Back in March, when Judge James Robertson of the District Court in Washington D.C. granted the habeas corpus petition of Guantánamo prisoner Mohamedou Ould Slahi, there was uproar in Congress. For many years, Slahi, a Mauritanian national who had lived in Germany and Canada, was touted by the Bush administration as the “highest-value detainee at the facility,” and was cited in the 9/11 Commission Report as “a significant al-Qaeda operative” who “recruited 9/11 hijackers in Germany.” This was an assertion that, in part, had emerged through the interrogations of Ramzi bin al-Shibh, a “high-value detainee” held in secret CIA prisons for four years (where the use of torture had been approved by lawyers in the Justice Department’s Office of Legal Counsel), before his transfer to Guantánamo in 2006.
Slahi (also identified as Salahi) had certainly met bin al-Shibh and some of the 9/11 hijackers while living in Germany, but when Judge Robertson examined the evidence against him in detail, he was unable to establish that he had been involved in facilitating the trip to Afghanistan that resulted in al-Qaeda’s support of the 9/11 attacks. Instead, Judge Robertson concluded that, although Slahi “traveled to Afghanistan in early 1990 to fight jihad against communists and that there he swore bayat to al-Qaeda … his association with al-Qaeda ended after 1992, [and], even though he remained in contact thereafter with people he knew to be al-Qaeda members, he did nothing for al-Qaeda after that time.”
Judge Robertson added:
[A] habeas court may not permit a man to be held indefinitely upon suspicion, or because of the government’s prediction that he may do unlawful acts in the future — any more than a habeas court may rely on its prediction that a man will not be dangerous in the future and order his release if he was lawfully detained in the first place. The question, upon which the government had the burden of proof, was whether, at the time of his capture, Salahi was a “part of” al-Qaeda. On the record before me, I cannot find that he was.
Critics of Slahi’s habeas victory, and their silence regarding torture
For Republicans in Congress, it was completely irrelevant that a judge with access to all the evidence had concluded that the government had failed to establish that Slahi was a “part of” al-Qaeda, and had pointed out that the government now “acknowledg[es] that Slahi probably did not even know about the 9/11 attacks.” To these critics, it was also completely irrelevant that, in 2008, Der Spiegel reported that “German investigators familiar with the history leading up to the 9/11 attacks … say that bin al-Shibh’s statements about Slahi recruiting the attackers has ‘legend status,’ and that none of their information supports his assertions.”
Seduced by the 9/11 Commission’s assessment of Slahi, Republican critics savaged the ruling as soon as it was announced. The Hill reported that Sen. Kit Bond (R-Mo.), the ranking member of the Intelligence Committee, stated, “While Holder’s Justice Department should appeal this outrageous decision, I’m not holding my breath. Holder seems more intent on closing Guantánamo Bay than keeping terrorists locked up where they belong.” The Hill also stated that Rep. Lamar Smith (R-Texas) sent a letter to Holder asking him to appeal the ruling, in which he wrote, “It is certainly possible, if not likely, that Mr. Slahi will re-engage in efforts to commit terrorist attacks against innocent Americans if allowed to go free. This ruling clearly puts the American people in danger and should not be allowed to stand.”
Critics also demonstrated that they had no regard for another complication in Slahi’s case; that, as the supposedly “highest-value detainee at the facility” in 2003, he had been subjected to “extraordinary rendition” and torture after the Mauritanian authorities seized him in November 2001, at the request of the CIA, who then flew him to a special torture prison in Jordan, and had also been subjected to a specially tailored torture program in Guantánamo. As I explained in an article in April:
[The program] included prolonged isolation, prolonged sleep deprivation, beatings, death threats, and threats that his mother would be brought to Guantánamo and gang-raped. This program, which was implemented in May 2003, and augmented with further “enhanced interrogation techniques” authorized by defense secretary Donald Rumsfeld, culminated, in August 2003, in an incident when Slahi was taken out on a boat, wearing isolation goggles, while agents whispered, within earshot, that he was “about to be executed and made to disappear.”
Those supporting Slahi’s continued detention also ignored the fact that his treatment in Guantánamo was so severe that, in May 2004, Lt. Col. Stuart Couch of the Marine Corps, who had been assigned his case as a prosecutor the year before, resigned rather than pursuing the case. In a meeting with the chief prosecutor, Army Col. Bob Swann, Lt. Col. Couch “told Col. Swann that in addition to legal reasons, he was ‘morally opposed’ to the interrogation techniques ‘and for that reason alone refused to participate in [the Slahi] prosecution in any manner.’”
However, despite all this, the most distressing response to Slahi’s victory in the District Court came not from Republican critics, but from the Justice Department. As soon as Judge Robertson’s ruling was announced, Attorney General Eric Holder said that, although “[w]e obviously respect the decision that the judge made, [h]opefully an appeals court will look at the evidence that we presented in the habeas proceeding and come to a contrary conclusion.”
The D.C. Circuit Court’s pushback on Guantánamo
The government duly appealed, and on September 17, a three-judge panel of the D.C. Circuit Court convened to hear the appeal. In recent months, a number of judges in the D.C. Circuit have been pushing back against the prisoners’ victories in the District Court (where they have won 38 out of the 55 cases so far decided). In June, the court dismissed the threshold for detention decided last year by Judge John D. Bates — that evidence of involvement in the “command structure” of al-Qaeda or the Taliban is required — and asserted that it need only be demonstrated that prisoners were “part of” al-Qaeda and/or the Taliban.
Moreover, in July, a panel led by Judge A. Raymond Randolph (who supported all the Bush administration cases regarding Guantánamo that were later overturned by the Supreme Court) reversed the successful petition of a Yemeni, Mohammed al-Adahi, in a ruling notable for Judge Randolph’s personal assaults on Judge Gladys Kessler of the District Court, and for his provocative claim that the “preponderance of the evidence” standard used in the District Courts — which is already a much lower threshold than in federal court trials — might actually be too high.
Judge Randolph was absent from the government’s appeal in Slahi’s case, as were two other advocates of largely unfettered executive power — Judges Janice Rogers Brown, and Brett M. Kavanaugh, both appointees of George W. Bush — who, in January, had argued (against the government’s own wishes) that the President’s detention powers were not limited by the international laws of war. This ruling was effectively dismissed by the full D.C. Circuit Court on August 31, but Slahi’s lawyers had good reason to fear that an unholy alliance between a Conservative court and President Obama’s Justice Department might lead to the kind of result that would have pleased the senior Bush administration officials who conceived Guantánamo in the first place.
The D.C. Circuit Court considers the government’s appeal
In the end, the panel, led by Chief Judge David B. Sentelle, approached Slahi’s appeal with more of an open mind than anticipated, even though the Washington Post reported that the court would “likely overturn” Judge Robertson’s ruling. What actually happened, as was revealed below this slightly misleading opening gambit, was that “the judges mused aloud over a key question: How could Slahi ever prove that he quit al-Qaeda, even if the law requires that Guantánamo prisoners do so before being freed?” As Judge Sentelle noted, there was no way that Slahi could have told al-Qaeda that he wanted to sever ties with the organization, because “That would have gotten him killed.”
In further probing of the government’s position, Judge David S. Tatel was particularly critical, noting, as the Associated Press described it, that he questioned whether Slahi’s swearing of bayat to al-Qaeda ten years before the 9/11 attacks could be described as “evidence that he engaged in hostilities against the United States.” As Judge Tatel stated, “When he swore bayat, the United States and al-Qaeda had a common goal. Both the United States and al-Qaeda were opposing a communist government of Afghanistan.”
This is a very important point — and one that few commentators, let alone judges, mention when discussing the rise of al-Qaeda in the 1990s. Judge Tatel also indicated that it might be more appropriate to send the case back down to the District Court, given that the D.C. Circuit Court’s rulings since April had required judges “to consider al-Qaeda membership and compliance with its ‘command structure’ in a broader, ‘functional, not formalistic’ sense” than when Judge Robertson made his ruling in Slahi’s favor. “Wouldn’t it make sense” to return the case, Judge Tatel asked, “so we have as consistent decision-making as possible?”
Slahi’s lawyer, Theresa M. Duncan, acknowledged that “it might,” but after the hearing she said she hoped that would not happen, because it would mean “starting from scratch,” following the retirement of Judge Robertson since he delivered his ruling. As she explained before the hearing, “After reviewing thousand of pages of records and hearing four days of testimony — including from Mr. Slahi himself — the district court correctly found that the government did not have enough evidence to support subjecting Mr. Slahi to indefinite military detention. The appeals court should uphold that ruling. It is well past time for Mr. Slahi to go home.”
The biggest failure: not rewarding informants
Unnoticed in all of the recent reporting on the government’s appeal is another facet of Slahi’s story that casts the government in an even more unfavorable light. As Peter Finn explained for the Washington Post in an article in March this year, Slahi and another man, Tariq al-Sawah, an Egyptian explosives expert for al-Qaeda, have, over the years, become “two of the most significant informants ever to be held at Guantánamo” — in al-Sawah’s case because he was thoroughly disillusioned with his former life, and in Slahi’s case because he began cooperating after his torture in 2003.
As a result of their cooperation, both men “are housed in a little fenced-in compound at the military prison, where they live a life of relative privilege — gardening, writing and painting — separated from other detainees in a cocoon designed to reward and protect … Each has a modular unit outfitted with a television. Each has a well-stocked refrigerator. They share a garden, where they grow mint for tea [and] are reported to have become close.”
As Peter Finn stated, although the government has, to some extent, “rewarded them for their cooperation,” no one in a position of authority has dared to propose the next logical step: releasing them under some sort of witness protection program. Finn explained that some military officials endorsed this proposal, believing that the establishment of a witness protection program, “in conjunction with allies,” might well “cultivate more informants.”
W. Patrick Lang, a retired senior military intelligence officer, told Finn bluntly, “I don’t see why they aren’t given asylum. If we don’t do this right, it will be that much harder to get other people to cooperate with us. And if I was still in the business, I’d want it known we protected them. It’s good advertising.” This, a current military official at Guantánamo told Finn, was a fair argument, but was “a hard-sell argument around here” — and evidently in Washington as well.
The government’s appeal against Slahi’s habeas victory therefore confirms that, instead of being rewarded in any meaningful manner (instead of being granted a privileged prison environment with mint tea on tap), Slahi actually finds himself in a horribly Kafkaesque predicament. Despite having cooperated fully with the authorities and having transformed himself from the “highest-value detainee at the facility” to one of the prison’s “most significant informants,” he finds that none of it makes any difference, and that, for him, there is literally no escape from Guantánamo.
In addition, of course, the message still being sent out to would-be informants, who might be able to shed important light on the enemy, is that the United States is a dangerous place bent on vengeance at all costs, and should not be trusted.
As I explained in an article in April, after Judge Robertson’s unclassified opinion had been made publicly available, the problem with this short-sighted approach to intelligence was perfectly expressed by veteran FBI interrogator Jack Cloonan in 2006. Speaking to Jane Mayer of the New Yorker, and reflecting on the self-defeating nature of the brutality that was central to the Bush administration’s “War on Terror,” Cloonan, an old school interrogator, who succeeded in securing confessions without the use of torture, told Mayer that resorting to such tactics would cut off “the possibility that other people with useful information about al-Qaeda [would] consider becoming informants.” As he explained, “You think all of this stuff about torture is going to make people want to come to us? That’s why I get upset when I hear people talking about stress positions, loud music, and dogs.”
If that was upsetting, what would Cloonan make of securing valuable intelligence from Slahi, and then leaving him to languish in prison forever? I can’t speak for Cloonan, but in my opinion, it’s unjust, counter-productive and fundamentally idiotic.
Originally published on the website of the Future of Freedom Foundation.
Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.