Archive for October, 2007

Guantánamo trials: the king is dead, long live the king

So farewell, then, to a Colonel named Morris, the old chief prosecutor of Guantánamo’s tainted Military Commissions, who resigned two weeks ago, and welcome, er, a Colonel named Morris, the Commission’s new chief prosecutor.

To be fair, this new Morris is actually a different man, as the photos show. The new Morris, Col. Lawrence J. “Larry” Morris, as opposed to the old incumbent, Air Force Col. Morris “Moe” Davis, is a veteran Army Colonel with a background in both military intelligence (useful for an administration lacking in intelligence) and legal defense cases (not useful at all for an administration that does not believe in defense lawyers).

Col. Morris Davis

Old Morris.

Col. Lawrence Morris

New Morris.

“Larry,” who currently runs the Army’s defense services for soldiers accused of crimes, will take over as soon as his old job comes to an end, and as soon as the chief prosecutor’s poisoned chalice has been polished by the Pentagon to make it look appealing. Given the career-suicidal pressures of the job, however, and its relatively fast turnover (“Larry” is the fourth chief prosecutor in as many years), I’d be looking out for an alternative career if I was a Colonel in any of the branches of the US military, and if any of my names was Morris.

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.

Guantánamo: original whistleblower condemns proposals to hold new tribunals as hypocritical and cowardly

Speaking to journalists last week, Navy Capt. Theodore Fessel Jr., the chief representative at Guantánamo for the Pentagon’s Office of Administrative Review of Detained Enemy Combatants (OARDEC), which oversees the tribunals and review boards convened to assess the detainees’ status, hinted that the authorities had “begun seeking new or previously overlooked evidence that may warrant new hearings after the process came under fire,” as the Associated Press described it.

Capt. Fessel, who ignored long-standing complaints that the tribunals and review boards are worthless because they rely on secret evidence, possibly obtained through torture, and because the detainees are not allowed representation by lawyers, was referring in particular to recent claims made by former insiders –- as reported in several articles here –- that the tribunals, mostly held in 2004-05, relied on weak and often “generic” evidence and were designed to rubber-stamp the detainees’ prior designation as “enemy combatants.”

“With all the outside eyes looking in at the process,” Fessel explained, “it’s forcing us to say, ‘OK, did we take everything into consideration when we did the Combatant Status Review Tribunals?’” Stating that, by reviewing cases, the military was “recognizing that some detainees may no longer pose a threat” –- and blithely ignoring the fact that 56 percent of the detainees have already been released for just such reasons –- Fessel attempted to justify his comments by citing the hypothetical example of “a detainee who belonged to a Taliban faction that has stopped fighting,” who “may no longer be a security risk,” and summed up the administration’s position as follows: “It’s an acknowledgment that if there is new evidence or a new thing to take into bearing, in the spirit of being an open and fair process, we have to take that into consideration.”

Kessel’s comments provoked outrage from Lt. Col. Stephen Abraham, the first insider to speak out in June. In an email to the Associated Press, he wrote, “Ultimately, conducting new CSRTs –- even discussing the possibility –- repudiates every prior assertion that the original CSRTs were valid acts. They are, in essence, both a hypocritical act as well as an act of moral cowardice.” Picking up on what astute readers will also have noticed in Kessel’s reference to “the spirit” of “an open and fair process” –- namely, an unconscious acknowledgment that the process was not actually either “open” or “fair” –- Abraham added, “The CSRTs were NOT fair. They were specifically designed to reach a result and, in the few instances where a contrary result was reached, pressure was exerted to change the decision, a new tribunal was selected,” or the decision was disregarded.

A guard at Guantanamo

Photo © Todd Heisler/New York Times.

Since filing his affidavit in June, Lt. Col. Abraham has been feted by lawyers who have suggested that his damning analysis of the tribunals helped persuade the Supreme Court –- in a move that was so rare that it last took place 60 years ago –- to reverse a decision made in April, and to agree to hear the detainees’ cases over the coming months. Lawyers hope that the Supreme Court will decide, once and for all, that the detainees have the right to challenge the basis of their detention, and that crucial passages in last fall’s shameful Military Commissions Act, which stripped them of their habeas corpus rights, will be struck down.

Noticeably, however, Lt. Col. Abraham’s condemnation of the tribunal process was not acclaimed universally, and the Department of Justice in particular attempted to smear his account as “innuendo.” In an email exchange with me last week, Lt. Col. Abraham explained that the recent criticism of the tribunal process by an Army Major who took part in nearly 10% of the tribunals –- which has provoked this latest admission of backsliding by Capt. Fessel –- was personally satisfying. “Part of me feels vindicated by the revelations,” he wrote. “Of course, it can hardly be said now that I didn’t know what I was talking about.”

He then added a poignant footnote, which balanced his criticism of the administration with a regard for the extra-legal plight of the detainees: “But I am saddened by the fact that more detainees, about whom there is no evidence of involvement in terrorism, will likely die before something is done.”

Planning new tribunals, as Capt. Fessel, has suggested, would not only reveal the original process as a sham; it would also prolong an already intolerable situation, in which, as Lt. Col. Abraham correctly points out, men against whom no evidence of terrorist activity exists will lose more years of their lives –- and may even die in Guantánamo –- without ever having had the opportunity to challenge the basis of their detention in a manner that is either meaningful or legally acceptable. They should be resisted as yet another example of an administration that, having rashly jettisoned the existing legal system six years ago, remains fixated on patching up its brutal replacement, conceived in haste and fueled by arrogance and vengeance, which has been repeatedly revealed as unjust, immoral and inadequate.

For more on Guantánamo and the tribunals, 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 the Huffington Post and Anti-war.com.

Judge prevents innocent Tunisian’s return to torture from Guantánamo

The US District Court for the District of Columbia

In a genuinely startling development in the US District Court for the District of Columbia, Judge Gladys Kessler has ruled that Mohammed Abdul Rahman, a Tunisian detainee at Guantánamo who was cleared for release after the first round of administrative reviews in 2006, “cannot be sent to Tunisia because he could suffer ‘irreparable harm’ that the US courts would be powerless to reverse,” as the Washington Post described it.

An economic migrant, who traveled to Pakistan from Italy, where he had been living, the 42-year old Tunisian, who told his Administrative Review Board in 2005 that his real name was actually Lufti bin Ali, said 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.”

Denying a barrage of allegations about his purported involvement with terrorists and training camps, he stated that he was not involved with either the Algerian Armed Islamic Group (GIA) or the Tunisian Combat Group (TCG), and specifically denied allegations that he had participated in establishing the TCG, and was on its Advisory Council. He also denied an allegation that in Italy he had met Pakistanis from the ICI mosque (in Milan), who were attempting to recruit people to go to Pakistan and Afghanistan, denied visiting a Tunisian guest house in Afghanistan “operated by a Tunisian cell with possible ties to al-Qaeda,” and also stated that he had no knowledge of the Khaldan training camp, where, it was alleged, “a senior al-Qaeda lieutenant” identified him as having studied in 1998 or 1999.

He said that he only went to Afghanistan because the Pakistan government started a campaign against Arabs (and pointed out that he was, in fact, arrested on his return to Pakistan –- in Quetta, according to the Unclassified Summary of Evidence for his ARB), and 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.”

What was particularly noticeable about his ARB hearing was that a whole new set of allegations had been added since his Combatant Status Review Tribunal the year before. In his CSRT hearing, it was only alleged that he “traveled to Afghanistan in 1998 and remained living in Afghanistan in 2001,” that he “stayed at an Algerian guest house on multiple occasions in Jalalabad,” that he “stayed at a guest house, which is associated with individuals who have trained at al-Qaeda camps,” and –- the allegation that he refuted in his ARB –- that he “associated with several terrorists,” whereas in his ARB “a senior al-Qaeda lieutenant” identified him as having trained at Khaldan, the Algerian guest house became a Tunisian guest house “possibly associated with al-Qaeda,” and Abdul Rahman became a key player in the TCG and “reportedly” the GIA.

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, coerced or tortured to make such claims. Lest there be any doubt that the “senior al-Qaeda lieutenant” and others had made up all these claims, it’s important to remember that Abdul Rahman was cleared for release –- as close as this administration, with its insistence that those it releases are not in fact innocent, but are, instead, “No Longer Enemy Combatants,” ever gets to admitting that it has made terrible, life-crushing mistakes.

To complicate matters, Abdul Rahman was convicted in absentia for fictional crimes by the dictatorship of Zine El Abidine Ben Ali, and sentenced to 20 years in prison, and would clearly be in danger if he were returned to Tunisia, which, as the US State Department notes every year, has an appalling human rights record. His situation is complicated further because of the precarious state of his health. As his lawyers, Mark and Josh Denbeaux of the Seton Hall Law School have explained, he “suffers frequent chest pains and intense heart palpitations related to [a] replaced aortic heart valve and pacemaker,” and has “many other ailments that would make a transfer to Tunisia extremely risky.”

Back in June, when two other Tunisian detainees –- Abdullah bin Omar and Lofti Lagha, both economic migrants like Abdul Rahman –- were returned to the country of their birth, I mistakenly thought that Abdul Rahman was one of them, but it transpires that, when government lawyers notified Mark and Josh Denbeaux in May that they were planning to send him back to Tunisia, they managed to get a court to issue a temporary restraining order. Although the government subsequently argued that the court lacked jurisdiction in the matter –- and that, by extension, the administration could do what the hell it liked with the already ruined lives of wrongly detained and brutally imprisoned innocent men –- it is Judge Kessler’s disagreement with this position that has saved Abdul Rahman from further horrors (accepting, that is, that one day he will be released from Guantánamo to another country).

Abdul Rahman was clearly fortunate that he had lawyers to protect him. As I reported here, here and here, both bin Omar and Lagha have reportedly been treated brutally on their return to Tunisia, underlining how worthless are the “diplomatic assurances” of humane treatment that the US administration has agreed with Zine El Abidine Ben Ali, as part of its desperate and unprincipled attempts to rid itself of its own mistakes. In this, as I reported here, its motives overlap with those of the British government, which, like its partner in the “special relationship,” is busily engaged in compounding its initial illegal activities –- holding men indefinitely without charge or trial –- with further illegality, as it attempts to break international laws again by signing “diplomatic assurances” and “memoranda of understanding” with the dictators running various North African and Gulf countries (including Tunisia), which are both worthless and illegal.

Recognizing this, and also acknowledging that the looming Supreme Court showdown over detainees’ rights is beginning to filter down to the lower courts, Judge Kessler explained, as she dared to put down the government, that she had made her decision because the Supreme Court’s decision to look once more at the detainees’ rights “cast a deep shadow of uncertainty” over previous rulings restricting their rights. “In view of the grave harm Rahman has alleged he will face if transferred,” she continued, “it would be a profound miscarriage of justice” if the court denied his petition to remain in Guantánamo. Noting that the Supreme Court could eventually decide that the detainees had the right to challenge their detention or their transfer to other countries, she added that an injunction preventing his return was “necessary to ensure his survival.” Otherwise, she concluded, “At that point, the damage would have been done.”

Exulting in what the New York Times described as a judgment that “appears to be the first ruling of its kind,” Josh Denbeaux praised Judge Kessler’s actions, stating, unequivocally, “This is the first time the judicial branch has exercised its inherent power to control the excesses of the executive as to treatment of prisoners at Guantánamo Bay. The executive has now been told it cannot bury its Guantánamo mistakes in Third World prisons.”

Like decisions made by appeal courts in the UK, preventing the illegal return of men who have never been charged to regimes that may well torture them, Judge Kessler’s principled decision is being seen as a mortal blow to the US administration’s attempts to do the same with innocent men, held without charge or trial in Guantánamo. And it augurs well, I think, for the coming Supreme Court showdown over the detainees’ rights to challenge the basis of their detention. Nearly six years of arrant lawlessness and injustice on the part of the executive is more than enough. Let those detainees against whom the administration thinks it has a case be pursued in a recognizable court; and let the others –- the ones against whom no case can be built, because there is none –- be freed, to countries that will not subject them to further torture or ill-treatment.

For more on the legal struggles over Guantánamo, and the stories of the Tunisian detainees, 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 (as “A Gitmo Detainee Finally Gets a Break”).

Note: Mr. Lagha’s first name is spelled incorrectly. It is “Lotfi” not “Lofti.”

A New Guantánamo Whistleblower Steps Forward to Criticize the Tribunal Process

The saga of the Guantánamo whistleblowers, which sprang to life in June, but then, like so many news stories, was considered done and dusted by a media hungry for fresh meat, resurfaced unexpectedly last week when an Army Major filed an affidavit in the case of Adel Hamad, a Sudanese detainee who was kidnapped in July 2002 from his home in Pakistan, where he was working as a hospital administrator. The Major, who does not wish to be identified, stated that, between October 2004 and February 2005, he served on 49 of the 558 Combatant Status Review Tribunals at Guantánamo, which were convened to assess whether or not the detainees had been correctly designated as “enemy combatants.”

In his affidavit, the Major, a Judge Advocate’s General (JAG) officer who served as a Second Lieutenant in the Army Reserves, and has worked as a Deputy District Attorney, explained that the training he received, both in Washington and Guantánamo, was “minimal,” that the CSRT process was “not well defined,” and that, “although the CSRT rules required having a JAG on each CSRT panel,” they were “silent as to the role.” He and other JAG lawyers concluded that they were there as “informal legal advisors to the other board members,” whose legal knowledge was often poor. He described, for example, “a sentiment among the JAG officers that many of the CSRT officers did not understand the distinction between conclusory statements and evidence,” and noted that some tribunal members “did not understand that the presumption was to be given to the evidence.” In part, however, this was by design on the government’s part, as he also noted, “The CSRT rules afforded the government evidence a presumption of correctness. For me as a tribunal member this meant that when I had a piece of evidence with some small corroboration, then I had to view that with great significance and it would also have made it difficult for any detainee to rebut.”

A trailer at Guantanamo, where the CSRTs were held

One of the trailers at Guantánamo, in which the CSRTs were held.

Describing the 49 tribunals on which he sat as a member, he wrote that he and his colleagues typically worked 14-hour days, six or seven days a week, and explained that the tribunals’ recorders, whose general role was “to generate the evidence“ to present to the panels, “did not have much control over the content of the information to be presented to the CSRT hearings,” adding that “Much of the material presented was supplied by intelligence agencies and were summaries that were not necessarily justified by the underlying evidence.”

He also explained that the role of the Personal Representatives, who liaised with the detainees and sometimes helped them put their case to the tribunals, was “unclear,” noting that “some PRs did little,” but that one Air Force Major “strongly advocated for the detainees he was assigned to assist.” In a further demonstration that some of those involved in the process were more concerned with results than with justice, he added, “I heard some CSRT members say that they did not appreciate the zeal with which he tried to assist the detainees.”

In a particularly telling passage, in which he discussed the CSRT of Adel Hamad, he explained that “the tribunal members had very little discussion of the evidence in his case,” and that his “primary concern” was that there was “insufficient evidence to describe him as an enemy combatant.” After drafting a dissenting opinion, he discussed it with a Navy Commander, who was also on the panel, and was surprised that his colleague “questioned the meaning of some of the definitions used in my dissenting report,” concluding that it “came from a lack of legal training.” In one of the most damning passages, he also noted that, although exculpatory evidence, which might have exonerated the detainees, was supposed to be presented separately, “as required in the CSRT rules,” none was presented in any of his 49 tribunals, and the only time he ever encountered exculpatory evidence was “by accident,” when “some of the evidence presented by the recorder would contradict the allegations made against the detainee.”

The Major also wrote about taking part in six CSRT hearings, “where there was a unanimous decision that the detainee was a Non Enemy Combatant (‘NEC’).” He explained that in each case “the Command directed that a new CSRT be held or the original CSRT was ordered reopened,” but pointed out that “the ‘new evidence’ that was presented was in fact a different conclusory intelligence finding,” which, significantly, “was not justified by the underlying evidence.” In addition, he and other dissenting tribunal members were “briefed by CID (intelligence) agents who were brought in by Command to explain why the NEC results were wrong,” and he described discussions that followed these meetings, when he and other tribunal members concluded, with some justification, “that this was an attempt to influence the results of the CSRT hearings.”

In other passages, he described acrimonious meetings and a “heated conference” that followed “inconsistent decisions” in the cases of 18 Uyghur detainees (Chinese Muslims, oppressed by their government, who had fled to Pakistan from Afghanistan after a ruined village they were living in was bombed by US forces), and explained how his suggestion, based on his experience of the criminal justice system, that “inconsistent results were good for the system,” and would show that it was “working correctly,” were ignored.

In a final point, which also indicates how loaded the process was in favor of the government’s allegations, the Major noted that he spent a month and a half working as a legal advisor to the CSRTs, but “was never told that I could review the sufficiency of the evidence and write or discuss that issue with a CSRT.”

While it remains to be seen whether the Major’s statement will add significantly to the growing clamor to return habeas corpus rights to the Guantánamo detainees, it has certainly revived a vitally important story, which looked, until now, as if it had been allowed to fall off the radar.

The first Guantánamo whistleblower to speak out publicly was Lt. Col. Stephen Abraham, an Army reservist with 26 years’ experience in military intelligence. In an affidavit filed in the case of the Kuwaiti detainee Fawzi al-Odah, Lt. Col. Abraham, who had been part of the team responsible for compiling the “evidence” used in the tribunals, delivered a blistering condemnation of the entire process, stating that the CSRTs were severely flawed, relying on intelligence “of a generalized nature –- often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status,” and that, moreover, the process was designed to rubber-stamp the detainees’ prior designation as “enemy combatants.” Like the Army Major, Lt. Col. Abraham also experienced bullying when he and the other members of his tribunal decided, in the case of Abdul Hamid al-Ghizzawi, a Libyan shopkeeper who was married to an Afghan woman, that the detainee was not an “enemy combatant.”

Despite the uproar that Lt. Col. Abraham’s affidavit caused for a few weeks in June and July this year, the press soon moved on. A few ripples of interest still lingered when he visited Capitol Hill in early August to reiterate his testimony before the House Armed Services Committee, but there the trail ended. A week later, after liaising with him, I reported exclusively that another officer who had taken part in the CSRT process had written to wish him luck, and to declare, “my recollections of the process are similar to yours. The finding of enemy combatant was expected, the finding of not an enemy combatant was looked upon as a failure of the process.” Another officer also “expressed support for his efforts,” but by that time everyone was on holiday, and the plight of the “enemy combatants” was forgotten.

The affidavit filed by the army major in Adel Hamad’s case not only revives the important story that Lt. Col. Abraham bravely divulged in June; it also raises the number of former insiders criticizing the process to four, and neatly returns to the first reports of dissent within the ranks of those involved in the CSRTs, which first surfaced in August 2006. In an article for the Boston Globe [mirrored here], Farah Stockman reported on Adel Hamad’s case, noting that an Army Major –- clearly the same man who has now filed an affidavit publicly, even though no one involved in the case is providing any further information –- had issued a dissenting opinion. Taking into account the fact that neither of the charity organizations for which Hamad had worked in Pakistan –- the Saudi-based World Association of Muslim Youth, and the Kuwait-based Lajanat Dawa Islamiya –- appeared on the State Department’s list of terrorist organizations, he argued that, “even assuming all the allegations … are accurate, the detainee does not meet the definition of enemy combatant.” He added, “These NGOs presumably have numerous employees and volunteer workers who have been working in legitimate humanitarian roles. The mere fact that some elements of these NGOs provide support to ‘terrorist ideals and causes’ is insufficient to declare one of the employees an enemy combatant.”

After Lt. Col. Abraham first spoke out in June, I wrote an article that drew on Farah Stockman’s original story, in which I also noted her shocked conclusion –- that the Major was overruled by his colleagues, one of whom, in a single line that discredits the whole tribunal process as effectively as the recent affidavits, wrote that the case “passed the ‘low evidentiary hurdle’ set up by the rules of the hearings” –- and I’m pleased to note that, with the Army Major now stepping forward to join the ranks of the Guantánamo whistleblowers, the mystery of Adel Hamad’s dissenting tribunal member has now been solved. After the abuse that Lt. Col. Abraham received after going public in June, when the Department of Justice attempted to belittle him, and smeared his account as “innuendo,” I also understand why he has refrained from revealing his identity.

All that remains now is for more former CSRT personnel to follow his lead, and also, if he’s watching and waiting to do the right thing, for a dissenting officer who served as the Personal Representative in Guantánamo to two detainees to come forward too. First reported by Corine Hegland in the National Journal in February 2006, the story of this particular Personal Representative showed a principled man speaking truth to power on a heroic scale. Alarmed that those he was representing had been accused of crimes that they couldn’t possibly have committed, this man –- perhaps the Air Force Major referred to by the Army Major in his affidavit –- checked the file of the detainee who had made the allegations, saw that he had accused 60 men of attending a particular training when none of them had even been in Afghanistan at the time, and took the unprecedented step of submitting a written protest to the authorities after the CSRT of Farouq Saif, a teacher of the Koran who was allegedly seen at Osama bin Laden’s private airport in Kandahar. In his letter, he stated that the government’s sole evidence that Saif had been at the airport was the statement of another prisoner, who, according to an FBI memo, which he presented to the tribunal, was a notorious liar. According to the FBI, he “had lied, not only about Farouq, but about other Yemeni detainees as well. The other detainee claimed he had seen the Yemenis at times and in places where they simply could not have been.” The Personal Representative added, “I do feel with some certainty that [the accuser] has lied about other detainees to receive preferable treatment and to cause them problems while in custody.”

We know the identity of one of the other 59 men accused by the “notorious liar” –- Mohammed al-Tumani, a young Syrian who had gone to Afghanistan with his whole family, to be reunited with his father, who was working as a cook in Kabul –- but, although some of the other falsely accused detainees are almost certainly covered in my book The Guantánamo Files, in which I look in depth at false allegations and false confessions, the knockout blow to the credibility of the corrupt tribunals might be delivered if this man, with his insight into lies that were treated as “evidence” on a colossal scale, could be persuaded to join the ranks of Guantánamo’s principled whistleblowers.

As published on CounterPunch (as “Fourth Whistleblower Rocks Guantánamo”). An edited version appeared on the Huffington Post.

Note: After this article was published, Steve Wax, one of Adel’s lawyers, wrote to me to point out, “The document filed with the court was a declaration by William Teesdale, an investigator and attorney in my office. It says that the major read and approved the contents. It was not an affidavit from the major himself”.

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.

See the following for a sequence of articles dealing with the crucial testimony of Lt. Col. Stephen Abraham and other Guantánamo whistleblowers: Guantánamo whistleblowers: Lt. Col. Stephen Abraham is not the first insider to condemn the kangaroo courts (July 2007), The Guantánamo whistleblower, a Libyan shopkeeper, some Chinese Muslims and a desperate government (July 2007), Guantánamo: more whistleblowers condemn the tribunals (August 2007), Guantánamo whistleblower launches new attack on rigged tribunals (November 2007), Guantánamo and the Supreme Court: the most important habeas corpus case in modern history (December 2007), Guantánamo and the Supreme Court: What Happened? (December 2007), Guantánamo whistleblower Stephen Abraham addresses European Parliament (March 2008), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), An interview with Guantánamo whistleblower Stephen Abraham (Part One) (December 2008), An interview with Guantánamo whistleblower Stephen Abraham (Part Two) (December 2008), Guantánamo: Lies, Damned Lies and Statistics (February 2009).

The Economist bravely explains why we must fight terrorism with one hand tied behind our backs

Over in the Economist, a detailed three-part series on terrorism and civil liberties has just come to a close –- and very impressive it is, too. It began with an editorial pointing out that “the past six years have seen a steady erosion of civil liberties even in countries that regard themselves as liberty’s champions. Arbitrary arrest, indefinite detention without trial, ‘rendition,’ suspension of habeas corpus, even torture –- who would have thought such things possible? Governments argue that desperate times demand such remedies. They face a murderous new enemy who lurks in the shadows, will stop at nothing and seeks chemical, biological and nuclear weapons. This renders the old rules and freedoms out of date. Besides, does not international humanitarian law provide for the suspension of certain liberties ‘in times of a public emergency that threatens the life of the nation’?”

The article continues, “There is great force in this argument. There is, alas, always force in such arguments. This is how governments through the ages have justified grabbing repressive new powers.” After briefly commenting on procedures undertaken in World War II –- when “the democracies spied on their own citizens, imposed censorship and used torture to extract information,” and the US “interned its entire Japanese-American population,” which is described as “a decision now seen to have been a cruel mistake” –- the article proceeds to point out:

There are those who see the fight against al-Qaeda as a war like the second world war or the cold war. But the first analogy is wrong and the moral of the second is not the one intended.

A hot, total war like the second world war could not last for decades, so the curtailment of domestic liberties was short-lived. But because nobody knew whether the cold war would ever end (it lasted some 40 years), the democracies chose by and large not to let it change the sort of societies they wanted to be. This was a wise choice not only because of the freedom it bestowed on people in the West during those decades, but also because the West’s freedoms became one of the most potent weapons in its struggle against its totalitarian foes.

If the war against terrorism is a war at all, it is like the cold war –- one that will last for decades. Although a real threat exists, to let security trump liberty in every case would corrode the civilized world’s sense of what it is and wants to be.

There then follows the most extraordinary defense of what the decision not to let security always trump liberty actually means. Initially, this appears confusing. The article states, “When liberals put the case for civil liberties, they sometimes claim that obnoxious measures do not help the fight against terrorism anyway. The Economist is liberal but disagrees. We accept that letting secret policemen spy on citizens, detain them without trial and use torture to extract information makes it easier to foil terrorist plots.”

When I first read this passage, I assumed that it was leading to the kind of authoritarian nonsense that many former “liberals” –- ageing malignantly, and bizarrely attempting to equate the “War on Terror” with the Nazis –- come up with, but in fact the Economist was taking a completely different viewpoint, accepting that “obnoxious measures” might well help to foil terrorism, but, crucially, refusing to endorse them because they are morally self-defeating, tending, as described above, to “corrode the civilized world’s sense of what it is and what it wants to be.” Here’s the key passage: “To eschew such tools is to fight terrorism with one hand tied behind your back. But that –- with one hand tied behind their back –- is precisely how democracies ought to fight terrorism.”

I read on, wondering if I had misinterpreted this radical conclusion, but there followed a suitably scathing dismissal of the “ticking time-bomb” rationale for torture: “A famous thought experiment asks what you would do with a terrorist who knew the location of a ticking nuclear bomb. Logic says you would torture one man to save hundreds of thousands of lives, and so you would. But this is a fictional dilemma. In the real world, policemen are seldom sure whether the many (not one) suspects they want to torture know of any plot, or how many lives might be at stake. All that is certain is that the logic of the ticking bomb leads down a slippery slope where the state is licensed in the name of the greater good to trample on the hard-won rights of any one and therefore all of its citizens.”

A slippery slope? I had read it correctly, and now awaited the final reiteration of the Economist’s advocacy of inviolable legal and moral principles, which went even further than I had anticipated. Here’s the final paragraph: “Human rights are part of what it means to be civilized. Locking up suspected terrorists –- and why not potential murderers, rapists and paedophiles, too? –- before they commit crimes would probably make society safer. Dozens of plots may have been foiled and thousands of lives saved as a result of some of the unsavoury practices now being employed in the name of fighting terrorism. Dropping such practices in order to preserve freedom may cost many lives. So be it.”

Yes, you read it correctly. The conduct of the “War on Terror” –- with “arbitrary arrest, indefinite detention without trial, ‘rendition,’ suspension of habeas corpus, [and] even torture” –- is so harmful that, if we are not to lose our values, which, as in the cold war, are what distinguishes us from our enemies, then we must work within the law, and not jettison rights that took 800 years to develop.

This is, I believe, an incredibly bold stance to take, and the Economist’s writers are clearly aware of its impact, choosing to refer to the possible loss of “thousands of lives,” as a risk worth taking –- or even a price worth paying –- to ensure that we do not sink to the level of the tyrants and terrorists whom we profess to despise. Bravely, it takes the argument against torture, “extraordinary rendition,” and indefinite detention without charge or trial to its armchair supporters, forcing them to confront the dark truth that underpins their casually repressive claims that all means are justified in the attempt to eradicate terrorism. Without even touching on the failure of fighting terror with terror –- and creating, as in Iraq, recruiting grounds for would-be terrorists that are far more fertile now than they were before 9/11 –- the Economist has asserted the supremacy of decency over fear, and is to be congratulated for saying out loud what few dare even to acknowledge privately.

Detainees on one of the first flights to Guantanamo

The cost of misplaced zeal in the “War on Terror”: detainees on one of the first flights to Guantánamo.

[Note: See here, here and here for the Economist’s three-part series. The first looks at torture, the second at the surveillance society, and the third at the judges and parliamentarians who are “restraining the zeal of governments who want a free hand to fight terror.” All are well worth reading].

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 American Torture.

A good week at Guantánamo: judge reinstates habeas cases, and the Military Commissions’ chief prosecutor resigns

As regular readers will appreciate, the twists and turns of the Guantánamo story are so unpredictable that a bad week, when, for instance, detainees’ habeas petitions are thrown out of court and the government’s reviled military trials lumber back to life, can be unexpectedly reversed when a judge changes his mind and a government prosecutor opts for early retirement.

As this, of course, is exactly what happened over the last few days. On Friday, District Judge Ricardo Urbina, who, just two weeks ago, dismissed 16 lawsuits, challenging the indefinite imprisonment of at least 40 detainees in Guantánamo, overturned his previous ruling after an appeal from lawyers representing the detainees. As Jurist reported, Urbina’s initial dismissal of the habeas challenges –- pending Supreme Court hearings, probably in December, relating to two high-profile cases, Al-Odah v. United States and Boumediene v. Bush –- had “rendered invalid protocols governing lawyers’ access to detainees and had prompted Department of Justice officials to bar further access until the lawyers agreed to new restrictions allegedly required by security concerns.”

Two weeks ago, as I reported here, it looked as if this meant that lawyers for the detainees would be preventing from having access to their clients until they had jumped through a new series of humiliating hoops –- and that, in the meantime, the administration might take advantage of the hiatus to stealthily return cleared Libyan detainee Abdul Rauf al-Qassim to the country of his birth, where he faces the risk of torture. But no! Completely changing his mind, Urbina not only reinstated the detainees’ habeas petitions, but also indicated that one of his reasons for doing so was his “concern” about the “maneuvering” of the Department of Justice.

In the same article in which I bemoaned Urbina’s initial ruling, I was also crestfallen at the news that the administration’s Stalinesque show trials –- the Military Commissions –- had been revived after suffering what appeared to be a mortal blow just four months ago. Given the go-ahead to stutter back to malignant life by a hastily convened appeals court, it seemed plausible that new trials would take place in the imminent future, and I was preparing, rhetorically, to man the barricades erected by the government-appointed military defense lawyers, currently led, in terms of public pronouncements, by Lt. Cmdr. William Kuebler, who has persistently argued that the Commissions are rigged, ridiculous, unjust, farcical, a sham, and a lawless process.

Almost as soon as the Commissions were revived, however, the Wall Street Journal (as I described here) reported on a grave spat between Col. Morris Davis, the Commissions’ chief prosecutor, and his superior officer, Brig. Gen. Thomas Hartmann, the legal adviser to retired judge Susan Crawford, the “convening authority” overseeing the trials, in which Davis, angry at what he perceived as unwarranted interference from Hartmann, threatened to resign, and, along the way, revealed deep divisions within the administration over how to run its kangaroo courts.

Col. Morris Davis
Col. Morris Davis in happier days.

Clearly not reassured by the response to his outburst, Davis followed up on his threat and handed in his resignation last week, leaving a rudderless Commission process drifting aimlessly until a new chief prosecutor can be found. Pentagon spokesman Bryan Whitman immediately declared, “I don’t anticipate that this will affect in any way the preparation of cases to go before the Military Commissions,” but others are less sure.

Always ready with a damning response, Bill Kuebler told Newsweek, “This is what happens when you try to start a justice system from scratch,” and Wells Dixon, an attorney at the Center for Constitutional Rights, underscored Kuebler’s concerns, telling the New York Times, “This is further evidence that the military commission process is completely unraveling,” and adding that this was “endemic to any system that is made up as you go along.” Nor, as Newsweek concluded, will it necessarily be easy to find a replacement for Davis. “Already, two chief prosecutors have come and gone since 2004,” the magazine reported. “As job listings go, this one will have ‘avoid’ stamped all over it.”

It may all have turned again by next week, but for now I’m reassured that something’s going right.

For more on the legal challenges to 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.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 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).

Clive Stafford Smith at Guantánamo: how the immoral became mundane

In the Los Angeles Times, Clive Stafford Smith, the legal director of the London-based legal charity Reprieve, which represents dozens of Guantánamo detainees, recently filed a report from the “Combined Bachelors’ Quarters” at Guantánamo, where visiting lawyers are housed. He had been visiting some of his clients, although, as he explained, “I can’t tell you what anyone has told me, as it must all go through the censors.” He added, tellingly, “Most of the secrecy in Guantánamo involves suppressing bad news about the base rather than anything that should really be classified. But I obey the rules or I go to jail, so until I get permission, I can only write about what I see, not what is said.”

A protestor holds an image of Sami al-HajHe went on to talk about Sami al-Haj, the imprisoned al-Jazeera cameraman, who has been on a hunger strike since January, and explained, succinctly, why it is illegal to force-feed prisoners, why the authorities are doing it, and how painful the process is: “Medical ethics tell us that you cannot force-feed a mentally competent hunger striker, as he has the right to complain about his mistreatment, even unto death. But the Pentagon knows that a prisoner starving himself to death would be abysmal PR, so they force-feed Sami. As if that were not enough, when Gen. Bantz J. Craddock headed up the US Southern Command, he announced that soldiers had started making hunger strikes less ‘convenient.’ Rather than leave a feeding tube in place, they insert and remove it twice a day. Have you ever pushed a 43-inch tube up your nostril and down into your throat? Tonight, Sami will suffer that for the 479th time.”

Writing after his visit, Stafford Smith added, “Sami looked very thin. His memory is disintegrating, and I worry that he won’t survive if he keeps this up. He already wrote a message for his 7-year-old son, Mohammed, in case he dies here.”

After another visit –- with Hisham Sliti, a Tunisian whose story I reported here –- Stafford Smith wrote of his plans to see Shaker Aamer, the British resident who was at the centre of a recent and ludicrous bout of paranoia on the part of the authorities over some allegedly smuggled underwear, but whose plight is far from frivolous. Held in solitary confinement since August 2005 –- a predicament which is both barbaric and misguided, based on false assumptions that Shaker, because of his outspoken nature, his compassion and his eloquence, is a leader of al-Qaeda in Guantánamo –- Stafford Smith noted, sadly, “Shaker has never met his youngest son, Faris, who was born after his imprisonment and who waits in London, hoping to meet his father. I’d love to ask Shaker about the Speedos I supposedly gave him, but he was floridly psychotic the last time I saw him. He’s been on a hunger strike even longer than Sami –- almost 300 days –- and an interrogator told him I was Jewish to sow discord between us. He is fairly certain that I work with the CIA.”

In conclusion, Stafford Smith noted, “In more than 20 years trying death-penalty cases, I have visited all the worst prisons in the Deep South, yet none compares to Camp Six here [the newly-built block where even detainees cleared for release are held]. To the military, this tribute to Halliburton’s profiteering is state-of-the-art; to the human being, it is simply inhumane. The prisoners have an average of 23 hours a day in isolation, six hours of direct sunlight a month, perhaps one fishing magazine a week to read, and never, ever the chance to see a loved one. The immoral has become so mundane.”

BBC reporter Alan JohnstonNote: The BBC journalist Alan Johnston, who was released in July after being kidnapped in Gaza City and held for four months, recently wrote an open letter to Sami al-Haj, who had made a public appeal from Guantánamo on Johnston’s behalf, in which he declared, “While the United States has kidnapped me and held me for years on end, this is not a lesson that Muslims should copy.” In his letter, Johnston wrote, “While I was kidnapped recently in the Gaza Strip fellow journalists from around the world joined the campaign mounted to try to secure my release, and of course you were among them. I was particularly grateful for your contribution given your own very difficult circumstances. In the light of my own experience of incarceration I am aware of how hard it must be for you and your family to endure your detention, and I very much hope that your case might be resolved soon. I understand that after some five years in Guantánamo you are calling to be allowed to answer any allegations that are being made against you. And of course I would always support any prisoner’s right to a fair trial.”

For more on the detainees discussed in this article, 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 Anonymous Victims Of Guantánamo: Eight More Wrongly Imprisoned Men Are Quietly Released

Hot on the heels of the release of Mohammed al-Amin, a Mauritanian student who was just a teenager when he was kidnapped for a bounty payment on a street in Pakistan over five years ago, the Pentagon has released another eight detainees –- six Afghans, a Libyan and a Yemeni –- thinning “the worst of the worst” at Guantánamo from 778 men to just 335.

The Afghans

Of the six Afghans released, the identities of three are unknown. This is hardly surprising, as the Department of Defense never reveals the names of those it releases, and the media long ago abandoned turning up in Kabul to welcome back another bunch of farmers, shopkeepers and Taliban conscripts from their brutal and surreal sojourn in a small corner of Cuba that is forever America. Of the 163 Afghans released since Guantánamo opened (out of a total of 218), a dozen of those released in the last few years have not been identified, and these three look like remaining just as anonymous.

To compensate, however, the three Afghans who have been identified represent a microcosmic cross-section of the ineptitude of the US military and the Pentagon during the two years that followed the US-led invasion of Afghanistan in October 2001, consisting of a pro-US, anti-Taliban military leader, another man who was arrested after his house was bombed, and another who was seized while walking in the street.

Detainees at Guantanamo

The pro-US military leader –- one of several dozen actively pro-American Afghans held at Guantánamo over the years –- is Sabar Lal Melma. 40 years old at the time of his capture, Melma was the military aide to Haji Roohullah, the commander of a long-standing anti-Taliban militia based in Kunar province, which was aligned with the Northern Alliance. Roohullah, who was also described by Ghulam Ullah, the head of education in Kunar, as “a national religious leader,” had fired the first salvo against the Taliban in Kunar after the US-led invasion, and as a result of his anti-Taliban credentials and his support for Hamid Karzai, he was rewarded with an important position in the province’s post-Taliban administration, and was also made a member of the Loya Jirga, the prestigious gathering of tribal leaders that elected Karzai as President in June 2002. Betrayed by a rival –- probably Malik Zarin, the head of the rival Mushwani tribe, who had ingratiated himself with the Americans and was using them for his own ends –- Roohullah, Melma and eleven others were seized by US forces in August 2002 and taken to the US prison in Bagram airbase for questioning, where they were accused of being part of an Islamic extremist group and helping al-Qaeda fighters to escape from Tora Bora, even though they had had numerous meetings with senior American officials and had offered support for the Tora Bora campaign.

Although the others were subsequently released, the Americans decided that both Roohullah and Melma had sufficient intelligence value to be transferred to Guantánamo in August 2003. According to an Associated Press report, they believed, despite overwhelming evidence to the contrary, that Roohullah “had strong links with Middle Eastern fighters in Afghanistan, particularly Saudi Arabians like Osama bin Laden,” and thought it significant that he was a follower of the Wahhabi sect of Islam. In his tribunal, Melma pointed out the injustice of imprisoning him with members of the Taliban: “The only thing I want to tell you that is so ironic here is that I see a Talib and then I see myself here too, I am in the same spot as a Talib. I see those people on an everyday basis, they are cursing at me … They say, ‘See, you got what you deserved, you are here, too.’” Astonishingly, though Melma has now been released, Haji Roohullah remains in Guantánamo, with no immediate prospect of release.

The man who was taken to Guantánamo because his house was bombed is Mohibullah, from Uruzgan province, who was just 21 when he was captured. Woken in the night by the sound of firing, he went into his compound and fired three warning shots into the air to ward off what he thought were burglars. Soon after, an American plane dropped a bomb on his compound, injuring him, and he was captured by Special Forces the following morning. “I never worked with the Taliban, or talked with them or ate with them,” he told his tribunal at Guantánamo. “I was a bus driver.” Two years ago, in an attempt to secure his freedom, he wrote a habeas corpus petition, without the help of a lawyer, in which he explained more about the circumstances of his capture, noting that he was severely injured when his house was destroyed, but that when the Americans, who admitted that the bombing might have been a mistake, took him away, claiming that they were going to treat his wounds, he was transported to Guantánamo instead. “Now it has been two and one-half years that I have been detained here and I do not why,” Mohibullah wrote. “Even the interrogators have still not told me what my crime was and why they detained me.”

The third Afghan –- the one who was captured in the street –- is Azimullah. Just 20 years old at the time, he explained to his tribunal in Guantánamo that he was captured near a madrassa (religious school), where he was studying. He was accused of acting “as a guide to a group of individuals attacking the Salerno Fire Base” (a US base), but he said that he didn’t know anything about this group, or about allegations that they had “weapons, surveillance equipment (cameras and binoculars) and radios,” or that he “met with an Arab man and an Afghan man who gave him money prior to the attack.” Asked about the circumstances of his arrest, he said that he was walking towards the village with a man named Salim, whom he did not know previously, but whom he had met “on the way going to the village,” when a group of Afghan soldiers “saw us and arrested us.” He explained that he was not told why he was arrested at the time, but that “when they took me to the base,” where he was handed over to the US military, “they told me that I attacked them and that I did this and this.”

The Libyan

The story of the released Libyan, Abu Sufian Hamouda, is rather more complicated. Hamouda, who is 48 years old, was a refugee from his homeland. According to the US military’s “evidence,” accumulated over the last five years, he had served in the Libyan army as a tank driver from 1979 to 1990, but was “arrested and jailed on multiple occasions for drug and alcohol offenses.” Having apparently escaped from prison in 1992, he fled to Sudan, where he worked as a truck driver. In an attempt to beef up the evidence against him, the Department of Defense alleged that the company he worked for, the Wadi al-Aqiq company, was “owned by Osama bin Laden,” and also attempted to claim that he joined the Libyan Islamic Fighting Group, a militant group opposed to the rule of Colonel Gaddafi, even while admitting that an unidentified “al-Qaeda/LIFG facilitator” had described him as “a noncommittal LIFG member who received no training.”

After relocating to Pakistan, Hamouda apparently stayed there until the summer of 2001, when he and a friend crossed the border into Afghanistan, traveling to Jalalabad and then to Kabul, where Hamouda found a job working as an accountant for Abdul Aziz al-Matrafi, the director of al-Wafa, a Saudi charity which provided humanitarian aid to Afghans, but which was regarded by the US authorities as a front for al-Qaeda. Over the years, dozens of Guantanamo detainees were tarred as terrorists because of their associations with al-Wafa. The majority have now been released, but one of those who remains in Guantánamo, little-known and barely reported, is al-Matrafi, who was kidnapped on a flight from Pakistan to Saudi Arabia in November 2001.

It’s difficult to ascertain whether there is any truth in the allegations that al-Wafa was a front for al-Qaeda. According to the “evidence” against Hamouda, “Members of the Taliban would frequently visit the al-Wafa office in Kabul and had dealings with the director of that office,” which was hardly surprising, as the Taliban was the government at the time. Less clear is the claim that, according to various accounts, including a statement allegedly made by Hamouda, “the director of the al-Wafa office was connected to al-Qaeda and knew Osama bin Laden.” Even setting aside the dubious circumstances under which this “confession” was produced, other detainees have claimed that bin Laden was actually suspicious of al-Wafa, because of its Saudi links.

What’s apparent, however, is that Hamouda’s involvement with the organization centered on its humanitarian work, as another “allegation,” which actually had nothing to do with terrorism, made clear. In the “evidence” presented for his Combatant Status Review Tribunal –- under factors purporting to demonstrate that he “supported military operations against the United States or its coalition partners” –- it was stated that, while working for al-Wafa, he traveled to Kunduz “to oversee the distribution of rice that was being guarded by four to five armed guards.” In Guantánamo, it seems, even the distribution of rice can be regarded as a component in a military operation.

Captured in Islamabad, after fleeing from Afghanistan following the US-led invasion, Hamouda was held for a month by the Pakistani authorities, and was then handed over to the Americans, who began mining him for the flimsy “evidence” of terrorist activities outlined above. Earlier this year, he was cleared for release, and, despite misgivings on the part of his lawyers, stated that he was prepared to return to Libya, even though what awaits him may not be any better than what he was suffered over the last five years. Perhaps, as one of Guantánamo’s truly lost men, he has decided that, if he is to spend the rest of his life in prison for no apparent reason, he would rather be in Libya, where his wife and his family might be able to see him, than in Guantánamo, where, like every other detainee, he was more isolated from his relatives than even the deadliest convicted mass murderer on the US mainland.

The Yemeni

The last of the eight, Ali Mohammed Nasir Mohammed, was 19 years old when he was seized by Pakistani soldiers and delivered to the US military in December 2001. Slightly evasive in his tribunal, he said that he went to Afghanistan to “look around to see how the people were doing,” and added, “In my imagination I thought I was going to see many centers with a lot of guards in them and I would see a lot of Muslims. I would find out how the Muslims were worshipping and what they do.” He admitted, however, that he attended a training camp for 40-45 days and also admitted that he had worked for the Taliban, although he said that he had worked only in the kitchens or as a guard behind the front lines, and had not participated in military operations against the US-led coalition, telling his tribunal, “I have never shot one bullet in my life.” After escaping from Afghanistan by passing through the Tora Bora region to reach Pakistan, he was captured by Pakistani soldiers after asking directions to the Yemeni embassy.

What makes his story unusual is that, once the Pentagon had decided that it was not worth holding onto a cook for the Taliban who clearly knew nothing about al-Qaeda, confusion over his identity prevented his release for 16 months. Back in May 2006, as the Washington Post described it four months ago, “He got a checkup. His photo was taken, as were his fingerprints. He was measured for clothes and shoes, then offered a meeting with the Red Cross. As the Pentagon tersely put it later in an e-mail to his attorneys: ‘Your client has been approved to leave Guantánamo.’” However, as his lawyer, Martha Rayner, explained, “He never went home.” “Stuck,” as the Post article went on, “in a limbo of mistaken identities, bureaucratic inertia and official neglect,” his case was “an indictment of a system, still cloaked in the strictest secrecy and largely beyond accountability, in which a man who face[d] no charge and no sentence remain[ed] deprived of the freedom he was granted” in May 2006. “It’s a lovely illustration of what happens when there’s no oversight of the jailer,” Rayner noted, acutely.

The Washington Post article went on to describe what had happened to prevent Mohammed’s release for 16 months. Although he was born in Saudi Arabia and had been living there before his all-advised trip to Afghanistan, he was regarded as a Yemeni, under both Yemeni and Saudi law, because his parents are from the Yemen, where they still live, and Mohammed had a Yemeni passport and grew up there. What particular confused matters was the fact that the US military regarded Mohammed as a Saudi, and while the Saudi authorities washed their hands of him, and the Yemeni government said that it was “unaware of his case,” he languished in Guantánamo for another 16 months –- imprisoned in Camp Six, where even cleared detainees are held in solitary confinement –- until a new arrangement could be made.

As these eight men finally leave Guantánamo after five years or more in US custody without charge or trial, their cases clearly do nothing to salvage the administration’s reputation for illegal incompetence. And it can only get worse. Of the 335 detainees still held in Guantánamo, the government has admitted that it only intends to put forward around 80 for trial by Military Commission. Of the remaining 255, at least 70, like the men just released, have been cleared for release (some for two years or more), and despite the administration’s blustering this summer that it intended to hold dozens of others indefinitely because –- in another revolutionary legal twist –- they are too dangerous to be released, but not dangerous enough to be charged, it now seems inevitable that they too will eventually be given their freedom. Even if the 80 proposed trials go ahead, which is extremely unlikely, it must surely be impossible for the architects of this disaster to claim that an 11% success rate is sufficient justification for the moral, ethical, judicial, and financial cost of an operation that has been manifestly revealed not as the triumphant prison wing of the “War on Terror” but as an inept, cruel, degrading and ultimately failed experiment.

This article draws partly on passages from 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.

Note:

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

ISN 557: Abu Sufian Hamouda (Abu Sufian bin Qumu) (Libya)
ISN 172: Ali Mohammed Nasir Mohammed (Yemen)
ISN 801: Sabar Lal Melma (Afghan)
ISN 974: Mohibullah (Afghan)
In addition, Azimullah (ISN 1050) was actually released in April 2007

The four Afghans whose identities were unknown at the time of their release are as follows:

ISN 941: Juma Din (to be described in a forthcoming online chapter)
ISN 945: Said Amir Jan (to be described in a forthcoming online chapter)
ISN 951: Allah Nasir (described in Chapter 17 of The Guantánamo Files)
ISN 956: Abdul Ahmad (to be described in a forthcoming online chapter)

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, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; 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).

Poetry and politics at Guantánamo: An interview with Marc Falkoff, editor of Poems From Guantánamo: The Detainees Speak

Poems From Guantanamo

Published in August, Poems From Guantánamo contains 22 poems, by 17 Guantánamo detainees –- many of whom are still held without charge or trial after five and half years –- which were cleared for publication only after passing through a strict censorship process established by the Pentagon. In telephone interviews conducted on 7 and 10 September 2007, Andy Worthington, author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, spoke to the book’s editor, Marc Falkoff, a law professor who also represents a number of Yemeni detainees in Guantánamo.

Andy Worthington: Hello, Marc. I’d like to begin by congratulating you and the University of Iowa Press for producing such a beautiful volume. It’s really a cut above most books in terms of its production values.

Marc Falkoff: Well, thanks. All credit to the University of Iowa Press.

Andy Worthington: Even before your book was published last month, you received what must have been a gratifyingly large amount of publicity. I noticed, however, that almost immediately some critics stepped up to question or criticize the literary value of the poems. Do you think they were somehow missing the point?

Marc Falkoff: Yes and no. I’ve got to say that almost everyone who’s reviewed the book or talked about it –- on blogs and elsewhere –- has recognized that aesthetics are largely beside the point. The prime example would be Robert Pinsky, former Poet Laureate of the United States, who’s been very generous in praise of the book, but his approach has been that these are “urgent” texts that require our attention by addressing the human rights issues that the Guantánamo imprisonments raise, and he has shied away from the aesthetic merit of the poems. In a recent interview he said that this isn’t like some of the great poetry that emerged from the Soviet Gulag –- the work of Mandelshtam, for example –- but essentially he remained focused on the poems’ political context.

However, I think it’s acceptable at some level, to some degree, to look at these poems as aesthetic objects. When you look at them, some people would agree that some of the poems are quite pedestrian, which is understandable given that the book is made up almost entirely of amateur poets. On the other hand, there are some poems that to my mind are quite striking in terms of imagery, metaphor and thematic complexity. But this said, clearly this book is about more than aesthetics, and in fact, even though you mentioned comments about aesthetics, I would say that for the most part the critiques I’ve seen did not provide evidence of reasoned aesthetic judgments. What they were really were ad hominem attacks against the detainees, made by right-wing bloggers who were outraged that a University Press was publishing poems by Guantánamo detainees, and who responded with bullying tactics, resorting to mockery and ridicule. You may have seen some of the sites on which bloggers invited readers to write “Gitmo poetry,” along the lines of: “Roses are red/ Violets are blue/ I’m stuck in Guantánamo/ And when I get out I’ll behead you.”

Andy Worthington: That’s very good. Almost eerily accurate. I’d say. Tell me about other responses.

Marc Falkoff: Well, the Pentagon was asked about the book before it had been published, and Commander Jeffrey Gordon, the Pentagon’s chief press officer, gave his opinion, declaring that poetry was a “tool” that the detainees were using in a “battle” against Western democracies. He had not even read the poems –- at best one or two online somewhere –- but he claimed that the detainees were not writing the poems in order to create art, but as part of an attack on Western democracies.

Once the book was published, the New York Times book reviewer Don Chiasson wrote that no one should be so hard-hearted as to bring aesthetic judgments to bear on the poems. That’s OK, but what he went on to do was perverse. At the same time that I was being decried on blogs as a “useful idiot,” a dupe of terrorists spouting jihadist rhetoric, Don Chiasson comes along and says that, because all the poems had to be first cleared by the Pentagon, the Pentagon has cleared and chosen these specific poems and has allowed their publication as a cunning public relations move to demonstrate that dissent is allowed at Guantánamo. So, simultaneously, I’m both a “useful idiot” for terrorists and a dupe of the Pentagon.

Finally, on this point, I do not think you must take aesthetics off the table by any means, but the interplay between aesthetics and politics in the poems raises interesting questions, and is not something to shy away from. Discussions about aesthetic judgments and political context, relating to the ways in which poetry is written and discussed, have been debated for hundreds of years and raise interesting and valid questions, and a review in Slate, by Meghan O’Rourke, captured what a smart discussion of these issues would look like.

Andy Worthington: That’s an interesting point that you make about the interface between aesthetics and politics, and it seems particularly relevant these days, as it seems to me that, over the last few decades, there has been a concerted effort by those in charge of driving this consumer-led society to deflect as much attention as possible away from politics.

Marc Falkoff: Sure, but let’s grab hold of the issue. People like to pigeonhole ideas and things, to bring a perfect coherence to the world. I defy anyone to define what literary merit is.

Andy Worthington: It’s in the eye of the beholder, essentially.

Marc Falkoff: Or like the famous Oscar Wilde quote, “There is no such thing as a moral or an immoral book. Books are well written, or badly written.” But to conclude my answers to this question, it’s very important for someone who sets himself or herself up as an arbiter of literary merit to retain a self-consciousness about what they’re doing, and it’s particularly important for this book, because it’s easy for people to fall back on assumptions and think, “Oh, they’re just terrorists, how can this be art?” This is what happened with Maxine Kumin, who’s actually a poet herself, who criticized the poems. This was a remarkable step to take. Not only did she likely dampen sales of the book and its circulation, but she herself wrote a terrific poem, What You Do, from the viewpoint of detainees –-

Andy Worthington: US detainees?

Marc Falkoff: Yes, prisoners of the United States, in Guantánamo, or in Abu Ghraib. It suggests that what she was saying was, “Leave the poetry about Guantánamo to me.” A lot of these things that look like aesthetic judgments are, whether consciously or not, influenced by political judgments or assumptions.

Andy Worthington: I can’t believe she did that. It’s like she was saying, “Only poets should be writing poetry. Not prisoners held without hope.”

Marc Falkoff: Absolutely. And what’s also important to remember is that I didn’t decide, “Oh look, the 17 best poets in the world are at Guantánamo,” so the book is doing a different cultural job as well. These are the poems and the stories of men held without charge, trial or conviction, men entirely denied their day in court, denied that space in which they should be allowed to tell their stories. Their stories should be told in legal briefs and oral arguments, but these have been denied to them, so they must take place in a different venue. And so they have to tell their stories through poetry, or at least be given the opportunity to do so. The poem, in this context, is much more than an aesthetic object. In this context, the poem is a symbol, a sign of their humanity, their will to create. And it also functions as a proxy for the justice system and the rule of law.

Andy Worthington: That rather feeds into what was to be my next question, but which you’ve largely answered. What I wanted to say to you was that, while I was particularly moved by a number of the poems, and felt the burning indignation that fuelled others, the particular forms of Muslim prison poetry that linguistic and cultural anthropologist Flagg Miller explains in his excellent introductory essay –- and from which many of the detainees draw inspiration –- are only a part of the story. What I found at least as interesting was the book’s political context: the enlightening profiles of the poets, many of whom were previously unknown to the public, and your introduction, in which you explain the many obstacles to the publication of the book that you encountered from the Pentagon. I wanted to ask if you could clarify for me whether every poem written in Guantánamo, even those by detainees who have been released, remain subject to declassification by the US military?

Marc Falkoff: Yes and no again. For the poets who are still in Guantánamo, quite clearly the answer is yes. Anything they say is presumptively classified, and has to go through the Pentagon’s Privilege Review Team.

Andy Worthington: Could you explain that?

Marc Falkoff: Sure. Essentially, the military insisted to the courts that anything our clients said to us was a potential security risk. This is bullshit, but the courts were unwilling to step on the military’s toes. So if we wanted to publicize anything that our clients said –- relating to their treatment, allegations of torture, whatever –- it had to be cleared by a Pentagon-appointed censorship team. Or in fact an uncensorship team, as everything is presumptively censored.

Andy Worthington: Thanks for that. Please continue with the story.

Marc Falkoff: OK, so any poems that the released detainees were able to reconstruct from memory, they were able to do so. This is what happened with the poems by released British detainees Moazzam Begg and Martin Mubanga.

Andy Worthington: And Abdur Rahim Muslim Dost, the Afghan poet who, as you mention in the book, wrote 25,000 lines of poetry, much of it scratched onto Styrofoam cups and passed from cell to cell?

Marc Falkoff: Yes. When he was released from Guantánamo, almost all of his poetry was held, and as he said, and I described in the book, he asked a reporter after his release, “Why did they give me a pen and paper [which they eventually did] if they were planning to do that? Each word was like a child to me –- irreplaceable.” Muslim Dost asked for his poems to be returned but was refused. Eventually, he could bring a lawsuit against the US government, but it would probably take years and he would probably lose.

Andy Worthington: This was when he was free, obviously, before he was recaptured by the Pakistani authorities, after he wrote a book with his brother Ustad Badruzzaman Bader (also featured in your book) about Guantánamo, which was highly critical of Pakistan’s intelligence service, the ISI. [Muslim Dost was freed from Guantánamo in April 2005, after which he wrote Da Guantánamo Matay Zolanay (The Broken Shackles of Guantánamo) with his brother. He was rearrested in Pakistan, where he had lived since the 1970s, on September 29, 2006, and is currently held in Peshawar’s Central Prison, farcically accused of “violating visa rules and illegal stay in Pakistan”].

Marc Falkoff: Yes. But we heard the other day that a journalist had been allowed to meet him.

Andy Worthington: Which may be the first step towards securing his release. It goes to show what happens when you mess with the ISI, however. But to return to the poems, does this mean that there are hundreds –- or thousands –- of poems that could not be included?

Marc Falkoff: For a variety of reasons, Muslim Dost’s case shows definitively that there are hundreds of poems that we couldn’t gain access to. In addition, I know of at least another dozen or so that were not cleared by the military; for example, several poems by my own clients that the review team refused to clear. Initially, they were wary about the whole process, but they eventually let some poems through and then they put the kibosh on the whole process and refused to let any more through.

Andy Worthington: What, they reached a point where they absolutely refused to declassify any more poems?

Marc Falkoff: Yes, it came to a complete standstill over a year ago. This doesn’t mean that they have stopped clearing all communications, only that they won’t clear any more poems.

Andy Worthington: They’re scared of poems.

Marc Falkoff: I think they took a step back when they realized this was coming out as a book. They were concerned about the public relations aspect of it, and realized that they could get away with describing it as a “security risk” and by claiming that poetry couldn’t possibly have anything to do with lawyers and litigation. We’ve tried to use all paths available. For example, we sent some of the poems that had been denied clearance to JTF-GTMO [the Joint Task Force that runs Guantánamo] to be released, but they refused. None of their attempts to articulate their reasons for refusing to permit publication makes sense, and the simplest explanation is that they were attempting to prevent the publication of the book from happening.

Andy Worthington: They’re that paranoid?

Marc Falkoff: This is a group of people unwilling to admit that they made mistakes, who don’t ever want to concede that the executive should not have absolute power to do whatever it wishes without being answerable to anybody. I think the government is engaged in a form of “lawfare” –- have you come across that term?

Andy Worthington: No.

Marc Falkoff: It’s based on a fear that non-state actors, unable to engage in conventional war, have to engage in asymmetric warfare –- a horrible example, for instance, was a small group of men hijacking airliners and bringing down the World Trade Center on 9/11. Thought up by the Council on Foreign Relations, and by some hyper-Conservative opinion-makers, “lawfare” theorists suggest that terrorists get lawyers to tie up military commanders with lawsuits, invoking international law and forcing soldiers to second-guess the manner in which they engage with the enemy, for example. But in fact “lawfare” is what the US military is doing at Guantánamo, tying lawyers up in endless knots by filing frivolous motions to dismiss our habeas petitions, claiming that Guantánamo is a law-free zone where men can be abused and held in indefinite detention without any oversight by the courts, ever. The government has engaged in what I consider “lawfare” –- making frivolous legal arguments and deploying procedural maneuvers designed only to delay the day of reckoning in the courts about the legality of the Gitmo detention center. That is “lawfare” –- the misuse of the legal system for purely military purposes. They have done so, remarkably, with the complicity of Congress, which passed habeas-stripping litigation, and the silent acquiescence of the courts, which have refused to insist on the separation of powers enshrined in the Constitution.

Andy Worthington: The military, as we have discussed, has a special fear of poetry, suspecting, as you describe it in the book, that poetry “presents a special risk” to national security because of its “content and format,” which, it is believed, could be used to smuggle coded messages out of the prison to waiting terrorists. You explain that, in order to prevent this, the majority of the poems, which were written in Arabic, were translated by military linguists, and that independent experts, who may have been able to do more “justice to the subtlety and cadence of the originals,” were prevented from having access to them. I do find this an extraordinarily paranoid response, and I wondered if you think that, at some point, you or others will be allowed less restricted access to the original poems, and to some of the others that remain classified?

Marc Falkoff: OK, well first of all it has been reported a little bit in the press that these were military linguists who had translated the poems, but this is inaccurate. The poems were translated by our translators, all of whom, however, had to be security cleared by the FBI, just like all of the lawyers working on the cases had to get FBI security clearance. So that’s where that misconception came about, and that’s actually one of the reasons, I think, that the New York Times book review believes that this is all kind of a Pentagon project … these little pieces of misinformation that are floating around out there. So, the thing is, they were our interpreters, but there is only a small universe of Arabic-English translators who have security clearances that we could use in our litigation, and none of those whom we identified and who could be of use to us have any literary credentials. So the translations were done by workaday translators who never pretended to have any literary feel for what they were doing.

Now, because the military, as you say, was unwilling in many cases to release the original Arabic versions, we haven’t been able to get those literary translations done, outside of the secure facility [where all the documentation on the detainees is held], because we don’t have access to unclassified versions of the original Arabic language poems. I have no reason to believe that we will ever get access to those. It’s simply not going to happen. Once the military has made its decisions, it appears unwilling to revisit any of them. So, even after I resubmitted poems to JTF-GTMO to be cleared, they’ve been refused. I don’t think there’s any reason to believe, for example, that Abdur Rahim Muslim Dost, whose 25,000 lines of poetry were confiscated by the military before he left, is ever going to get those back.

Andy Worthington: While we’re on the topic of censorship, which I know is not confined solely to the detainees’ poetry, I wondered if you could provide the readers of this interview with some other information about the secrecy, censorship and obstructive tactics carried out Guantánamo against those attempting to provide legal assistance to the detainees?

Marc Falkoff: This regime … to give it a little bit of context, when we first went down to Guantánamo –- and I don’t mean just me, but all the lawyers who went down in the fall of 2004 to meet for the first time with the detainees, who had never had any significant contact with the outside world apart from a few censored letters from the International Committee of the Red Cross –- we brought back stories about all sorts of abuse that they had suffered. We brought back their stories about how they were taken into custody, and about their alleged innocence, but we also brought back the stories of abuse –- sometimes tantamount to torture –- at the hands of Americans, at Kandahar and Bagram, and to a lesser extent, but still there, at Guantánamo. Just as an example, I brought back a story which later turned out to be true, which a client of mine told me about another detainee who, during an interrogation, had refused to talk and then had menstrual blood smeared by a female interrogator onto his chest or his face –- that kind of story that I didn’t even plan to write down because it sounded so absurd. But later we found out, both in [former military linguist] Erik Saar’s book, Inside The Wire, and in the Schmidt-Furlow Report, a Pentagon investigation, which was mostly a whitewash, that this allegation was indeed true –- though the “menstrual blood” turned out to be red ink, a ruse. But when we sent information of this nature through the Privilege Review Team –- this Pentagon censorship team –- initially we weren’t allowed to make that information public. It was deemed classified because releasing it would reveal interrogation methods and procedures. We had to threaten legal action to loosen up that standard, and it’s at that point that you first started hearing –- really first-hand –- about what was going on at Guantánamo.

And there’s been all sorts of interference with the attorney-client relationship at Guantánamo, most obviously when the government suggested that the men at Gitmo should not have a right to a lawyer, and then when they argued to a judge in the fall of 2004, right before we went down to Guantánamo for the first time, that the military reserved the right to videotape and audiotape and contemporaneously monitor our conversations with our clients, and, I mean, talk about trying to undermine the lawyer-client relationship … We heard stories about clients being told that they shouldn’t cooperate with their lawyers because their lawyers were Jews, and why would Jews be looking out for their best interests, and Clive Stafford Smith’s clients were told that Clive was gay [he is, in fact, happily married], and therefore shouldn’t be trusted. Our clients have told us that their interrogators have said that you’re not going to get out of Guantánamo if you’ve got a lawyer, that you’re better off without a lawyer. So there are all sorts of difficulties inherent in these cases, and the government is acting frequently in a relatively underhanded manner. To distinguish, I’m not saying that the Privilege Review Team is acting in bad faith in some way, or in an underhanded manner, because I’m not privy to their internal decision-making process …

Andy Worthington: From my point of view, I wouldn’t say that they are, actually, because frequently I’ve been surprised, over the years, at what they have allowed to be declassified and to have come out of Guantánamo. It’s why I was quite shocked, in what we were discussing earlier, that they reached a cut-off point with poetry, where they’re absolutely refusing to declassify anything, whereas it still remains plausible to me that many stories which look quite damaging to the administration will actually be cleared for release. So on that front, the review process is not as much of a reflection of an administration that leans towards totalitarianism as the administration’s policies themselves.

Marc Falkoff: I’ll be honest with you. I don’t begin to understand it. I think it’s a mixture of some legitimate concern with the form of poetry, some haphazardness in their criteria, and some concern about the public relations effect of this that may be trickling down from the upper echelons of the Pentagon. I don’t think it’s necessary to impugn anyone, but the facts are as they are, and there are a lot of poems that were not cleared, and we’ve been supplied with odd reasons for that.

Andy Worthington: I think that, fundamentally, as you’ve described it, the whole process is haphazard and arbitrary, and the same thing applies to the poetry, but it remains interesting to me that, perhaps not through the review process, but through the higher levels of the administration –- the people running Guantánamo –- they really do have a fear that poetry is a weapon somehow. It’s probably a testament to the power of poetry, really.

Marc Falkoff: Well, poetry is all about packing meaning into words. Words are supposed to –- maybe this is a badly chosen metaphor, but they’re supposed to explode, supposed to provide a punch, so you can understand why the Pentagon would be wary of letting loose language like that on the world. To be honest, I think this fear that men who have been in confinement for five or six years, scribbling poetry on stray pieces of paper that eventually they gave to a lawyer –- the idea that somehow this is a coded message to a sleeper cell is way overblown. If this were true, why not write exactly the same thing in a letter to an attorney? Why break up your lines into stanzas and turn them into a poem? The literary scholar in me loves the fact that the military had recognized the power of poetry, but the fear’s overblown and a little bit paranoid. If they fear that there’s a code, that’s one thing. But just to exempt poetry on the basis of the way the lines are broken up, that’s just silly.

Andy Worthington: I noticed also that, although a profound sense of injustice permeates the poems, there are no poems that are stridently militant. What I found instead were the following two forms: political complaint, and, more deeply, the consolations provided by Allah, and a deep well of religious belief. The lack of militancy doesn’t surprise me, as I believe that there are very few militants actually in Guantánamo, but what I’ve found, when talking to many people, is that they come up with comments along the lines of, “But if they weren’t terrorists when they went in, they will be when they come out.” This seems to me to be a profound misunderstanding of the majority of the detainees in Guantánamo, and I wondered if, through you experiences with the poetry, and perhaps with your clients, you could shed some light on who we’re really dealing with.

Marc Falkoff: First of all, I think your characterization of the poems is right. It’s difficult to generalize too much about the poems: many of them are pastoral in nature, some of them describe homesickness and loneliness, a lot of them are decrying injustice, and a lot of them express some disillusionment with America. You’re right, it’s kind of a wide variety, but what you really don’t see, as you say, is much in the way of hatred of America, and certainly no militarism of the kind that people would expect. There’s an occasional poem in which clearly the poet’s anger and frustration is boiling over on the page –- I’m thinking in particular of Martin Mubanga’s poem “Terrorist 2003.” Martin’s a British citizen, who was released in 2005, and in his poem, without doubt, he expresses some anger at the United States, but I don’t really see any militarism. To the extent that it’s there at all, it’s glancing.

To turn to one of your other points, the fundamental misconception about Guantánamo is that the men inside are terrorists, and we understand exactly why people in America think like that, because that’s what they’ve been told by George Bush. They’ve been told that the detainees are the worst of the worst, they’re terrorists, they were picked up on a battlefield fighting American troops. “Trust us!” And you know, there was a time when a lot of us were willing to trust the Executive. When I got involved, I didn’t know if everyone in Guantánamo was a terrorist, I didn’t know if my clients were terrorists. I can dislike George Bush, and I can detest the idea of holding people without charge or trial, and not following the rule of law, but that doesn’t mean that the men in Guantánamo were necessarily innocent or not terrorists. But when I got involved –- even though all of my clients could have been terrorists –- my goal was to bring back the rule of law to Guantánamo, to give them a hearing –- an appropriate habeas corpus hearing –- and if they’re terrorists then we can decide whether to charge them, or if it’s appropriate to keep them in detention for a longer period; we can talk about that.

But the plain fact is that we went down to Guantánamo and we found that hundreds of these guys are in fact innocent civilians. So the problem is that the public has been hearing for six years that these people are terrorists, and it’s very difficult to get over that misconception. People think that I’m going down to Guantánamo to try to find technicalities to get detainees out of there, that they’re really terrorists, and I’m just trying to do some lawyerly hocus-pocus, and it’s far from the truth. We’re just asking for a hearing, in front of a judge, where the government has to put its evidence on the table, and the judge gets to look at it. When I look at the evidence, I’m not looking at it and saying, “Oh well, this is technically hearsay, and I don’t see a chain of evidence here, and therefore this guy should be released.” I’m looking at evidence that, if the ordinary person looked at it, they wouldn’t say, “Oh, this is technically inadmissible,” they would say, “This is absolutely, thoroughly ludicrous. Are you serious that this is why this guy is here?” I mean, I’m talking about triple or quadruple hearsay, where the original declarant was tortured or abused in some way. That’s the kind of quality of evidence. To compare Guantánamo to the Salem Witch Trials is bang on. That’s what we’re talking about: webs of incriminating statements from increasingly untrustworthy sources.

So, to move on: “if the men weren’t terrorists when they went in, they’ll be terrorists when the come out”? We have all sorts of DNA exonerations these days, where men who’ve been convicted of rape and murder have been exonerated ten, 15, 20 years later. Now, do you think those men are bitter for having spent all that time unjustly imprisoned? Sure. Do you think they may have become hardened and exposed to a criminal element? Sure. Do you really think that it would be appropriate to continue to detain these men because of the harm they may have experienced when they were in prison? Of course not, that’s absurd, but that’s where the debate is right now at Guantánamo.

Is there potential for some of the men in Guantánamo to have been radicalized by their experience? You know, it’s a relatively hard question to answer. For some of the men, the answer is absolutely no; it was like your next-door neighbour being thrown into prison. These are people, many of them with absolutely no radicalism about them to begin with, and they’re not going to become radicalized just because they’re surrounded by some men who are undoubtedly bad apples. There may be men who were picked up who were on the verge of going to an al-Qaeda training camp, or on the verge of signing on to some radical Islamist agenda. What happens when you throw those people into Guantánamo and mix them up with real al-Qaeda operatives? Sure, I can imagine that there’s some portion of men for whom Guantánamo represented the tipping point, and they were pushed over the edge. I can imagine it in theory. I don’t know if it’s true in fact, but I can imagine it. But the fundamental fact is that I think those are going to be few and far between, and, you know, we made a mistake doing what we did, and you can’t deny that something like that has happened in the past. This is what happened with Syed Qutb [the key ideologue for modern Sunni militants, who was executed in Egypt in 1966] and the Egyptian radicals; they were all tossed into prison in Egypt, and this is how all that started …

Andy Worthington: Well, sure, but it’s important to remember, as we’ve spoken about, that a lot of the people in Guantánamo didn’t come out as radicalized, because they didn’t have a radical bone in their body when they went in. And another thing that struck me, Marc, is that, apart from anything else, the administration has done absolutely nothing to help these people in any way, that if there were any people there who were going to be thinking about militancy, what is the American administration doing for these people there, to encourage them to learn about the West, to learn English, to learn about the law? They don’t do any of that.

Marc Falkoff: They could. I’ve spoken with my clients about this, and I’ve asked them, “Do you feel hatred towards America? What are you going to do when you get out?” and to a man they just want to go home and put this behind them. They recognize the difference between the Bush administration and the American people; they’ve no intent of joining some radical cause. Most of them were young when they got there, they just want to get married, have children, and go back and live with their families. So that’s one thing.

The second thing is, we definitely could be doing exactly the opposite of what we’re doing. We could be doing things to discourage them from radicalization. We could, for example, be teaching them English, something that my clients have asked for for years. I have tried to clear, through the military, English language primers, like Dr. Seuss’ ABCs –- they’ve been denied; English-Arabic dictionaries –- they’ve been denied. For the first time, a couple of months ago, the military floated the idea that the most compliant detainees might be allowed English language instruction. That’s one thing they could do, which they haven’t done yet.

Another thing they could do is engage in dialogue, like Judge Hitar’s project in the Yemen –- it’s controversial, certainly –- where men who’ve been picked up and accused of associating with al-Qaeda and terrorist organizations have been forced to sit down with learned scholars, and they put a Koran down in front of them and challenge them to find where in the Koran Allah says that it’s OK to kill innocent people. They engage in this dialogue and it turns out that most of those proto-terrorists really don’t know their Koran very well, and they’re dissuaded through these conversations from engaging in terrorism, and Yemen will frequently let the men out after this reeducation programme. Senator Lindsey Graham just told us about a week ago that this is exactly what the United States is starting to do in Iraq, and I think it’s a brilliant idea. I mean, essentially, if you realize that you aren’t going to be the world’s jailer, and that you’re going to have to release a lot of these people eventually, then engage them in some kind of dialogue, talk to them. It’s a battle of ideas, right? So engage at that level.

Andy Worthington: Thank you, Marc. I hope that one day you will be able to produce another, more comprehensive book of poems by the Guantánamo detainees –-

Marc Falkoff: I hope to get to do one by ex-detainees exclusively.

Andy Worthington: Absolutely, but in the meantime I think that the mixture of the poems themselves and the constraints placed on the detainees’ freedom of expression is a particularly powerful combination that paints the administration in a paranoid and vindictive light. I note also that three of the detainees in the book –- Juma al-Dossari, Abdul Aziz al-Oshan and Abdullah al-Anazi –- have been released since it was published, and I hope that augurs well for those who remain in Guantánamo. Before we finish, is there anything that I haven’t asked you that you’d like to mention?

Marc Falkoff: Only that I always like to make sure that people realize that any profits that this book makes are going to the Center for Constitutional Rights. I’m not making any money on this, and in fact none of the poets are making any money on this. This is all going towards the public interest law firm that has spearheaded the Gitmo litigation. I say this because I, in the past, have been accused of profiting on the dead bodies of our soldiers in Afghanistan, and other nonsense like that …

Andy Worthington: That’s a terrible thing, but it doesn’t surprise me. Well, that’s a good point to make then, Marc. Thanks for that, and thanks again for your time.

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 Nth Position.

A Poem From Guantánamo: “Ode to the Sea” by Ibrahim al-Rubaish

The following poem was chosen by Marc Falkoff, editor of Poems from Guantánamo: The Detainees Speak, as an example of a poem, which, as he described in an interview with me on Nth Position (and here), is “striking in terms of imagery, metaphor and thematic complexity.” The former detainee (he was released from Guantánamo in December 2006) is described as follows in an introduction to the poem:

“Ibrahim al-Rubaish was teaching in Pakistan when he was arrested by mercenaries and sold to allied forces. A religious scholar who dislikes hostility and was once a candidate for a judgeship, Rubaish has a daughter, born just three months before he was captured, who is now five years old. During a military administrative hearing, he was told, ‘If you are considered to be a continued threat, you will be detained. If you are not considered a threat, we will recommend release. Why should we consider releasing you?’ Rubaish’s response was, ‘In the world of international courts, the person is innocent until proven guilty. Why, here, is the person guilty until proven innocent?’”

ODE TO THE SEA
By Ibrahim al-Rubaish

O sea, give me news of my loved ones.

Were it not for the chains of the faithless, I would have dived into you,
And reached my beloved family, or perished in your arms.

Your beaches are sadness, captivity, pain, and injustice.
Your bitterness eats away at my patience.

Your calm is like death, your sweeping waves are strange.
The silence that rises up from you holds treachery in its fold.

Your stillness will kill the captain if it persists,
And the navigator will drown in your waves.

Gentle, deaf, mute, ignoring, angrily storming,
You carry graves.

If the wind enrages you, your injustice is obvious.
If the wind silences you, there is just the ebb and flow.

O sea, do our chains offend you?
It is only under compulsion that we daily come and go.

Do you know our sins?
Do you understand we were cast into this gloom?

O sea, you taunt us in our captivity.
You have colluded with our enemies and you cruelly guard us.

Don’t the rocks tell you of the crimes committed in their midst?
Doesn’t Cuba, the vanquished, translate its stories for you?

You have been beside us for three years, and what have you gained?
Boats of poetry on the sea; a buried flame in a burning heart.

The poet’s words are the font of our power;
His verse is the salve for our pained hearts.

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.

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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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