Archive for November, 2007

Guantánamo: The Stories of Three Innocent Jordanians and an Afghan, Just Released

A detainee at GuantanamoNews that eleven more detainees have been released from Guantánamo comes during a resurgence of rumors that the Bush administration is seeking to close the prison, with the New York Times reporting that plans are being discussed to “overhaul the procedure for determining whether detainees are properly held by granting them legal representation at detention hearings and by giving federal judges, not military officers, the power to decide whether suspects should be held.” The intention, we are told, is to find a way to move the most dangerous detainees to the mainland.

These discussions are clearly a response to fears within the administration that the imminent Supreme Court showdown over Guantánamo may lead to the detainees “winning … even more power to challenge their detention,” but it remains apparent that closing the prison is far easier said than done. Attorney General nominee Michael Mukasey, who has come under fire for refusing to condemn waterboarding, has, for example, indicated that his goal would be to shut down Guantánamo “because it’s hurting us,” and because it has “given us a black eye,” but he too has conceded that there is “no easy solution” to the thorny question of what to do with the detainees.

According to the latest statistics cited by officials, the administration still intends to pursue war crimes trials against “80 or more” of the detainees, and regards another “120 or fewer” as too dangerous to repatriate. Leaving aside, for now, the lawless arrogance of the administration’s intention to hold these 120 men indefinitely, without charge or trial, because of unchallengeable military assertions that they are a threat to American security, severe difficulties remain in repatriating those who are not regarded as suitable for trial by Military Commission, or who are regarded as “too dangerous to repatriate,” but not dangerous enough to be charged.

With 450 detainees already released from Guantánamo (58% of the total population), the remaining 124 detainees that the administration says it wants to release are, in dozens of cases, men who have been cleared for release for at least two years, but who are still held either because of fears that they will be subjected to torture (or worse) if returned to their home countries, or because of an inexplicable inertia on the part of the US authorities.

Inertia certainly seems to have played a part in the delayed release of the eight Afghans who were part of the latest batch of freed detainees. Only one –- Izatullah Nasrat –- has been identified, but he was cleared after the first round of reviews (which mostly took place in 2005), and, even with these latest releases, another eight Afghans remain in Guantánamo, who have been cleared for at least nine months. The unconscionable delay in releasing these men becomes more marked when Nasrat’s story is looked at more closely.

A tribal leader, in Paktika province, in south eastern Afghanistan, Nasrat supervised the collection of weapons from his people, as requested by the Americans and the government of Hamid Karzai, and was responsible for guarding them in a compound. Betrayed by a rival, who told a false story about him to the US forces, he was then arrested and sent to Guantánamo, along with his father, Haji Nasrat Khan. The tribal leader until illness left him virtually housebound, Khan was seized after asking what had happened to his son, and was released in August 2006, when he was 72 years old.

When it comes to the other three detainees just released –- the last three Jordanians in Guantánamo (out of a total of eight) –- another disturbing truth becomes apparent: that, despite its talk of justice, the administration also bases its decisions about who to release on political maneuvering. This was revealed earlier this year, when an analysis of the 32 Saudi detainees released in July and September uncovered the significant revelation that none of them had been cleared by a military review board, and it seems to have played a part in the sudden release of the three Jordanians, only one of whom, Osama Abu Kabir, had actually been cleared for release. I can only wonder whether King Abdullah has been granted a favor in exchange for cooperation over Iraq or the doomed Israeli-Palestinian peace process, or, more worryingly, over the proposed war with Iran.

Osam Abu Kabir and his sons

Osama Abu Kabir with his sons Abdel Aziz and Usaid in his house near Amman on November 11, 2007. Photo © Reuters.

31 years old at the time of his capture, Osama Abu Kabir was one of the clearest examples of a naïve, would-be jihadist who never so much as raised a finger against the Americans. A driver by occupation, who also sold clothing with his wife from their home, he told his review board that he had travelled to Raiwind, in Pakistan, for the annual conference of the vast global missionary organization Jamaat-al-Tablighi (regarded as a front for terrorism by the US authorities, despite having several million members), and had then spent a month preaching, when he was suddenly converted to the idea of jihad because of “the emotion and the excitement from the Afghani people” at a demonstration that he came across unexpectedly. “They were all holding up signs, had writing on T-shirts,” he said. “It was their love that I had seen. I can explain it to you, but you won’t understand how I felt that day.” He did, however, explain that, despite this conversion to the spirit of jihad, he never took up arms, “never met anyone from the Taliban, al-Qaeda or any other group,” and was captured by the Northern Alliance in Jalalabad, where he fled after arriving in Kabul two days before the city fell, and imprisoned for four and a half months in Kabul before being handed over to the Americans.

The other two men had not even flirted with the idea of militancy. Ahmed Sulayman, who was 40 years old at the time of his capture, was seized by bounty hunters in Pakistan, eager for the reward –- $5000 on average –- that was offered by the Americans for al-Qaeda and Taliban suspects. Also a member of Jamaat-al-Tablighi, which he pointedly described as a “relief organization” that “does not have any evil; it just does missionary work and calls people to Islam,” he worked for the International Islamic Relief Organization (IIRO), a Saudi charity that is also regarded by the US authorities as a front for terrorism. Sulayman described the IIRO as an organization which “helps poor people, immigrants and orphans and feeds people during Ramadan and Eid ul-Adha,” and while the prisoners in Guantánamo were being subjected to the most spurious allegations about the charity –- which, it should be noted, is not actually blacklisted by the US –- the IIRO was providing relief packages to the victims of the 2004 tsunami in south east Asia and to some of the most remote and inaccessible parts of Pakistan that were affected by the 2005 earthquake.

Clive Stafford Smith, the legal director of Reprieve, which represents dozens of Guantánamo detainees, visited Sulayman’s family in Jordan in 2005, and explained that the charity worker, who has nine brothers and nine sisters, was working for the IIRO as a teacher, and had “moved his family to a tiny village near Peshawar, a four-hour walk from the nearest main road, to help teach the poorest of the poor there.” He reported that he “was so much liked that when he fell ill with meningitis, the locals paid for his hospital bills and refused repayment from his family,” and he also stated that during the US-led invasion Ahmed continued with his work, but that “One morning, he left home for work, and simply did not come back. His wife worried that the meningitis had recurred and called around the hospitals. Six months later, the family received news that Ahmed was in Guantánamo.”

25-year old Ibrahim Zeidan was the victim of even more ambitious kidnappers. After traveling to Afghanistan in 2000, using money he had saved from his job as a house painter, to visit his brother, who was teaching the Koran and Sharia law in Khost, he said that he stayed in Afghanistan until the US-led invasion, when he was captured by a group of Afghans, who imprisoned him, tortured him and demanded a ransom for his release from his family. Clive Stafford Smith, who also visited his family in Jordan, stated that Zeidan was actually working in Kabul for a Saudi charity at the time of his capture, and was kidnapped before the war even reached the city. The gang who abducted him “apparently hoped for a far larger return than that offered by the US,” because he was working for “a well-heeled Saudi charity,” and rang his family demanding a ransom of $150,000, telling them that “his organs would be removed one by one” if they didn’t pay. Although the family ran an appeal in a Jordanian newspaper and raised several thousand dollars, there was no way that they could raise the money demanded by the gang, but after eight months, according to Zeidan, he managed to escape from his prison, but was then captured in Jalalabad, in July 2002, by government officials who handed him over to the Americans.

There are, sadly, more grim tales to be told about these men –- in particular, about the treatment they received in US custody in Afghanistan and Guantánamo, as discussed in my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison –- but it seems more relevant, for now, simply to highlight the circumstances of their capture. The depressing conclusion to be drawn from these stories is that, despite the rumors that the US administration is hoping to close Guantánamo, it is still holding men without charge or trial who should never have been imprisoned in the first place, let alone losing years of their life in an experimental prison of extraordinary bleakness and inhumanity.

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 the Huffington Post.

POSTSCRIPT: One of the Guantánamo lawyers has just kindly informed me of the identities of two of the other released Afghans. Upon reviewing their stories, it’s noticeable that neither does anything to detract from my concluding statement above.

The first of the men, Abdul Nasir (born in 1981) was a student at a madrassa. In his tribunal, he explained that another student, a Pakistani member of the Taliban, had tricked him into taking part in a rocket attack on a US base. The only one of the group of 30 to be captured, after handing himself in to the authorities and turning over the bullets and grenades that he’d been forced to carry, he was taken to Bagram, where, as with many other detainees whose stories are reported in The Guantánamo Files, he described being held in painful stress positions: “I had to stay standing up for ten days, 24 hours a day … because I am human and I get tired … they handcuffed me and they tied me up there with my hands above my head.” He added that he thought that he had perhaps been singled out for particularly bad treatment because the Americans “could not catch or arrest [the] other people.”

The second man, Mohammed Quasam (born in 1977) was captured by US forces at his home in Zormat, in Paktia province, in eastern Afghanistan. It was alleged that he was identified as being in charge of Hezb-e-Islami Gulbuddin operations in Jalalabad (operations run by the militia group headed by Gulbuddin Hekmatyar, the virulently anti-American warlord, who, ironically, had received the lion’s share of US funding during the war against the Soviet Union), but he said that he had never been to Jalalabad. He added that he was betrayed by a personal enemy of his family –- a high-ranking Taliban official called Nur Mohammed –- who was an opponent of his father, because his father had worked in the last Communist government.

Both men were cleared for release after the first round of the annual Administrative Review Boards (in early 2006, at the latest), but according to my source, although Izatullah Nasrat was one of the relatively lucky few dozen detainees allowed to stay in Camp 4, with its communal dorms and limited recreational facilities, Quasam was held in Camp 5, supposedly reserved for detainees who are considered to be dangerous or to have significant intelligence value, and Nasir was held in Camp 6, the most recently erected block, where all the detainees –- including many others cleared for release –- are held in solitary confinement for 22 or 23 hours a day.

As all these men are so clearly innocent, I hope that their return –- like that of many other recently released Afghan detainees –- to a newly constructed special wing of the Pul-i-Charki prison in Kabul does not signify that the US authorities have insisted that they be kept imprisoned on their return to Afghanistan. After their long ordeal, they deserve nothing less than the freedom to return to their families, and to begin to rebuild their shattered lives.

SECOND POSTSCRIPT: On November 8, I also learned the identity of another of the Afghans from Susan Hu at the Center for Constitutional Rights. 23-year old Fizaulla Rahman, whose story is featured in Chapter 10 of The Guantánamo Files, “said he was betrayed because of a disagreement about money. Accused of working for Taliban intelligence in Mazar-e-Sharif, he said that he was taken in as a house servant by a senior member of the intelligence services, and his job was essentially a front. Although he did not want to spell out why he was taken in, it was implicit in his description of his brother and nephew as ‘young and pretty boys,’ who had also caught the eye of the Taliban officer.”

Note:

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

ISN 651: Osama Abu Kabir (Usama) (Jordan)
ISN 662: Ahmed Sulayman (Jordan)
ISN 761: Ibrahim Zeidan (Jordan)
ISN 977: Izatullah Nasrat (Hiztullah Nazrat Yar) (Afghan)
ISN 874: Abdul Nasir (Afghan)
ISN 955: Mohammed Quasam (Afghan)
ISN 496:Fizaulla Rahman (Afghan)

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

ISN 670: Abdullah Hekmat (to be described in a forthcoming online chapter)
ISN 967: Naserullah (as described in Chapter 17 of The Guantánamo Files)
ISN 1003: Shabir Ahmed (see Website Extras 7)
ISN 1010: Zahir Shah (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; September 2007 –- 1 Libyan, 1 Yemeni, 6 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).

The torture of Ali al-Marri, the last “enemy combatant” on the US mainland

As the Fourth Circuit appeals court considers the case of Ali al-Marri, Andy Worthington, author of The Guantánamo Files, investigates the story of the last “enemy combatant” held without trial in Guantánamo’s shadowy American counterpart, the naval brig in Charleston, South Carolina.

Torture is defined in many ways. To the US administration, nothing that it ever does is torture. In keeping with the notorious “Torture Memo” of August 2002, drafted primarily by Vice President Dick Cheney’s chief counsel David Addington, “enhanced interrogation techniques” –- as the administration euphemistically defines its forays into torture –- only actually become torture if the suffering produced is equivalent to organ failure or even death.

As a result, Dick Cheney was well within his comfort zone when, on a conservative radio show last October, he responded to a dismissively phrased question about waterboarding –- “Would you agree a dunk in water is a no-brainer if it can save lives?” –- with the response, “Well, it’s a no-brainer for me.” He added, “But for a while there, I was criticized as being the vice president for torture” (courtesy of the Washington Post), and concluded with the administration’s predictable mantra, “We don’t torture. That’s not what we’re involved in.”

To others, including the State Department, waterboarding is clearly torture, as the Department declares every year when it condemns other countries for subjecting prisoners to “a dunk in the water.” But while it should be clear to all but the most vindictively brain-washed that waterboarding and other techniques which have been used in Guantánamo, and which are still part of the CIA’s arsenal –- including the prolonged use of stress positions, extreme temperature manipulation, and profound sleep deprivation –- are also torture, especially when their use is combined, holding a man in solitary confinement for several years is somehow seen as a soft option.

This is in spite of the fact that, when approved by Donald Rumsfeld for use at Guantánamo, Defense Department lawyers warned that isolation was “not known to have been generally used for interrogation purposes for longer than 30 days.” The lawyers’ warnings, it should also be noted, echoed the opinion expressed in the CIA’s 1963 KUBARK Manual –- with its notorious section on counter-intelligence interrogation –- in which the agency warned of the “profound moral objection” of applying “duress past the point of irreversible psychological damage.”

My concern with the effects of prolonged solitary confinement hit me abruptly this week when I read –- in the New York Times, one of the few media outlets to cover the story –- that the case of Ali al-Marri, the last “enemy combatant” on US soil, was causing some consternation to the US Court of Appeals for the Fourth Circuit in Richmond, Virginia.

Ali al-MarriA Qatari national and a resident alien in the United States, al-Marri had studied computer science in Peoria, Illinois in 1991, and had legally returned to the United States on September 10, 2001, with his residency in order, to pursue post-graduate studies, bringing his family –- his wife and five children –- with him. Three months later he was arrested and charged with fraud and making false statements to the FBI, but in June 2003, a month before he was due to stand trial for these charges in a federal court, the prosecution dropped the charges and informed the court that he was to be held as an “enemy combatant” instead.

He was then moved to a naval brig in Charleston, South Carolina, where he was held incommunicado for 16 months, and where, according to statements eventually filed by his lawyers (see below), he was subjected to “inhumane, degrading, and physically and psychologically abusive treatment.” Held in “complete isolation” in a bare cell measuring nine feet by six feet in an otherwise unoccupied cell block, he was subjected to sleep deprivation and extreme temperature manipulation, was frequently deprived of food and water, and was only allowed outside for “recreation” –- also alone –- three times a week “when deemed to be ‘compliant.’” Reinforcing his isolation, his cell contained nothing but a Koran, a “suicide blanket” and a thin mattress, and even the window was blocked out, preventing him from ever seeing natural light or knowing the time of day.

Al-Marri also stated that, during the first year of his imprisonment in the brig, he was “interrogated repeatedly,” and he explained that his interrogators “falsely told [him] that four of his brothers and his father were in jail because of him, and promised that they would all be released if he cooperated with them,” and also “threatened to send [him] to Egypt or to Saudi Arabia where, they told him, he would be tortured and sodomized and where his wife would be raped in front of him.”

In August 2004, representatives of the International Red Cross were finally allowed to meet with al-Marri, and two months later he was finally permitted to meet with a lawyer, but despite sporadic visits from the Red Cross and his legal representatives, the extreme isolation in which he has been held –- and the perpetuation of the ill-treatment outlined above –- has been barely mitigated. Including the six months that he spent in isolation in Peoria County Jail and the Metropolitan Correction Center in New York, before being transferred to Charleston, he has now spent four years and ten months (58 times the amount of time recommended by Defense Department lawyers) in solitary confinement.

While this is not unique –- the alleged “high-value” al-Qaeda operative Abu Zubaydah has been in solitary since March 2002, for example, and several Guantánamo detainees have also spent a substantial amount of time in a similar situation (including, currently, the British resident Shaker Aamer, who has been alone in an isolation block since August 2005) –- al-Marri, as a US resident, is supposed to be protected from this sort of treatment.

Jose PadillaThe only comparable case –- and one which bears close scrutiny –- is that of Jose Padilla, the only other “enemy combatant” to be held for a substantial period of time on the US mainland. A US citizen, Padilla was held in the Charleston brig for three and a half years, where, crucially, the extreme isolation to which he was subjected, combined with sensory deprivation and the use of psychotropic drugs, led to the complete disintegration of his mind, according to several psychiatrists who evaluated his mental state.

According to one of al-Marri’s lawyers, Jonathan Hafetz of the Brennan Center for Justice at the New York University School of Law, his client’s mental disintegration has not been quite so severe, although he has been described as suffering “severe damage to his mental and emotional well-being, including hypersensitivity to external stimuli, manic behavior, difficulty concentrating and thinking, obsessional thinking, difficulties with impulse control, difficulty sleeping, difficulty keeping track of time, and agitation.” While this is a distressing litany of the symptoms to be expected from prolonged solitary confinement, it may be that al-Marri’s relative sanity compared to Padilla (who was described by his guards as “so docile and inactive that he could be mistaken for ‘a piece of furniture’”) is sufficient to explain why his story has not been so newsworthy, but it seems likely that his case has also been largely ignored because he is a resident alien rather than a US citizen, and because his story is not so glamorous.

Unlike Padilla, who shot to undying fame when he was accused of plotting to detonate a “dirty bomb” in a US city, al-Marri has no such tag to identify him. The presidential order which declared him an “enemy combatant” stated simply that he was closely associated with al-Qaeda and presented “a continuing, present, and grave danger to the national security of the United States,” and the “charges” against him have fluctuated: at various times it has been claimed by the government that he attended an al-Qaeda training camp, that he met Khalid Sheikh Mohammed (KSM), the self-confessed architect of 9/11, and that he had connections to the al-Qaeda financier Mustafa al-Hawsawi. It has also been alleged that he met Osama bin Laden, and that, after meeting him, pledged that he would kill Americans, that he volunteered for a “martyr mission,” and that he was working as an al-Qaeda sleeper agent in the US at the time of his capture. Rather more prosaically, it was also alleged that he had documents related to jihadi activities on his computer, including information on hydrogen cyanide (used in chemical weapons), lectures by Osama bin Laden and a cartoon of planes crashing into the World Trade Center.

Khalid Sheikh MohammedCrucially, however, none of these claims are necessarily reliable. As Jonathan Hafetz explained to me when I spoke to him on Friday (and as has been apparent since Newsweek reported on it in June 2003), most of the supposed intelligence against al-Marri came from Khalid Sheikh Mohammed, who was captured in March 2003, just three months before al-Marri was upgraded from an alleged credit card fraudster to a major terror suspect. As I discussed at length in an article in July, Guantánamo’s Tangled Web: Khalid Sheikh Mohammed, Majid Khan, Dubious US Convictions and a Dying Man, KSM stated during his tribunal at Guantánamo in March this year that he had given false information about other people while being tortured, and, though he was not allowed to elaborate, I traced in my article several possible victims of these false confessions, including Majid Khan, one of 13 supposedly “high-value” detainees transferred with KSM to Guantánamo from secret CIA prisons in September 2006, Saifullah Paracha, a Pakistani businessman and philanthropist held in Guantánamo, and his son Uzair, who was convicted in the United States on dubious charges in November 2005, and sentenced to 30 years in prison.

It’s possible, therefore, that al-Marri is another victim of KSM’s tangled web of tortured confessions, but whether or not this is true, the correct venue for such discussions is in a court of law, and not in leaks and proclamations from an administration that appears to be intent on holding him without charge or trial for the rest of his life. Since November 2005, when the administration dropped its “dirty bomb” allegations against Padilla and charged him with the far lesser crimes of “conspiracy to murder, kidnap, and maim people in a foreign country, conspiracy to provide material support for terrorists, and providing material support for terrorists,” for which he was convicted –- pending appeal –- in August this year, al-Marri has had the painful distinction of being the only US “enemy combatant” held on American soil.

The Padilla verdict caused outrage amongst those who were rightly concerned that the judge had forbidden all mention of the three and a half years that a US citizen had spent in mind-destroying isolation without charge or trial, but al-Marri’s case is, arguably, even more significant. Under the cover of his perceived second-class status as a resident alien rather than a US citizen, the administration appears to be hoping that the Fourth Circuit judges will endorse what Jonathan Hafetz described to me as “the most radical and far-reaching claim of the imperial presidency: that the President can seize any person in America and imprison him for life, without charge and without evidence, based solely upon his say-so.”

This, then, is why the news that al-Marri’s case was being scrutinized by the Fourth Circuit judges seized my attention so vigorously. While the Supreme Court will undoubtedly beckon if the verdict goes the government’s way, the Fourth Circuit judges are discussing an issue that should be of paramount importance to all Americans: their right not to be seized on a Presidential whim, and held forever without charge or trial.

It is, moreover, not the first time that the Fourth Circuit judges have looked at al-Marri’s case. In June, by a majority of 2 to 1, three judges in the Fourth Circuit appeals court delivered the following damning verdict on the President’s presumed ability to detain Americans (whether citizens or resident aliens) at will. “Put simply,” they declared, “the Constitution does not allow the President to order the military to seize civilians residing within the United States and then detain them indefinitely without criminal process, and this is so even if he calls them ‘enemy combatants.’”

The judges had apparently been swayed by the arguments presented by Jonathan Hatefz and his colleagues, who insisted, as they have maintained all along, that the President “lacks the legal authority to designate and detain al-Marri as an ‘enemy combatant’ for two principal reasons”; firstly, because the Constitution “prohibits the military imprisonment of civilians arrested in the United States and outside an active battlefield,” and secondly, because, although a district court previously held that the President was authorized to detain al-Marri under the Authorization for the Use of Military Force (the September 2001 law authorizing the President to use “all necessary and appropriate force” against those involved in any way with 9/11), Congress explicitly prohibited “the indefinite detention without charge of suspected alien terrorists in the United States” in the Patriot Act, which followed five weeks later. Even more critically, Congress actually rejected a provision in a prior draft of the bill, which would have permitted the Attorney General to detain without charge any individual he “has reason to believe may commit, further, or facilitate acts [of terrorism],” insisting instead that suspects be charged “with a criminal offense or an immigration violation within seven days of their arrest” (that’s seven days, note, not 2155 days –- as of November 5, 2007 –- in solitary confinement).

The verdict in June –- a triumph for those who realized how crucial the al-Marri case was –- lasted only until the government appealed. Instead of three judges, the Fourth Circuit court has now convened en banc to reconsider al-Marri’s indefinite detention without trial, and this critical decision –- a last bulwark, effectively, against the whims of a dictatorial President –- now rests in the hands of nine judges in one of the most conservative courts in the land.

Unexpectedly, however, the signs are not all bad. As the New York Times explained, “based on the pointed, practical and frequently passionate questioning” during Wednesday’s hearing, the judges were “divided and troubled, and it was not clear which way the majority was leaning.” Some responses were predictable. Judge J. Harvie Wilkinson III, for example, remarked that civil liberties groups had “stirred up needless anxiety” about the President’s powers. “We’re not talking about an indiscriminate roundup,” he said. “We’re talking about two people in six years [al-Marri and Padilla] with undisputed ties to al-Qaeda.” In response, however, Judge Robert L. Gregory stated that the case was one of “constitutional principle,” and a representative of the government, Gregory J. Garre, faced tough questions about the administration’s position. Judge M. Blane Michael asked, “How long can you keep this man in custody?” and when Garre replied that it could “go on for a long time,” depending on the duration of the “war” with al-Qaeda, Judge Michael stated, “It looks like a lifetime.”

Under questioning from Judge William B. Traxler Jr., who inquired about the circumstances required for holding people in secret detention, Garre blustered that al-Marri had been given an opportunity to rebut the government’s allegations, but had “squandered” the opportunity. This was not strictly true. Al-Marri had indeed been given an opportunity to face his accusers in court, but, as his lawyers pointed out, the burden was actually on the government to prove its accusations. “How is a person who is held incommunicado to challenge these things?” Judge Traxler asked, to silence from Garre.

With the judges’ overall opinions unclear, al-Marri, his lawyers, and all responsible American citizens will have to wait for the verdict to be announced, which could be before the end of the year. I can only hope that the judges have listened carefully to the arguments made by his lawyers. As Jonathan Hafetz explained to me, “Mr. al-Marri’s four-plus years of solitary confinement in a navy prison crosses a line that should never be crossed in a civilized society, and cannot be accepted in a nation, like America, committed to basic human rights and the principles of its Constitution.”

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 The Moderate Voice, CounterPunch, Anti-war.com and American Torture.

Note: For a detailed analysis of the case against al-Marri, see this July 2007 article by Susan Schmidt for the Washington Post.

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

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

Guantánamo as house arrest: Britain’s law lords capitulate on control orders

Belmarsh prison

Imagine being picked up by the police, taken to a maximum security prison, and held for years –- indefinitely, for all you know –- without being told what it is that you’re supposed to have done. Sounds familiar? If you substitute “soldiers” for “the police,” it sounds like Guantánamo, or Bagram, or Abu Ghraib. But it’s not. It’s Belmarsh prison, in south east London.

Three years ago, in December 2004, after 17 men, captured and held as described above, had already been imprisoned in Belmarsh for at least three years without charge and without the prospect of a trial, Britain’s law lords ruled that this kind of detention was in breach of human rights law. In response, the government introduced a new form of detention without charge or trial. Under the control orders introduced in spring 2005, the eleven Belmarsh prisoners who were still in detention were allowed to return home, but were subjected to a range of measures which severely restricted their liberty.

In some obvious senses, this new regime was less brutal, although it was no less unjust. As the released Guantánamo detainee Moazzam Begg reported in yesterday’s Guardian, the control orders “consisted of a panoply of measures restricting the movement of the men as well as their ability to communicate with the outside world, and included home curfews, remaining within the confines of a specified radius, the approval of telephone calls, a ban on mobile phones, internet access and unauthorised visitors; the wearing of an electronic tracking tag, signing-in up to four times a day at a police station and calling security firms several times a day.” Noting that the impact of control orders on these men’s mental health, and on their wives and children, has often been “intolerable,” he added, “Though few have said it, ‘house arrest’ is the term that comes to mind.”

This was something of an understatement. If Belmarsh (where some of the original prisoners were once more incarcerated, after being rearrested following the London bombings in July 2005) was this government’s shameful reinvention of the reviled policy of internment, as practiced in Northern Ireland, to disastrous effect, in the 1970s and ‘80s, the control orders (which were subsequently extended to include British nationals and a new wave of uncharged undesirables) are indeed a form of house arrest.

On Wednesday, the law lords, having reviewed the control orders in the light of three separate challenges to their legality, delivered another verdict, which, unfortunately, was but a toothless shadow of the righteous indignation that they had unleashed on the government three years before. Tinkering with the system, they ruled, in the case of six Iraqis, that an 18-hour home curfew was in breach of the right to liberty, as guaranteed by the European convention on human rights, and, moreover, ruled that the system of secret evidence must be changed to let the suspects know the case against them, and to give them the right to a fair hearing (a verdict which should have been on the front pages of newspapers, although it was not). Noticeably, however, they failed to rule that the whole experiment was as vile and illegal as its predecessor, heaping shame upon England’s proud reputation as the home of habeas corpus.

Although the law lords argued that they were, in fact, upholding the suspects’ habeas rights by ruling against the government’s reliance on secret evidence and its insistence that it can restrict the liberty of these men without ever charging them (Lord Brown, memorably, said that the right to a fair hearing was “one of altogether too great importance to be sacrificed on the altar of terrorism control”), it remains apparent that, by refusing to condemn the control orders outright, they have perpetuated a brazenly draconian system, which appears, dangerously, to be fuelled by anti-Muslim vindictiveness, even though the more prosaic truth is that it is driven by an anachronistic refusal to “compromise the security services” by proceeding with trials using intercept evidence (despite the fact that most other western democracies have managed to do so without imperiling their “spooks”).

The importance of the dispute over the control orders’ legitimacy was clearly recognized by the lords. In addition to Lord Brown’s comments, Lord Hoffman declared, “Such is the revulsion against detention without charge or trial, such is this country’s attachment to habeas corpus, that the right to liberty ordinarily trumps even the interests of national security,” adding that such rights were simply “too precious to be sacrificed for any reason other than to safeguard the survival of the state.” As the Economist reported, however, “even he had doubts” as to whether the control orders “amounted to an unlawful deprivation of a fundamental human right or a simple restriction upon [the suspects’] liberty. Whereas continuous house arrest was clearly equivalent to imprisonment or detention, he was not so sure about the imposition of an 18-hour curfew. There was, he suggested, no clear dividing line between what was acceptable and what was not.”

Lords Hoffman and Brown and their colleagues are to be congratulated for insisting, as the Economist described it, “on a suspect’s right to see the key evidence against him, even if disclosing it is deemed contrary to national security interests,” but in their dithering over the bigger picture they have overlooked one crucial fact, established with alarming clarity over the last six years: that allowing governments to imprison people without charge –- even if theoretically justifiable, in a few extraordinary cases –- relies upon a stout belief that the government’s “secret evidence” is reliable.

Time and again, however, the intelligence services have been shown to be woefully lacking in reliable evidence. Of the 30 control order cases introduced in the last two and a half years, seven have been dismissed on appeal, and credible doubts have been expressed about the nature of the secret evidence against many of the others. In April 2005, for example, the Home Office was forced to apologize to ten of the men under control orders after what it described as a “clerical error,” which resulted in letters being sent to them stating, incorrectly, that the basis for their detention was their alleged involvement in the so-called ricin plot (the spectral plot that evaporated after a high-profile trial in 2004-05), and in January 2005 an extraordinary list of intelligence blunders relating to the Belmarsh prisoners was published in the Independent.

In an article entitled, “Belmarsh detainees: Flawed intelligence exposes scandal,” Robert Verkaik, the Independent’s legal affairs correspondent, noted, amongst other errors, that “A security service assessment was embarrassingly withdrawn after it emerged that the purpose behind a visit to Dorset by a group of Muslim men had not been to elect a terrorist leader but to get away from their wives for the weekend,” that “The Home Secretary has been forced to concede that some of the funds raised by the detainee Abu Rideh for alleged terrorist activity were sent to orphanages in Afghanistan run by a Canadian priest,” that “Two of the detainees were awarded compensation for false arrest shortly before they were detained under the anti-terrorist emergency powers,” and that “Testimony against two of the detainees came from an affidavit sworn by a man who was offered a lenient sentence in return for evidence.” In conclusion, Verkaik observed, justifiably, that, although these mistakes were based on the “open” evidence against the suspects, “the inaccuracy of some of these assertions raises questions about the reliability of the secret evidence that the detainees have never been allowed to see.”

As Guantánamo and the secret prison network run by the Americans have shown (and as I describe in detail in my newly released book The Guantánamo Files), allowing the intelligence services to operate without any legal oversight, and resorting to secret evidence, which may be based on torture, coercion or hearsay, is no way to ensure that justice is served. The fog of secrecy surrounding Belmarsh and the control order suspects is no less damaging. The law lords took one step in the right direction on Wednesday, but house arrest, however, mitigated, still has no place in a civilized society. If there is a case to be made against any of these men, it should, as with the “enemy combatants” held by the US administration, take place in a courtroom.

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, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on CounterPunch and Indymedia.

For other articles dealing with Belmarsh, control orders, deportation bail, deportation and extradition, see Deals with dictators undermined by British request for return of five Guantánamo detainees (August 2007), Britain’s Guantánamo: the troubling tale of Tunisian Belmarsh detainee Hedi Boudhiba, extradited, cleared and abandoned in Spain (August 2007), The Guantánamo Britons and Spain’s dubious extradition request (December 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 2008), Spanish drop “inhuman” extradition request for Guantánamo Britons (March 2008), UK government deports 60 Iraqi Kurds; no one notices (March 2008), Repatriation as Russian Roulette: Will the Two Algerians Freed from Guantánamo Be Treated Fairly? (July 2008), Abu Qatada: Law Lords and Government Endorse Torture (February 2009), Ex-Guantánamo prisoner refused entry into UK, held in deportation centre (February 2009), Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh (February 2009), Britain’s insane secret terror evidence (March 2009).

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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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