Archive for June, 2007

Two Tunisians and four Yemenis leave Guantánamo: at least one – Abdullah bin Omar – faces torture in his homeland

On Tuesday afternoon (US time), the Pentagon announced that it had released six more prisoners from Guantánamo. The first I heard of this was at 11 pm (UK time) when I received a press release from the British charity Reprieve, notifying me that one of the released Tunisians was their client Abdullah bin Omar.

Born in north east Tunisia (in 1956, according to the Pentagon’s records), bin Omar had worked as a mechanic for the Tunisian railways, but left the country for Saudi Arabia in 1989, because of religious persecution. Soon after, he moved to Pakistan, where he was living when he was convicted, in absentia, by a Tunisian court for belonging to a moderate, non-violent Islamist political party called Ennahda, and sentenced to 23 years in prison. Ennahda is just one of many valid organizations and worthy individuals persecuted over the years by the Tunisian dictator Zine El Abidine Ben Ali, who has been in power since 1987.

Captured in Pakistan in April 2002, during a frenzied few months when all manner of innocent Arabs were rounded up in Pakistan, Abdullah bin Omar said that he was sold to the Americans by the Pakistanis for $5,000. Much of his subsequent story is unknown. He never took part in any tribunals at Guantanamo, and the US authorities only allowed a representative from Reprieve –- senior counsel Zachary Katznelson –- to meet him once, on 1 May 2007. On that occasion, Katznelson recalled, bin Omar ‘expressed severe concerns that were he to be returned to Tunisia, the authorities there would torture him to force him to confess or to become an informant’. Katznelson added, ‘When Reprieve later learned of Mr. Bin Omar’s Tunisian conviction in absentia –- a conviction Mr. Bin Omar likely does not know about –- Reprieve repeatedly requested additional visits with our client. The United States government failed to respond to any of those requests’.

Summing up bin Omar’s predicament, Katznelson also declared, ‘Abdullah Bin Omar was cleared by the United States –- found not to be a threat and not to have information about terrorism. But the US has not apologized and set him free after five years in Guantánamo. Instead, he has been shipped to Tunisia, where abuse and possibly torture await. What has happened to American justice? How are we any safer by sending cleared men back to notorious regimes in the dead of night?’ He added, ‘Today, Abdullah Bin Omar finds himself a guinea pig in a potentially deadly diplomatic experiment. The United States is so desperate to send people out of Guantánamo Bay, they are willing to ignore Tunisia’s horrific human rights record. Now the world’s focus must shift to Tunisia. Tunisia is faced with a simple choice: will they do the right thing and show the world that they support human rights, or will they revert to their dark past? We are all watching’.

Details of the other Tunisian have not yet been revealed, but the only other Tunisian scheduled to be released from Guantánamo was Mohammed Abdul Rahman (born in 1965, according to the Pentagon), who told his Administrative Review Board in 2005 –- set up to assess whether or not he should still be regarded as an ‘enemy combatant’ –- that his real name was actually Lufti bin Ali. An economic migrant, who traveled to Pakistan from Italy, where he had been living, he said that he went to Pakistan for medical treatment and to find a wife, and denied a barrage of allegations about his purported involvement with terrorists and training camps. Noticeably, when he asked the Board, ‘These accusations, all of them, where did you get them from?’ a Board Member replied, ‘From a compilation of interviews and interrogations and outside sources’ –- in other words, from other prisoners both inside and outside Guantánamo, who were either bribed or coerced. More details on his case will follow if it becomes clear that he has actually been released, although it should already be apparent that Zine El Abidine Ben Ali is unlikely to welcome him with open arms. [Note: Abdul Rahman was not released in the end. See here for the story of the prisoner who was released instead].

Of the four Yemenis released, Carol Rosenberg at the Miami Herald has named two, based on lawyers’ comments: 25-year old Sadeq Mohammed Said (aka Sadiq Ismail), and 26-year old Fawaz Naman Hamoud. Said, who was accused of traveling to Afghanistan in May 2001 and serving as a courier for the Taliban, was captured in Pakistan, having crossed the border after being injured in an aerial bombing attack near Khost, although the US authorities also managed to claim, as they did in the cases of many other prisoners seized elsewhere, that he was captured in Tora Bora, during the ‘final showdown’ with al-Qaeda that never was, as Osama bin Laden and the senior leadership of al-Qaeda slipped away across the unguarded border to Pakistan.

In the case of Hamoud (also known as Fawaz Mahdi), the US authorities should be thoroughly ashamed that he has spent so long in Guantánamo. Under the factors favoring release or transfer, in the Unclassified Summary of Evidence for his ARB (which he did not attend), it was clearly stated, ‘Mahdi is severely, psychiatrically ill. Since his arrival in June 2002, he has been seen over 70 times by psychiatric professionals. As a part of his psychiatric care, he has been treated and evaluated by three different psychiatrists. Each doctor concluded that Mahdi is seriously mentally ill. Each doctor concluded Mahdi has a psychiatric disorder’.

Despite this, he was earlier found to be an ‘enemy combatant’, even though, in the tribunal responsible for confirming that he had been correctly assessed as an ‘enemy combatant’, he explicitly confirmed his precarious mental state, telling the tribunal that he went to Afghanistan ‘because I was told only the jihad places had magic things inside’, and adding, ‘I have witnesses in Saudi Arabia and Yemen. I was told I have magic disease’. Although he admitted training and fighting in Afghanistan, he explained, ‘I was a fighter against Ahmed [Shah] Massoud [the leader of the Northern Alliance, assassinated two days before 9/11]. I did not know they were US allies. I did not want to fight at all. But my friends and the Mullah told me to fight. I tried to pray to the Koran, to cleanse my soul. I had to fight jihad as a last resort to cleanse my soul’. He also denied the most serious allegation him, that he ‘signed an oath of loyalty to Osama bin Laden’, saying, ‘I accused myself in front of the interrogators of many things to hasten my assumed execution rather than going to prison’.

While the full details of these latest releases from Guantánamo have yet to be confirmed, there is little reason to suppose that they will reveal the US administration in a more flattering light. Two innocent men are returned to the whims of a dictator, and a young man with severe mental illness is finally returned home. All were held for over five years, without charge or trial. These are examples of 21st century American justice, and an insult to the values that decent American people hold dear.

For more on Guantánamo, see my book 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). To receive new articles in your inbox, please subscribe to my RSS feed.


The prisoners’ numbers (and variations on the spelling of their names) are as follows:

ISN 721: Abdullah bin Omar (bin Amor, ben Amor) (Tunisia)
ISN 69: Sadeq Mohammed Said (Yemen)
ISN 678: Fawaz Naman Hamoud (Fawaz Mahdi) (Yemen)

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the eleven prisoners released from February to June 2009, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs, 1 Iraqi, 3 Saudis (here and here).

Return to torture: cleared Guantánamo detainee Abdul Rauf al-Qassim fears return to Libya

On Friday, the Washington Post reported on the case of a 42-year old Libyan, Abdul Rauf al-Qassim, one of around 80 prisoners currently languishing in Guantánamo who were cleared for release at least a year ago. Many of these prisoners –- including 17 Uyghurs from China’s Xinjiang province –- are still held because the Pentagon cannot guarantee that they will not be tortured or murdered if they are returned to their home countries and cannot find another country to accept them (although the Uyghurs may well join their five compatriots who were dumped in a refugee camp in Albania in May 2006). After the suffering that these prisoners have endured in American custody, this concern for their welfare remains one of the more surreal episodes in the reality-defying saga of the ‘War on Terror’, and is not helped by the fact that the majority of them are held in solitary confinement for 22 hours a day, in circumstances that would tax some of the most hardened convicted criminals in America’s ‘Supermax’ prisons.

Tony Blair and Colonel GaddafiIn al-Qassim’s case, however, the problem is not that he cannot be returned to his home country, but that he doesn’t want to go, and is ‘publicly fighting’ the Pentagon’s plans to return him to Libya. Since March 2004, when British Prime Minister Tony Blair –- looking as comfortable as a schoolboy lost in the wrong part of town — was welcomed by Colonel Gaddafi in his Bedouin tent in Tripoli, the Libyan regime –- once an implacable terror-sponsoring enemy –- has become the West’s new best friend in North Africa. Never mind that the State Department reports annually that torture and abuse are still rife in Libya’s prisons, Gaddafi has renounced his Weapons of Mass Destruction, has joined the merry Western World of mega-bucks, oil deals and arms sales, and is a staunch ally in the ‘War on Terror’.

Ever since the first reports leaked out that the CIA had ‘rendered’ al-Qaeda suspects to Libya for ‘interrogation’, the former pariah’s status as friend to the West has been one of the more reprehensible manifestations of the murky realpolitik that actually underpins the whole US-led anti-terror coalition. It’s not the only corrupt alliance by any means, of course. In defense of ‘freedom’ and ‘democracy’, the US and the UK have been happily dealing with numerous repressive, undemocratic regimes, including Saudi Arabia, Pakistan, Egypt and Uzbekistan. Other regimes –- in theory less dictatorial –- have also queued up to be paid and not punished, including Morocco, Jordan and, at the time of writing, Kenya and Ethiopia. At the other end of the scale –- at least in the early years of the ‘War on Terror’ –- al-Qaeda suspects were also ‘rendered’ to Syria for ‘interrogation’, in a deal that reveals the West’s purported commitment to human rights and justice for the hollow, dead-eyed rhetoric that it really is: while President Bush was publicly calling Syria a member of the ‘axis of evil’, he was also busy engaging Syrian intelligence –- the notorious Mukhabarat –- as proxy torturers.

Despite being cleared for release by the Pentagon, Abdul Rauf al-Qassim has good reason to fear being returned to Libya. A soldier in the Libyan army from 1983 to 1989, he then deserted, traveling to Afghanistan ‘to immigrate and to start a new life’. After fighting with the mujahideen until 1993, when the last remnants of the Soviet regime fell, he ‘traveled back and forth between Pakistan and Afghanistan’ –- at one point studying at university in Quetta –- and also met and married an Afghan woman, Rahima, with whom he had a daughter, Khiria, who has spent the whole of her young life without her father.

Abdul Rauf al-Qassim's wife and daughter

Abdul Rauf al-Qassim’s wife, Rahima, and his daughter, Khiria.

Al-Qassim was captured in Lahore in May 2002, at the house of a Pakistani, after escaping from war-torn Afghanistan with his pregnant wife, but although it was clear that he had not taken up arms against the Americans, it was far less clear that he would not be regarded as a threat by the government of his home country. In his Administrative Review Board in May 2005 (convened to review the prisoners’ status as ‘enemy combatants’), he explained –- via a statement made to his Assisting Military Officer –- that he had received military training at two Libyan camps in Afghanistan, but only because he was living there, and admitted that he had joined the Libyan Islamic Fighting Group –- exiled opponents of the Gaddafi regime –- but only ‘out of desperation — he was broke, had no place to go, was hungry, unemployed and had no way to support himself’. He added that his family ‘did not receive monetary support from the [LIFG], but he received food, shelter and an allowance for clothes’. He also agreed with previous statements he had made: that he ‘did not believe in violence’, and that he ‘angrily defined [al-Qaeda’s] leadership and members as “savages” who twist the meaning of Islam, thereby hurting all Muslims’.

Although al-Qassim stated that a Libyan delegation, who visited Guantánamo in 2004 (and were actually flown there by the CIA), told him that they ‘knew he was with the Libyan Islamic Fighting Group only by name’, that he was ‘obligated to be with them’, and that they would ‘take care of him’, he repeatedly told his Assisting Military Officer that he was ‘afraid of returning to Libya’. ‘He said he does not want to go to Libya because he feels he cannot trust them and because they put people in prison for no reason’, his AMO reported. ‘He said he feels that if he returns to Libya, even after being released by the United States, he would be sent back to prison’. Such was his concern that the Presiding Officer of his ARB noted, ‘For the record, make sure that we put in our report that the Detainee is afraid of returning to Libya’, a comment that has clearly been ignored by the administration, as it prepares to fulfil his worst fears.

Al-Qassim is not without friends in America. The Center for Constitutional Rights has taken up his case, fighting for him in the courts and, with the help of the Afghan Human Rights Organization, tracing his wife and daughter. In addition, Edward Markey, a Massachusetts Democrat, has embraced his cause, urging the government to consider other options, and pointing out that, because he has an Afghan wife and child, he is eligible for Afghan citizenship. In a letter to the State Department, he wrote that it would be a ‘grave injustice’ to send al-Qassim to Libya, ‘because the State Department has reported that the country engages in torture, including electric shocks and suffocation’, and in a recent interview he said that, ‘by virtue of his alleged connection to a group that opposes the Libyan government’, al-Qassim was ‘at particular risk for abuse’, adding, ‘The State Department doesn’t have a leg to stand on if they’re going to contradict their own analysis’.

It remains to be seen whether the campaign mounted by Rep. Markey and CCR will be successful, although the omens are not good. In December 2006, unnoticed by almost everyone, another Libyan, 38-year old Mohammed al-Rimi (aka al-Futuri), was returned to Libya from Guantánamo. An economic migrant, who had traveled to Afghanistan via Egypt, Saudi Arabia and Pakistan, al-Rimi explained in Guantánamo that he had spent two years in Afghanistan with the vast worldwide missionary organization Jamaat-al-Tablighi, and denied that he had any militant connections. Although he added that he had had problems with the Libyan authorities, and had left Libya because of religious persecution, he was apparently willing to return home when told that he had been cleared for release. On his return, Saleh Abdulsalam, a spokesman for a government-related charity, said that al-Rimi had been diagnosed with tuberculosis but was not wanted by Libyan authorities and would ‘go back to his family soon’, although according to human rights activists, this was a lie, and he has simply exchanged one prison for another.

What may help al-Qassim –- if his lawyers can extract enough leverage from it –- is a decision made by the UK’s Special Immigration Appeals Commission (SIAC) on 27 April, that two Libyan prisoners held without charge or trial in the UK’s own mini-version of Guantánamo could not be returned to Libya because they were at risk of being tortured. The Commission’s decision was particularly galling for the British government because, in October 2005, Libya signed a ‘memorandum of understanding’, promising that it would not torture or ill-treat Libyans returned from the UK. This was touted by the Foreign Office as the answer to a problem that had long preoccupied them –- how to bypass international conventions prohibiting governments from sending people back to a country where they might face torture or ill-treatment –- but it became increasingly more urgent as they cooperated with American intelligence in the wake of 9/11, and it seems clear, from the ways in which both the Americans and the British have been attempting to neutralize the prohibitions against returning people to countries where they face torture, that Abdul Rauf al-Qassim is part of a concerted effort by both countries to undermine international legal safeguards. Unfortunately for the Foreign Office, the SIAC judges concluded that the ‘memorandum of understanding’ was not worth the paper it was written on. One can only hope, for al-Qassim’s sake, that the State Department feels the same way.

Note: The Pentagon refers to al-Qassim as Abdul Rauf al-Qusin, and his name is also transliterated as Abdul Raouf al-Qassim or Abdul Ra’ouf al-Qassim. In documents presented to the Supreme Court in May 2007, which unsuccessfully sought an injunction to prevent his return to Libya, he is referred to as Abu Abdul Rauf Zalita.

For more on the Libyan detainees in Guantánamo, see my book 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). To receive new articles in your inbox, please subscribe to my RSS feed.

As published on CounterPunch.

The ordeal of Ali al-Marri

There used to be a belief –- no doubt Attorney General Alberto Gonzales would describe it as ‘quaint’ –- that people accused of a crime were presumed innocent until proven guilty. That was in the olden days, however, before the world-changing events of 9/11, after which, according to the powers that the President of the United States granted himself in November 2001, anyone he regarded with suspicion –- almost exclusively Muslims, as it turned out –- could be declared guilty without the need for such outmoded legal relics as the presumption of innocence and the right to a fair trial.

The prison at Guantánamo is full of these new types of human beings –- ‘illegal enemy combatants’, guilty ‘unpeople’* imprisoned forever at the President’s whim –- as are other US-run prisons around the world, in Afghanistan, Iraq, Diego Garcia and the Horn of Africa. Some are hidden in prisons in other countries –- ‘friendly’ regimes who are ‘with us’ in the ‘War on Terror’, including Libya, a country run by a man who resembles, but clearly is not the Colonel Gaddafi who was once our sworn enemy –- where they can be subjected to ‘enhanced interrogation techniques’ without American operatives having to lift a finger to incriminate themselves in their ‘interrogation’.

Ali al-MarriOn Monday 11 June, the case of one of these ’unpeople’ –- a Qatari named Ali al-Marri, a rather special example who was captured in the United States –- was scrutinized by a panel of Fourth Circuit judges, who were deciding whether the President had the right to have kept this man imprisoned without trial for five and a half years. To an untrained eye –- perhaps one belonging to those of us who still believe in due process –- the facts in al-Marri’s case are difficult to discern with any certainty, beyond the documented evidence relating to his movements between September 2001 and the present day.

A legal US resident –- though not a citizen –- al-Marri had studied computer science at Bradley University in Peoria, Illinois in 1991, and returned on 10 September 2001 to pursue post-graduate studies, bringing his family –- his wife and five children –- with him. Three months later he was arrested and charged with fraud and making false statements to the FBI, but in June 2003, a month before he was due to stand trial for these charges in a federal court in Peoria, the prosecution dropped the charges and informed the court that he was to be held as an ‘enemy combatant’ instead.

Held incommunicado in a military brig in Charleston, South Carolina, he was not allowed to meet representatives of the International Red Cross until August 2004, and was not allowed legal counsel until October 2004, when Mark Berman of Gibbons, Del Deo, Dolan, Griffinger & Vecchione took on his case. Since November 2005, when another American ‘enemy combatant’, Jose Padilla, was indicted on criminal charges unrelated to the alleged terrorist plot for which he was originally seized in May 2002, al-Marri has had the dubious distinction of being the only ‘enemy combatant’ on the US mainland.

On Monday, al-Marri’s ongoing legal limbo was finally addressed when the Fourth Circuit judges ruled, by 2-1, that the President no longer had the right to hold him without charge or trial. ‘Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and then detain them indefinitely without criminal process’, the court said, ‘and this is so even if he calls them ‘enemy combatants’.

Like the recent debacle of the Military Commissions, this was a painful blow for an administration clinging to its belief in the Presidential prerogative to create ‘enemy combatants’ at will. To bolster its extra-legal case, the charges against al-Marri had been widely publicized by the administration over the previous four years. The presidential order which declared him an ‘enemy combatant’ stated that he was closely associated with al-Qaeda and presented ‘a continuing, present, and grave danger to the national security of the United States’, and at various times he has been accused of having connections to the al-Qaeda financier Mustafa al-Hawsawi, of working as an al-Qaeda sleeper agent in the US, of having pledged to Osama bin Laden that he would kill Americans, and of having documents related to jihadi activities on his computer, including information on hydrogen cyanide (used in chemical weapons), lectures by Osama bin Laden and a cartoon of planes crashing into the World Trade Center.

These allegations may or may not be true, but those of us in the ‘quaint’ old world of due process believe the Fourth Circuit judges were absolutely correct to conclude that the mind of Bush alone was not the appropriate place to make these decisions. In the simple Manichean world of the President and his supporters, however, the judges’ decision is apparently something akin to high treason. Those whose opinions are as clear-cut as the President’s include Bradford Berenson, one of eight associate counsels during Alberto Gonzales’ tenure as White House counsel, who complained in the Wall Street Journal that, ‘fueled by the 1960s rights revolution, the post-civil rights era celebration of judicial power, and the suspicion and distrust of executive power and military authority after Watergate and the Vietnam War’, the ‘pendulum’ of the federal courts was ‘now swinging too far in the other direction’.

Berenson proceeded to describe al-Marri in terms of such rigorous certitude that I can only conclude that he was reading the President’s mind: ‘Mr Marri is a member of al-Qaeda who trained at Osama bin Laden’s terrorist training camp in Afghanistan. In the summer of 2001, he met with Khalid Sheikh Mohammed, the mastermind of the Sept. 11 attacks, and then traveled to the U.S. just prior to those attacks to serve as an al-Qaeda sleeper agent. The government believes he was intended to be part of a second wave of attacks on our country and was researching ways to disrupt the US financial system. After he was arrested, the government searched his computer and found materials relating to chemical weapons, jihad, and al-Qaeda, as well as 1,000 credit-card numbers’.

To Mr Berenson –- and his idols in the government –- I can only say: Ali al-Marri may be all of these things, but we need lawyers, judges and juries to figure that out, not self-declared clairvoyants with an iron belief in unfettered executive power.

* My use of the word is inspired by Mark Curtis and his book Unpeople: Britain’s Secret Human Rights Abuses.

Andy Worthington 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). To receive new articles in your inbox, please subscribe to my RSS feed.

As published on CounterPunch.

For a sequence of articles on Ali al-Marri’s case, see The torture of Ali al-Marri, the last “enemy combatant” on the US mainland (November 2007), Court Confirms President’s Dictatorial Powers in Case of US “Enemy Combatant” Ali al-Marri (July 2008), The Last US Enemy Combatant: The Shocking Story of Ali al-Marri (December 2008), Ending The Cruel Isolation Of Ali al-Marri, The Last US “Enemy Combatant” and Why The US Under Obama Is Still A Dictatorship (both March 2009), Dictatorial Powers Unchallenged As US “Enemy Combatant” Pleads Guilty (May 2009).

Also see related articles on Jose Padilla: Jose Padilla: More Sinned Against Than Sinning (August 2007), Why Jose Padilla’s 17-year prison sentence should shock and disgust all Americans (January 2008), US Justice Department drops “dirty bomb plot” allegation against Binyam Mohamed (October 2008), Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (April 2009).

The reviled Military Commissions collapse and the pressure to close Guantánamo increases, but a new prisoner arrives from Africa

It’s been another busy week at Guantánamo. On 4 June, the US administration attempted to hold the first of the reconvened Military Commissions since the farcical ‘trial’ of David Hicks in March, when the Australian Taliban volunteer –- persistently regarded by the administration as one of ‘the worst of the worst’, and one of only twelve men put forward for trial by Military Commission between 2003 and 2006 (two of whom, the Britons Moazzam Begg and Feroz Abbasi, were released in 2005, and have never been charged with anything) –- accepted a plea bargain, admitting that he provided ‘material support for terrorism’ in exchange for a nine-month sentence to be served in Australia.

Omar Khadr's Military Commission in June 2007After Hicks’ Houdini-like escape from Guantánamo –- which not only freed him from the administration’s offshore gulag, but also conveniently prevented him from pointing out that he was tortured in Afghanistan and Guantánamo –- defense lawyers were anticipating a protracted struggle over the fate of the next two prisoners to face the Commissions: Omar Khadr, a Canadian accused of killing a US soldier in Afghanistan, who was only 15 years old at the time of his capture in July 2002, and Salim Hamdan, a 37-year old from the Sudan, who was one of Osama bin Laden’s drivers in Afghanistan.

Countless articles have been written about Khadr, but a good place to start is The Good Son, published in Canada’s National Post in December 2002. Although his father was a militant (and a friend of bin Laden), it’s worth pointing out, I think, that only the US administration would choose, in the full glare of the world’s media, to brazenly pursue a legally dubious ‘war crimes’ charge against someone who was only a child when the alleged incident took place.

Salim HamdanIn Hamdan’s case, the main source of information is his military lawyer, Lieutenant Commander Charles Swift, of the US navy’s Judge Advocate General’s Corp (JAG), who has been opposed to the Military Commissions almost from the moment that he was assigned the case in 2003. In a letter to Marie Brenner of Vanity Fair in January 2007 (for an excellent article, Taking on Guantánamo, that was published in March), he wrote, ‘The whole purpose of setting up Guantánamo Bay is for torture. Why do this? Because you want to escape the rule of law. There is only one thing that you want to escape the rule of law to do, and that is to question people coercively — what some people call torture. Guantánamo and the military commissions are implements for breaking the law. Why build a prison here when there are plenty of prisons in Nebraska? Why is it, when we see photos of Abu Ghraib, we think that it is “exporting Guantánamo”? That it is the “Guantánamo method”?’

Working with Neil Katyal, a civilian lawyer, Swift’s arguments helped to persuade the Supreme Court, in June 2006, that the Military Commissions were illegal under US law and the Geneva Conventions. His victory was short-lived, however. Within four months, President Bush convinced a supine Congress to reinstate them in the vile Military Commissions Act, but Swift, who, as a result of his actions, had already been passed over for promotion, remained implacably opposed to them, telling a meeting of law students in April 2007 that the government’s insistence that Military Commissions which accepted coerced testimony ‘were “full and fair trials” reminded him of an old Western in which a character is told, “You’re going to have a fair trial, and then we’re going to hang you.” “They weren’t doing what military commissions historically were set up to do,” he said. “Rather than bring law to a lawless place, it was to create a lawless place”.’

With this build-up to the Military Commissions of Omar Khadr and Salim Hamdan, no one foresaw that, of all people, the military judges appointed by President Bush to preside over the Commissions would, in separate decisions, throw out both cases on a technicality. Yet this is what happened. Both Navy Captain Keith Allred, presiding over Hamdan’s case, and Army Colonel Peter Brownback, in Khadr’s case, dismantled, in the space of a few short hours, what the administration had spent five and half years trying to construct.

The technicality that derailed the Commissions centered on a legal distinction overlooked by the lawyers who cobbled together the Military Commissions Act during the summer of 2006. For the Commissions to proceed, those brought before them had to have been designated as ‘unlawful enemy combatants’ (a post-9/11 term that seems to be recognized only by the White House and the Pentagon) in a Combatant Status Review Tribunal (CSRT). These tribunals, set up to review the prisoners’ status as ‘enemy combatants’ in response to the Supreme Court decision in June 2004 that they had a right to challenge their detention, were memorably described on 5 June, in a New York Times editorial, Gitmo: A National Disgrace, as ‘kangaroo courts that give the inmates no chance to defend themselves, allow evidence that was obtained through torture and can be repeated until one produces the answer the Pentagon wants’.

What both Brownback and Ellred pointed out, however, was that Khadr and Hamdan had not been designated as ‘unlawful enemy combatants’ in their CSRT, and had, instead, been judged as ‘enemy combatants’ only, without the crucial designation ‘unlawful’. Far from being a minor quibble, the distinction is of enormous importance, as Allred pointed out, ruling that Hamdan had never received ‘an individuated determination’ that he was an unlawful combatant, as required by the Geneva Conventions, and that without this determination he and other detainees were entitled to be treated as prisoners of war (in other words, as ‘lawful enemy combatants’). Moreover, as both judges clearly realized, none of the 383 other prisoners at Guantánamo had been designated as ‘unlawful enemy combatants’ either.

One can only imagine the responses of President Bush and Vice President Dick Cheney when they heard the news about the Military Commissions. As approved in October 2006, the Commissions were intended, once and for all, to provide the means whereby high-profile prisoners like Khalid Sheikh Mohammed (KSM), Ramzi bin al-Shibh and Abu Zubaydah could be tried and convicted without the interference of uncooperative lawyers and without the possibility that torture could ever be mentioned (just as Charles Swift and others had realized in 2003). Attempting to gloss over the collapse of the Commissions, a Pentagon spokesman declared it a mere question of semantics (which, as explained above, it was not) and threatened to appeal, but it took virtually no time, as a Washington Post editorial, Stuck in Guantánamo, explained on 7 June, for commentators to realize that ‘the appeals court that is to hear military commission cases hasn’t yet been established’.

With the administration apparently on the ropes, the media revolt against its policies grew noticeably larger. In addition to the coruscating New York Times editorial and criticism in the Washington Post, dozens of smaller papers in the US ran ‘Close Guantánamo’ editorials, and even the Financial Times weighed in with a pointedly unambiguous editorial, Time to abandon the absurd charade at Guantánamo Bay. On 10 June, former Secretary of State Colin Powell joined in, telling NBC’s Meet the Press, ‘Guantánamo has become a major, major problem [in] the way the world perceives America. And if it was up to me, I would close Guantánamo, not tomorrow but this afternoon. I’d close it. And I would not let any of those people go. I would simply move them to the United States and put them into our federal legal system … essentially, we have shaken the belief that the world had in America’s justice system by keeping a place like Guantánamo open and creating things like the military commission. We don’t need it, and it’s causing us far damage than any good we get for it’.

In Slate, meanwhile, in an article entitled Line in the Sand, Dahlia Lithwick speculated about the judges’ reasons for dismissing the cases. Noting that they could have ‘simply deferred to President Bush’s 2002 determination that all associates and agents of al-Qaeda are automatically “unlawful” enemy combatants’, she wondered whether, like ‘many highly conservative legal and career military professionals once willing to follow this president wherever he led them’, they had ‘simply become disillusioned with a process that is so clearly ends-driven as to have been described as “rigged” by one of the three prosecutors who eventually quit, rather than proceed with the trials’.

Lithwick also pointed out that the judges may have wished to make a point about being presented with ‘small fry’ rather than the high-profile prisoners held at Guantánamo –- including KSM, bin al-Shibh and Zubaydah. If the judges were more in sympathy with the State Department than with Bush and Cheney, they would no doubt have read Legal Policy in a Twilight War, a lecture delivered in April 2007 by Philip Zelikow, the executive director of the 9/11 Commission and a former advisor to the State Department, who described a ‘new paradigm’ in the State Department’s approach to the ‘War on Terror’, which called for the closing of Guantánamo, and, crucially, as Marty Lederman described it in an article for Balkinization, ‘to reserve military commission trials for the big fish directly involved in terrorist activities, against whom such trials have historically been used –- “for major war criminals and al-Qaeda’s leaders, not Osama’s driver.”’

Lithwick added, ‘And who did Brownbeck and Allred see in their courtrooms [on 4 June]? Osama’s driver. And a Canadian kid who allegedly threw a grenade that killed a U.S. soldier. What must it feel like to be handpicked to pass judgment over the “worst of the worst” and instead find yourself confronted with the worst of the tweens? If these military commissions are intended to be taken seriously, Khalid Sheikh Mohammed should be facing one’.

Whether the State Department’s ‘new paradigm’ can actually influence the policies of Bush and Cheney remains to be seen. Noticeably, Robert Gates, the new defense secretary, was overruled by Cheney when he called for the closure of Guantánamo shortly after taking office. As is always the case with this administration, it’s far too early to applaud a return to decent human values and the triumph of due process. Deprived of a trial –- however ‘rigged’ –- Omar Khadr and Salim Hamdan will, like the other 383 prisoners in Guantánamo, simply be returned to their cells to be held indefinitely without charge or trial. This, remember, is an administration that has bragged of its willingness to hold prisoners indefinitely, ‘even if they are found not guilty by a military tribunal’.

And in the meantime, as if to demonstrate that the President and the Vice President will not be swayed from the remorseless pursuit of their lawless global vendetta, on 7 June, just three days after the debacle of the Commissions, another prospective victim of the show trials –- a Somalian identified by defense officials as Abdullahi Sudi Arale –- arrived at Guantánamo from the Horn of Africa. Accused of being a courier between al-Qaeda operatives in East Africa and Pakistan, who ‘assisted extremists in acquiring weapons and explosives’, as well as facilitating travel by providing false documents for al-Qaeda operatives and foreign fighters, Arale is the third prisoner to arrive at Guantánamo in the last ten weeks, following Mohammed Abdul Malik, a Kenyan, and Abdul Hadi al-Iraqi, a long sought-after al-Qaeda operative, who had apparently been held for several months in one of the secret prisons run by the CIA that no longer exist, according to a speech made by President Bush on 6 September 2006, shortly after the 14 ‘high-value’ prisoners –- including KSM, Ramzi bin al-Shibh and Abu Zubaydah –- were transferred to Guantánamo from CIA custody.

With the administration once more demonstrating its undiluted commitment to unfettered executive power, the brightest light in the last week’s events may not be the collapse of the Military Commissions per se, but what comes out of it: a renewed vigor to topple the architects of this ‘rogue system’ (as the New York Times described it), and unflinching support for the legislation, proposed by the Republican Arlen Specter and the Democrat Patrick Leahy and passed by the Senate Judiciary Committee on 8 June, to restore the right of habeas corpus to the Guantánamo prisoners (which was stripped by the Military Commissions Act), allowing them once more to appeal their detention in the US federal courts.

For more on Guantánamo and the Military Commissions, see my book 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). To receive new articles in your inbox, please subscribe to my RSS feed.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Four more charged, including Binyam Mohamed (June 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).

Guantánamo: the tipping point?

A prisoner, in the early days of Guantanamo, being moved on a gurney, as prisoners were in the prison's early years.This has been a busy week for Guantánamo-related issues. On Wednesday, a fourth prisoner –- Abdul Rahman al-Amri, a Saudi –- died at the prison, having apparently committed suicide, his death largely overshadowing the release of a major study into the US authorities’ conduct in the “War on Terror” by the Intelligence Science Board, a panel of experts from organizations including the Defense Intelligence Agency, the Department of Homeland Security, the FBI, the Naval Criminal Investigative Service and Army Intelligence. The panel’s findings demolish the administration’s cherished belief that “enhanced interrogation techniques” (Bush-speak for torture) are effective.

The experts concluded, as the New York Times put it, that they are “outmoded, amateurish and unreliable,” and Arab News described how the panel found that “popular culture and ad hoc experimentation have fueled the use of aggressive and sometimes physical interrogation techniques to get those captured on the battlefields to talk, even if there is no evidence to support the tactics’ effectiveness.” One of the report’s consultants, Randy Borum, a psychologist at the University of South Florida and a consultant for the Defense Department, criticized “an assumption that often passes for common sense that the more pain imposed on someone, the more likely they are to comply,” and the panel suggested that interrogation should be restructured using “tricks of veteran homicide detectives, the persuasive techniques of sophisticated marketing and models from American history.”

The week’s events are also noteworthy for a milestone in the story of Guantánamo that has so far passed without comment. Unnoticed in the largely bland reporting from the major media and the mud-slinging from the US authorities regarding Abdul Rahman al-Amri’s alleged status as an al-Qaeda operative is a statistic that should be seized upon by all those pressing for the closure of Guantánamo: the number of prisoners held in Guantánamo is now exceeded by those who have been released outright (or, in significantly fewer instances, transferred to the custody of their home governments). With al-Amri’s death, 385 prisoners remain in Guantánamo, whereas 386 have been released or transferred. I need hardly add that, when over half of the Guantánamo prisoners have been released, the authorities’ initial assertions that Guantánamo housed “the worst of the worst” are more risible than ever.

Reporting precise details of the numbers of prisoners at Guantánamo has always been a difficult task, in particular because the Pentagon is so careless about its records, repeatedly issuing press releases referring to an “approximate” number of prisoners, as if those responsible cannot be bothered to provide accurate details. Astute observers will note that this milestone has been reported previously, but will probably be unaware that this is largely because, in tallying up the figures, researchers have been misled by a press release that followed the release of 16 prisoners in December 2006. In an announcement on 17 December 2006, the Pentagon had the temerity to state, “This increases the number of detainees who have departed this year to 114,” conveniently failing to mention that three of the 114 –- the men who apparently committed suicide in June 2006 –- “departed” in coffins.

Could this, then, be the tipping point for Guantánamo? Of those remaining, at least 80 have been cleared for release, reducing “the worst of the worst” to around 305. The Pentagon has suggested that around 80 of these men will be subjected to Military Commissions, the innocuous-sounding show trials that would have done Stalin proud, which are designed solely to secure prosecutions based on secret evidence and to prohibit absolutely any mention of torture on the part of the US authorities.

The remaining 225 prisoners, however, remain in a legal limbo, unable to challenge the assumptions that underpin their detention –- a right which was asserted by the Supreme Court in June 2004 and June 2006 but which was struck down by a supine Congress in October 2006 –- and prey to an administration which has declared its willingness to hold them forever. In the wake of the latest death at Guantánamo, public pressure must focus on these men –- low-level Taliban recruits, humanitarian aid workers, religious teachers and students, and other completely innocent people caught in the wrong place at the wrong time, and largely sold to the Americans by the Afghan or Pakistani authorities –- to demand that their right to challenge the basis of their detention be reinstated as a matter of urgency. Visit the website of the American Civil Liberties Union to sign a petition demanding the reinstatement of habeas corpus for the Guantánamo prisoners, and feel free to publicize “the tipping point” wherever you see fit.

For more on Guantánamo, see my book 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). To receive new articles in your inbox, please subscribe to my RSS feed.

Suicide at Guantánamo: a response to the US military’s allegations that Abdul Rahman al-Amri was a member of al-Qaeda

More on the apparent suicide of the Saudi prisoner Abdul Rahman al-Amri duly surfaced yesterday. As well as taking part in a hunger strike before his death, it transpires, from a source cited by Arab News, that he had been a hunger striker during the mass hunger strike in 2005, and that, at the time of his death, he was suffering from hepatitis and stomach problems. Where, one wonders, was the much-vaunted medical care for “enemy combatants,” which, in 2005, Brigadier General Jay Hood, the commander of the Joint Task Force in Guantánamo, declared was “as good as or better than anything we would offer our own soldiers, sailors, airmen or Marines”? The answer, as so many other Guantánamo prisoners have noted, is almost certainly that medical care is refused to prisoners who fail to cooperate with the authorities, and that, as one of the “least compliant” prisoners, al-Amri would have received little, if any medical care.

As I warned two days ago, the US authorities have also launched a propaganda campaign portraying al-Amri as a dangerous member of al-Qaeda. In a statement reported by Agence France Presse, US Southern Command claimed, “During his time as a foreign fighter in Afghanistan, he became a mid-level al-Qaeda operative with direct ties to higher-level members including meeting with Osama bin Laden. His associations included (bin Laden’s) bodyguards and al-Qaeda recruiters. He also ran al-Qaeda safe houses.” Quite how it was possible for al-Amri, who arrived in Afghanistan in September 2001, to become a “mid-level al-Qaeda operative” who “ran al-Qaeda safe houses” in the three months before his capture in December has not been explained, and nor is it likely that an explanation will be forthcoming. Far more probable is that these allegations were made by other prisoners –- either in Guantánamo, where bribery and coercion have both been used extensively, or in the CIA’s secret prisons. In both, prisoners were regularly shown a “family album” of Guantánamo prisoners, and were encouraged –- either through violence or the promise of better treatment –- to come up with allegations against those shown in the photos, which, however spurious, were subsequently treated as “evidence.”

As with so many Guantánamo prisoners, the contradictory allegations against al-Amri beggar belief. By his own admission, he traveled to Afghanistan to fight with the Taliban against the Northern Alliance, having served in the Saudi army for nine years and four months. US Southern Command expanded on his activities as a Taliban recruit, claiming that, “by his own account,” he “volunteered to fight with local Taliban commander Mullah Abdul al-Hanan, and fought on the front lines north of Kabul”, and that he subsequently “fought US forces in November 2001 in the Tora Bora Mountains.” This may or may not be true, but it is at least within the realms of plausibility. Claiming that he ran al-Qaeda safe houses, on the other hand, is simply absurd, and should alert all sensible commentators to scrutinize with care the allegations made by the US authorities against the majority of those held in Guantánamo without charge or trial (I’ve studied all of them, and allegations that are either groundless or contradictory are shockingly prevalent).

If we are to believe this callous attempt to blacken the name of a man who, having apparently taken his life in desperation, appears to have made the mistake of traveling to Afghanistan to fight with the Taliban at the wrong time, one question in particular needs answering: when, during the three months that al-Amri stayed in a guest house in Kabul, trained at a “school for jihad” in Kandahar, fought on the front lines, retreated to Tora Bora and crossed into Pakistan, was he supposed to have located the al-Qaeda safe houses that he was accused of running?

For more information on the suicides in Guantánamo, and the prevalence of false allegations, see my book 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). To receive new articles in your inbox, please subscribe to my RSS feed.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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