Archive for December, 2007

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.

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.

As published on American Torture.

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).

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.

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 (milibandd@parliament.uk) 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.

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

As published on Indymedia.

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 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 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.

[Note: Throughout his imprisonment, the Pentagon referred to Salim Adem as Salim Amir or Salim bin Amir].

As published on AlterNet, the Huffington Post and Anti-war.com.

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

As published on CounterPunch and AlterNet.