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.

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.

I updated the list in January and July 2010, and have now updated it again. See Part One, Part Two, Part Three and Part Four.

This latest update not only provides links to the 300 or so articles I have written in the last year, but also, crucially, includes information from the latest documents to be released by WikiLeaks, the classified military files, known as Detainee Assessment Briefs (DABs), which were released at the end of April. I worked as a media partner with WikiLeaks, and as a result I’m pleased to include information about 86 prisoners that was not previously known (from an ongoing five-part series of articles, entitled, WikiLeaks: The Unknown Prisoners of Guantánamo), and also to include dozens of previously unseen photos. I’ll be conducting further analysis of the WikiLeaks documents over the next few months, and will add further links as this work progresses.

As a result, when this five -part series is complete and the relevant links have been added to this list, it will provide, for the first time, references (mostly in the form of links) to the stories of all of the 779 prisoners held in Guantánamo (with the exception of three missing stories).

This is not, of course, the only online database that is publicly available. The New York Times, for example, has made all the publicly available information about the prisoners, from the Bush-era Combatant Status Review Tribunals (CSRTs) and annual Administrative Review Boards (ARBs), available on its Guantánamo Docket (and the original source material remains available on the US Department of Defense’s website), although these only cover the stories of around three-quarters of the 779 prisoners held in total. In addition, there is now WikiLeaks’ trove of Detainee Assessment Briefs (DABs), supplementing these documents with crucial insights into how the authorities reached the often mistaken conclusions highlighted in the earlier documents.

However, with the exception of two articles that I wrote for WikiLeaks, introducing the Detainee Assessment Briefs (WikiLeaks Reveals Secret Guantánamo Files, Exposes Detention Policy as a Construct of Lies and How to Read WikiLeaks’ Guantánamo Files), my list provides the only contextual analysis of the stories of all the prisoners held at Guantánamo throughout its long and dark history.

As a result, as I explained when I first published the list:

It is my hope that this project will provide an invaluable research tool for those seeking to understand how it came to pass that the government of the United States turned its back on domestic and international law, establishing torture as official US policy, and holding men without charge or trial neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects to be put forward for trial in a federal court, but as “illegal enemy combatants” [or "unlawful enemy combatants," or, as they now are under President Obama, "alien unprivileged enemy belligerents"].

I also hope that it provides a compelling explanation of how that same government, under the leadership of George W. Bush, Dick Cheney and Donald Rumsfeld, established a prison in which the overwhelming majority of those held — at least 93 percent of the 779 men and boys imprisoned in total — were either completely innocent people, seized as a result of dubious intelligence or sold for bounty payments, or Taliban foot soldiers, recruited to fight an inter-Muslim civil war that began long before the terrorist attacks of September 11, 2001, and that had nothing to do with al-Qaeda, Osama bin Laden or international terrorism.

In conclusion, I would like to reiterate how fundamental the problem is of confusing soldiers with terrorists, and how it is a problem enshrined in the founding legislation of the “War on Terror,” the Authorization for Use of Military Force, which President Obama relies upon to justify the detention of prisoners at Guantánamo, and which lawmakers in the House of Representatives recently voted to expand.

I would also like to add that Guantánamo’s problems are not all in the past. Although 600 of the 779 prisoners held throughout the prison’s nine-year history have been released, 171 remain, and the last two prisoners to leave the prison (in February, and last month) left in coffins. The stories of these men, which I wrote about in my articles, Guantánamo Prisoner Dies After Being Held for Nine Years Without Charge or Trial, The Only Way Out of Guantánamo Is In a Coffin and Guantánamo Suicide Was Severely Mentally Ill, And Was A Case of Mistaken Identity, provide a somber epitaph for President Obama’s hopes of closing the prison, based on the bold promise to do so that he made on his second day in office, and then failed to fulfill.

It is not entirely his own fault, as there are dark forces at work — in the D.C. Circuit Court, where deeply Conservative judges are undermining the prisoners’ habeas corpus rights, granted by a Supreme Court that no longer seems to care, and in Congress, where the most cynical, negative, fearmongering Republican party of all time, with the help of cowardly Democrats, has been working overtime to try and ensure that Guantánamo remains open forever.

Nevertheless, Barack Obama is the President, and the Commander-in-Chief, and he has failed to adequately challenge his critics, or to stand up for the principles which so many of his supporters at the time of his election had been led to believe would result in a thorough repudiation of the Bush administration’s hideous novelties in its brutal and ill-conceived “War on Terror.” Instead, we have the return of kangaroo courts and indefinite detention without charge or trial, as we had under Bush, no release for prisoners cleared for release by Obama’s own Guantánamo Review Task Force, no prosecutions for torturers, and no end in sight to the endless war that the Bush administration started, and which Obama has ramped up with drone strikes and assassinations.

In many ways, therefore, this updated list provides crucial, relevant information — “actionable intelligence,” even — that is actively useful for those still seeking to close Guantánamo, and to bring to an end this bleak chapter in American history.

And believe me, a concerted effort is required if those of us who regard Guantánamo as an abomination and a vile aberration from internationally acceptable standards of detention and the humane treatment of prisoners are ever to see it close.

As ever, I thank you for your support, and if you’re able to make a donation to help me to continue my work, then I will be very grateful. Please click on the “Donate” button above to make a payment via PayPal. All contributions are welcome, whether it’s $25, $100 or $500.

For anyone interested in anniversaries, it is exactly four years since I began writing about Guantánamo as a full-time freelance investigative journalist (following the 14 months that I spent researching and writing The Guantánamo Files), and this is also my 1300th blog post.

Andy Worthington
London, June 1, 2011

Technical note: If you have problems with text overlaying any of the photos in the list, please click “refresh,” and the problem should be resolved.

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 (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

In effect, Judge Eloy Velasco sent the case back to the U.S. at the request of the Department of Justice, who argued in their March 1, 2011 letter to the judge that the U.S. is plenty interested in investigating and prosecuting torture and other war crimes. Besides the cases of CIA contractors David Passaro and Don Ayala (Marcy Wheeler discusses the Passaro case here), assorted Defense Department prosecutions of “bad apple” abusers, and the lingering Durham investigation, the U.S. representation cannot dredge up any significant criminal investigations — except one (if it is one).

The letter rogatory to the Spanish court refers to “pending federal investigations by the United States Attorneys’ Office for the Eastern District of Virginia” on “various allegations of abuse of detainees.” (p. 3-4 of letter) In addition the letter refers to “pending status and legal restrictions on the disclosure of investigative information, including rules of grand jury secrecy”. Since there has been no previous reports on current grand jury proceedings in the Eastern District on detainee abuse that I know of, is this a reference to the former cases since sent from the Eastern District by Attorney General Holder in 2009 for review by special prosecutor John Durham? Or is this something new? Have some of the cases under preliminary review by Mr. Durham now reached full investigation status?

DoJ Keeps Mum on Virginia “Pending” Investigation

In response to such questions, Dean Boyd, spokesman for the National Security Division at the Department of Justice replied to me today, “There is nothing further I can provide to you on this matter beyond what is in the document.”

Since the U.S. representation to the Spanish court was meant to convince the judge that the U.S. was serious about seeking investigations and prosecutions regarding torture, it is important to know whether a new stage in the otherwise dilatory investigations by the Obama administration, who famously has announced it would rather look forward and not backwards when it comes to investigating torture, has been hereby announced, or whether this was a con job by DoJ, describing the Eastern District grand jury as somehow still in play, when in reality, its actions on detainee abuse are non-existent, waiting for some determination of the review by Durham and his office.

Durham’s review has also been going on for over a year and a half now. But it was last June when, according to an article at Main Justice, Attorney General Holder said in remarks at the University of the District of Columbia Law School, that Durham was near the end of his preliminary review, and ”close to the end of the time that he needs and will be making some recommendations to me.” Did those recommendations include a referral back to the Eastern District for investigation and prosecution of those cases? According to the article, “several Justice officials cautioned that although Durham is nearing completion, it may take weeks or months to absorb his findings and decide what steps, if any, to pursue next.”

In a rebuttal letter to the U.S. response, the Center for Constitutional Rights (CCR), which has been championing the Spanish prosecution, appears to believe the entire episode as written up in the recent March 1 letter is a smokescreen for a whole lot of nothing. CCR wrote, “The U.S. Submission tries to hide behind the secrecy aspects of the grand jury proceedings to suggest that this investigation is a robust investigation into detainee abuse. It is notable, however, that the United States government has not spoken of any investigation in Virginia when discussing US investigations into US torture…” (PDF).

It must be galling to those looking to the Spanish court, and the hard workers at CCR especially, to see Judge Velasco so quickly take U.S. guarantees of sincerity as good coin. The U.S. had told the court, “The United States will continue to address allegations of abuse by its personnel, at home and abroad, and therefore believes it is appropriate for the Spanish courts to refer complaints related to such matters to the United States for appropriate review and action.”

CCR responded, noting the Obama administration policy of impunity for torture among mid-level and high-ranking government figures:

Through its actions and inactions, the U.S. clearly has demonstrated its unwillingness to exercise its jurisdiction to investigate and prosecute the named defendants for serious violations of international law. To refer this investigation from Spain to the United States would be to knowingly transfer this case to be closed.

Those following the torture scandal will find high irony in the U.S. claims that the DoJ Office of Public Responsiblity (OPR) and Senate Armed Services Committee (SASC) investigations, into DoJ Office of Legal Counsel malfeasance on the torture memos and on the origins and spread of the DoD torture program, respectively, are somehow indicative of U.S. good faith on investigations. The OPR report found government attorneys John Yoo and Jay Bybee to be guilty of “professional misconduct,” only to have DoJ Associate Deputy Attorney General David Margolis downgrade the OPR decision. The SASC investigation found the torture at Abu Ghraib, Guantanamo and elsewhere to be the responsibility not of “bad apples” in the military, but of high officials who promoted a program of torture and detention abuse.

It seems unlikely that the Durham investigation is actually going to bear any fruit, or that a grand jury investigation on detainee abuse is actually underway in Virginia. Sooner or later, we will know the truth. But whatever it is, the actions and policy of the Obama administration won’t fundamentally change, as high officials, such as those identified in the Spanish case — David Addington, Jay S. Bybee, Douglas Feith, Alberto R. Gonzales, William J. Haynes, and John Yoo — are not in any danger of prosecution. The U.S. has made that clear numerous times, and most lately in the response to the Spanish judge.

Update, Thursday morning, 7:25 PDT,: Center for Constitutional Rights released a statement today regarding Velasco’s dismissal of “this politically charged case,” noting that the U.S. made it clear in it’s statement that “the Department of Justice has concluded that it is not appropriate to bring criminal cases with respect to any other executive branch officials, including those named in the complaint, who acted in reliance on [Office of Legal Counsel] memoranda during the course of their involvement with the policies and procedures for detention and interrogation.”

“This decision is a cowardly political act by a judge afraid to pursue justice under his country’s own laws. He is hiding behind the fig leaf of the U.S.’s scant seven-page response, but the submission made clear the U.S. has no intention of investigating these crimes or holding higher-level officials accountable for torture. As we saw from the WikiLeaks cables, the U.S. has been pressuring Spain to drop the case and interfering with the independence of judges. A second U.S. torture case remains open in Spain after a higher court ruled it should continue on February 25. Judge Velasco asked for opposing views but then issued his decision without even looking at our detailed submission refuting the U.S. claims. We will fight this decision and continue to demand accountability for torture.”

Neither was surprising, because the President announced in May 2009, during a major speech on national security at the National Archives, that the Military Commissions were back on the table, joining federal court trials as an option for trying those held at Guantánamo, and in that same speech he also announced that some prisoners would continue to be held indefinitely without charge or trial.

The return of the Military Commissions

Since then, Military Commissions already established under President Bush have proceeded to trial — or, in fact, to plea deals instead of a trial — in the cases of three prisoners: Ibrahim al-Qosi in July last year, Omar Khadr in October, and Noor Uthman Muhammed last month, and it seems probable that the trials of three other men recommended for trial by Military Commission in November 2009 and January 2010 by Attorney General Eric Holder will now proceed swiftly.

These men are: Abd al-Rahim al-Nashiri, a Saudi, and the alleged mastermind of the al-Qaeda attack on the USS Cole in 2000; Ahmed al-Darbi, a Saudi seized in Azerbaijan and accused of involvement in an unrealized plot to attack a ship in the Strait of Hormuz; and Obaidullah, an Afghan accused of playing a peripheral role in the insurgency against US forces in Afghanistan. All the cases have problems — al-Darbi’s, because of his detailed allegations that he was subjected to torture; Obaidullah’s, because he was a nobody involved in an insurgency, and did nothing that could remotely be described as a war crime; and al-Nashiri’s, in particular, because, after his capture in the UAE in the fall of 2002, he was rendered to secret CIA prisons in Thailand and Poland, where he was subjected to the torture technique known as waterboarding, a form of controlled drowning.

In the case of al-Darbi and Obaidullah, it seems probable that the administration will avoid, in one case, a torture-laced legal minefield, and in the other, a demonstration of how, embarrassingly, to equate the pursuit of terrorists with a legitimate insurgency, by reaching plea deals. However, it seems unlikely that anyone in a position of authority would want to strike plea deal with al-Nashiri, given the severity of his alleged crimes and his alleged role in al-Qaeda, and if this is the case then the authorities will not only be obliged to sidestep any mention of his torture, which may be difficult as it was covered in the CIA Inspector General’s report on torture in 2004, and al-Nashiri has also been granted “victim” status in an ongoing investigation of the CIA’s torture prison in Poland.

Just as significant is the fact that an actual trial — rather than a plea deal — runs the very real risk of exposing that the supposed war crimes included in the Military Commissions — conspiracy and providing material support to terrorism, for example — are not legitimate war crimes at all, but were, instead, invented by Congress in 2006 and maintained, despite high-level criticism by Obama administration officials, when a revived version of the Commissions was approved by Congress in the Military Commissions Act of 2009.

Beyond these difficulties, where Obama’s announcement breaks new ground is in opening up the probability that many of the other 30 prisoners still held who were recommended for trials by the Task Force will also be tried by Military Commission – – perhaps even Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks. These men were put forward for federal court trials in November 2009, but the plans were shelved in the wake of a backlash by Republicans and members of Obama’s own party.

Personally, I think that the Military Commissions remain illegitimate, but given Congress’s refusal to allow any Guantánamo prisoners to be brought to the US mainland to face trials (which was included in a major military defense spending bill last December, and was a nakedly political move, as well as being blatantly unconstitutional), Military Commissions are, at present, the only option for trials available to the prisoners. Pragmatically, if these continue to involve plea deals in exchange for short sentences — and the administration honors those plea deals — then, despite being fundamentally flawed, they provide what may be the only way in which prisoners can ever leave Guantánamo.

To understand why this is the case, it is necessary to reflect on the fact that 89 of the remaining 172 prisoners were cleared for release by the Task Force, but are going nowhere either because they are Yemenis, and Obama issued a moratorium on the release of any of the 58 cleared Yemenis last January, after it was discovered that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, had been recruited in Yemen, or because they cannot be repatriated because they face the risk of torture of other ill-treatment in their home countries. These 31 men cannot be resettled in the US, because of opposition by the President, by the D.C. Circuit Court, and by Congress, and it is uncertain if third countries will be prepared to offer them new homes. As a result, all 89 prisoners appear to have less chance of leaving Guantánamo than their fellow prisoners who reach plea deals in their trials by Military Commission, and can, as I have been explaining all year, legitimately be described as political prisoners.

The executive order establishing a periodic review of the cases of 47 men designated for indefinite detention without charge or trial

Also less fortunate than those facing trials by Military Commission are the 47 men designated for indefinite detention without charge or trial. The executive order formalizing their detention and providing for periodic reviews of their status, which was issued on March 7, was flagged up before Christmas, but was clearly on the cards from January 2010, when the Task Force submitted its report to the President, recommending that 48 of the remaining prisoners — one of the 48 died in Guantánamo last month — should continue to be held indefinitely without charge or trial, because “prosecution is not feasible in either federal court or a military commission.”

There are several problems with this proposal, of course — beyond their distressing reinforcement of the very basis on which George W. Bush established Guantánamo in the first place — not the least of which concerns the Task Force’s belief that these men can be regarded as dangerous without evidence that can be used to prove their case. As I explained in December:

The Task Force attempted to explain that “the principal obstacles to prosecution in the cases deemed infeasible by the Task Force typically did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainees was tainted,” but its explanations were unconvincing. Behind claims that “the intelligence about them may be accurate and reliable,” even though it was gathered in dubious circumstances, and that, in many cases, “there are no witnesses who are available to testify in any proceedings against them,” lies a blunter truth, as I explained [in an analysis of the Task Force's report in June 2010]: “that the intelligence, and whatever witness availability there might be, are both tainted by the circumstances under which ‘the gathering of intelligence’ took place — the coercive interrogations, and in some cases the torture, of the prisoners themselves, or of their fellow prisoners.”

To demonstrate this, I referred to the 59 habeas petitions examined by judges in the District Court in Washington D.C., of which 38 have been won by the prisoners, noting:

[T]hese problems have been highlighted again and again by judges, with an objectivity that eluded the Task Force — as, for example, in the cases of Fouad al-Rabiah, a Kuwaiti put forward by President Bush for a trial by military commission, who was freed after a judge ruled that the entire case against him rested on a false narrative that he had come up with after torture and threats, and, to cite just two more examples, Alla Ali Bin Ali Ahmed, a Yemeni seized in a student guest house in Pakistan, and Mohammed El-Gharani, a Chadian national, who was just 14 when he was seized in a raid on a mosque in Pakistan. In both cases, they were freed after judges ruled that the government’s witnesses — the men’s fellow prisoners — were irredeemably unreliable, and were, if not subjected to violence, then bribed to produce false statements.

It is, therefore, rather disingenuous of the Task Force to claim that “the principal obstacle to prosecution” for these [47] men “typically did not come from … concerns that the evidence against the detainee[s] was tainted,” when, to be frank, the record is replete with examples proving the opposite.

Another problem is that the executive order establishes a review process for the 47 men, consisting of Periodic Review Boards (PRBs), which are remarkably similar to the review process established by the Bush administration — the Combatant Status Review Tribunals (CSRTs) — that the Supreme Court found inadequate when it granted the prisoners constitutionally guaranteed habeas corpus rights in June 2008.

As with the CSRTs, the men will be presented with an unclassified summary of the allegations against them, will be represented by a “personal representative” (not a lawyer), will be allowed to refute the charges against them (although without the means to do so), will be able to “call witnesses who are reasonably available,” and will also run up against classified evidence that they will not be allowed to see — although there is a provision for them to “receive a sufficient substitute or summary, rather than the underlying information,” if the government plans to rely on classified evidence (as it undoubtedly will, or trials would be going ahead in these cases).

Although I am reassured that, as the administration describes it, the executive order “is intended solely to establish, as a discretionary matter, a process to review on a periodic basis the executive branch’s continued, discretionary exercise of existing detention authority in individual cases,” and also that it “does not create any additional or separate source of detention authority,” and “does not affect the scope of detention authority under existing law,” it is disingenuous of the administration to follow up by stating, “Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention.”

This is because, despite its reassurances, the administration has always behaved as though the habeas legislation is a distraction, and that it has only ever believed in the Task Force’s findings — hence its decision to pre-judge 48 men whose habeas petitions might have delivered different outcomes, obviating the need for executive review.

In addition, the executive order demonstrates another fundamental problem with the administration’s approach to Guantánamo — and one that has also eluded the District Court dealing with the men’s habeas petitions. This relates to the legislation that underpins the Guantánamo detentions in the  first place — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, which authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” or harbored them, but failed to distinguish between al-Qaeda (a terrorist group) and the Taliban (a government, however reviled).

As the habeas legislation has showed, the majority of the men who have lost their petitions are nothing more than foot soldiers for the Taliban, who had no knowledge of al-Qaeda’s international terrorist operations, and who should, as a result, have been held as prisoners of war protected by the Geneva Conventions.

Included in the 47 men designated for indefinite detention, these soldiers remain tainted by the administration’s claims that they are “too dangerous to release,” when the truth is that the AUMF remains the flawed foundation document of the “War on Terror,” and those held at Guantánamo should either be released (without delay), charged in connection with terrorist offenses (which are crimes and not “acts of war”), or redesignated as prisoners of war, who can be held until the end of hostilities.

This, however, would involve recognizing them as soldiers, and not as the kind of shadowy, ill-defined terrorist threats that were invoked so successfully by the Bush administration, and that Obama has done nothing to dispel. This refusal to tackle the foundational problems of Guantánamo not only continues to fuel hysteria in the United States about the soldiers held in Guantánamo, but has also led to a shameful indifference towards putting on trial the handful of people genuinely accused of involvement in acts of international terrorism (including the 9/11 attacks), even though bringing these men to justice ought to have been the purpose of the “War on Terror” all along.

Originally on the website of the Future of Freedom Foundation.

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

In the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 (PDF), Congress purported to strip the prisoners of their rights, freezing the habeas litigation until June 2008, in Boumediene v. Bush (PDF), when, revisiting the prisoners’ circumstances, the Supreme Court ruled that the habeas-stripping provisions in the DTA and the MCA were unconstitutional, and granted the prisoners habeas rights for the second time.

How the habeas litigation began promisingly

In the wake of Boumediene, the prisoners secured a number of significant victories in the District Court in Washington D.C., beginning with 17 Uighurs, Muslims from China’s Xinjiang province, who had their habeas petition granted in in October 2008, and five out of six Algerians, kidnapped in Sarajevo and rendered to Guantánamo in January 2002, who had their petitions granted in November 2008.

Even with the low burden of proof imposed on the government by the court — requiring them only to demonstrate, “by a preponderance of the evidence,” that the prisoners seeking release were involved with al-Qaeda and/or the Taliban — the prisoners continued to secure victories in significant numbers. Over the next 13 months, as the District Court judges — discussing amongst themselves the necessary conditions for ongoing detention, and generally concluding that the government had to demonstrate that the prisoners in question were part of the “command structure” of al-Qaeda and/or the Taliban (in other words, that they were to some extent involved in taking orders) — ten prisoners won their petitions, while eight others lost.

Even with these impressive results for the prisoners, doubts remained about the wisdom of the Supreme Court’s decision not to question the assumptions in the legislation that authorized the detention of the prisoners in the first place — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks. This was because the AUMF — which authorized the President ” to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September11,2001,” or those who harbored them — failed to distinguish between al-Qaeda (a terrorist group) and the Taliban (the government of Afghanistan in 2001, however reviled internationally).

The result of this classification failure was that most of the eight prisoners who lost their habeas petitions were not accused of having any involvement with terrorism, but were, instead, nothing more than low-level Taliban foot soldiers (and in one case, a cook), who had been in Afghanistan fighting the Northern Alliance — or supporting that struggle — in the months before the 9/11 attacks, and had, therefore, only become embroiled in America’s war by default, when the conflict in Afghanistan morphed from a civil war into a “War on Terror” after the US-led invasion on October 6, 2001.

No one, however, showed any willingness to discuss whether it was fair to equate al-Qaeda with the Taliban, and to label both as a unique category of human being — “enemy combatants,” who, when that designation had been invented, were supposedly detainable forever, without any rights whatsoever. The only concession made by President Obama’s Justice Department was to drop the use of the term “enemy combatant,” which was a shrewd PR move, but did nothing to address the more fundamental problems outlined above.

How the D.C. Circuit Court fought back

However, while the first 15 months of habeas hearings resulted in 32 victories for the prisoners, against just nine for the government, and also, crucially, led to the eventual release of 25 of the men who had won their petitions, everything changed last year, beginning last January when the D.C. Circuit Court delivered a ruling on the first appeal resulting from the District Court’s decisions.

The case before the court was that of Ghaleb al-Bihani, the cook mentioned above, who had prepared food for Arab forces supporting the Taliban. Al-Bihani had lost his habeas petition during President Obama’s first month in office a year before, but when the Circuit Court considered his appeal, the panel of three judges not only upheld the original ruling, but two of them — Judge Janice Rogers Brown, supported by Judge Brett M. Kavanaugh — argued that the government had sweeping powers that should not be constrained by judges, claiming that it was “mistaken” for al-Bihani’s lawyers to argue that “the war powers granted by the AUMF and other statutes are limited by the international laws of war.”

This was too much for the third judge, Senior Circuit Judge Stephen F. Williams, who noted that his colleagues’ opinion was “hard to square with the approach that the Supreme Court took in Hamdi [v. Rumsfeld, a 2004 Supreme Court case regarding Guantánamo that established the government’s right to hold men detained under the AUMF].” Judge Williams quoted Justice Souter, who stated explicitly, “[W]e understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.”

It was also too much for the Obama administration, which noted in a brief that “The Government interprets the detention authority permitted under the AUMF as informed by the laws of war,” and on August 31 last year, seven out of the nine judges ruling on an appeal of the original Circuit Court ruling upheld the decision regarding al-Bihani’s detention, but effectively dismissed the claims about the limits of the international laws of war.

This was important, but Judge Janice Rogers Brown and Judge Brett M. Kavanaugh were not alone in wishing to fundamentally challenge the decisions made by District Court judges. In another appeal in June last year — that of Adham Ali Awad, a Yemeni amputee who had been handed over to Afghan forces by al-Qaeda fighters besieged in a hospital in Afghanistan in December 2001, and had lost his habeas petition in August 2009 — three different judges (Chief Judge David B. Sentelle, Judge Merrick B. Garland and Judge Laurence H. Silberman) dismissed the “command structure” requirement  for detention accepted by the majority of the District Court judges, noting that it was not mentioned in the AUMF, and insisting that being “part of” al-Qaeda or the Taliban was sufficient to justify a prisoner’s ongoing detention.

Ths was a worryingly open-ended definition, of course, and it has, moreover, changed the course of the habeas litigation. Although four prisoners won their petitions between February and June 2010, and five prisoners lost (bringing the total to 36 victories for the prisoners, against 14 losses), just two prisoners have won their petitions since the Awad ruling, and the last seven rulings have all been in the government’s favor.

The latest victory for the government in the District Court — the case of Mashur al-Sabri

The last of these government victories — on February 5 — was in the case of Mashur al-Sabri (also identified as Mashour Alsabri), a 32-year old Yemeni, whose habeas petition was denied by Judge Ricardo Urbina. I have not yet had time to read Judge Urbina’s unclassified opinion (PDF) to analyze exactly how he reached his conclusion, but from the publicly available information about al-Sabri, it is clear that it would not have been difficult to conclude that he was “part of” al-Qaeda and/or the Taliban. As I explained in a profile of him in September:

According to the US authorities, al-Sabri traveled to Afghanistan in summer 2000, lived in Jalalabad for a year, and traveled on occasion to the Taliban lines at Bagram and Kabul. Quite what else he did is difficult to ascertain — not because there are no allegations, but because their trustworthiness is hard to gauge. According to various unidentified sources, in May 2001 he was working as a facilitator for new arrivals at two guest houses in Kabul, and was “well known and well respected as an administrator in the guest houses.” It was also noted that he “was said to facilitate the transfer of weapons and other supplies to the front lines,” and, most worryingly (or most outrageously, depending on your point of view), was accused of working for Osama bin Laden. According to the unidentified allegations, he was “believed to have sworn bayat to Osama bin Laden,” because he and others around him knew bin Laden’s travel dates and routes, and another “source” identified him as “a member of al-Qaeda,” because he was “following Osama bin Laden’s orders to keep the guest house up and running.”

These latter claims look suspicious, as they increase his significance through nothing more than innuendo, and without them, we are left, as so often, with a man consigned to indefinite detention at Guantánamo on the basis of nothing more than being involved, to some extent, in the Taliban’s military campaign against the Northern Alliance in the year before the 9/11 attacks.

As I mentioned above, this kind of role — as, essentially, an insignificant foot soldier in a military conflict in Afghanistan that preceded the 9/11 attacks, and that had nothing to do with international terrorism — dominates the cases of the men who have lost their habeas petitions, and I find it hard to see how they can be judged as any kind of success, as all they do is reinforce the notion that, in its “War on Terror,” the Bush administration successfully destroyed the Geneva Conventions, creating a parallel quasi-legal world in which soldiers are held indefinitely as “enemy combatants” rather than as prisoners of war.

In contrast, the few men in Guantánamo who are actually accused of involvement in terrorist activities either await federal court trials that may or may not ever happen, or are cutting plea deals in Military Commission trials that, if the administration honors its obligations, will see them released in the next few years, while the foot soldiers, the cook, a medic and a handful of pointessly detained Afghans rot in Guantánamo forever.

A legally flawed victory for the government in the D.C. Circuit Court – the case of Saeed Hatim

This is, moreover, not the end of the story. On February 15, a panel of Circuit Court judges took another step into dubious legal territory when they vacated the successful habeas petition of Saeed Hatim, another Yemeni, who had won his habeas petition in December 2009. As I explained at the time:

Hatim told his interrogators that he wanted to find a way to fight in Chechnya but concluded that he needed to train in Afghanistan. However, although he admitted attending the al-Farouq camp (associated with Osama bin Laden in the years before 9/11), he said that he “did not like anything about the training,” that he faked a fever so that he could leave the camp, and, after some time hanging around behind the Taliban’s front lines, made his way to the Pakistani border, where he surrendered to the Pakistani police, and was then handed over to US forces.

In granting Hatim’s habeas petitiion, Judge Ricardo Urbina refused even to analyze whether the government’s supposed evidence — which came almost entirely from Hatim’s own statements — demonstrated sufficient involvement in al-Qaeda and /or the Taliban to justify his detention, ruling instead that everything he had said was unreliable because of his unrefuted claims that he was subjected to torture and abuse in the US prison at Kandahar before his transfer to Guantánamo. In his unclassified opinion, Judge Urbina wrote:

Hatim’s unrefuted allegations of torture undermine the reliability of the statements made subsequent to his detention at Kandahar. Thus, the government faces a steep uphill climb in attempting to persuade the court that the petitioner’s detention is justified based on the allegation that he trained at al-Farouq, given that the sole evidence offered in support of that allegation is tainted by torture.

In addition, as I noted at the time:

Judge Urbina added that, even if Hatim had attended al-Farouq, there was “scant evidence” that he “actually participated in al-Qaeda’s command structure by receiving and executing orders,” and that this interpretation was reinforced by his departure from the camp, and also because no third-party witness “indicate[d] that [he] was even seen at al-Farouq, much less that he was seen following orders on al-Qaeda’s behalf.”

He then proceeded to dismiss claims that Hatim had participated in al-Qaeda’s command structure either behind the front lines or in the guesthouses in which he had stayed, concluding that “the government has offered the court an inherently flawed justification for detention.”

The only other information offered by the government as evidence — that Hatim had fought at Tora Bora, a showdown in December 2001 between al-Qaeda and their Taliban supporters, and a proxy Afghan army fighting for the US with back-up from US Special Forces — was also dismissed by Judge Urbina, on the basis that the prisoner who had made this statement “has exhibited an ongoing pattern of severe psychological problems while detained at GTMO,” and had, in fact, made false statements against 60 prisoners in total, which, despite their unreliability, are regularly used by Justice Department lawyers in the habeas litigation, where, to their credit, several District Court judges have picked up on them — and on statements made by other unreliable witnesses — and have dismmissed them outright.

However, when the government’s appeal came before the Circuit Court, Hatim was confronted by a panel of judges that included Senior Judge A. Raymond Randolph, another judge noted for his aggressive defense of the government’s right to hold whoever it wishes to hold, without much in the way of proof.

In July last year, Judge Randolph led a panel of judges that reversed the successful habeas petititon of another Yemeni, Mohammed al-Adahi, who had won his petition in August 2009. Al-Adahi, who was seized in Pakistan, had accompanied his sister to Afghanistan to marry a man who was undoubtedly connected to al-Qaeda, but Judge Gladys Kessler ruled that, despite this, al-Adahi himself had no connection to al-Qaeda, and granted his habeas petition. As I explained when al-Adahi’s successful petition was reversed:

There was abundant evidence to suggest that she was correct — primarily that he had never previously left Yemen, where he had a respectable job, that he was obliged to accompany his sister, who was not allowed to travel alone, and that he was kicked out of a training camp during his stay because he broke the rules by smoking — but when the government’s appeal came before a panel including Judge Randolph (notorious for endorsing every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court), the Court reversed Judge Kessler’s ruling, with Judge Randolph describing it as “manifestly incorrect — indeed startling.”

In his ruling, Judge Randolph personally impugned Judge Kessler’s integrity, and also stated his belief that the low standard of proof required in the habeas cases — whereby the government only has to support its argument “by a preponderance of the evidence” — was actually too high. Judge Randolph’s intervention was not a legal requirement, but was still significant, as SCOTUSblog explained, noting that “even if the Justice Department did not now take the Circuit Court’s hint to propose a ‘some evidence’ standard for use in the remaining Guantánamo cases, the way the panel interpreted the preponderance standard would seem to ease the government’s burden of proof significantly.”

With Judge Randolph exercising his baleful influence, it was unsurprising that the Circuit Court vacated Saeed Hatim’s successful petittion, ordering it to be sent back for reconsideration by the District Court. With the case of Adham Ali Awad as a precedent, it was clear that Judge Urbina had not specifically addressed the question of whether Hatim had been “part of” al-Qaeda and/or the Taliban, rather than being involved in the “command structure” of either organization, although, in effect, it should have made no difference, as Judge Urbina refused to credit any of the government’s supposed evidence because of Hatim’s credible allegations that he was tortured.

The Circuit Court erroneously claims that “those who purposefully and materially support” al-Qaeda or the Taliban can be detained

However, in vacating Hatim’s successful petition, the Circuit Court went one step further, drawing on the Circuit Court’s January 2010 ruling in the case of Ghaleb al-Bihani to argue that even a demonstration that a prisoner was “part of” al-Qaeda and/or the Taliban was too high a hurdle. As the judges explained (PDF):

The district court ruled that the military could detain only individuals who were “part of” al-Qaida or the Taliban; and that Hatim did not fit that description. That ruling is directly contrary to Al-Bihani v. Obama, which held that “those who purposefully and materially support” al-Qaeda or the Taliban could also be detained. Hatim admits the error, but says it was harmless. We cannot see how.

Personally, I cannot see how this fundamentally undermines Hatim’s successful petition, as no evidence has been provided to overturn Judge Urbina’s conclusion that everything Hatim admitted was tainted by torture, but the ruling is deeply disturbing because, as the lawyer Steve Vladeck explained on his blog:

[T]he key here is the notion that anyone who “purposefully and materially support[s]” al-Qaeda or the Taliban can be detained indefinitely, whether or not they’re in any way affiliated with either group, and whether or not they come anywhere near the definition of a “belligerent” under international humanitarian law.

This is indeed troubling, as it moves the litigation far beyond questions about whether or not it is justifiable to hold soldiers indefinitely at Guantánamo, and takes us back to the darkest days of the Bush administration, when, in a memorable exchange in a US court, Deputy Associate Attorney General Brian Boyle responded to a question by Judge Joyce Hens Green — “If a little old lady in Switzerland gave money to a charity … and the money was passed to al-Qaeda, could she be held as an enemy combatant?” — by replying, “She could. Someone’s intention is clearly not a factor that would disable detention.”

In his blog post, Steve Vladeck dissected the rather complicated legal reasons why the Al-Bihani panel’s claim that “those who purposefully and materially support” al-Qaeda or the Taliban can be detained is wrong, but he was, understandably, concerned that other judges in the Circuit Court appeared to be unconcerned by the actions of a minority of their colleagues, asking:

As it becomes increasingly clear that a small but vocal minority of the D.C. Circuit (Judges Brown, Kavanaugh, and Randolph, in particular) will apparently find any way in any case to adopt holdings that (1) go beyond even what the government is asking for in these cases … and (2) are indefensible as a matter of law and logic, is anyone else on that court going to notice?

How the mainstream media are asleep, and the Justice Department is appealing successful Yemeni petitions for nakedly political reasons

As the dreams of habeas as a remedy for any of the Guantánamo prisoners now lie in ruins, this is a valid and important question, but its scope should be larger. Why, for example, is no one in the mainstream media concerned by these decisions that are “indefensible as a matter of law and logic,” and why is the Justice Department, under Attorney General Eric Holder, also unconcerned?

The answer to the first question appears to be that the mainstream media in the US is either unwilling or unable to address the importance of the Guantánamo habeas litigation, and the answer to the latter would have to be that Holder doesn’t care — and that, by extension, President Obama doesn’t care either.

The blunt truth, sadly, is that, throughout Obama’s Presidency, Eric Holder has failed to provide any advice or direction to the lawyers working on the Guantánamo habeas cases, allowing them to behave as though it was business as usual with Bush still in power. Ridiculous cases were aggressively pursued by government lawyers in the District Court in 2009, leading to several high-profile humiliations — in, for example, the cases of Mohammed El-Gharani, Alla Ali Bin Ali Ahmed, Abdul Rahim al-Ginco, Mohamed Jawad and Fouad al-Rabiah.

In the last year, as the Circuit Court’s most extreme judges have been pursuing their poisonous agenda, the Justice Department has shown no willingness to fight back (except on the point about the constraints of the international laws of war in Al-Bihani), and, in fact, seems to be delighted to have discovered that the Circuit Court will grant every government appeal that comes its way.

What makes this even more worrying is the perception that the Justice Department is not even necessarily appealing successful petitions on the basis of their merits, but is pursuing them with a political aim. Since last January, when President Obama announced a moratorium on releasing any Yemenis from Guantánamo — in response to the hysteria that greeted the news that Umar Farouk Abdulmutallab, the failed Christmas 2009 plane bomber, had been recruited in Yemen — every successful habeas petition by a Yemeni (with the exception of Mohammed Hassan Odaini, a student whose clearly mistaken detention was picked up by the mainstream media) has been appealed.

This seems deeply suspicious to me, as the government has not only appealed the successful petition of Saeed Hatim, after Judge Urbina put forward a coherent argument that the entire case against him was dependant upon his torture, and on the testimony of a worthless witness, and that of Mohammed al-Adahi, whose guilt would seem to rest solely on the marriage of his sister, but has also appealed the successful petition of Adnan Farhan Abdul Latif, who was cleared for release under the Bush administration, has severe mental health problems, and has attempted to commit suicide on a number of occasions.

Latif won his habeas petition after a hearing in which the government failed to demonstrate that he had lied about traveling to Pakistan, and then Afghanistan, in search of cheap medical treatment, but as with Saeed Hatim, Mohammed al-Adahi, and others Yemenis still held after winning their petititons, it seems that political expediency, rather than any notions of justice, is driving their ongoing detention, with a handful of rogue judges in the D.C. Circuit Court allowed to dictate the sort of detention policy that, in Guantánamo’s tenth year of operations, could have come straight out of briefings with George W. Bush and Dick Cheney at the height of the arrogance, disdain for the law and paranoia that informed the unique, and uniquely disturbing detention policies at Guantánamo.

That this is still happening now — and happening under President Obama and Eric Holder — ought to be a cause for alarm, and a wake-up call for the international community to redirect its attention to Guantánamo, if, as it appears, the United States itself has abandoned all notions of fariness and justice when it comes to the closure of the prison.

Originally published on Cageprisoners.

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.

Republican Representative Tom Rooney, a former military prosecutor, this week introduced a bill mandating that the detention facility at Guantanamo Bay, Cuba, “remains open indefinitely” and requiring that “individuals detained at the facility be tried only by Military Commission.”

But other former military prosecutors think Rooney’s position would be a mistake of epic proportions.

Rooney’s “Detainee Trials at Gitmo Act” would require all detainees currently held at Guantanamo Bay to be tried in the courtroom facility constructed at Guantanamo Bay.

In a statement, Rep. Rooney said, “Military commissions are fair and provide due process for the accused, but they also protect critical intelligence officials and evidence.

The Congressman, a former constitutional law professor at West Point, said, “Foreign terrorists should absolutely not receive the same rights and privileges as American citizens do.”

He added that the recent trial of Ahmed Khalfan Ghailani, who was acquitted on more than 280 counts, including murder, “highlights the flaws with the Administration’s strategy of giving detainees civilian trials.”

Ghailani, who was tried in Federal Court in downtown Manhattan, was convicted on one count of conspiracy and faces a mandatory 20-years-to-life sentence.

But Congressman Rooney believes that the “Constitutional and legal standards for evidence-gathering and prosecution in a civilian case are simply not adequate for the trial of an enemy combatant.”

He adds, “As a former military prosecutor, I strongly believe that trying detainees in military tribunals at Guantanamo Bay is the best way to hold terrorists accountable, keep them out of the United States, and prevent them from rejoining the fight.”

But other former military prosecutors take starkly different positions.

One of them is David Frakt, who, in 2008, challenged the role of chief prosecutor Brigadier General Thomas W. Hartmann in choosing his client, Mohammed Jawad, for trial. Frakt argued that Hartmann had “…exercised unlawful command influence. Challenging that unlawful influence, Frakt charged that the Prosecution had failed to release important records to the Defense, and that this showed that the process through which Jawad was charged was rushed and without proper preparation.

Frakt also claimed that Jawad had been subjected to: “…pointless and sadistic treatment [in a] bleak underworld of barbarism and cruelty, of anything goes, of torture.”

Frakt told The Public Record, “It is shameful that some members of Congress are trying to hamstring the President and Attorney General and substitute their judgment for that of the Executive Branch as to what is the appropriate place to try a criminal case, without any knowledge of the specific facts and circumstances of each case, or the evidence available.”

He said Rooney’s act “also shows the extreme hypocrisy of many members of Congress, who will claim one moment that the Military Commissions are virtually identical in all important respects to federal criminal courts and courts-martial, capable of providing full, fair trials consistent with American ideals of justice and due process, then insist on trials in military commissions for the sole reasons that they clearly believe that convictions are more likely to be obtained on tainted evidence in a military commission than in federal court.”

He added that the “protection of critical evidence is a massive red herring. The procedures in place in the Military Commissions to protect classified evidence are modeled on, and virtually identical to, the Classified Information Procedures Act in place in federal court.”

Frakt told us, “It is deeply insulting that members of Congress repeatedly refer to the Ghailani trial as some kind miscarriage of justice, casting aspersions not only on the jury that rendered the verdict after grappling with the evidence for several days, but on the entire justice system. The criticism of the Ghailani case is clearly premised upon a presumption of Ghailani’s guilt, not the presumption of innocence to which even detainees are entitled.”

He added, “It seems to be Rooney’s position that Ghailani must have been guilty, since why else would the Justice Department have charged him? It has apparently not occurred to this “former military prosecutor and Constitutional law professor” that the government might have overcharged Mr. Ghailani, or that their theory of the case was flawed, or that their evidence was insufficient.”

Frakt also noted that the Rooney bill, if passed, “would potentially prohibit some detainees from being tried at all.”

He explained: “There are very likely some detainees who have committed federal terrorism crimes, but who have not committed any war crimes. It is still an open question as to whether the appellate courts will allow crimes which have never been considered law of war offenses, such as material support to terrorism, to be tried in the military commissions. It is also still an open question whether the appellate courts will accept the spurious claim that the U.S. was in a war with al Qaeda for five years before 9/11. If the courts reject this theory, then there will be no available forum in which to try detainees for pre 9/11 terrorist acts.”

Frakt’s Guantanamo client, Mohamed Jawad, was called the “child soldier” because he was reportedly only 12 years old when he allegedly threw a hand grenade at an American soldier in Afghanistan, killing him.

In his trial, the military tribunal judge ruled that Jawad’s alleged confession to throwing a grenade was inadmissible since it had been obtained through coercion after Afghan authorities beat him and threatened to kill his family. He was ordered released after a successful petition for a writ of habeas corpus and in 2009 was returned to Afghanistan.

Another Military Commission veteran, Col. Morris Davis (Ret.), former chief prosecutor at Guantanamo and now executive director of the Crimes of War Project, noted that Rooney “introduced the same bill a year ago in the 111th Congress where four percent of his colleagues joined as co-sponsors and it died in committee.”

He said Rooney’s “bad idea hasn’t gotten better with age. After more than nine years of failure since President Bush first tried to revive military commissions, and after a thorough trashing of our reputation as the world leader in justice, perhaps we should start upholding the rule of law rather than creating novel arguments to get around it. We used to set the highest standard, now we try to see how low we can go. We’re Americans. We’re better than that.”

Another aspect of the Military Commission debate was highlighted by Andrea Prasow, Senior Counter Terrorism Counsel for Human Rights Watch

She told The Public Record, “”Military Commissions are new and untested. They have handled only five cases, three of which were plea bargains. By contrast, Article III courts have a proven track-record for prosecuting terrorism suspects. The Military Commissions remain deeply flawed and any verdict rendered by them might ultimately be overturned by the Supreme Court. The victims of 9/11 deserve better than to see such important cases prosecuted in a defective legal system.”

And Chris Anders, ACLU Senior Legislative Counsel, injected a note of political realism into the issue. Noting that Rooney’s bill was introduced last year and went nowhere, he said it may have a brighter future now because of Republican control of the House of Representatives.

But he told The Public Record that the Rooney measure is merely the first of many focusing on Guantanamo and Military Commissions that are likely to be introduced in this session of congress.

Rooney, who was elected in 2008, represents Florida’s 16^th Congressional District, which stretches from the Gulf of Mexico to the Atlantic coast. Rooney won election with 60% of the vote.

He is a member of the House Armed Services Committee, the Committee on the Judiciary, and the Committee on Agriculture. He was selected to serve as a Republican Deputy Whip for the 112th Congress, the only second-term member to be tapped for this post.

Though not a member of the Tea Party caucus, he spoke at the South Florida Tea Party’s first rally on Tax Day in 2009.

Rooney spokesman Michael Mahaffey said, “Congressman Rooney is very supportive of the Tea Party Movement and its message of lower taxes, less government and more personal freedom.” He added, “He believes the strength of the Tea Party lies in its grass roots support and its leadership from the people, not from Washington.”

William Fisher, a regular contributor to The Public Record, has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, Latin America and elsewhere for the past 25 years and served in the administration of President John F. Kennedy. He reports on a wide-range of issues for numerous domestic and international newspapers and online journals. He blogs at The World According to Bill Fisher.

Detainees sit around the exercise yard in Camp 4, the facility within Camp Delta at Naval Station Guantanamo Bay, Cuba. Photo by U.S. Army Sgt. Sara Wood

Have we become a nation that values intelligence and secrecy over individual rights and government transparency?

Can we as a nation be secure without having to dominate those abroad in never-ending wars, while single-handedly garrisoning the world?    At the onset, I acknowledge that intelligence is important and that certain information must be kept secret.  Nonetheless, when intelligence and secrecy are used to control and manipulate public opinion, hide embarrassing mistakes, foster political gain, or deny basic human rights, they become counterproductive to the American way of life.

In the aftermath of the Soviet Union’s failed attempt to convert the world to Communism, the United States found a new global threat against which to focus its efforts.  In our war against the tactic of terrorism, we use color charts to represent threat levels, duct tape and plastic to ward off danger, and colorful scenarios derived from enhanced interrogation to justify draconian action.   Today, if an American is not afraid, he is a coward–and if an American defends an “Unlawful Enemy Combatant’s” basic human right to a fair trial, he may be considered a traitor in the “homeland.”

If there is one thing that is consistent about US intelligence, it is that it is consistently wrong.   In the past decade, intelligence apparatus similar to one of Orwell’s ministries warned of frogmen attacking the Brooklyn Bridge, crop dusters of death, poisoned water supplies, dirty bombs, and devastating attacks by bus, train, truck, limousine, and helicopter.  These warnings have been based upon undisclosed sources and methods, kept secret in the interest of “national security.”  Conveniently, such fanciful scenarios have fit nicely into American media culture, where international super villains attempt to control the Earth on a daily basis, and where American heroes like 24′s Jack Bauer have no choice but to employ brutality and torture for the greater good.

All this ultimately leads to “indefinite detention,” the notion that the same people who brought you such reliable information in the past should now be trusted to determine certain individuals must be presumed guilty and confined for the rest of their lives without trial.  It is, in no uncertain terms, a complete deprivation of liberty without due process–and a complete departure from essential, time-tested American values.  Nonetheless, “indefinite detention” gathers widespread support through the fear-driven notions of protecting “national security” and fighting the “war on terror.”

But make no mistake.  If government is permitted to disregard the rule of law in the name of “national security,” such unbridled action is unlikely to be applied only against foreign nationals.  As a result, if only to protect our own freedom, every American citizen must demand that, before condemning any human being to confinement for life, a government must prove some actual criminal offense, beyond a reasonable doubt, in a fair, open, and transparent court proceeding, at a minimum.

By rejecting the notion of “ignorance as strength,” I believe we may find a new sense of security as close as Guantanamo Bay.   It is essential that we return to the basic American principals of individual freedom, justice, and transparency, while understanding that secrecy, surveillance, and blind faith ultimately make us less secure. As individual American’s we should never forget that holding government accountable is our best hope of survival as a free people.  Today, it may be my client, Fayiz al-Kandari–but tomorrow it may be you.

Please sign the “Free Fayiz” petition.

The views expressed in this article do not represent the views of the Department of Defense or the United States government. Lt. Col. Wingard is a military lawyer who represents Fayiz al-Kandari and has served for 26 years in the military. When not on active duty, he is a public defender in the city of Pittsburgh.

President Barack Obama delivers an address on Guantanamo at the National Archives on May 21, 2009, during which he said that "a thorough process of periodic review" was needed to ensure that "any prolonged detention is carefully evaluated and justified." (Official White House photo by Pete Souza)

This story was reported by ProPublica’s Dafna Linzer.

The White House is preparing an Executive Order on indefinite detention that will provide periodic reviews of evidence against dozens of prisoners held at Guantanamo Bay, according to several administration officials.

The draft order, a version of which was first considered nearly 18 months ago, is expected to be signed by President Obama early in the New Year. The order allows for the possibility that detainees from countries like Yemen might be released if circumstances there change.

But the order establishes indefinite detention as a long-term Obama administration policy and makes clear that the White House alone will manage a review process for those it chooses to hold without charge or trial.

Nearly two years after Obama’s pledge to close the prison at Guantanamo, more inmates there are formally facing the prospect of lifelong detention and fewer are facing charges than the day Obama was elected.

That is in part because Congress has made it difficult to move detainees to the United States for trial. But it also stems from the president’s embrace of indefinite detention and his assertion that the congressional authorization for military force, passed after the 2001 terrorist attacks, allows for such detention.

After taking office, the Obama administration reviewed the detainee population at Guantanamo Bay and chose 48 prisoners for indefinite detention. Officials, who spoke on the condition of anonymity, said that number will likely increase in coming months as some detainees are moved from a transfer category to a continued detention category.

If signed by President Obama, the new order will provide added review for detainees designated for long-term detention. The order, which is being drafted jointly by White House staff in the National Security council and the White House counsel, will offer detainees in this category a minimal review every six months and then a more lengthy annual review. Detainees will have access to an attorney, to some evidence against them and the ability to challenge their continued detention.

Prisoners who have been deemed “high-value detainees,” including the alleged conspirators of the 2001 attacks, have been designated for prosecution in civilian or military courts.

“It’s been clear for a while that the government would need to put in place some sort of periodic review, and that it would want it to improve on the annual review procedures used during the previous administration,” said Matthew Waxman, a professor at Columbia Law School who worked on detainee issues during the Bush administration.

A White House official, who asked to speak on the condition of anonymity, later confirmed that the draft order has not yet been given to the president. The official had few details but said the order “would set up periodic review of the detention status of those detainees who cannot be tried,” in either military commissions or federal courts.

In 2008, Guantanamo detainees won the right to challenge the lawfulness of their detention in court. The executive order aims to create an executive branch review which would occur separately from the court review and would weigh the necessity of the detention, rather than its lawfulness, officials said.

“Perhaps the dangerousness of the detainee’s country of origin could change, or the group that the detainee is affiliated with could cease to exist,” one official explained.

Some detainees from Yemen may be sent home if security conditions there improve. Currently, there is a moratorium on transfers from Guantanamo to Yemen.

The official described the draft order as “an important piece of the government’s approach to Guantanamo.”

At a speech on Guantanamo in May 2009, Obama said that “a thorough process of periodic review,” was needed to ensure that “any prolonged detention is carefully evaluated and justified.”

The White House first began work on an Executive Order in the spring of 2009 that was the subject of a joint story by ProPublica and the Washington Post in June 2009. An administration official at the time said the order was under consideration but had not yet been completed. Civil rights groups which oppose indefinite detention came out strongly against the possibility of an executive order.

Weeks later, administration officials said the White House had decided to work with Congress on indefinite detention, rather than through Executive Order. But by the end of 2009, the White House had said it would not support legislation.

Then, in 2010, a government task force on Guantanamo completed a year-long review that placed 48 detainees in long-term detention. In its report, task force members said those detainees would be “subject to periodic Executive Branch review.”

Bobby Chesney, a law professor at the University of Texas who worked briefly on the administration’s detention task force, said an executive order would provide detainees which an additional layer of review. He also said it offered a compromise since an executive order can be withdrawn at anytime.

“The order takes on additional restraints and lasts as long as the president wants. The White House gets just what it wants, no more or less. And, unlike with legislation, the order doesn’t have staying power if the next administration doesn’t want it.”

Jameel Jaffer, a national security lawyer at the American Civil Liberties Union, agreed that “more review is better.” But he said that an executive order would only “normalize and institutionalize indefinite detention and other policies,” that were set in place by the Bush administration.

Detainees sit around the exercise yard in Camp 4, the facility within Camp Delta at Naval Station Guantanamo Bay, Cuba. Photo by U.S. Army Sgt. Sara Wood

This is the seventh installment of a nine-part series telling the stories of all the prisoners currently held in Guantánamo (174 at the time of writing). See the introduction here, and Part One, Part Two, Part Three, Part Four, Part Five and Part Six.

This seventh article tells the stories of 13 prisoners seized in Pakistan between February and September 2002, which, as I explained in Parts Five and Six (which told the stories of another 27 men seized in Pakistan), was part of a process of capturing prisoners that was, if anything, even more alarmingly random, opportunistic, or reliant on dubious intelligence than the well-chronicled seizure of Arabs in Afghanistan or crossing the border into Pakistan that I chronicled in Parts One to Four of this series.

Of the hundred or so prisoners seized in Pakistan — mostly in house raids, but also in random raids on mosques, on buses and in the street — all but these 40 have been released. The cases of those released reveal, in general, how US intelligence was often horrendously inaccurate, and how opportunism often played a part in the actions of the Pakistani authorities, who were being rewarded financially. As President Musharraf admitted in his 2006 autobiography, In the Line of Fire, in return for handing over 369 terror suspects to the US, “We have earned bounty payments totaling millions of dollars.”

Moreover, of the 13 men whose stories are described in this chapter, many appear to be victims of the same failures of intelligence or opportunism as those already released. It is unknown what conclusions President Obama’s Guantánamo Review Task Force reached about these men, but only two were cleared for release under the Bush administration. One of these men subsequently lost his habeas corpus petition, and two others have also lost their habeas petitions, and it is a fair presumption that many of these men were recommended for indefinite detention without charge or trial by the Task Force.

ISN 695 Abu Bakr, Omar (Omar Mohammed Khalifh) (Libya)
Khalifh, a Libyan amputee, lost his habeas corpus petition in April this year, despite doubts about where he was captured, and what he had been doing in Afghanistan, as well as disturbing revelations about his treatment in Guantánamo. According to the US authorities, he had worked for a trucking company owned by Osama bin Laden in Sudan, had worked as an explosives trainer at various training camps in Afghanistan from 1996-98, had been “identified” as a trainer and the leader of a Libyan training camp near Kabul, visited by bin Laden, where he was “identified as someone whom others would approach to receive explosives training if they wanted to commit a terrorist attack,” and had also been “identified” as “a military leader in charge of many Arabs from Saudi Arabia, Yemen, and other Gulf States while on the front line” in 2001, who “would meet with other Taliban leaders to plan military operations.” The US authorities also allege that he was seized in the house raids in Karachi on February 7, 2002, which I described in Part Five of this series, but his lawyer, Edmund Burke, explained that he had worked for the Taliban as a mine cleaner until 1998, when his right leg was severely damaged by a land mine, and had then spent years moving from hospital to hospital in Afghanistan to receive treatment for his leg, which was eventually amputated. Burke added that he moved to Pakistan in 2001, and was living in a school for boys when it was raided by Pakistani police. The most disturbing revelations about Khalifh came from former Guantánamo prisoner Omar Deghayes, who told me that that Khalifh’s status had been exaggerated by the authorities in Guantánamo. “They call him ‘The General,’” Deghayes told me, “not because of anything he has done, but because he decided that life would be easier for him in Guantánamo if he said yes to every allegation laid against him.” Even so, as Deghayes also explained, this cooperation has been futile, as Khalifh has been subjected to appalling ill-treatment, held in a notorious psychiatric block where the use of torture was routine, and denied access to adequate medical attention for the many problems that afflict him, beyond the loss of his leg. As Deghayes described it, “He has lost his sight in one eye, has heart problems and high blood pressure, and his remaining leg is mostly made of metal, from an old accident in Libya a long time ago when a wall fell on him. He describes himself as being nothing more than ‘the spare parts of a car.’” Despite these contradictory claims, Judge James Robertson denied his habeas petition, finding the government’s version of events generally convincing (although it was not reassuring that, in his unclassified opinion, he muddied the waters still further by incorrectly stating that Khalifh was seized in Jalalabad in March 2002).

ISN 708 Al Bakush, Ismael (Libya)
Apparently a former mujahid in the dying days of Afghanistan’s Communist regime, al-Bakush reportedly stated that he returned to Afghanistan “to help the Taliban fight the Northern Alliance,” and the US authorities allege that he “and his group would fight sporadically whenever there was a fight between the Taliban and the Northern Alliance.” However, al-Bakush also provided a detailed explanation for doing so, stating that “the reason he decided to help fight with the Taliban was because he lived in Afghanistan both prior to Taliban control and after Taliban control. Prior to Taliban control there were robberies, thefts, and fights between groups. After the Taliban took over the area became safe.” Beyond these claims, there was nothing to indicate that he took up arms against the United States, or had any desire to do so. He stated that he “had never met bin Laden,” said that “at no time did he conduct any operations against the American Forces,” and, moreover, “said he had no feelings towards the United States and considered the United States like any other country.” “His main concern,” he explained, “is Libya and the overthrow of [Colonel] Gaddafi.” Much of the evidence against Bakush consisted of allegations about his involvement with Libyan groups opposed to the Gaddafi regime, and the question of Bakush’s continued detention, therefore, seems, as with other Libyans held in Guantánamo, to hinge on whether it is acceptable to hold dissidents opposed to a regime that, until the “War on Terror” began, was regarded as a terrorist dictatorship by the very government that has been holding Bakush for the last eight and a half years.

ISN 713 Al Zahrani, Mohammed (Saudi Arabia)
Apparently seized in a house raid in Lahore (around the same time as the house raids in Faisalabad, described in Part Six), al-Zahrani (also identified as Mohammed Muti Zahran) is one of several amputees held at Guantánamo, having apparently lost a leg in Afghanistan. According to the US authorities, he “admitted to being proud that he was a low-level Taliban fighter,” and “stated he was proud that he came to Afghanistan to be a Mujahedin [sic], and stated that if he had not lost his leg, he still would have fought.” These admissions — plus a detailed list of statements, attributed to al-Zahrani, relating to his training at al-Farouq (the main training camp for Arabs in the years before the 9/11 attacks) and at an Algerian guest house in Afghanistan — suggest that he was indeed a foot soldier, and that he had undertaken advanced military training, but, as in other cases, they may not be reliable. Noticeably, however, the US authorities have also come up with other allegations indicating that he was a member of al-Qaeda. These include allegations that he was friends with one of the 9/11 hijackers, that he swore bayat to Osama bin Laden, that he “met [Ayman] al-Zawahiri [al-Qaeda’s second-in-command] three or four times and they had a very good relationship,” that he “met with Abu Musab al-Zarqawi [the future leader of “al-Qaeda in Iraq”] several times about logistics and personnel issues for the fight against the Northern Alliance,” and that he was involved in planning the assassination of Ahmed Shah Massoud, the leader of the Northern Alliance, who was murdered on September 9, 2001. Again, it is impossible to know how much truth there is to these allegations. They may be as they appear, or they may have been produced through the dubious interrogations of other prisoners connected with al-Qaeda. What is certain is that there are holes in al-Zahrani’s jihadist CV: in another statement attributed to him, for example, he “stated that he doubted the viewpoints of al-Qaeda because some of their operations contradict Islamic principles and go against Islamic laws.”

ISN 717 Bin Hadiddi, Abdulhadi (Hedi Hammamy) (Tunisia)
Like many Tunisians, Hammamy, who was cleared for release from Guantánamo by a military review board under the Bush administration, had traveled to Italy from Tunisia in search of a new life. After arriving in 1987, he settled in Bologna where he worked as a hotel porter, and later in a restaurant. In 2000, he moved to Pakistan, where he married the daughter of another Tunisian he met while applying for asylum, and had a daughter, Marwa. He then worked alongside his father-in-law, but one evening, in April 2002, as he went with a Pakistani friend to look at a house to rent, he was seized by the Pakistani police, presumably for the lucrative bounty payments available for vulnerable Arabs in Pakistan. Despite being cleared for release, his habeas corpus petition reached the US District Court in April 2009, when Judge Richard Leon denied his petition, choosing to believe an allegation submitted by the Italian authorities — that he was “a member of an Italy-based terrorist cell that provided support to various Islamic terrorist groups” — as the basis for presuming that he had therefore arrived in Pakistan in connection with terrorism, even though the charges leveled against him in Italy — of “supporting terrorism, in part, by furnishing false documents and currency” — had not been tested in a court of law. Judge Leon was partly persuaded to regard the unsubstantiated Italian allegations as trustworthy, because he concluded that they tied in with another claim put forward by the government, regarding Hammamy’s identity papers, which were apparently “found after the Battle of Tora Bora in the al-Qaeda cave complex.” As with the Italian allegation, which he has persistently refuted, Hammamy has always denied being in Tora Bora, and has claimed that his papers were in fact stolen from him, and that the government has evidence that this is the case. The result of this ruling was that, for the first time, a prisoner cleared under President Bush had his detention justified by a judge, and as one of his lawyers, Cori Crider of Reprieve, explained, “While this doesn’t change the military’s opinion that Hedi Hammamy is transferable, it certainly isn’t going to help him in the political context. Being found subject to military detention is not remotely the same thing as a criminal conviction, but that won’t stop right-wing elements in potential resettlement states from conflating the two issues.”

ISN 722 Diyab, Jihad (Syria)
The story of Jihad Diyab (or Deyab) is spotted with unsubstantiated allegations. A former driver for the Syrian Air Force, he has stated that he left Syria with his family in May 2000 and traveled to Kabul, via Iran and Pakistan, “to start a business selling honey,” and has maintained this story throughout his imprisonment. When he arrived at Bagram in June 2002, the following comments were made by the interrogators who first spoke to him (these were reproduced by Chris Mackey, the pseudonym of one of the interrogators in the US prisons in Afghanistan, in his book The Interrogators, in which he also noted that Diyab and the other prisoners who arrived with him had already been interrogated in Pakistani prisons with the assistance of the CIA): “31 years old; Lebanese; speaks Arabic well, English. Was in the Syrian Air Force. Severe kidney problems. Think he is lying. Says he was a honey trader. Captured in Lahore. Doctor says good to go. Watch him.” With seven and a half years to come up with another story, the US authorities have certainly managed to do that, but it is impossible to know how accurate the allegations are, and very little information has come from Diyab himself, who, as the authorities noted under the sub-heading “Intent,” “would not talk; he spent the entire interrogation looking at the floor.” The allegations accrued from the interrogations of other prisoners include a claim that he was “identified as having fled to Afghanistan where he joined al-Qaeda’s military training camps,” a claim that he “allowed a senior al-Qaeda operative to stay in his house,” and other allegations made by two unidentified “senior al-Qaeda operatives”: one claimed to have met Diyab in the 1990s, when he noted that he was an expert in passport and document forgery, and added that he had met him again in Kabul in 2000 or 2001, and in Lahore in 2002, and another claimed that he had “showed up in Afghanistan in 2000 expecting to be able to attend Khaldan training camp because he had known another individual from their time together in Syria.” This source apparently “disapproved” of him, because he “expected to be accepted into the camps without prior vetting.”

ISN 757 Abdul Aziz, Ahmed Ould (Mauritania)
A Mauritanian seized in a house raid on June 25, 2002, Abdul Aziz is accused of being a member of al-Qaeda, even though the US government has failed to come up with a single piece of evidence to support the claim. Evidently an educated and articulate man (his first lawyers at Guantánamo noted hat he studied literature and philosophy, and speaks French and English, in addition to Arabic), Abdul Aziz, according to the government’s account, traveled to Afghanistan in September 1999 to support the Taliban against the Northern Alliance, and undertook training in 2000. At the time of his capture, however, he was working as an Arabic language teacher at an institute in Pakistan, far from the battlefields of Afghanistan, and there is no evidence that he ever took up arms against anyone, and certainly no evidence that he was ever involved in any activities against the United States. Instead, he is quoted in the government’s documents as saying that he “believed his direct supervisor was more affiliated with the Taliban than with al-Qaeda,” that he “visited [the] supervisor’s house but never discussed things such as al-Qaeda,” and that, although “a man he worked for told him that al-Qaeda needed a good administrator and approached him on al-Qaeda’s behalf,” he turned down the offer. Set against this are an array of unsubstantiated al-Qaeda allegations, which are in marked contrast to Abdul Aziz’s own account, in which he admitted that he “spoke with Osama bin Laden about the Institute … for approximately five minutes in October 2000.” The claim that he was a member of al-Qaeda came from an unidentified “source,” who also claimed that he had sworn bayat (an oath of loyalty) to Osama bin Laden. It was also claimed that he had been recruited to join al-Qaeda by “a personal adviser of Osama bin Laden, who leads the Mauritanian al-Qaeda cell,” and had attended the wedding of one of bin Laden’s sons in 1999 or 2000.

ISN 894 Abdul Rahman, Mohammed (Lotfi Bin Ali) (Tunisia)
Abdul Rahman (also identified as Lotfi bin Ali), who was cleared for release from Guantánamo by a military review under the Bush administration, had been living in Italy before traveling to Pakistan, and was essentially an economic migrant. In Guantánamo, he explained that he went to Pakistan for medical treatment and to find a wife. “I have told my story five hundred times,” he said. “I went to Pakistan for drugs. I was sick and I wanted to heal myself, so I went to Pakistan.” He also traveled, he said, “to get married and relax and to get out of what I was in.” Although the US authorities compiled an array of allegations that purported to undermine his story, including claims that he was involved in various North African terrorist groups, and a claim by “a senior al-Qaeda lieutenant” that he attended the Khaldan training camp in 1998 or 1999, he refuted all the allegations, and insisted that, although he had traveled to Afghanistan from Pakistan, he had only done so because the Pakistani government had started a campaign against Arabs. In his last review before he was cleared for release, he also retracted a confession, “admitted some time ago,” that he associated with “various amounts” of terrorists while in Jalalabad, saying, “I do not pose a threat. I am against terrorism … I am against the killing of innocent people … I live a normal life. I do not like problems. That’s it.” Like the majority of Tunisians in Guantánamo, bin Ali received a prison sentence in Tunisia in absentia (on dubious charges of belonging to a terrorist organization), with the result that, in 2007, when the US authorities were planning to repatriate him against his will, Judge Gladys Kessler of the US District Court in Washington D.C. intervened to prevent his repatriation. Judge Kessler was particularly concerned because two Tunisians repatriated in June 2007 — Abdullah bin Omar and Lotfi Lagha — received prison sentences on their return, after trials denounced by observers as show trials, and in her ruling, in October 2007, Judge Kessler ruled that he “cannot be sent to Tunisia because he could suffer ‘irreparable harm’ that the US courts would be powerless to reverse.” Since Judge Kessler’s ruling, Lotfi bin Ali has been stuck in Guantánamo, while the State Department has tried to find a third country prepared to accept him.

The following six men were seized in house raids in Karachi on or around September 11, 2002, around the same time that the “high-value detainee” Ramzi bin al-Shibh was seized in a separate house raid. Also seized with bin al-Shibh, who was immediately rendered to the CIA’s network of secret prisons, was Hassan bin Attash, the 17-year old brother of Waleed bin Attash (another “high-value detainee” seized six months later), and the children of Khalid Sheikh Mohammed. Bin Attash was held for a week in the CIA’s “Dark Prison” near Kabul (a medieval torture dungeon with the addition of 24-hour music and noise), and his torture was then outsourced to Jordan, where he was held for 16 months before his return to Afghanistan in January 2004 and his transfer to Guantanamo in September 2004, and KSM’s children were held for a unspecified amount of time, although it is believed that, at the time of writing, they are no longer in US or Pakistani custody (see Part Nine for more on these stories). Although the six men below were not captured with bin al-Shibh, the US authorities have been content to allow observers to infer that they were somehow connected to bin al-Shibh, even though, as I explained in The Guantánamo Files, they seem, at most, to have been “nothing more than recent Taliban recruits who ended up in Karachi as part of an extended safe house system that was sheltering all Arabs from arrest, and not just those who were committed to al-Qaeda.”

ISN 836 Saleh, Ayoub Murshid Ali (Yemen)
All six of the men described here were probably rendered, after their capture, to the “Dark Prison,” but only two — Musa’ab al-Madhwani and Hail al-Maythali (see below) — have spoken about their experiences. Saleh, who is accused of traveling to Afghanistan “to join the jihad” in 2000, and of training at al-Farouq, appears, like all the men, to have been an extremely peripheral figure in the Afghan conflict. He has stated that he learned first aid as well as receiving weapons training at al-Farouq, and that his training was cut short because he contracted malaria, and, like Shawki Balzuhair and Musa’ab al-Madhwani, he was only seized in Karachi because a plan to return home via Iran was thwarted by the Iranian authorities, obliging him to return to Pakistan.

ISN 837 Al Marwalah, Bashir (Yemen)
In Guantánamo, al-Marwalah, who had studied nursing in Yemen, admitted traveling to Afghanistan in September 2000 and training at al-Farouq and another camp, but he added that he then returned to Yemen to see his family, and especially his father, who was ill. He said that he then returned to Afghanistan in August 2001 and attended al-Farouq for a second time, but refuted an allegation that he had participated in military operations against the US-led coalition, and said that he had fled to Pakistan after the US-led invasion began. When the tribunal asked him why he had gone to Afghanistan, he said that he wanted to train to fight in Chechnya, and when he was asked, “Are you a member of al-Qaeda?” he said, “I don’t know. I know I am an Arab fighter” (although he also noted that he had not engaged in any actual combat). In the government’s most recent publicly available allegations, it was noted that, unlike other men who had traveled to Tora Bora, al-Marwalah “and about 400 others” were evacuated to Khost, after “approximately four weeks moving back and forth between two guest houses, one in Kabul, and the other in Bagram,” and that, after traveling through Pakistan, he “stayed in a safe houses” [sic] in Karachi “from July to September 2002.”

ISN 838 Balzuhair, Shawki Awad (Yemen)
In Guantánamo, Balzuhair was accused of traveling to Afghanistan in April or May 2001, attending al-Farouq, and serving on the Taliban front lines near Bagram. In the most recent publicly available documents, it was noted that he “decided to go to Afghanistan after viewing a video about Chechnya, and became concerned about the Palestinian struggle for independence.” Balzuhair’s route out of Afghanistan apparently involved staying, in a variety of house with “about 20 others” from September to December 2001, and then living “wth a group of about 60 Arabs in the mountains of Afghanistan near Zormat.” From there, he ended up in Karachi, where, after an ill-fated diversion in Iran (as with Ayoub Saleh and Musa’ab al-Madhwani), he was seized after also staying in a house in Quetta for a month and “another house near a rail road track for another month.” As with the other five men, there were no allegations that he had engaged in combat at any point in his travels.

ISN 839 Al Mudwani, Musab (Musa’ab Al Madhwani) (Yemen)
Al-Madhwani is the only one of the six whose habeas corpus petition has been ruled on by a District Court judge, and the outcome was not entirely satisfactory. In December 2009, when Judge Thomas F. Hogan denied his petition, he said that, although the government had “met its burden” in establishing, by a preponderance of the evidence, that al-Madhwani was connected to al-Qaeda, he “did not think Madhwani was dangerous.” Noting that he had been a “model prisoner” since his arrival at Guantánamo in October 2002, he explained, “There is nothing in the record now that he poses any greater threat than those detainees who have already been released.” Moreover, Judge Hogan refused to rely on any statements that al-Madhwani had made to interrogators at Guantánamo, ruling that they were “tainted by abusive interrogation techniques,” to which he was subjected in the weeks after his capture in the “Dark Prison,” although he did accept statements that al-Madhwani made during his Administrative Review Board at Guantánamo in 2005, which, he said, were not tainted because they were made years after the abuse took place. Al-Madhwani’s lawyers had argued that these statements should also have been excluded, because they were “contaminated because he was still worried about upsetting his captors,” but the judge refused to accept this argument, even though one of his attorneys, Darold W. Killmer, explained, “He was threatened that if he changed his story, he would be sent back to a place worse than at the ‘Dark Prison.’” According to al-Madhwani’s own account, he arrived in Afghanistan in August 2001, and trained briefly at al-Farouq, until it closed immediately after the attacks. After spending a few months in guest houses in Afghanistan, he made his way to Pakistan via Khost, traveling with other Arabs, Pakistanis and Afghans, and then, after trying unsuccessfully to return home via Iran, where, he said, he was “beaten and questioned” before being refused entry, spent ten months being moved around various houses in Lahore, Quetta and Karachi, waiting for an opportunity to return home that never came. Moreover, when he explained the situation in Karachi at the time of his arrest, an even less militant picture emerged. “The group I was arrested with were staying in two apartments,” he said. “One person from each apartment refused to surrender and fought the Pakistani forces sent to arrest us. I was in the group that chose to surrender.” He added that the Pakistanis were “thankful for our cooperation and surrendering without fighting.” He then explained that there were seven men in his apartment, including one who was killed, who had only been there for about five days, and that two other men shared the other apartment with a family. In his Review Board, he spoke only briefly about the “Dark Prison,” but it was easy to understand why Judge Hogan, who also spoke to him by video-link from Guantánamo, concluded that his “allegations about abusive interrogations were credible,” and, noticeably, added that they “were not challenged by government lawyers.” In 2005, when a Board Member asked him, “Are you holding anything back from the interrogators?” he replied, “That is impossible, because before I came to the prison in Guantánamo Bay I was in another prison in Afghanistan, under the ground [and] it was very dark, total dark, under torturing and without sleep. It was impossible that I could get out of there alive. I was really beaten and tortured.”

ISN 840 Al Maythali, Hail Aziz Ahmed (Yemen)
In Guantánamo, al-Maythali stated that he went to Afghanistan in November 2000 to “fight in the jihad,” and admitted ferrying supplies on the back lines near Kabul, but he added that he was only on the front lines for a week because he had no military experience. He denied allegations that he trained at al-Farouq, and explained that these allegations had only arisen because of his torture in the “Dark Prison,” where, he said, “there was very bad torture conducted on people,” including himself, which was “so bad that he knew by making up and agreeing to the training it would stop the torture.” He added that “his testicles were disfigured to the point where they cannot be repaired.” Like Ayoub Saleh, Shawki Balzuhair and Musa’ab al-Madhwani, he was only captured after returning to Pakistan following an abortive attempt to return home via Iran.

ISN 841 Nashir, Said Salih Said (Yemen)
In Guantánamo, Nashir was accused of attending al-Farouq from July to September 2001, when the camp closed. He then apparently served as a guard at Kandahar airport until November 2001, when he traveled to a valley between Zormat and Khost, Afghanistan, where he stayed in caves for approximately ten days, before moving on to Pakistan. In “factors favor[ing] release or transfer,” it was noted that he “stated he would never kill innocent women or children in the United States because it was against his religion.”

Originally published on Cageprisoners.

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.