay. The detention prison has been open for 10 years and was originally opened by the Bush administration. In his first week as president, Obama signed a mandate to close the facility within 2010. Years later, however, Guantanamo Bay remains open and has over 200 detainees. Why hasn’t President Obama fulfilled his promise to close the controversial detention center? Jason Leopold, deputy managing editor of TruthOut.Org, helps us find out.

Col. Morris Davis/Photo/Wikimedia

This story was written by Jason Leopold and originally published on Truthout.