From the beginning, there had been doubts about President Obama’s commitment to justice for the prisoners at Guantánamo. Instead of respecting the habeas corpus litigation initiated by the Supreme Court in June 2004, and revived, after unconstitutional interference from Congress, in June 2008, the President established an interagency Task Force to review all the Guantánamo cases, which, essentially, was a secretive, executive-led alternative to court review.
Even worse, however, was the hands-off approach that the President, and his Attorney General Eric Holder, brought to the ongoing habeas litigation. When Obama came to power, 23 Guantánamo prisoners had won their habeas corpus petitions, and just three had lost. This should have been a resounding indication that all was not right with the government’s cases, but instead of ordering a shake-up of the department responsible for sending lawyers to the District Court to be humiliated again and again in cases like those of the Uighurs (innocent Muslims from China’s oppressed Xinjiang province) or Mohammed El-Gharani, a former child prisoner held on the basis of information provided by witnesses that the government itself regarded as unreliable, Obama and Holder did absolutely nothing.
The same people who had worked on the cases for George W. Bush were allowed to keep manufacturing whatever argument they thought might win, leading to further humiliations, as in the case of Alla Ali Bin Ali Ahmed, one of 15 men seized in a guest house in Faisalabad, Pakistan in March 2002. In May, accepting Ali Ahmed’s contention that he was a student, Judge Gladys Kessler, as I explained at the time, “demolished the government’s case against him, painting a disturbing picture of unreliable allegations made by other prisoners who were tortured, coerced, bribed or suffering from mental health issues, and a ‘mosaic’ of intelligence, purporting to rise to the level of evidence, which actually relied, to an intolerable degree, on second- or third-hand hearsay, guilt by association and unsupportable suppositions.”
However, it was in June, when Judge Richard Leon (an appointee of George W. Bush) came to consider the case of Abdul Rahim al-Janko, that new depths were plumbed in the Obama administration’s inability — or unwillingness — to conduct even the vaguest objective analysis of the cases it inherited.
I explained al-Janko’s story in a detailed article at the time, which I recommend for those who want the full sordid tale, but to recap, he had traveled to Afghanistan at the age of 23 after falling out with his father, had stayed in an al-Qaeda-affiliated guest house for five days, and had then (perhaps unwillingly) attended an al-Qaeda-affiliated training camp for 18 days, after which he was tortured as a spy for three months, until he confessed that he had been spying for the US and Israel. He was then held in a Taliban prison in Kandahar for 18 months, which was where he and four other men imprisoned by the Taliban were found in January 2002.
Although all five men — a British citizen, a Tatar and two Saudis, as well as al-Janko — had been imprisoned by the Taliban, they were sent to Guantánamo instead of being freed, and al-Janko was particularly unfortunate, as a search of the house belonging to Mohammed Atef, the military chief of al-Qaeda, who had directed his torture and who was killed in a US bombing raid in November 2001, unearthed a videotape containing his tortured confession, which was wrongly interpreted as a declaration of jihad by Attorney General John Ashcroft.
The five men seized in the Taliban prison in Kandahar were eventually released, but al-Janko was the only one freed under President Obama, and the only one whose unjust detention had to be exposed in a US court before his release was secured.
In ruling last June on al-Janko’s habeas petition, Judge Leon was so appalled that the case had come before him at all that he openly mocked the government for “taking a position that defies common sense” by asking the court to address whether a relationship with al-Qaeda or the Taliban “can be sufficiently vitiated by the passage of time, intervening events, or both.” Concluding that “The answer, of course, is yes,” he then dismantled the government’s case point by point, stating, “To say the least, five days at a guest house in Kabul combined with eighteen days at a training camp does not add up to a longstanding bond of brotherhood,” and adding that al-Janko’s torture “evinces a total evisceration of whatever relationship might have existed!”
Judge Leon also stated that his abandonment in the Taliban prison “is even more definitive proof that any preexisting relationship had been utterly destroyed,” and concluded that an analysis of all these factors “overwhelmingly leads this Court to conclude that the relationship that existed in 2000 — such as it was — no longer existed whatsoever in 2002 when al-Janko was taken into custody.”
Last week, al-Janko, who was freed from Guantánamo and given a new home in a third country last October, sued 26 current and former senior US military officials for damages. Alleging violations of his rights under the US Constitution and the Geneva Conventions, his lawyers stated that he was “the victim of a decade-long Kafkaesque nightmare from which he is just awakening,” adding, “Whether a country provides redress for the people it has wronged in violation of international and US law is a true test of the character of a nation.”
As the Washington Post described it, al-Janko “says that he was urinated on by his American captors, slapped, threatened with loss of fingernails and exposed to sleep deprivation, extreme cold and stress positions.” He also “says that US authorities broke his knee, used police dogs against him and caused kidney damage by failing to treat him for kidney stones.”
Al-Janko undoubtedly has a case, but his chances of securing a meaningful response from the Obama administration — let alone an apology or compensation — must be close to zero, given that the administration’s response to any challenge involving Bush-era crimes, or its own novel developments, such as the proposed extrajudicial executions of US citizens, is to invoke the “state secrets” doctrine, or, in the case of a damning internal report into the “torture memos” of John Yoo and Jay S. Bybee, to secure the services of a compliant Justice Department official (David Margolis), who is skilled in the dark arts of an official whitewash. As Glenn Greenwald explained:
[T]he Obama DOJ — which fought unsuccessfully to keep Janko imprisoned at Guantánamo — has been so consistent in its standards that one need not wait to hear from them to know how they will respond. It’s the same way they’ve responded in similar cases: whatever was done to this person is a State Secret that no court can review; those who are responsible for the abuse do and should enjoy full legal immunity; and, besides, we should all be Looking Forward, Not Backward at “unnecessary battles” like this one.
If that sounds bleak, it’s because it is. With hindsight, shielding the Bush administration’s torturers from accountability for their crimes has always been an important part of Barack Obama’s supposedly pragmatic Presidency, but in recent months, as Obama’s own crimes have been highlighted in his relentless use of drone assassinations in Pakistan (PDF), and his defense of plans to assassinate Anwar al-Awlaki in Yemen, shielding administration officials, past and present, from accountability for wrongdoing has openly become a key policy of the government.
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.
"[DNC Chair Tom Perez] has gotten instructions from Bill Clinton not to let the party go to the Bernie Sanders folks." - Jonathan Allen, co-author of Shattered, revealing new material in the upcoming paperback release pic.twitter.com/dLEnwl7kIc— HootHootBerns 🌹🐦 (@HootHootBerns) May 3, 2018