Archive for December, 2007

The Stories of the Afghans Just Released from Guantánamo: Intelligence Failures, Battlefield Myths and Unaccountable Prisons in Afghanistan (Part Two)

In the first part of this article, Andy Worthington, author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, looked at the background to the recent release of 13 Afghans from Guantánamo, explained that nine of these men had been identified, and related the stories of the first of the three to be captured, in November and December 2001, at the height of the US-led invasion of Afghanistan. In this second part, the focus shifts to the stories of the remaining six, who were captured long after the fall of the Taliban, when the US military faced a low-level insurgency in the south and east of the country.

Inside Pol-i-Charki prison

Inside Pol-i-Charki prison, Kabul.

The other six men released from Guantánamo last week and sent to Pol-i-Charki prison in Kabul were among the 100 or so detainees –- almost all Afghans –- who were captured between December 2002 and August 2003, when, with the exception of 29 mostly “high-value” detainees, transferred to Guantánamo in September 2004, September 2006, and throughout 2007, the last of the Guantánamo prisoners were processed. Although many more Afghans captured during this period were released without being sent to Guantánamo, and others continued to be held in Afghanistan, those who were sent to Cuba were mostly innocent men. Around 60 percent –- including at least 17 men who were working for the Karzai government –- were betrayed by opportunistic rivals, who were all too aware that the Americans were both gullible and lazy, and would not make any attempt to investigate the men’s histories, and another 30 percent were bystanders rounded up arbitrarily after attacks on US forces.

The teachers

Two of these men were teachers. 40-year old Abdul Ghafour ran a small school in his village in Paktia province, and rarely left the area because his mother was ill. When US and Afghan forces came knocking on his door in the middle of the night on February 7, 2003, he thought that they were robbers, and went to the roof and fired a few warning shots. When the Americans opened fire in response and summoned fighter jets, he realized he had made a mistake, and he then let them in and was arrested, but at no point did anyone explain to him why they wanted to search his house in the first place. 37-year old Abdul Matin, a science teacher, had been living in Pakistan during the Taliban years, but returned to Afghanistan in February 2002 when the Karzai government called for people to help rebuild the country. He said that he was betrayed by local enemies, who knew that his father was wealthy, when he refused to pay a $30,000 bribe.

The shopkeeper

The story of Abdullah Wazir, who was 24 years old when he was captured, appears to be a case of opportunism on the part of the Pakistani police. A shopkeeper in a village near Khost, he said that he was on a bus, making one of his regular visits across the border to Pakistan to buy batteries and tires for his shop, and to mend the broken glass on his satellite phone, when the bus was stopped and searched by Pakistani police. Fearing that, if the police saw his phone, they might try to take his money because they were “corrupt,” he explained that he gave his phone to Bostan Karim, an acquaintance from his village, with whom he had spent three days preaching five years before, and asked him “to hold it for two minutes.” Unfortunately, he added, “a soldier on top of the bus saw me give the phone to Karim.” He then “told another soldier that I had passed something to another person,” and both men were then arrested, taken to a jail and interrogated. Although Wazir reported that “the boss of the jail told me that I will released tomorrow, in the afternoon they handcuffed our hands and took us somewhere else [Bagram, presumably]. We spent six to seven months at the place they took us. From there, they brought me here.”

Although Wazir was accused of being a member of the Taliban (an allegation that he denied), what particularly counted against him was his alleged association with Karim, who is still in Guantánamo. A preacher and also a shopkeeper, Karim, who was 33 years old when he was captured, was reportedly “apprehended because he matched the description of an al-Qaeda bomb cell leader and had a [satellite] phone.” In a demonstration of the thinness of so many of the allegations that make up the “evidence” in Guantánamo, it was also alleged that he was “possibly identified as an al-Qaeda associate, planning landmine attacks in Khost,” and was “possibly identified as a person likely to have communicated with Arab al-Qaeda members operating in Peshawar, Afghanistan [sic], and working directly for Arab al-Qaeda in the Khost province.”

Karim maintained that the allegations had been made by another detainee, Obaidullah (who is also still in Guantánamo), who had been a partner in his shop, but had fallen out with him in a dispute over money. From Obaidullah’s statements in his own hearings, it’s clear that, while being interrogated by US forces in Bagram, he admitted making up allegations against Karim. In his military review in 2005, he responded to an allegation that Karim “is thought to be a Taliban commander who is getting funding from the Taliban or the Arabs” by saying, “I accepted this by force in Bagram. They told me in Bagram that Karim is one of the Taliban commanders and they forced me to say yes. I am not aware if he is a Taliban commander.”

When asked who forced him to “say things,” Obaidullah said, “The first time when they [US forces] captured me and brought me to Khost they put a knife to my throat and said if you don’t tell us the truth and you lie to us we are going to slaughter you … They tied my hands and put a heavy bag of sand on my hands and made me walk all night in the Khost airport … In Bagram they gave me more trouble and would not let me sleep. They were standing me on the wall and my hands were hanging above my head. There were a lot of things they made me say.”

The “Commander”

Also transferred was Gul Chaman (also known as Commander Chaman), who was 40 years old at the time of his capture. A former mujahideen fighter against the Soviet Union, Chaman had a colorful history. In the turmoil of the brutal civil war that followed the collapse of the Soviet government in the early 1990s, he fought for six months against the forces of Ahmed Shah Massoud, the charismatic Tajik who led the Northern Alliance (and who was assassinated by al-Qaeda operatives two days before 9/11), as a member of Hezb-e-Islami Gulduddin (HIG), a military faction led by Gulbuddin Hekmatyar. A virulently anti-American warlord, Hekmatyar had, nevertheless, been the main recipient of billions of dollars of US aid in the 1980s, because he was the favored warlord of the ISI (the Pakistani intelligence services), who were responsible for funneling US aid to the mujahideen.

Chaman explained to his tribunal that he then switched sides, joining Massoud, and insisted that he did not join the Taliban after their rise to power in 1994. “When the Taliban movement started,” he said, “[they] captured Logar and then they started coming to Azrah, which is my district. The Taliban collected ten guys by the name of Chaman’s people and killed and executed them right on the spot. I was there and they did not capture me.” He explained that they were “my cousins and my day laborers,” and that the Taliban would not let him give them a proper burial. “After that,” he continued, “I was against the Taliban. I did not fight but I tried my best to fight them through propaganda.”

Accused of being “heavily involved in the drug trade and other illegal activities in Kabul,” Chaman denied the allegations, claiming that, after Hamid Karzai came to power, he made a few visits to Pakistan with a delegation connected with the chief of intelligence, and provided some information on HIG. He added, “I was doing work against the Taliban.”

The circumstances of his capture apparently had nothing whatsoever to do with this back story. Instead, it seems that he was seized and sent to Guantánamo because a young man called Mohammed Mustafa Sohail, who was working for an American contractor and who is still held in Guantánamo, accused him of stealing a computer from the Americans that he had actually stolen himself. Sohail explained that he accused Chaman after being interrogated for 68 hours in Kabul, when an interrogator “tortured and threatened me with a gun to my mouth, to try to make me say something,” but whether or not there was any truth in this story it came too late for Chaman, who had already been handed over to the Americans at Bagram by the local intelligence chief.

The pro-American rivals

Two others, whose stories are in some ways the most shocking of the nine, were among six men captured in Gardez in July 2003, who were resolutely opposed to the Taliban and al-Qaeda. 32-year old Abdullah Mujahid was the police chief in Gardez and the security chief for Paktia province after the fall of the Taliban, and had just been promoted to a job protecting the highways of Kabul at the Interior Ministry. At the start of the US-led invasion, he met US Special Forces in Logar and invited them to Gardez, where he negotiated the rent of the camp that they used as their base, and he also fought alongside them during Operation Anaconda, a mission to oust al-Qaeda remnants from the Shah-i-Kot valley in Paktia province in March 2002.

Abdullah Mujahid's father holds a photo of his son

Haji Muhammad Hasan, Abdullah Mujahid’s father, holds up a photo of his son. Photo by Declan Walsh.

According to Mujahid’s lawyers, he was so well respected that residents of Gardez and Paktia sent several petitions to the US administration, pointing out that he was “instrumental in helping establish schools, including schools for girls” in the region. Explaining the circumstances of his arrest, he said that two Americans detained him and asked him about two military commanders that he knew, who were accused of stealing. When he denied the story, he said that one of the men told me that I wasn’t telling the truth about these people, so you belong in Cuba,” and added, “It appears that the decision was made to send me to Cuba already.”

In Guantánamo, it was also alleged that Mujahid was “fired from his appointed position due to suspicions of collusion with anti-government forces,” and that he later attacked US troops in retaliation, but Farah Stockman of the Boston Globe, who visited Gardez to find out more about his story, noted that he fell out of favor with the American forces operating in the area, who wanted to replace him with a professionally trained police chief, and that after his new job in Kabul was arranged, the Special Forces commander actually advised him to leave Gardez, warning him that he was at risk of being sent to Guantánamo if he remained.

The US forces seem to have been particularly upset by Mujahid’s response to the murder of Jamil Nasser, an Afghan prisoner (and a member of the new Afghan army) who was killed by Special Forces soldiers while in custody at a US base near Gardez in March 2003. After Nasser’s death, the US military insisted on transferring his seven surviving colleagues, who had all been tortured and beaten horrendously, to Mujahid’s custody. According to the Crimes of War Project, a Washington human rights group that investigated the abuse, the Special Forces commander “threatened to kill Mujahid if he released the prisoners,” and it may have been his subsequent actions that convinced the Americans not only to remove him from office, but also to do it by sending him to Guantánamo. Farah Stockman reported that Mujahid “ordered that they [the injured men] be given medical treatment and mattresses,” and then “described the prisoners’ injuries to Afghan military prosecutors, who later wrote a report recommending that the American soldiers be punished.”

In addition, the theft that was allegedly responsible for getting Abdullah Mujahid sent to Guantánamo seems to have been reported by another of the detainees released last week, Dr. Hafizullah Shabaz Khail, a 56-year old pharmacist from Zormat, south of Gardez, who in turn blamed Mujahid for his imprisonment. Approached by the town elders after Hamid Karzai first came to power as the head of the interim post-Taliban government, Khail served as the mayor for six months until an official appointment was made, and then continued to help out with security. “While I was mayor in Zormat,” he said, “there were no problems with the Americans. I met with American commanders several times … We even took pictures together.”

Arrested after capturing some thieves who were working for Taj Mohammed, the head of security in Zormat, he suggested that Mujahid, who was Mohammed’s boss, then arranged for the Americans to arrest him. If this is the case –- and lawyers for the two men suggested that they were bitter enemies –- then at least part of the reason that both men were in Guantánamo was because of allegations they had made against each other. The fact that the US authorities failed to notice this indicates that they had no interest in cross-referencing cases or investigating the truth of assertions made against those in their custody. Unlike Mujahid, who was cleared for release two years ago, Khail was not cleared for release until the last few months, even though, as with his rival, several local tribes sent a petition to the US authorities confirming his many contributions to their community.

Suppression of witnesses at Guantánamo

Mujahid’s story was also notable because it was used by the journalist Declan Walsh to demonstrate one of the many failures of the tribunal process at Guantánamo. These tribunals –- the Combatant Status Review Tribunals (CSRTs) –- were dreamt up as a deliberately inadequate response to a decisive Supreme Court ruling, in June 2004, that the Guantánamo detainees had habeas corpus rights; in other words, that they had the right to challenge the basis of their detention. Initially criticized by lawyers and human rights activists because the detainees were denied legal representation, and were prevented from either seeing or hearing secret evidence against them, which could therefore have been obtained through torture, coercion or bribery, the tribunals were recently savaged by military officers who had taken part in them, who condemned them for relying on generalized and often generic evidence that had nothing to do with the detainees in question, and who indicated, moreover, that they were merely designed to rubber-stamp their prior designation as “enemy combatants” without rights, so that they could be held indefinitely without charge or trial.

Declan Walsh’s contribution was to demolish the US military’s assertion that the detainees would be allowed to call witnesses, if they were “reasonably available.” No-Hearing Hearings, a report by researchers at the Seton Hall Law School, who analyzed documents released by the Pentagon in 2006, established that, although the CSRT process “provided that detainees could call witnesses … no witness from outside Guantánamo ever appeared,” often because the tribunal claimed that the request had been forwarded to the State Department, but that no reply had been received.

In June 2006, after deciding to test how difficult it was to track down witnesses, Walsh focused on the case of Abdullah Mujahid, just one of many Afghans who asked his tribunal to make a few phone calls to verify his story. Walsh did just that, and within three days found three witnesses that the Pentagon had apparently been unable to contact. One was working in Washington DC, teaching at the National Defense University, and the other two were in Afghanistan.

A call to President Karzai’s office located Shahzada Masoud, an adviser on tribal affairs, who confirmed that Mujahid had accepted a job protecting the highways in Kabul and “was given a lavish transfer-of-power ceremony attended by government dignitaries,” and Walsh obtained the phone number of Gul Haider, a defense ministry representative and former Northern Alliance commander, from a government official in Gardez. Haider confirmed that Mujahid sent 30 of his men to assist the Americans during Operation Anaconda, and said he had not heard anything to support the Americans’ claims that he had turned against them. Pointing out that political rivalries were to blame for his arrest, and that someone had made false allegations, Haider said, “Afghanistan has many problems –- between tribes, Communists, the Taliban. That’s why people like Abdullah, who are completely innocent, end up in jail.”

While I wait to find out if any of these men will be released from Pol-i-Charki –- and if others like Bostan Karim, Obaidullah and Mohammed Sohail will be released from Guantánamo –- I have to conclude that Gul Haider’s comment could serve as an epitaph for most of the Afghans in Guantánamo, and that it’s a grim conclusion to reach on the eve of the prison’s sixth anniversary.

This article is drawn partly from chapters in my newly published 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, and see here for my definitive Guantánamo prisoner list, published in March 2009.

Note:

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

ISN 954: Abdul Ghafour
ISN 1002: Abdul Matin
ISN 976: Abdullah Wazir
ISN 1021: Gul Chaman (Commander Chaman)
ISN 1100: Abdullah Mujahid
ISN 1001: Dr. Hafizullah Shabaz Khail

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

ISN 8: Abdullah Gulam Rasoul (as described in Chapter 10 of The Guantanamo Files)
ISN 923: Abdul Razzaq (to be described in a forthcoming online chapter)
ISN 1012: Aminullah Tukhi (as described in Chapter 16 of The Guantanamo Files)
ISN 1032: Abdul Ghafaar (to be described in a forthcoming online chapter)

Others mentioned in the article (but not released) are:

ISN 975: Bostan Karim
ISN 783: Obaidullah
ISN 1008: Mohammed Mustafa Sohail

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 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; 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 Stories of the Afghans Just Released from Guantánamo: Intelligence Failures, Battlefield Myths and Unaccountable Prisons in Afghanistan (Part One)

In the first of two articles, Andy Worthington, author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, examines the system of unaccountable prisons run by the US military in Afghanistan, dissects some myths and lies about released detainees, and tells the stories of three of the Afghans just released from Guantánamo. Both articles were published on CounterPunch as a single article.

In the last week, while the media’s attention has focused on the release of two Sudanese humanitarian aid workers from Guantánamo, the 13 Afghans who were flown to Kabul at the same time have barely been mentioned. The reasons for this oversight are clear: firstly, because one of the Sudanese ex-detainees, Adel Hamad, a hospital administrator, had become something of a celebrity after his enterprising lawyers posted a video about his case on YouTube, which prompted a group of campaigners to establish a website devoted to his plight; and secondly, because Hamad and his compatriot, Salim Adem, were released on their return, and various reporters were able to meet them.

No such luxuries were reserved for the Afghans. Few of their stories are known at all, and on their return to Afghanistan they were promptly imprisoned in a wing of Pol-i-Charki, Kabul’s main prison, which was recently refurbished by the US authorities. The oversight is disturbing because, for the most part, the stories of the Afghans demonstrate colossal ineptitude on the part of the US military and Special Forces in Afghanistan, at least equivalent to the failures of intelligence that led to the capture of Adel Hamad and Salim Adem. In addition, the imprisonment of these men in a prison wing refurbished by the US authorities raises uncomfortable questions about the role of the US military in Afghanistan, over six years after the invasion of Afghanistan in October 2001.

Pol-i-Charki prison, Kabul

Pol-i-Charki prison, Kabul.

Unaccountable US prisons in Afghanistan

Despite the official inauguration of Hamid Karzai as the President of post-Taliban Afghanistan –- and the country’s first democratically elected leader –- on December 7, 2004, the US military has continued to behave like an occupying power, holding hundreds of prisoners at Bagram airbase (formerly used to process detainees for Guantánamo), including foreigners as well as Afghans, and an unknown number of other prisoners in a variety of secret prisons and forward operating bases. Cut off from all outside scrutiny (except for representatives of the International Red Cross), these prisoners do not even have the limited legal representation available to the detainees in Guantánamo.

In March 2005, when journalists Adrian Levy and Cathy Scott-Clark visited Afghanistan, they met Dr. Rafiullah Bidar, a regional director of the Afghan Independent Human Rights Commission, which had recently been established –- with funding from the US Congress –- “to investigate abuses committed by local warlords and to ensure that women’s and children’s rights were protected.” Ironically, Bidar told the reporters that what his job actually entailed was registering complaints against the US military. “Many thousands of people have been rounded up and detained by them,” he said. “Those who have been freed say that they were held alongside foreign detainees who’ve been brought to this country to be processed. No one is charged. No one is identified. No international monitors are allowed into the US jails. People who have been arrested say they’ve been brutalized –- the tactics used are beyond belief.” Speaking anonymously, a government minister also complained, “Washington holds Afghanistan up to the world as a nascent democracy and yet the US military has deliberately kept us down, using our country to host a prison system that seems to be administered arbitrarily, indiscriminately and without accountability.”

Nearly three years later, this situation has not changed. Lawyers at the US-based International Justice Network have filed a potentially ground-breaking habeas corpus claim on behalf of a detainee at Bagram, but the system as a whole –- like that in Iraq, where at least 15,000 detainees are held without charge or trial –- remains impervious to outside scrutiny.

Until April 2007, however, the detainees released from Guantánamo –- 152 of the 220 held since the prison opened in January 2002 –- sidestepped this unaccountable prison system and were released on their return to Afghanistan, but this has changed with the US-financed refurbishment of Pol-i-Charki, and it is not yet clear whether the 32 detainees returned since April 2007 have simply exchanged Guantánamo for an even less accountable form of indefinite detention without charge or trial.

Myths and lies: detainees who returned to the battlefield

It’s probable that the excuse for imprisoning the Afghans returned in the last eight months is the US military’s oft-repeated claim that dozens of released detainees have returned to the battlefield. If so, this would be grossly disingenuous. Not only are the figures disputed, with only six recognized by those who have studied the stories in any detail, but the US administration has also refused to acknowledge the shocking truth about its own responsibility for releasing these men.

Abdullah MehsudThe Taliban freed from Guantánamo include Abdullah Mehsud, a Pakistani Taliban commander, released in March 2004, who killed himself with a hand grenade after being cornered by security forces in Pakistan in July 2007. Mehsud came to prominence in October 2004, after his men kidnapped two Chinese engineers working on a dam project in Waziristan, when he explained that, at the time of his capture in November 2001, he was carrying a false Afghan ID card, and that he had successfully maintained throughout his detention that he was an innocent Afghan tribesman.

Another was Mullah Shahzada, released in May 2003, who gave the Americans a false name and claimed that he was an innocent rug merchant. “He stuck to his story and was fairly calm about the whole thing,” a military intelligence official told the New York Times. “He maintained over a period of time that he was nothing but an innocent rug merchant who just got snatched up.” After his release, Shahzada seized control of Taliban operations in southern Afghanistan, recruiting fighters by “telling harrowing tales of his supposed ill-treatment in the cages of Guantánamo,” and masterminded a jailbreak in Kandahar in October 2003, in which he bribed the guards to allow 41 Taliban fighters to escape through a tunnel. His post-Guantánamo notoriety came to an end in May 2004, when he was killed in an ambush by US Special Forces.

While right-wing commentators seized on the release of Mehsud and Shahzada as evidence that no one should ever be released from Guantánamo, a rather different interpretation was offered by Gul Agha Sherzai, the post-Taliban governor of Kandahar, who pointed out that they would never have been freed if Afghan officials had been allowed to vet the Afghans in Guantánamo. “We know all these Taliban faces,” he said, adding that repeated requests for access to the Afghan prisoners had been turned down. Sherzai’s opinion was reinforced by security officials in Karzai’s government, who, off the record, blamed the US for the return of Taliban commanders to the battlefield, explaining that “neither the American military officials, nor the Kabul police, who briefly process the detainees when they are sent home, consult them about the detainees they free.”

Of the 13 Afghans released from Guantánamo last week, nine have been identified. The rest, like dozens of those released in the last 18 months, did not have lawyers (who are told when their clients have been released), and as a result even their identities are unknown. The Pentagon never reveals the names of the detainees it frees, and without representatives of the world’s media on the ground in Kabul, as they were for the first batches of released detainees in 2002 and 2003, these men remain as lost to the world as they were in Guantánamo.

Taliban conscript or Taliban commander?

The first of the nine to be captured, Abdul Rauf Aliza, remains something of an enigma to this day. Seized in November 2001 during the fall of Kunduz, the last Taliban stronghold in northern Afghanistan, he was held, with thousands of other men, in a filthy, overcrowded prison in Sheberghan run by General Rashid Dostum, one of the leaders of the anti-Taliban Northern Alliance, and was then transferred to the US prison at Kandahar airbase with nine other Afghan prisoners.

Jan MohammedOne of the nine, Jan Mohammed, a baker from Helmand province who had been forcibly conscripted by the Taliban, was one of the first detainees to be released from Guantánamo in October 2002. After his release, he explained that the decision to transfer him to Kandahar came about because some of Dostum’s men “told US soldiers that he and nine others were senior Taliban officials.” “They came and took ten strong-looking people,” he told the journalist David Rohde. “Only one of those ten was a Talib.”

It’s probable that the solitary Taliban member transferred to Kandahar with Jan Mohammed was Abdul Rauf Aliza, who was identified by the US authorities as Mullah Abdul Rauf, a Taliban troop commander. Although Aliza claimed that he was conscripted by the Taliban, who said they would take his land if he refused, and insisted that he only worked for them as a cook, several released Afghans explained to the journalist Ashwin Raman that Mullah Abdul Rauf was one of three Taliban commanders in northern Afghanistan held in Guantánamo. They told Raman that he had not been so cautious with his identity while detained in Camp X-Ray, when he “repeatedly pleaded with the Americans to let many of the detainees free,” saying, “These are no Talibs, I am the real Talib.”

While this suggests that Abdul Rauf Aliza and Mullah Abdul Rauf are one and the same, it’s possible that the Taliban commander was hiding his true identity behind a false name, as was the case with Abdullah Mehsud and Mullah Shahzada. According to the Pentagon’s records. Aliza was only 20 years old when he was captured, which would have made him an extremely youthful troop commander, but the truth, as with so much of Guantánamo’s story, may never be uncovered.

“Number three in Taliban intel”

Two of the other released detainees were captured in December 2001. 26-year old Gholam Ruhani was seized with Abdul-Haq Wasiq, the Taliban’s deputy minister of intelligence, and one of the few senior Taliban figures captured by the Americans, in a potentially perilous Special Forces operation in Ghazni, south of Kabul. At the time, Ghazni was a Taliban stronghold, but when the Special Forces received a tip-off that a local warlord had arranged a meeting with Qari Amadullah, the Taliban’s minister of intelligence, in which, it was suggested, Amadullah might provide information that would lead to the capture of Osama bin Laden, their commander, Gary Berntsen approved the mission.

In the end, Amadullah did not turn up, and clearly had no intention of doing so. Safely ensconced in Pakistan, after escaping from Afghanistan, he spoke to a journalist in late December, interrupting the interview to take a phone call, and then declaring, “I am personally requested by Mullah Omar and Sheikh Osama to go to Uruzgan and take the command of new guerrilla war preparations, which will start as soon as possible, and you will hear the news in papers and on BBC.” Unsurprisingly, having effectively given US forces his itinerary as a result of this loose talk, he was killed in a US air strike a few days later. In the same interview, however, he also spoke about Abdul-Haq Wasiq. He said that Mullah Omar, who, he claimed, was living in a safe place in the mountains north of Kandahar, had asked him to visit, but he had been unable to do so, “because a lot of people know me, and I am frightened they will capture me somewhere on the road. So I sent my assistant Mullah Abdul-Haq Wasiq to Kandahar. Unfortunately he was captured by American agents in Ghazni.”

This suggests that Wasiq either made his own negotiations with the Americans in Ghazni, or was invited and then betrayed by the local warlord, because after the meeting he was duly arrested, along with Gholam Ruhani, by the Special Forces operatives, who duly declared that they were “the number two and three in Taliban intel.”

In Guantánamo, Wasiq, who is still imprisoned, has been coy about his role, claiming that he was forced to join the Taliban, and that he sometimes acted as the deputy minister of intelligence, but only to combat “thieves and bribes.” This did not convince his tribunal, who greeted him with the words, “Good afternoon, Mr. Minister. Seldom before have we had someone of such prestige and responsibility.” Ruhani, however, was adamant that he was not the “number three in Taliban intel.” He said that he was a Taliban conscript, who fulfilled his duties in a clerical capacity to avoid being sent to the front lines, and explained that he was asked to attend the meeting between the Taliban and the Americans because he had learned a little English while studying electronics manuals in a store run by his elderly father. “I turned over my pistol and ammunition to the American, as an act of faith, because it was a friendly meeting,” he said. “I expected to leave the meeting and return to my life, my shop and my family. Instead, I was arrested.”

The foot soldier

The second man, 22-year old Omar al-Kunduzi, was one of around 250 detainees captured by Pakistani forces after crossing the border from Afghanistan to Pakistan in December 2001. Born in Afghanistan, he had been living in Saudi Arabia since the Soviet invasion, when he was just one year old, but returned to Afghanistan in September 2001. He told his lawyer that he wanted to fight in Chechnya (as did several other detainees from the Gulf countries), and added that Chechen representatives had told him to undertake military training in Afghanistan. He explained that he had trained at the al-Farouq camp (a camp for Arabs, established by the Afghan warlord Abdul Rasul Sayyaf, but associated with al-Qaeda in the years before 9/11), but had a distaste for both the Taliban and al-Qaeda on religious grounds, insisting that both groups were responsible for killing Muslims, which he thought was wrong. This, too, was an explanation proferred by numerous detainees.

In his tribunal at Guantánamo, he said that he was staying at a house in the eastern city of Jalalabad when the city fell in November 2001, and he explained that everyone in the house got into a pick-up truck and drove to the Tora Bora mountains, where they stayed in a cave for a month. No mention was made of Osama bin Laden, Ayman al-Zawahiri or any other senior figures in al-Qaeda or the Taliban, who were also in Tora Bora at this time, and who all escaped safely to Pakistan. Instead, al-Kunduzi explained that he left for Pakistan with a group of Arabs, Pakistanis and other Afghans, and was arrested on the border, which surprised him. “I did not expect them to hand me over to the Americans,” he said, “I thought they would treat me like an Afghani.”

This article is drawn partly from chapters in my newly published 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, and see here for my definitive Guantánamo prisoner list, published in March 2009.

Click here for the second part of this article.

Note:

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

ISN 108: Abdul Rauf Aliza
ISN 3: Gholam Ruhani
ISN 222: Omar al-Kunduzi (Umar)

Also mentioned:

ISN 4: Abdul-Haq Waziq
ISN 107: Jan Mohammed (Barakzai)

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 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; 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 Guantánamo Files: talks by Andy Worthington, Moazzam Begg and Zachary Katznelson online on Resonance FM

The Guantanamo FilesNadim Mahjoub of Resonance FM has put together an excellent radio show about Guantánamo, for his show Middle East Panorama, based on three talks from the launch of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (Pluto Press), at Bookmarks, in central London, on November 28. The featured speakers are Andy Worthington, the author of The Guantánamo Files, ex-Guantánamo detainee Moazzam Begg, author of Enemy Combatant and a spokesman for the human rights group Cageprisoners, and Zachary Katznelson, senior counsel for Reprieve, the London-based legal charity that represents dozens of Guantánamo detainees, who has made 20 visits to Guantánamo to meet his clients.

The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison is 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.

Military judge dashes hopes that Guantánamo detainees have rights as Prisoners of War

Salim HamdanOn Monday, just three weeks away from Guantánamo’s sixth anniversary, military judge Captain Keith Allred dealt what appeared to be a severe blow to the legitimacy of the Military Commissions –- the unprecedented trial system established to try Guantánamo detainees for war crimes –- by ruling that he would undertake a review to determine whether Salim Hamdan, a Yemeni who worked as a driver for Osama bin Laden, was actually a Prisoner of War, as defined by the Geneva Conventions.

For an administration that has done all in its power to deny its legal responsibilities as a signatory to the Conventions, this was worrying news indeed, but just three days later Capt. Allred delivered his verdict, ruling that Hamdan was not entitled to be regarded as a Prisoner of War, and that his trial by Military Commission could proceed. Noticeably, however, his dissent, though fleeting, appeared so well argued that doubts remain as to whether he made up his own mind or was subjected to pressure from higher up the chain of command.

The Military Commissions, which were dreamt up in November 2001 by Vice President Dick Cheney and his advisor David Addington, and were intended to sidestep both the US courts and the traditional avenue of military prosecution via courts martial, have had a rocky history. From the moment that they were announced, concerned lawyers and human rights activists condemned them. In Guantánamo: What The World Should Know, one of the first books about Guantánamo, Michael Ratner of the Center for Constitutional Rights described them as “a system heavily slanted towards conviction,” explaining that they were unacceptable because they “were going to be held outside the United States, totally in secret, with military officers as judges,” and because “the prosecution was going to be allowed to bring in any kind of evidence, including hearsay evidence.”

The most savage criticism, however, has come from the government-appointed military lawyers assigned to defend the detainees. Lt. Cmdr. Charles Swift, who took Hamdan’s case in 2004, rapidly discovered the flaws with the system during his first visit with Hamdan, explaining, in an interview with Vanity Fair’s Marie Brennan in March this year, that these included “no right to habeas corpus, no attorney-client privilege, forced guilty pleas for charges never made public, secret and coerced evidence, juries and presiding officers picked by executive fiat, [and] clients represented even if they declined legal counsel.”

Swift also outlined his perception of the reasons for establishing the Military Commissions. “The whole purpose of setting up Guantánamo Bay is for torture,” he said. “Why do this? Because you want to escape the rule of law. There is only one thing that you want to escape the rule of law to do, and that is to question people coercively –- what some people call torture. Guantánamo and the military commissions are implements for breaking the law.”

Working with Neil Katyal, a civilian lawyer, Swift pursued Hamdan’s case to the Supreme Court, which, in a shocking blow to the administration, ruled in June 2006 that the Commissions were illegal under US law and the Geneva Conventions. Undeterred, the administration seized on a comment made by Justice Stephen Breyer –- that “Nothing prevents the President from returning to Congress to seek the authority he believes necessary” to reestablish the Commissions –- and, just three months later, persuaded a craven Congress to reinstate them in the Military Commissions Act (MCA), a hideously flawed piece of legislation that also stripped the detainees of their habeas corpus rights, established in another significant Supreme Court ruling in June 2004.

Swift, meanwhile, was passed over for promotion, ending his military career under an “up-or-out” system devised by the Pentagon, but he has since taken a job at Emory University School of Law in Atlanta, and continues to work on Hamdan’s case as a civilian lawyer. His successor, Major Thomas Roughneen, a former New Jersey prosecutor who served in Iraq during the US-led invasion, has been no less forthright in criticizing the Commissions. In August, he told Carol Rosenberg of the Miami Herald, “It’s like the Titanic. You know someday the ship is going to sink. God almighty, let’s get there already.” Moreover, Swift and Roughneen are not the only defense lawyers to have taken a principled stand against the Commissions. Others include Major Michael Mori, who campaigned tirelessly for the Australian detainee David Hicks, and Lt. Cmdr. William Kuebler, who continues to do the same for his client Omar Khadr, a Canadian who was just 15 years old when he was seized after a gunfight in Afghanistan.

In the meantime, while the defense lawyers have been mounting an increasingly vocal and visible campaign of opposition, the Commissions themselves have stumbled from one disaster to another. No successful prosecution has yet been achieved, and the government’s only alleged victory –- in the case of David Hicks, who accepted a plea bargain in March this year, admitting that he provided “material support for terrorism” and dropping well-documented claims that he was tortured by US forces in exchange for a nine-month sentence to be served in Australia –- has been undermined in recent months by Col. Morris Davis, the Commissions’ former chief prosecutor. Davis noisily resigned in October, and has since complained loudly that the entire trial system was compromised by political interference.

Judge Allred’s part in this ongoing fiasco is no less significant. In June, when Hamdan was first hauled up before the reinstated Commissions, he and his colleague Col. Peter Brownback, who was presiding over the trial of Omar Khadr, derailed the whole process by throwing out the charges, pointing out that the MCA, which had authorized the revival of the Commissions, had mandated them to try “alien unlawful enemy combatants,” whereas the tribunals at Guantánamo that had made Hamdan and Khadr eligible for trial by Military Commission –- the much-reviled Combatant Status Review Tribunals, which also relied on secret evidence withheld from the detainees –- had only declared that they were “enemy combatants.”

Humiliated, the government responded by attempting to claim that the distinction was merely semantic (which it was not) and then declared that it would appeal the decision, causing further humiliation to its already damaged credibility when it transpired that the appeal court in question –- the Court of Military Commissions Review –- had not yet been established.

In August, a hastily convened court agreed with Col. Brownback that Khadr’s classification as an “enemy combatant” at his CSRT “failed to meet the requirements for jurisdiction set forth in the Military Commissions Act,” but explained that Brownback had “erred” in ruling that a CSRT was required to determine that Khadr was an “unlawful enemy combatant” as a pre-requisite for bringing charges against him under the MCA. They added, moreover, that he had “abused his discretion in deciding this critical jurisdictional matter without first fully considering” the government’s evidence. As a result of this decision, the trials of Hamdan and Khadr were reinstated, but the Commissions have continued to attract weighty opposition.

Khadr’s arraignment last month was notable for an explosive revelation, unveiled just 36 hours before the trial began, when the lead prosecutor, Major Jeff Groharing, informed Khadr’s defense team of the existence of “potentially exculpatory evidence” from a “US government employee,” who was an eye-witness to the gunfight in Afghanistan that led to Khadr’s capture. Khadr’s limping case will resume, with struggles over this “new” information, in 2008, but it’s arguable that Allred’s intervention on Hamdan’s behalf was even more significant.

On December 5, while most eyes were on the Supreme Court, which was looking at the detainees’ claims that the habeas-stripping components of the MCA were unconstitutional, Hamdan’s lawyers were explaining to Allred, in a makeshift courtroom in Guantánamo, that, although Hamdan was a driver for Osama bin Laden, he was, essentially, a civilian who got caught up in the war in Afghanistan, and should therefore be regarded as a Prisoner of War, as defined by the Geneva Conventions, which would mean that he was ineligible for trial by Military Commission.

Ignoring the case put forward by the prosecution –- who screened a video of bin Laden and Hamdan at a feast, and presented as a witness a US army officer who testified that Afghan forces under his command had captured Hamdan at a roadblock in November 2001, driving, alone, in a car that contained two surface-to-air missiles –- Allred’s decision to review Hamdan’s status essentially followed on from the dissent he expressed in June, when he explicitly stated that Hamdan had never received “an individuated determination” that he was an unlawful combatant, as required by the Geneva Conventions, and that without this determination he and other detainees were entitled to be treated as Prisoners of War.

In a four-page ruling, Allred cited various legal sources, and took exception to the position held by both the government and Congress, who have both argued that Hamdan’s CSRT was the equivalent of a status determination conforming to Article 5 of the Third Geneva Convention, which states that, should there be any doubt about the status of prisoners, who, like many of the Guantánamo detainees including Hamdan, were not part of a regular army in uniform, “such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

Responding to the conclusion reached in Hamdan’s CSRT, on October 8, 2004, that he was “a member of, or affiliated with, al-Qaeda forces,” Allred declined to agree that this was equivalent to an Article 5 status determination, pointing out that the CSRT “did not address his entitlement to Prisoner of War status, cite or discuss the Geneva Conventions of Article 5, or address the lawfulness of the accused’s participation in hostilities,” because the government bodies that had established the tribunals had “ordered the CSRT to make a different determination: whether the accused was an “enemy combatant,” as defined … for the purposes of continuing his detention.” Consequently, he insisted, “Even if the Commission were to agree with the government that the 2004 CSRT process satisfied Article 5, it is clear from the Commentaries on the Geneva Convention that a second status determination must be made by a judicial officer for detainees the Detaining Power proposes to punish.”

You see what I mean? Capt. Allred appeared to have put together such a compelling case for Hamdan’s rights as a Prisoner of War –- and against the system of Military Commissions as they currently stand –- that his sudden decision to discard these well-honed arguments and to declare Hamdan an ”unlawful enemy combatant” smacks of interference from the highest levels of the administration, where Dick Cheney and David Addington, in particular, are undoubtedly determined not to relinquish the malign project that they first established six years ago.

For more on the Military Commissions, see my newly published 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.

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), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Four more charged, including Binyam Mohamed (June 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Don’t Forget Guantánamo (February 2009).

The Guantánamo Britons and Spain’s dubious extradition request

Celebrations by the families, friends and supporters of the three British residents who returned from Guantánamo on Wednesday –- Omar Deghayes, Jamil El-Banna and Abdulnour Sameur –- were abruptly cut short when the Spanish government immediately requested the extradition of El-Banna and Deghayes for alleged ties with terrorists, even though the supposed evidence in Deghayes’ case was comprehensively demolished nearly three years ago, and, in El-Banna’s case, is strenuously denied by his lawyers. In March 2005, image recognition experts, commissioned by the BBC’s Newsnight, concluded that the figure in a grainy video of a Chechen training camp, which was supposed to be Deghayes, was in fact a militant named Abu Walid, who had later been killed.

Omar Deghayes, Jamil El-Banna and Abdulnour Sameur

As the men landed on British soil, there was no reason to suspect that their return would involve anything more than a cursory police investigation. El-Banna had been cleared for release from Guantánamo by a military review board in May this year –- as close to an admission of innocence as the notoriously unapologetic US administration ever gets –- and the US authorities had also agreed to the return of Deghayes and Sameur, as requested by the British government in August, while refusing to release another British resident, Binyam Mohamed, whose current parlous state was reported here.

Lawyer Clive Stafford Smith, who represented the men and met with them at Guantánamo during their long imprisonment without charge or trial, pointed out that they had all agreed to unspecified voluntary security arrangements required by the UK authorities, and, on arrival, as Sean O’Neill described it in the Times, El-Banna “was detained under port and border controls –- a signal that Britain does not regard him as posing any serious security threat.” Deghayes and Sameur, meanwhile, were arrested under the Terrorism Act 2000 and were held for questioning at Paddington Green police station in west London, a move that served only to indicate, in O’Neill’s words, “that Scotland Yard’s Counter-Terrorism Command wants to be certain they pose no threat to Britain before releasing them.” He added, “Most of the previous returnees from Camp Delta have been through the same process and none have been involved in any trouble since they came back.”

Even more significant were comments made by William Nye, director of counter-terrorism and intelligence at the Home Office, following discussions with the US government about the return of the British residents, which had first taken place in June 2006, and which were revealed in the Guardian last October. At the time, the British government, which, until that point, had refused to press for the release of any of the British residents, was reluctantly discussing the return of just one of the British residents, Bisher al-Rawi (who was released in March this year). Both al-Rawi and El-Banna had been kidnapped by CIA agents in the Gambia, where they had travelled to set up a mobile peanut-processing plant, after an inexplicable tip-off from MI5, and had been transferred to Guantánamo via a secret CIA-run prison in Afghanistan. Scandalously, the discussions about the repatriation of al-Rawi –- but not of El-Banna –- were based solely on the fact that al-Rawi’s lawyers had embarrassed the government by pointing out that he had actually been working for MI5, keeping tabs on the radical cleric Abu Qatada.

Describing what had happened during the meeting with the Americans, William Nye explained that the Americans had requested that the British take back all the residents –- not just al-Rawi –- but that the British representatives had balked at the conditions that the US government had attempted to impose, which included an insistence that they “cannot legally leave the UK, engage with known extremists or engage in, support, promote, plan or advocate extremist or violent activity,” and that the British government would put surveillance in place “to know immediately of any attempt to engage in any such activity.” Nye declared, “I am not satisfied it would be proportionate to impose … the kind of obligations which might be necessary to satisfy the US administration,” explaining that the measures demanded by the Americans would have to be enforced by MI5 and would divert vital resources away from countering more dangerous terrorist suspects. “The use of such resources … could not be justified and would damage the protection of the UK’s national security,” he wrote, adding, in the most crucial passage, that the detainees “do not pose a sufficient threat to justify the devotion of the high level of resources” the US would require.

It was genuinely shocking, therefore, when the Spanish government lodged its extradition request on the men’s return. As Sean O’Neill described it, the Spanish alleged that El-Banna had links with a Madrid al-Qaeda cell, which was purportedly responsible for recruiting young men and sending them for jihad training, and which was also “said to have had ties to the German-based al-Qaeda unit that plotted the September 11 atrocities.” He added, “What has motivated Spain to act now is something of a mystery. America has had Mr. El-Banna in custody for five years and interrogated him repeatedly in brutal conditions. It laid no charges against him and deemed him fit to be freed. Spain made no attempt to extradite him from or question him while he was in US custody.” He concluded that the Spanish government’s action “seems inhumane and its evidence rather thin.”

Clive Stafford Smith added more detail, explaining that he had tried to encourage a Spanish extradition request as a means of getting the men out of Guantánamo, but that the authorities in Madrid had never showed any interest. “It is very dismaying,” he told the BBC’s Newsnight. “For quite a long time, we tried to get the Spanish to demand their release because we thought it was an elegant way to get them out of Guantánamo. The Spanish weren’t interested … The idea now that they want to use this evidence we have proved to be false to take them for further detention is very worrying.”

Under the terms of the European Arrest Warrant, an EU-wide agreement introduced in 2004 and intended to simplify extradition procedures between member states by removing potential political interference and ensuring “faster and simpler surrender procedures,” the British government had no choice but to comply with the Spanish request, even though William Nye had made it clear that none of the men were regarded as a “sufficient threat” to warrant 24/7 surveillance, and, as Sean O’Neill pointed out, the British “had no intention of putting [El-Banna] on trial as a terrorist when he returned here.”

On the morning of December 20, while the Metropolitan Police were preparing to release Abdulnour Sameur without charge, Jamil El-Banna and Omar Deghayes were duly transported to Westminster Magistrates’ Court –- just a few hundred yards from Parliament –- where Melanie Cumberland, representing the Spanish government, resurrected the claims against the men, first formulated by the Spanish judge Baltasar Garzón in December 2003 (when he also requested the extradition of two other Guantánamo detainees, a Moroccan and a Spaniard), that El-Banna had been a member of a Madrid-based organization known as the Islamic Alliance, and that he was an associate of Imad Yarkas, who is serving 12 years in a Spanish prison for terrorism offences. Cumberland relayed the Spanish authorities’ claim that both El-Banna and Deghayes belonged to a cell that provided recruits for military training in Afghanistan and Indonesia, which was also alleged to have raised funds for terrorism and to have spread al-Qaeda propaganda.

In response, Ed Fitzgerald QC, who represented both men, cited the discredited video as “the centrepiece” of the Spanish allegations, and accused the prosecutor of making wild accusations “for which there was no evidence,” adding that there was, instead, solid evidence that neither the US nor UK authorities considered the men to pose a significant danger.

Granting bail to both men –- set at £50,000 (much of which was paid by actress and human rights campaigner Vanessa Redgrave) –- the judge, Timothy Workman, dismissed prosecution claims that they would flee abroad or engage in terrorist acts, and declared, in El-Banna’s case, “The prosecution concerns about offences being committed are outweighed by the detailed review being carried out in the US.” He did, however, insist on tough bail conditions, including the imposition of a curfew, the use of electronic tagging and a prohibition on travelling abroad.

Jamil El-Banna on his release

Jamil El-Banna on his release from custody. His solicitor, Gareth Peirce, is on the right of the picture.

Outside the court, El-Banna, who appeared to have aged considerably during the five years of his imprisonment, made only a brief statement. “Thank you very much everybody, my solicitor, the British people, the British government for your help,” he said, adding, “I am tired, I want to go home and see my children,” before leaving in a car to be reunited with his wife and his five children. He has never seen his youngest child, who was born after his capture. His MP, Sarah Teather, who has campaigned assiduously for his release, said that “immense cruelty” had been inflicted on the family, who were only told at 8.30pm on Wednesday that he had been arrested and would not be coming home. “The children could not understand why he was not back and Sabah [his wife] was devastated,” she added. After meeting Mrs. El-Banna briefly outside the courtroom on Thursday morning, I can confirm that this was indeed the case.

Several hours later, Omar Deghayes also emerged from the court to be reunited with his family. Speaking later from his home in Brighton, he said, “I am very, very happy to be home. I am very grateful to everybody who has helped me. I would have been happier if everybody in Guantánamo were released and that ugly, bad place was closed down if not demolished.” He added, “I need some rest but I will be very happy to speak to everybody in the media to help other people to be released.”

Missing from the extradition discussions –- in the media, if not amongst the lawyers –- was the demonstrable weakness of the intelligence relating to the two other Guantánamo detainees whose extradition was requested by Judge Garzón in December 2003. Garzón’s motives were not in doubt. In an interview for Mother Jones in 2004, he explained to Tim Golden why he was stringently opposed to the Americans’ approach to the “War on Terror,” and why he favoured “a multinational, legal approach over what he describe[d] as a ‘militaristic’ strategy of intelligence gathering, extrajudicial arrests, and military detention.” “What frightens me is when people start going beyond the limits of the law,” he said. “Taking the right to a defense away from those who are detained at Guantánamo. Establishing a license to kill terrorists. In this country, we know what it means to use this heavy hand. We know that when the fight against terrorism moves outside the law, it becomes very dangerous.”

As an example of Garzón’s legal approach to the post-9/11 world, Tim Golden observed that an indictment of Osama bin Laden that was issued by Garzón in autumn 2003, which was the first such document to charge bin Laden in connection with the 9/11 attack, “echoed his insistence that even the most terrible criminals on earth should be dealt with in courts of law.” Garzón also defended his extradition request for the four Guantánamo detainees –- Jamil El-Banna, Omar Deghayes, Moroccan-born Lahcen Ikassrien, and Hamed Abderrahman Ahmed, from the Spanish enclave of Ceuta, in north Africa –- “arguing pointedly that the only standing charges against them were those he had filed in Spain.”

Despite Garzón’s enthusiasm for the law, however, when Lahcen Ikassrien and Hamed Ahmed were extradited from Guantánamo to Spain, at his request, the cases against them collapsed.

Ahmed, transferred in February 2004, had the dubious distinction of being the first Guantánamo detainee to be handed over to a foreign country for prosecution. Released on bail in July 2004, he was later put on trial and was sentenced to six years in prison in October 2005, although Garzón’s claims did not even figure in his trial. Instead, he was convicted based on allegations by the prosecution that he had travelled to Afghanistan in August 2001 to fight for the Taliban government, and had received religious and military training. However, in a momentous decision by the Spanish Supreme Court in July 2006, his sentence was dismissed. The Supreme Court ordered his immediate release, and said that the High Court had not considered him “innocent until proven guilty,” and had used evidence collected at Guantánamo that “should be declared totally void and, as such, non-existent,” adding that the High Court was “entirely remiss in its role of providing evidence.”

Ikassrien, transferred in July 2005, was released on his return, but was ordered to report daily to the police, and was prohibited from leaving the country without permission. When his trial came around, he, like Hamed Ahmed, had his case dismissed by the Supreme Court, which concluded, in October 2006, that there was no evidence to back up charges he was a member of al-Qaeda, stating, “It has not been proved that the accused Lahcen Ikassrien was part of a terrorist organization of Islamic fundamentalist nature, and more specifically, the al-Qaeda network created by [Osama] bin Laden.” Significantly, the Supreme Court’s judgment followed another momentous decision, four months before, to quash the conviction of Imad Yarkas, the lynchpin of the whole case against Hamed Ahmed, Lahcen Ikassrien, Jamil El-Banna and Omar Deghayes, for conspiracy to commit murder in the 9/11 attacks, although his conviction for belonging to a terrorist organization was upheld.

With only these examples of failed prosecutions to draw upon, the position taken by the Spanish government is, frankly, incomprehensible. As Jamil El-Banna and Omar Deghayes attempt to rebuild their shattered lives in the bosom of their families, it is to be hoped that their lawyers can draw compelling arguments from these cases –- and from other examples of Spanish intelligence failures –- before the extradition hearings begin on January 9, 2008.

Jamil El-Banna reunited with his children

Jamil El-Banna reunited with his children, December 21, 2007.

For more on the stories of the British residents and Hamed Ahmed, see my newly released 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, and see here for my definitive Guantánamo prisoner list, published in March 2009.

For more on Lahcen Ikassrien’s story, see the additional, online chapter here.

As published on Indymedia.

For the rest of the extradition story, see here, here and here.

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), Guantánamo as house arrest: Britain’s law lords capitulate on control orders (November 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 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).

Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib

Juan Cole, the indefatigable commentator on human rights and Middle Eastern affairs, has picked up on a translation of a fascinating interview in the Spanish newspaper El Mundo with Damien Corsetti, a former US Army private, who worked as an interrogator in the notorious US prisons at Bagram airbase in Afghanistan and Abu Ghraib in Iraq. Featured in the recent, and highly recommended documentary Taxi To The Dark Side, in which he resembled a slightly less alarming version of Apocalypse Now’s Colonel Kurtz, as played by Marlon Brando, Corsetti worked at Bagram and Abu Ghraib at a time when torture and abuse were rife, and several prisoners were killed.

Damien Corsetti

In October 2005, as part of the Army’s investigation into the abuse of prisoners at Bagram, which led to at least two homicides, Corsetti was charged with dereliction of duty, maltreatment, assault and performing an indecent act with another person, but was cleared of all charges in June 2006. This was in spite of the fact that at Bagram he was known as “the King of Torture” and “Monster” (a name that he has tattooed on his stomach in Italian), and that one particular detainee at Guantánamo –- Ahmed al-Darbi, who was captured in Azerbaijan and “rendered” to Afghanistan –- identified him by his tattoo, and claimed that his abuse of prisoners included poking bound prisoners in the face with his naked penis and threatening them with sexual assault.

In this revealing interview, Corsetti, as Juan Cole describes it, “says he witnessed torture but did not commit it himself. He also says that most of the individuals he interrogated had nothing to do with al-Qaeda or the Taliban.” Cole adds, “Many of the practices Corsetti says he witnessed are already illegal. Others would be banned by a new bill passed by the House of Representatives, which George W. Bush has threatened to veto. The bill would place the Central Intelligence Agency under the same rules as obtain for the US military and would disallow waterboarding, mock executions, and sexual humiliation. I repeat, Bush has pledged to veto this legislation.”

This is the translated article, which I’ve tidied up a little for clarity:

Damien Corsetti looks at me with his small eyes and says, “Look, they leave us alone in this room, they give me a roll of duct tape to tie you to the chair, I turn off the light and in five hours you sign a piece of paper for me saying that you’re Osama bin Laden.”

It’s a Thursday night. Damien Corsetti –- who, according to the New York Times, was nicknamed “the King of Torture” and “Monster” by his colleagues at Bagram prison, in Afghanistan –- is sitting down having a glass of wine in a French restaurant in Fairfax, on the outskirts of Washington. Four days ago, this US private arrived on the outskirts of Washington from North Carolina, where he had been living since September 2006, when he was discharged from the army following a trial in which he was found not guilty of the charges of dereliction of duty, maltreatment, assault and performing indecent acts with prisoners at Bagram.

Now, Corsetti –- who was also under investigation in the Abu Ghraib torture scandal –- only wants to put his life “in order.” It’s a difficult task, because first he will have to forget the torture of prisoners, such as al-Qaeda operative Omar al-Farouq, to which he says he was a witness in Afghanistan. “The cries, the smells, the sounds are with me. They are things that stay with you forever,” he recalls.

Corsetti arrived in Afghanistan on July 29, 2002. He was a military intelligence soldier, not an interrogator: “But the army needed reliable interrogators, because most interrogators do not meet security requirements. They are not reliable. So we arrived there instead.” Training consisted of one five-hour course in Afghanistan and, at 22, Corsetti began trying to extract information from the prisoners in the jail, prisoners who, in his opinion, “in 98 percent of cases had nothing to do with either the Taliban or al-Qaeda.”

That is how Corsetti found himself interrogating prisoners at the jail. Many of them were people who had nothing to do with George W. Bush’s war on terror, like his first prisoner, whose name he still remembers –- Khan Zara: “He was a peasant and he grew opium, but he was there for three months until he told us. Do you know how I found out? Because of his hands. His hands were full of calluses. Those are not the hands of a terrorist.”

Other prisoners included a farmer who had put mines on his land to kill his neighbor, with whom he had a long-standing family dispute, and another Afghan who had bombs in his house to fish in the river. They were people like Dilawar, a taxi driver detained in 2002, who had nothing to do with the Taliban and who died after four days of beatings from US soldiers.

Corsetti explains that Bagram was a very tough prison: “Each prisoner has in his cell a carpet measuring 1.2 m by 2.5 m. And they spend 23 hours a day sitting on it, in silence. If they speak, they are chained to the ceiling for 20 minutes and black visors are put on them so they can’t see, and protectors are put on their ears so they can’t hear. They are taken down to the basement once a week, in groups of five or six, to shower them. It’s done to drive them crazy. I almost went crazy myself,” Corsetti recalls. Apart from those normal cells, there are six isolation cells in the basement of the prison, plus two rooms for those whom the former soldier describes as “special guests.”

Bagram also had an underworld in which the CIA tortured the leaders of al-Qaeda. “One day I went to an interrogation session and as soon as I arrived I knew that it was not a normal case. There were civilians, among them a doctor and a psychiatrist. The prisoner was called Omar al-Farouq, an al-Qaeda leader in Asia who had been brought to the prison by one of those agencies,” Corsetti recalls. “I don’t want to go into details because it could be very negative for my country, but he was beaten brutally, every day, and tortured by other methods. He was a bad man, but he didn’t deserve that.” Al-Farouq escaped from Bagram [in July 2005], an event which, according to some commentators, was tolerated by the USA. He was killed in April 2006 by British forces in the Iraqi city of Basra.

Corsetti says that he never took part in the torture: “My sole job was to sit there and make sure the prisoner didn’t die. But there were several times when I thought they were about to die, when they were interrogated by those people who have no name and who work for no one in particular. It’s incredible what a human being can take.” A veteran of two wars, Corsetti adds, “I have seen people die in combat. I shot at people. That is not as bad as seeing someone tortured. Al-Farouq looked at me while they tortured him, and I have that look in my head. And the cries, the smells, the sounds, they are with me all the time. It is something I can’t take in. The cries of the prisoners calling for their relatives, their mother. I remember one who called for God, for Allah, all the time. I have those cries here, inside my head.”

He continues: ”In Abu Ghraib and Bagram they were tortured to make them suffer, not to get information out of them.” And, he adds, the fact is that at times the torture had no other goal that “to punish them for being terrorists. They tortured them and didn’t ask them anything.” That, he says, was the case with the practice known as “the submarine” [waterboarding]: to simulate the drowning of the prisoner. Corsetti explains: “They have them hooded and they pour water on them. That makes it very difficult to breathe. I don’t think you can die through being subjected to the submarine. I certainly never saw anyone die. However, they do cough like crazy because they are totally submerged in water and that gets in their lungs. Perhaps what it can give you is serious pneumonia.” He also says, “The civilians who took part in the interrogations used the submarine whenever they wanted. They gave it to them for five or 10 minutes and didn’t ask anything.”

Other torture included using extreme cold and heat: “I remember one of my prisoners trembling with cold. His teeth wouldn’t stop chattering. I put a blanket on him and then another, and another, and his teeth never stopped chattering, never stopped. You could see that the man was going to die of hypothermia. But the doctors are there so that they don’t die, so as to be able to torture them one more day.” At other times, he says, “they put them under blinding lights that worked mechanically, giving out flashes.”

Another important practice was psychological torture, administered by psychiatrists. “They tell them they are going to kill their children, rape their wives. And you see on their faces, in their eyes, the terror that that causes them. Because, of course, we know all about those people. We know the names of their children, where they live. We show them satellite photos of their houses. It is worse than any torture. That is not morally acceptable under any circumstances. Not even with the worst terrorist in the world,” Corsetti says, adding, “Sometimes, we put one of our women (female US military personnel) in a burqa and we made them walk through the interrogation rooms and we told them, ‘That is your wife,’ And the prisoner believed it. Why wouldn’t they? We had those people going without sleep for a whole week. After two or three days with no sleep, you believe anything. In fact, it was a problem. The interpreters couldn’t understand what they were saying. The prisoners were having hallucinations. Because, of course, this is not like if you or me go three days without sleep when we’re partying. I’ve gone five days without sleep when I’ve been partying. But this is different. You’re in a cell where they let you sleep only a quarter of an hour every now and then. With no contact with the outside world. Without seeing sunlight. Like that, a day seems like a week. Your mental capacity is destroyed.”

In Corsetti’s opinion, the only thing his experience as an interrogator taught him “is that torture doesn’t work. One thing is losing your temper and punching a prisoner, another is to commit these acts of brutality. In Bagram we managed to find out about an al-Qaeda plan to blow up dozens of oil tankers across the world. We smashed the plot so well that they only managed to attack one, the French oil tanker Limburg, in Yemen in October 2002. And we managed to get a guy to tell us without laying a finger on him.”

For more on the torture, abuse and murders of detainees in Bagram, see my newly published 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, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on American Torture.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison, Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here) (all May 2009), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA), and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009). Also see the extensive archive of articles about the Military Commissions.

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), and also see the extensive Binyam Mohamed archive. And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), The Trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007), Guantánamo’s shambolic trials (February 2008), Torture allegations dog Guantánamo trials (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim (Lt. Col. Darrel Vandeveld on Mohamed Jawad, January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Bush Era Ends With Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009), and the extensive archive of articles about the Military Commissions.

Britons in Guantánamo return to UK for Eid al-Adha

Three of the six British residents in Guantánamo –- Jamil El-Banna, Omar Deghayes and Abdulnour Sameur –- are on their way back to the UK, and will, hopefully, be able to celebrate Eid al-Adha (the Feast of Sacrifice), which follows the annual hajj (the pilgrimage to Mecca). This is the most important feast day in the Muslim calendar, and falls tomorrow (December 20).

Jamil El-Banna, Omar Deghayes and Abdulnour Sameur

According to the latest reports, they are on board a chartered aircraft along with a doctor and officers from the Metropolitan Police’s counter-terrorism unit, as well as uniformed officers, whose presence was requested by the Foreign Office. According to the Guardian, a police spokesman was “not prepared to discuss” whether the men would be held on arrival like the nine British nationals released in 2004 and 2005, and British resident Bisher al-Rawi, who was released in March this year.

Omar Deghayes’ sister, Amani, said that she was “extremely relieved” to hear the news of her brother’s release and added that he had been on the receiving end of “brutal and illegal treatment,” as reported here. She also said, “Our family has always said that Omar was totally innocent – one of the hundreds of people taken to Guantánamo by the Americans for no good reason.” Speaking to the BBC, she said that his family would be concentrating on helping him to put his ordeal behind him. “I’m extremely relieved that Omar’s ordeal is finally coming to end after over five years of suffering in Guantánamo,” she said. “We’re looking forward to spending the Eid as family together.”

Celebrations by campaigners for the three men will be tempered by the knowledge that the other three British residents have been left behind: Saudi-born Shaker Aamer, who is seeking repatriation to Saudi Arabia, Ethiopian-born Binyam Mohamed, now reportedly suffering from severe mental deterioration, whose requested return to the UK was refused by the US government, and Algerian-born Ahmed Belbacha, who has been cleared for release from Guantánamo, but whose return was not requested by the British government because he was not technically an official resident at the time of his capture.

The struggle for justice for these men continues.

For more on the stories of the Britons in Guantánamo, see my newly published 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.

For articles dealing with the Spanish government’s subsequent attempts to extradite Omar Deghayes and Jamil El-Banna to Spain, see here, here, here and here.

Note:

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

ISN 905: Jamil El-Banna
ISN 727: Omar Deghayes
ISN 659: Abdulnour Sameur (Abdenour, Abdennour)

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 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); 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).

Urgent appeal for British resident Binyam Mohamed, “close to suicide” in Guantánamo

Binyam Mohamed

Disturbing news from Clive Stafford Smith, director of the legal charity Reprieve, who reports that his client Binyam Mohamed “may be close to suicide.”

Mr. Mohamed, 29, is one of five British residents whose return to the UK was requested by the British government in August, but although three of these men –- Jamil El-Banna, Omar Deghayes and Abdulnour Sameur –- are expected to return imminently to the UK, and a fourth, Shaker Aamer, has elected to negotiate his repatriation with the Saudi authorities, Mr. Mohamed’s return to the UK was turned down by the US authorities, who remain intent on prosecuting him for an alleged bomb plot in a “war crimes” trial at Guantánamo, even though, as Clive Stafford Smith has repeatedly pointed out, all the supposed “evidence” against him was extracted under torture.

In a medical report commissioned by Reprieve and submitted to David Miliband, the British Foreign Secretary, Dr Daniel Creson, a psychiatrist from Texas with extensive experience in the treatment of the victims of torture, warns that descriptions of Mr. Mohamed’s recent behaviour in Guantánamo –- smearing the walls of his cell with his own faeces –- suggest that his mental health is deteriorating, that he is suffering from severe depression and post-traumatic stress disorder, and that he “is reaching the end of his psychological tether.”

In the report submitted to Mr. Miliband, Stafford Smith calls for “urgent humanitarian intervention” on behalf of his client. He adds, “The urgency is underlined today because Mr. Mohamed has been repeatedly smearing his cell walls with faeces. This is not because Mr. Mohamed is trying to violate the rules (as the US military apparently believes), but because of his mental instability. The military’s response is to cut the water to his cell off, compounding an obvious health hazard.”

He continues: “Your Government’s intervention on behalf of the British residents in Guantánamo has been welcome. Perhaps my other three clients will spend this festive season at home with their families, after many years of incarceration without trial. Mr. Mohamed will spend it in a cell smeared with faeces. There is no prisoner in Guantánamo who has suffered more than Mr. Mohamed, and I am very concerned that, without rapid intervention, he will only leave that terrible place in a casket.”

After pointing out that his client, who was captured in Pakistan in April 2002, was rendered to Morocco for 18 months, where he repeatedly had his penis cut by interrogators, Stafford Smith concludes his report as follows: “Once he got to Guantánamo Bay, far from receiving the palliative care that this history of torture would call for, he has faced on-going mistreatment –- held in solitary confinement in a Supermax prison, physically abused, and deprived of any meaningful treatment. Please do not let the US military public relations delude anybody, as the prison he is in is harsher than any of the many Death Row prisons I have visited in the past 25 years.”

Readers are encouraged to write to David Miliband to request that he insists on Mr. Mohamed’s return to the UK.

This is the text of Mr. Stafford Smith’s letter that accompanied the report:

Dear Mr. Miliband,
There is an urgent need for humanitarian intervention on behalf of Binyam Mohamed, the British resident from Kensington who the US apparently plans to continue holding in Guantánamo Bay, and who I am representing in his habeas corpus proceedings.
As we hope to see three British residents home in the next few days, Mr. Mohamed’s plight becomes ever more stark. I am sure that you are aware that Mr. Mohamed has suffered torture and abuse by US foederati [proxy torturers] in Pakistan and Morocco, and by US personnel themselves in the Dark Prison of Kabul and in Guantánamo Bay itself. That the Bush Administration continues to deny its role in the torture and inhuman treatment of prisoners such as Mr. Mohamed is, sad to say, simply dishonest.
I doubt either you or I ever thought we would be dealing with the consequences of torture committed by the US on someone from Britain. It is sad that this is the case, but our horror must motivate us into vigorous action.
Yours sincerely,
Clive Stafford Smith

For more on the story of Binyam Mohamed –- and the other Guantánamo detainees subjected to “extraordinary rendition” and imprisonment in “black sites” run by the CIA –- see my newly published 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.

Note: Binyam Mohamed is also referred to as Binyam Mohammed al-Habashi.

As published on Indymedia.

For a sequence of articles relating to Binyam Mohamed, see the following: Guantánamo: Torture victim Binyam Mohamed sues British government for evidence (May 2008), Binyam Mohamed’s letter from Guantánamo to Gordon Brown (May 2008), Guantánamo trials: critical judge sacked, British torture victim charged (June 2008), Binyam Mohamed: UK court grants judicial review over torture allegations, as US files official charges (June 2008), Binyam Mohamed’s judicial review: judges grill British agent and question fairness of Guantánamo trials (August 2008), High Court rules against UK and US in case of Guantánamo torture victim Binyam Mohamed (August 2008), In a plea from Guantánamo, Binyam Mohamed talks of “betrayal” by the UK (September 2008), US Justice Department drops “dirty bomb plot” allegation against Binyam Mohamed (October 2008), Meltdown at the Guantánamo Trials (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), A History of Music Torture in the “War on Terror” (December 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), British torture victim Binyam Mohamed to be released from Guantánamo (January 2009), Don’t Forget Guantánamo (February 2009), The betrayal of British torture victim Binyam Mohamed (February 2009), Hiding Torture And Freeing Binyam Mohamed From Guantánamo (February 2009), Binyam Mohamed’s Coming Home From Guantánamo, As Torture Allegations Mount (February 2009), Binyam Mohamed’s statement on his release from Guantánamo (February 2009), Who Is Binyam Mohamed, the British resident released from Guantánamo? (February 2009), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009), Guantánamo, Bagram and the “Dark Prison”: Binyam Mohamed talks to Moazzam Begg (March 2009), Obama’s First 100 Days: Mixed Messages On Torture (includes the Jeppesen lawsuit, May 2009), UK Government Lies Exposed; Spy Visited Binyam Mohamed In Morocco (May 2009), Daily Mail Pulls Story About Binyam Mohamed And British Spy (May 2009), Government Bans Testimony On Binyam Mohamed And The British Spy (May 2009), More twists in the tale of Binyam Mohamed (in the Guardian, May 2009), Did Hillary Clinton Threaten UK Over Binyam Mohamed Torture Disclosure? (May 2009), Outsourcing torture to foreign climes (in the Guardian, May 2009), Binyam Mohamed: Was Muhammad Salih’s Death In Guantánamo Suicide? (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009).

The Shocking Stories of the Sudanese Humanitarian Aid Workers Just Released From Guantánamo

Two years after being cleared for release from Guantánamo by a military review board, Adel Hassan Hamad, a Sudanese hospital administrator who worked for a Saudi charity, and Salim Muhood Adem, who worked with orphans for a Kuwaiti NGO, have been repatriated to the country of their birth, where, as lawyer Clive Stafford Smith explained, they are both “safe with their families.”

Adel Hamad and Salim Adem

Adel Hassan Hamad and Salim Muhood Adem, after their release. Photo © Mohamed Nureldin Abdalla, Reuters.

After arriving at Khartoum airport, they were presented with traditional Sudanese clothes by intelligence officers, who took them to a hospital for a short medical examination before returning them to their families and friends. As a noisy celebration got underway, Adel Hamad spoke by phone to his American lawyers, Steve Wax and William Teesdale of the Federal Public Defender’s office in Oregon. “I thank God almighty and express my gratefulness to you,” he said. “I can finally see the light after the darkness.”

If the administration was hoping to lie low for a while, and weather the recent torrent of criticism over its post-9/11 detention policies –- in the Supreme Court, in connection with the destruction of CIA videotapes chronicling the torture of detainees, and through its generally inept attempts to pursue war crimes trials at Guantánamo itself –- the release of these men will provide no comfort whatsoever, as their stories highlight some of the most egregious flaws in the whole of Guantánamo’s sordid history.

Adel Hamad, who is now 49 years old, had been living in Pakistan and working for charity organizations for 17 years. Captured at his home in July 2002, after returning from a holiday in Sudan with his wife and four children, he refuted an allegation that he had any kind of connection to al-Qaeda, telling his tribunal in Guantánamo, “I hate them and I pray to God not to let people among the Muslims carry [out] their ideas.” He also pointed out, “If I was a member in al-Qaeda or if I had an association with them I would’ve not travelled in June 2002 to Sudan with my family on an annual vacation and after the vacation ended I voluntarily returned to Pakistan. If I was a criminal, with association to those criminals, why would I return to Pakistan knowing that Pakistani intelligence was arresting al-Qaeda members?”

His description of his arrest seems particularly shocking, but was actually fairly typical of the dozens of arrests in Pakistan at the time, which were mostly based on dubious or non-existent “intelligence.” “I was arrested in my house at 1.30 at night when I woke up and found myself in front of policemen from the Pakistani Intelligence pointing their weapons in my face like I was in a dream or a disturbing nightmare,” he told his tribunal. “They were screaming at me, ‘don’t move!’ So I told them, ‘what is it, what do you want from me?’ And with them was a tall man who did not look Pakistani, which I think he was American. So they handcuffed me and they told me ‘where are your papers?’ (meaning my passport). So I told them, ‘in my shirt pocket.’ So the tall man checked my passport and he told me that I came back early from my trip. I told him yes. He spoke in poor Arabic. He saw a legal official Pakistani permit by the date that was in my passport, which had a legal official authorization posted for two years. So the guard hesitated at the end and asked the tall man, ‘do we take him?’ And the man said, ‘yes, take him.’ So they took me and detained me in jail in Pakistan for six months and ten days. Later I was moved to Bagram and then to Cuba.”

Over the last year or so, Adel Hamad has become one of Guantánamo’s celebrities, thanks to the efforts of his enterprising lawyers, who traveled to Pakistan to interview his former colleagues and to Sudan to interview his family, producing a film which publicized his plight to a huge audience on YouTube, and which, in turn, led to the establishment of a campaigning website that drew support from thousands of people, including the actor Martin Sheen.

What makes Hamad’s story particularly striking, however, beyond his unquestioned innocence, is what happened after his tribunal in Guantánamo three years ago. The tribunals, known as Combatant Status Review Tribunals (CSRTs), were established in the wake of a momentous Supreme Court decision in June 2004 that, contrary to the administration’s assertions to that date, the detainees had habeas corpus rights; in other words, that they had the right to challenge the basis of their detention in a court of law. Rather than delivering them to the US courts, however, the administration established the CSRTs to review the detainees’ prior designation as “enemy combatants” without rights, who could be held indefinitely without charge or trial. Emphasizing its disdain for the rule of law, the government prevented the detainees from having legal representation, and, moreover, relied on secret evidence that was withheld from them.

The tribunals, which duly found that all but 38 of the 558 detainees at the time had indeed been correctly designated as “enemy combatants,” came under fire this June from Lt. Col. Stephen Abraham, a veteran of military intelligence who had taken part in compiling the “evidence” for the tribunals, and who condemned them as a sham, reliant upon vague, unsubstantiated and generic evidence, and designed merely to approve the detainees’ prior designation as “enemy combatants.”

While Lt. Col. Abraham’s comments are credited with prompting the Supreme Court to review the detainees’ rights once more (in a hearing that took place last week, as reported here and here), Adel Hamad’s tribunal had already provided the first vivid demonstration of the injustice of the whole process back in August 2006, when Farah Stockman of the Boston Globe reported that, in his CSRT, Hamad had been judged to be an “enemy combatant” because of exactly the kind of generic allegations that were later condemned by Lt. Col. Abraham.

Hamad maintained that the Saudi charity he worked for, the World Assembly of Muslim Youth (WAMY), was “a charity organization that works to help the Afghan refugees providing them with food, medicine, clothes and education, building charter schools which is made of an orphanage, educational training, and also works in the health department by establishing hospitals, small clinics, and also digging water wells, [and] building water wells.” The US authorities, however, described it as an organization that “supports terrorist ideals and causes,” even though it has never appeared on a terrorism watchlist (despite being investigated by the US Senate), and was one of the favored projects of the late Saudi King Fahd bin Abdul Aziz.

Another organization that Hamad had worked for previously, the Kuwait-based Lajanat Dawa Islamiya (LDI), which also does not feature on any US terrorism watchlist, was described as “one of the most active” Islamic NGOs “providing logistical and financial support” to mujahideen operating in Afghanistan and Pakistan, which “may be” associated with Osama bin Laden.

In his tribunal, a clearly exasperated Hamad refuted all the allegations, at one point exclaiming, “arresting employees like myself [who] is not capable of supporting terrorists financially, is this justice? I am an employee who works for a living and I have no connection to the [organization’s] political views or its financial resources, so why do you punish me for a crime I did not commit. Why don’t you arrest the charities’ presidents or the people who support [them] financially instead of arresting a simple employee with no informational value?”

Adel Hamad with two of his children

Adel Hamad with two of his four children in Pakistan, before his capture.

Predictably, his tribunal judged that he had been correctly designated an “enemy combatant,” but although his pleas appeared to have been ignored, Stockman, who was allowed to examine the CSRT documentation, noted that one of the tribunal members –- an unidentified army major –- had issued a dissenting opinion. Taking into account the fact that neither WAMY nor LDI appears on the State Department’s list of terrorist organizations, the major 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.”

Stockman noted, however, that the major was overruled by his colleagues, one of whom –- in a single line that discredits the whole tribunal process as effectively as Lt. Col. Abraham’s later declaration –- wrote that the case “passed the ‘low evidentiary hurdle’ set up by the rules of the hearings.”

Two months ago, the major, who took part in 49 of the 558 CSRT hearings, publicly added his complaints to those recorded by Lt. Col. Abraham, telling William Teesdale, “Much of the material presented was supplied by intelligence agencies and were summaries that were not necessarily justified by the underlying evidence.” The major specifically mentioned his dissent in Adel Hamad’s CSRT, and also spoke about the deliberate exclusion of exculpatory evidence, the reconvening of CSRTs when an unfavorable result was produced, and the pressure exerted on the tribunals from higher up the command structure.

The case of Salim Muhood Adem, who is also 49 years sold, is, in its own way, just as damning as that of Adel Hamad. A Pakistani resident, who had first traveled to Pakistan in 1991 when he “performed official lawful work for schools,” he told his tribunal that he had been employed by the Revival of Islamic Heritage Society (RIHS), a Kuwaiti NGO, since 1994, and pointed out that he had mentioned to the interrogators what type of work he did –- traveling from one school to another to check on education before being transferred to “the Orphanage Office of Administration” –- and that it “wasn’t a crime.”

Responding to an allegation that the organization was “suspected of supporting extremist activity, and some employees are suspected of supporting terrorism,” he said, “I have only known the Islamic organization to be associated with humanitarian efforts, never terrorism.” He acknowledged traveling to Afghanistan in 1998, explaining that he went “to supervise the administration of Orphanage Schools” in Kunar province and Jalalabad, and was perplexed by an allegation that his residence was “identified as a suspected al-Qaeda residence and raided.” He said that he rented the house from a Pakistani woman, and added, “everything I did regarding the house was legal.” Crucially, he explained that when he was arrested “the officer that arrested us said he was giving us to the American forces to avoid problems and keep our country safe.”

When asked if there were other people with him when he was arrested, Adem replied that it was only himself, his wife and their two small children, and when asked, “Were your children arrested also?” he said, “I don’t know … They knocked on the door and I went downstairs to open it. I was then arrested … Some of them entered my house by jumping off the roofs of neighbouring houses and some came through the front door. When they came in I asked them to please not scare my family. I opened the doors in the house one by one to show them what was inside each room. They handcuffed and blindfolded me and then took me away.”

Unlike WAMY and LDI, the RIHS was actually blacklisted by the US Treasury in January 2002, apparently because some of its personnel, including the director of its Pakistani office, Abdul Muhsin al-Libi, “defrauded well-meaning contributors by diverting money donated for widows and orphans to al-Qaeda terrorists,” and “padded the number of orphans it claimed to care for by providing names of orphans that did not exist or who had died. Funds then sent for the purpose of caring for the non-existent or dead orphans were instead diverted to al-Qaeda terrorists.”

However, neither al-Libi nor another named suspect, Abu Bakr al-Jaziri, both of whom also apparently held senior positions in the Afghan Support Committee, which was identified as having been established by Osama bin Laden in the 1980s, were captured by the Americans. Instead, Adem and four of the charity’s other workers were seized, even though there was no evidence that any of the men knew anything about the terrorist funding. What’s particularly shocking about Adem’s situation is that, although the other four men –- one Jordanian and another three Sudanese, including the charity’s accountant in 2001 –- were released between November 2003 and July 2005, Adem had to wait another 29 months to be granted his freedom.

Explaining the delay in the release of both men, Adel Hamad’s lawyers recently filed a declaration in the DC Circuit Court, outlining the progress –- or lack of progress –- in negotiations between the Sudanese and American governments, which revealed the extent to which political maneuvering, rather than issues of justice, has driven much of the US administration’s policy towards the detainees. This is clear in general from the cases of the Saudis and Yemenis at Guantánamo. In the last twelve months, following fruitful negotiations between the Saudi and US governments, 69 Saudis have been repatriated from Guantánamo, even though none had been cleared for release, whereas the Yemen, whose 95 detainees now constitute the largest group of detainees by nationality, is still awaiting the return of just six detainees, some of whom, like Adel Hamad and Salim Adem, have been cleared for release for over two years.

In the declaration, William Teesdale explained that the Sudanese government had been notified that Hamad and Adem had been “approved for transfer” on November 14, 2005, and that the State Department had sought assurances that they would be investigated on their return to Sudan, and that their human rights would be respected. The Department also sought permission to have “access to the detainees if needed,” and assurances that the Sudanese government would “take responsibility for the detainees and prevent them from being a further threat to the United States.”

The Sudanese Deputy Ambassador, a Mr. Elguneid, explained to Teesdale that the Sudanese Embassy gave an “official reply” to these demands in June 2006, agreeing to all of them and even pointing out that US officials had “met with some of the [previously] released detainees in Sudan since their release.” The State Department then indicated that it would be good “to try to resolve the issue of all the Sudanese Guantánamo detainees” (another six, including al-Jazeera cameraman Sami al-Haj, are still being held) and that the way forward would be to “draw up a memorandum of understanding between the two countries.”

Deputy Ambassador Elguneid noted, however, that Samuel Whitton, the US Ambassador who had been proceeding with these negotiations, then left his job, and that “negotiations with the new Ambassador At Large for War Crimes, Clint Williamson, were more difficult.” This was something of an understatement. Elguneid admitted that, despite filing ten requests for a meeting to discuss the release of Hamad and Adem, he had been unable to secure an appointment with Williamson, and had not met any State Department officials since that last meeting in June 2006.

With the release of Adel Hamad and Salim Adem, the deadlock has obviously been broken, but the clear politicization of the detainee release process casts further shadows on the legitimacy of Guantánamo, and the stonewalling on the part of State Department officials serves only to undermine Condoleezza Rice’s claims that the Department is committed to defense secretary Robert Gates’ stated aim of finding ways to close the prison sooner rather than later.

This article draws on passages from my newly published 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 AlterNet, the Huffington Post and Anti-war.com.

Note:

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

ISN 940: Adel Hassan Hamad
ISN 710: Salim Muhood Adem (Salim Amir or Salim bin Amir)

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 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; 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).

Guantánamo and the Supreme Court: What Happened?

Last Wednesday’s Supreme Court showdown over Guantánamo was billed as “probably the most important habeas corpus case in modern history,” according to Law.com, and “the most important civil liberties case of the past 50 years,” according to the Center for Constitutional Rights (CCR). This was no understatement. At stake was the validity of the administration’s novel contention, first formulated in November 2001, that it can seize foreigners anywhere in the world, designate them as “enemy combatants” –- rather than as criminals or prisoners of war –- and hold them indefinitely, without charge or trial.

Protestors outside the Supreme Court

Protestors outside the Supreme Court. Photo © Lawrence Jackson/AP.

The very fact that the Supreme Court was discussing the detainees’ rights at all was, in itself, astonishing. Three and a half years ago, in June 2004, the Court ruled in the case of Rasul v. Bush that Guantánamo –- chosen as a base for the prison because it was presumed to be beyond the reach of the US courts –- was “in every practical respect a United States territory,” and that the detainees had the right to challenge the basis of their detention, under the terms of the 800-year old “Great Writ” of habeas corpus, which prohibits the suspension of prisoners’ rights to challenge the basis of their detention except in “cases of rebellion or invasion.”

In spite of this ruling, the detainees were not granted impartial hearings in a US court. Instead, they were subjected to military reviews at Guantánamo –- the Combatant Status Review Tribunals (CSRTs) –- which were a lamentable replacement for a valid judicial challenge. Although the detainees were allowed to present their own version of the events that led up to their capture, they were not allowed legal representation, and were subjected to secret evidence that they were unable to see or challenge.

In June this year, Lt. Col. Stephen Abraham, a veteran of US intelligence, who worked on the CSRTs, delivered a damning verdict on their legitimacy, condemning them as the administrative equivalent of show trials, reliant upon generalized and often “generic” evidence, and designed to rubber-stamp the detainees’ prior designation as “enemy combatants.” Filed as an affidavit in Al Odah v. United States, one of the cases considered by the Supreme Court last week, Lt. Col. Abraham’s testimony was regarded, by legal experts, as the trigger that spurred the Supreme Court, which had rejected an appeal on behalf of the detainees in April, to reverse its decision (an event so rare that it last happened 60 years ago) and to agree to hear the cases.

To complicate matters, the Supreme Court’s decision in June 2004 has been undermined twice by Congress in the intervening years. In the fall of 2005, the flawed Detainee Treatment Act (DTA) was passed, which, in brief, limited any review of the detainees’ cases to the DC Circuit Court (rather than the Supreme Court), preventing any independent fact-finding to challenge the administration’s allegations, and mandating the judges to rule only on whether or not the CSRTs had followed their own rules, and whether or not those rules were valid.

In the fall of 2006, following a second momentous decision in the Supreme Court, in Hamdan v. Rumsfeld, in which the justices ruled that the proposed trials by Military Commission for those held at Guantánamo (which also relied on the use of secret evidence) were illegal under domestic and international law, the even more flawed Military Commissions Act (MCA) was passed by a barely sentient Congress.

Instantly reviled by concerned lawyers and human rights activists, the MCA reinstated the Military Commissions and also comprehensively stripped the detainees of their habeas corpus rights, stating, explicitly, “No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” In a further attempt to stifle dissent, the MCA defined an “enemy combatant” as someone who has either engaged in or supported hostilities against the US, or “has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the secretary of defense.”

With the justices of the Supreme Court not due to deliver their verdict until spring 2008 at the earliest, working out what happened last week has involved experts –- and those less qualified –- analyzing their comments during the two-hour hearing, and extrapolating from legal precedents to draw tentative conclusions about which way the judicial axe will fall.

A recording of the oral argument is available here, but for those who have neither the time nor the ability to understand references to a bewildering array of ancient precedents, I shall attempt to summarize the main points. One of the clearest analyses was made by Wells Dixon of CCR, who explained in a column for Jurist that the main claims made on behalf of the detainees –- delivered by former Solicitor General Seth Waxman –- are that they have a constitutional right to habeas corpus because they have “all have been confined for six years without meaningful notice of the grounds for their detention or opportunity to challenge those grounds,” because the DTA, and its interpretation by the District Court, allows them “no prospect of that opportunity,” and because “all of the prisoners claim they are innocent of any wrongdoing.”

In Wells Dixon’s opinion, a majority of the nine justices “appeared to agree with Seth Waxman that the threshold question of whether the prisoners in Guantánamo have a constitutional right to habeas” had already been decided in June 2004, a judgment which, if confirmed, will have the knock-on effect of indicating that the habeas-stripping provisions of the MCA –- which were supposedly justified through an interpretation of Rasul as a statutory issue, rather than a constitutional one –- were in fact unconstitutional.

Dixon explained that, following questions from Chief Justice John Roberts and Justice Antonin Scalia, the government’s representative, current Solicitor General Paul Clement, claimed that the detainees had no rights under the DTA and the MCA because they were non-citizens held outside the sovereignty of the United States, but that most of the justices “seemed to reject that argument.” Justice David Souter, for example, remarked that the Court was “past that point” and that the government was attempting to reargue Rasul, and Ruth Bader Ginsburg “noted that the lease agreement granting the United States exclusive jurisdiction and control over Guantánamo was not something that Congress had changed by enacting the DTA … and MCA.” Specific mention was made of an extraordinary section of the MCA, which sneakily purported to reverse Rasul by excluding Guantánamo from the definition of territory constituting the United States.

With the detainees’ constitutional right to habeas corpus apparently established through these exchanges, Waxman declared that the principal question facing the Court was whether the DTA’s “limited review” of the CSRTs provides “a constitutionally adequate substitute for habeas.” Waxman argued that it did not, insisting that the CSRTs were “structurally flawed and incapable of being cured through DTA review.” He cited, as an example, the case of Murat Kurnaz, a German resident who was released from Guantánamo in August 2006, but whose detention had been justified because of a claim that he was affiliated with Selcuk Bilgin, an alleged suicide bomber. When Kurnaz was finally allowed access to lawyers, his legal team was able to establish, in just 24 hours, that the “suicide bomber” was actually alive and well and living in Germany, and had, moreover, never been involved with terrorism. This exculpatory evidence was not included in his CSRT, however, and Waxman pointed out that the limited review allowed by the DTA explicitly prevented its disclosure.

Waxman could have added that Murat Kurnaz was not the only detainee whose innocence was established by lawyers working outside the narrow parameters of the CSRTs and the DTA review process. To cite just one example, an allegation that the Moroccan chef Ahmed Errachidi (released in April 2007) attended an al-Qaeda training camp in August 2001 was only dismissed when his lawyers investigated his story independently, and were able to confirm that, as Errachidi had maintained all along, he was working as a cook in a hotel in London’s Bond Street when he was supposed to have been wielding a Kalashnikov in Afghanistan.

According to Wells Dixon, several of the justices were as skeptical of the DTA’s “limited review” of the CSRTs as Seth Waxman. Justice John Paul Stevens “questioned the neutrality of CSRT participants and the prisoners’ lack of counsel during the hearings,” and Justice David Souter “questioned whether meaningful DTA review is possible because the CSRT panels were not neutral and had denied prisoners the remedy of release.” Citing an issue raised by Lt. Col. Abraham in his affidavit –- and demonstrating quite how significant Abraham’s testimony was –- Souter referred to the case of Ali, one of 22 Uyghurs at Guantánamo (Muslims from the persecuted Chinese outpost of Xinjiang province), who was subjected to a second CSRT after his first cleared him of being an “enemy combatant.” He might have added, as I reported here, and as Lt. Col. Abraham made clear, that the same thing happened to Abdul Hamid al-Ghizzawi, a Libyan shopkeeper, and that lawyers for the Uyghurs have pointed out that repeat CSRTs were conducted in the cases of two more of their clients.

What happened next was reported by NPR’s Nina Totenberg. Focusing on the detainees’ claims that they are innocent, Justice Stephen Breyer asked where, in the current appeals process, a detainee could make this claim. “I’m not sure that he can make that argument,” Clement replied. “If he cannot make that argument,” Breyer continued, “then how does this become an equivalent to habeas, since that happens to be the argument that a large number of these 305 people [the remaining detainees] would like to make?” Clement then said that prisoners of war had never had the right to challenge their detention through a habeas corpus petition in the US courts, prompting Justice Souter to respond, “The problem with your prisoner-of-war point is, the United States is not treating them as prisoners of war. That argument, on the government’s part, is entirely circular.”

From here, the justices moved on to discuss, as Wells Dixon described it, “whether DTA review, if found to be a constitutionally inadequate substitute for habeas, could be cured of any defect by the DC Circuit.” The issue was raised by Justice Anthony Kennedy, whose vote, as Dixon noted, “will likely be critical to the prisoners’ challenge.” He added that, at this point, the government appeared “almost to abandon its argument” that the detainees “have no constitutional right to habeas,” asking the justices to remand the cases to the DC Circuit Court, and to “allow that court to supply any constitutionally required guidance to the CSRTs.”

As the prospect of more long years of legal maneuvering loomed, Justice Breyer cut short a potentially meandering discussion by pointing out, “Habeas is supposed to be speedy, and yet people have serious arguments that they’re being held for six years without even having those arguments heard. Is there anything, in your opinion, that this court could say by way of remedy that could get the DC Circuit or the others to decide this and the CSRT claims –- there are 305 people –- [and] to do this quickly in a matter of months rather than six more years?” The Supreme Court, Clement replied, could instruct the lower court to expedite the appeals process, but Justices Kennedy and Souter observed that, according to the statute passed by Congress, they had no jurisdiction in these cases. “How can we say that?” Justice Souter asked. “Your position is that we have no jurisdiction here. If you win, we never get to these issues.”

While observers concluded from the hearing that the justices appeared to be split 4-4, with Justices Clarence Thomas and Samuel Alito joining Chief Justice Roberts and Justice Scalia on the government’s side, and Justice Kennedy holding the tie-breaking vote, it seems to me that Kennedy’s opinion about the sidelining of the Supreme Court with regard to its lack of jurisdiction could swing the decision in the detainees’ favor, although whether the administration would respond honorably remains to be seen.

A hint of what may be to come occurred during the hearing after Justice Alito asked, “If the court holds that the DTA is not an adequate substitute for habeas, what will happen? Will these petitioners then have access to all of the procedures that normally apply in habeas proceeding under [Section] 2242 [of the Judicial Code]? The same right to discovery, subpoena, witnesses, access to classified information, presence in court?” In response, Paul Clements stated, “The government will certainly take the position that they are not entitled to those things. Presumably, the petitioners will be arguing that they are entitled to those things. And there will be difficult questions that will need to be worked out.”

Noticeably, however, the warning bells triggered by this comment are nowhere near as disturbing as the implications of a comment made by Justice Breyer, the maverick who gave the go-ahead for the MCA by pointing out, during the Hamdan judgment, that “Nothing prevents the President from returning to Congress to seek the authority he believes necessary” to reinstate the Military Commissions. Seemingly offering the government another escape route from the self-made hole into which it has dug itself over the last six years, Breyer mentioned on three separate occasions that it might be possible for Congress to enact a law that would provide a rock-solid basis for holding the detainees indefinitely without trial, under “some special statute involving preventive detention and danger, which has not yet been enacted.”

While Justice Breyer’s comments seem, pragmatically, to be directed at those detainees –- perhaps the 80 proposed for Military Commissions, perhaps more –- whom the administration will he hoping to keep “out of the loop” should the Supreme Court rule in their favor, the very idea that “preventive detention” could be enshrined in law to replace the dictatorial lawlessness of the last six years is enough to send a shiver down the spine of anyone who realizes what its introduction would actually mean: destroying 800 years of law in a manner that is even more chilling than the denial of habeas corpus, by attempting to justify the imprisonment of people not for what they have done, but for what they may do in the future. It doesn’t even bear thinking about.

For further information about 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.

As published on CounterPunch and AlterNet.

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), A New Guantánamo Whistleblower Steps Forward to Criticize the Tribunal Process (October 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 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).

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009). Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 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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