Guantánamo: Lies, Damned Lies and Statistics

17.2.09

On January 22, in an executive order relating to the closure of Guantánamo, President Barack Obama established a comprehensive review of the cases of the remaining 242 prisoners, to work out who could be released and who should continue to be held. The executive order explained that the review was to be “conducted with the full cooperation and participation” of the Attorney General, the Secretaries of Defense, State and Homeland Security, the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff, but in reality, it was expected that the lead would be taken by the Justice Department.

The most thoroughly discredited department in the Bush administration, the Justice Department is clearly in line for a major shake-up, as the new Attorney General, Eric Holder, explained in his acceptance speech on February 3, when he proclaimed his commitment to “remake the Department of Justice into what it was and what it must always be,” and explained, “This may be a break from the immediate past but it is consistent with the long history of the Department of Justice. I call on every employee of this Department — from this moment on — to return to the practices that are the foundation of this entity. It is time once again to base our actions on policies that are rooted in fairness and in a desire to ensure a more just America.”

Propaganda regarding the Guantánamo evidence

According to an article in the Los Angeles Times on Saturday, the Guantánamo review, led by Holder and the Justice Department, has now begun. “The review team is in the process of identifying all the information,” a senior official in the Obama administration said. As the article explained, the process would “not be simple,” as information on the prisoners is “scattered in multiple locations,” and the administration official admitted that “there is not, and may never be, a single file for each detainee.”

The Los Angeles Times article was clearly following up on an article published by the Washington Post on January 25, “Guantánamo Files in Disarray,” which first suggested that, when it came to reviewing the cases of the Guantánamo prisoners, “incoming legal and national security officials — barred until the inauguration from examining classified material on the detainees — discovered that there were no comprehensive case files on many of them.”

According to the Post’s article, “a senior administration official” stated that information on individual prisoners was “scattered throughout the executive branch.” The article’s authors, Karen DeYoung and Peter Finn, also spoke to several former Bush administration officials, who agreed with this analysis, explaining that the files were “incomplete and that no single government entity was charged with pulling together all the facts” regarding each prisoner,” pointing out that “the CIA and other intelligence agencies were reluctant to share information,” and adding that “the Bush administration’s focus on detention and interrogation made preparation of viable prosecutions a far lower priority.” As a result, the journalists speculated that the review board charged with reviewing the cases “will have to spend its initial weeks and perhaps months scouring the corners of the federal government in search of relevant material.”

Although the former Bush administration officials were correct to highlight major problems with the CIA’s reluctance to share information, and the administration’s general lack of interest in prosecutions — as opposed to the “arbitrary detention” identified by Barack Obama, with its focus on endless isolation and interrogation — it was not strictly accurate to describe the “disarray” as something for which the incoming administration was unprepared. The very word “disarray” had been used by Lt. Col. Darrel Vandeveld, a former prosecutor in the Military Commissions, who resigned last September, to describe the state of the prosecutors’ department in the Office of Military Commissions. In a detailed and highly critical declaration a month ago in the habeas corpus review of the Afghan prisoner Mohamed Jawad, Lt. Col Vandeveld not only condemned the entire system for its in-built bias in favor of prosecutions (which involved suppressing evidence vital to the defense), but also explained how

the evidence, such as it was, remained scattered throughout an incomprehensible labyrinth of databases … or strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely-labeled plastic containers, or even simply piled on the tops of desks vacated by prosecutors who had departed the Commissions for other assignments. I further discovered that most physical evidence that had been collected had either disappeared or had been stored in locations that no one with any tenure at, or institutional knowledge of, the Commissions could identify with any degree of specificity or certainty.

The damning evidence of Lt. Col. Stephen Abraham

Moreover, Lt. Col. Vandeveld’s opinions echo those of Lt. Col. Stephen Abraham, a veteran of US intelligence, who worked in 2004-05 on the tribunals at Guantánamo — the Combatant Status Review Tribunals — which were responsible for compiling the material that was used to establish that the prisoners were “enemy combatants.”

Lt. Col. Abraham’s experiences demonstrated two uncomfortable truths: firstly, he explained that, because the body responsible for compiling the material — the Office for the Administrative Review of the Detention of Enemy Combatants (OARDEC) — was not empowered to demand information from the intelligence agencies, “Most of the information collected … consisted … of information obtained during interrogations of other detainees” (and was often produced in circumstances that were not conducive to voluntary confessions). He also pointed out that other material consisted of intelligence “of a generalized nature — often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status,” and that “what purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence.”

This explanation alone was, of course, insufficient to establish that the whole of the evidence was worthless, as it did not necessarily include classified evidence that was also used to determine the prisoners’ status, but Lt. Col. Abraham was just as scathing about the quality of the classified evidence, explaining in July 2007 that there was, essentially, no difference between either types of evidence. “The classified evidence,” he told the New York Times, “was stripped down, watered down, removed of context, incomplete, and missing essential information.” He also reiterated his complaints about evidence obtained from other prisoners, stating, “Many detainees implicated other detainees, and there was often no way to test whether they had provided false information to win favor with interrogators.”

In addition, Lt. Col. Abraham had direct experience of the classified evidence, when he served on one of the tribunals — that of a Libyan, Abdul Hamid al-Ghizzawi, who had settled in Afghanistan, where he ran a shop and had a wife and child, but who was captured by bounty hunters and sold to US forces.

After reviewing all the evidence, Lt. Abraham and his colleagues “found the information presented to lack substance,” noting that supposedly specific factual statements “lacked even the most fundamental earmarks of objectively credible evidence,” that statements made by alleged witnesses “lacked detail,” and that generalized statements were presented “in indirect and passive forms without stating the source of the information or providing a basis for establishing the reliability or the credibility of the source.”

However, although they concluded that there was “no factual basis” for holding al-Ghizzawi as an “enemy combatant,” the Defense Department attempted to bully them into changing their mind, and, when they refused, prevented them for taking part in any more tribunals, and duly held another tribunal — in secret — which reversed their opinion and concluded that al-Ghizzawi was indeed an “enemy combatant.”

Al-Ghizzawi remains in Guantánamo to this day, and when I interviewed Lt. Col. Abraham recently, and asked him to talk about the quality of the evidence against him, he gave me an analogy which captured perfectly the problems with a system in which rumor, innuendo and false confessions masquerade as evidence. Speaking of an allegation that al-Ghizzawi was involved with the Libyan Islamic Fighting Group, an organization opposed to the dictatorship of Colonel Gaddafi, Lt. Col. Abraham explained, “There was absolutely nothing in the information to suggest that he had in any way been closely associated with, or had acted in any way that facilitated or contributed to terrorist activities. Nor was there any information that was linked to him directly, or that linked him to al-Qaeda, to the Taliban, or to anything else.” When I pressed him further, to confirm that there was no hint of a connection, he said, “Let me give you an extraordinary connection, the very nature of which I think is irrefutable. I was in Paris in 1975. So was Ayatollah Khomeini. Do I need to go any further?”

Dismissing the propaganda

The problem, therefore, is not so much that “the complexity and dangers of the issue” of reviewing the prisoners’ cases have emerged — as the Post described the opinion of several “former officials” — but rather, as the Conservative judge and George W. Bush appointee Richard Leon discovered in the habeas corpus reviews of five Bosnian Algerians (last November) and Chadian national Mohammed El-Gharani (last month), in many cases “the complexity and dangers” are nothing more than unsubstantiated rumors, and the evidence itself cannot be substantiated.

With this in mind, it was, frankly, negligent of the Washington Post to cite the opinion of a “former senior official,” who accused the Obama administration of “backpedaling and trying to buy time,” and who claimed, “All but about 60 who have been approved for release are either high-level al-Qaeda people responsible for 9/11 or bombings, or were high-level Taliban or al-Qaeda facilitators or money people.”

The problem with this official’s statement is that it is demonstrably false. Of the 182 other prisoners tarred as terrorists by the official, it has long been established that only between 35 and 50 are regarded by intelligence officials as connected in any meaningful way with al-Qaeda or other terrorist groups.

A startling example of a prisoner who does not correspond to the opinion of the “former senior official” was revealed just three days after the article was published in the Post, when Judge Leon ruled that a Yemeni prisoner, Ghaleb al-Bihani, could continue to be held as an “enemy combatant,” not because he was a high-level al-Qaeda operative responsible for 9/11 or bombings, or a high-level Taliban or al-Qaeda facilitator or money person, but because he had been an assistant cook for the Taliban and the Arab recruits serving alongside them in the Taliban’s long-running war with the Northern Alliance.

Judge Leon’s ruling raises some other uncomfortable questions, of course; primarily, if it is at all reasonable for men involved in a conflict that preceded the US-led invasion of Afghanistan in October 2001 to be held as “enemy combatants” because they were still there when that conflict morphed into a war against the United States, but what it proves beyond a shadow of a doubt is that you do not necessarily have to be a terrorist to be imprisoned as an “enemy combatant” in Guantánamo.

The Post, of course, did not know that Judge Leon would make this ruling when the article was published, but his previous rulings should have set off some alarms, as should another statement by the “former senior official,” who “acknowledged that he relied on Pentagon assurances that the files were comprehensive and in order rather than reading them himself.”

The cause of justice, which has been suspended in Guantánamo for seven long years, is not served by allowing unsubstantiated rumors by former Bush administration officials to disguise the fact that the main reason that the evidence against the prisoners is “in disarray” is not because it is scattered to the four winds, but because it either doesn’t exist at all, or because it was extracted from other prisoners under duress, or because it serves only to prove that the prisoners in question had traveled to Afghanistan to help the Taliban fight the Northern Alliance in a long-running civil war that, in most cases, had nothing whatsoever to do with al-Qaeda, the 9/11 attacks, or any other form of terrorist activity.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed.

As published exclusively on the website of the Future of Freedom Foundation.

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 and the Supreme Court: What Happened? (December 2007), Guantánamo whistleblower Stephen Abraham addresses European Parliament (March 2008), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), An interview with Guantánamo whistleblower Stephen Abraham (Part One) (December 2008), An interview with Guantánamo whistleblower Stephen Abraham (Part Two) (December 2008).

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).

13 Responses

  1. Andy Worthington says...

    This from the Talking Dog, who first highlighted this issue when the article was published:
    http://thetalkingdog.com/archives2/001244.html

    Andy:

    In a word… yup. My country has done its damnedest to have all but the super-elites “educated” in such a way as to make everyone in it a compliant-industrial-tedium-ready-moron for so long, that the phrase “There might be as many as 5 or 10 terrorists at Guantánamo” is now heard as “Everyone at Guantánamo is a terrorist.” The Washington Post is far more concerned with being accused of liberal bias than they are with whether the facts they report are accurate or not; in any event, its customers are its advertisers anyway, who couldn’t give a jot if its Guantánamo related reporting is accurate.

    We will see. Regarding the Commissions, what is interesting is who was chosen for prosecution… the fact that, for example, Jawad and Khadr were (1) juveniles (2) whose “war crimes” were not unusual combat situations…

    “The review team” was probably waiting for Jeh Johnson to be confirmed as Haynes’ replacement; that happened some time last week. My understanding is that he does view this (closing GTMO and repatriating as many as fast as possible) as his mandate; the problem, it seems to me, is his ultimate boss the President and his “bi-partisanship disease”… that somehow, it is more important to him to try to make inroads to Rush Limbaugh supporters who would sooner vote for Hitler or Stalin before they voted for him, than to keep basic promises made to his own supporters. [Our own theory is that the President might be suffering a nicotine withdrawal from not being able to smoke in the White House; a few days in Chicago should serve him well in this regard, I hope.]

    Frankly, as I see it, any Pentagon official who utters anything like “61 terrorists have returned to the battlefield” or “ONLY 60 held should be released” (as if holding 60 innocent men for 7 years is an “only” anything), or anything at all reinforcing the Bush-Cheney propaganda should be fired, or if already retired, stripped of their pension. I realize that we have a First Amendment right to lie and spout propaganda in this country, but the Obama team has been disciplined in so many other contexts… it should figure out a way to be disciplined in this one, under threat of sacking Secretary Gates.

    We shall see; thus far, we have lots of good sound bites and symbols, and by my count, exactly no one released in the last 27 days… despite a number of outstanding court orders… and a hunger strike. Clearly, amidst the urgency of “reaching out to Republicans”… Team O seems to be missing the urgency of the gulag uprising…

  2. Andy Worthington says...

    Stephen Abraham wrote:

    If the administration wanted to solve the issue of evidence in disarray quickly, it would issue the following challenge to the various agencies/administrations, one not unfamiliar in the administrative review process.

    You have 2 weeks to deliver all documents relating to the detainees. Any document not delivered will be treated as if it does not exist. No reference may be made to it in any review. No person may rely upon it or its existence as a basis for the establishment of any fact. The record will consist solely of what is delivered to us. Have a nice day.

    I think those reviewing the files might be amused at what “evidence” suddenly shows up (or horrified by the likelihood that nothing of substance exists).

  3. Andy Worthington says...

    This was my reply:

    That’s a good point, Stephen, but as the habeas reviews have shown, even after six and a half years (and a presumption that the justices in Boumediene would revisit their ruling in Rasul), the DoJ made it a matter of policy to claim that it needed more time to come up with evidence, and, although the judges were peeved, have been allowed to let the filing of returns drag on for months and months.

  4. Andy Worthington says...

    And this was Stephen’s reply:

    As far as the cry for more time, we live our lives by deadlines, some self-imposed, some — most — imposed by others. Two weeks is more than enough time to know what exists. After all, according to these same people that would cry for more time, they have, by your very account, had more than six years to know whether there is any evidence at all. I didn’t say to give them two weeks to make it pretty. I say two weeks to park it on the doorsteps.

    They have bluffed for six years. It is time to lay down the hand, to show the cards, and to accept the consequences of what they have been holding — or not holding — all this time.

    We as a nation — and a community of nations — should no longer suffer the tyrannical grip of those who would continue to prosecute these pretend offenses. We must no longer permit the obstruction of justice by refusal to assent to laws. And we should never again allow such abdication of government as permitted these sad events by which so many have suffered and, perhaps, our character suffered most.

  5. Frances Madeson says...

    You probably know what I’m going to write before I write it: Two weeks is far too generous! 72 hours is more like it. They have it or they don’t have it.

    This is an agony–to have hopes and expectations raised by rhetoric and then little or no follow through. How much are these men’s psyches supposed to endure before they completely zombify? What about their poor suffering lawyers who have to present these distasteful and unjustifiable delays? When are we going to stop toying with these people, manipulating and controlling them? It’s paperwork. Scan it and press send. Stay overtime to get it done. Who are these people who can be so cavalier about another person’s liberty and freedom?

    It’s time for our new administration to show some measure of mercy, to begin to ab-normalize the hideous and psychopathic detention of fellow human beings who have done nothing,absolutely nothing, to deserve it.

  6. Connie L. Nash says...

    Detailing Obama’s ‘Hard Cases’ Listen Now to Terry Gross interview with Jane Mayer from February 18, 2009:
    http://www.npr.org/templates/story/story.php?storyId=100809161

    An excerpt from The New Yorker end February 2009 issue:

    …Jonathan Hafetz, a lawyer with the American Civil Liberties Union, who has taken the lead role in Marri’s legal defense, says that the Bush Administration’s decision to leave him in sustained isolation was akin to stranding him on a desert island. “It’s a Robinson Crusoe-like situation,” he told me. In 2005, Hafetz challenged the constitutionality of Marri’s imprisonment. A lower court affirmed the government’s right to detain him indefinitely. After several appeals, the case is scheduled to be heard by the Supreme Court in April. Hafetz calls the Marri case a pivotal test of “the most far-reaching use of detention powers” ever asserted by an American President.

    The Court’s calendar requires the Obama Administration to file a reply to the challenge by March 23rd. Unless some kind of diversionary action is taken—such as sending Marri home to Qatar, or working out a plea agreement—the Court’s schedule will likely force the Obama Administration to offer quick answers to a host of complicated questions about its approach to fighting terrorism.

    John Bellinger III, who served as the counsel to the State Department under President Bush, says of officials in the Obama Administration, “They will have to either put up or shut up. Do they maintain the Bush Administration position, and keep holding Marri as an enemy combatant? They have to come up with a legal theory.”

    (Among) the issues to be decided, Hafetz says, (are) “the question(s) of who is a soldier, and who is a civilian. Is the fight against terrorism war, or is it not war? How far does the battlefield extend? In the past, they treated Peoria as a battlefield. Can an American be arrested in his own home and jailed indefinitely, on the say-so of the President?” Hafetz wants the Supreme Court to rule that indefinite executive detention is illegal, and he hopes that Obama will withdraw Bush’s executive order labelling Marri an enemy combatant, and issue a new one classifying him as a civilian. This shift would allow Marri either to be charged with crimes or to be released.

    The Obama Administration’s strategy in the Marri case will almost certainly establish legal principles that will have ramifications for future cases, as well as for the two hundred and forty or so similarly designated “unlawful enemy combatants” held in the military prison at Guantánamo Bay, Cuba. During the Bush years, the designation encompassed not just members of Al Qaeda and the Taliban but also anyone who associated with them, supported them, or supported organizations associated with them, even if unwittingly. In 2004, a Bush Administration lawyer told a judge that, in theory, an enemy combatant could even be “a little old lady in Switzerland” whose charitable donations had been channelled, without her awareness, to Al Qaeda front groups.

    If the Marri case reaches the Supreme Court, it will test the limits of such theories. The case is therefore being closely watched by civil libertarians on both the left and the right. The Center for Constitutional Rights, a liberal advocacy organization, and the Cato and Rutherford Institutes, which lean to the right, are among the many legal groups that have signed eighteen amicus briefs on Marri’s behalf. Individual lawyers who have taken up his cause include Nicholas Katzenbach, the Attorney General in the Johnson Administration, and William Sessions, who was appointed director of the F.B.I. by President Reagan. The editorial page of the Times has written repeatedly about the case, demanding that the Fourth Circuit Court of Appeals’ affirmation of Marri’s military detention be reversed: “People accused of bad deeds should be tried in court—not in sham proceedings. They should be put in jail—not secret detention.”

    No matter how Obama responds to the case, his decision is likely to arouse controversy. Hafetz says, “If President Obama is serious about restoring the rule of law in America, they can’t defend what’s been done to Marri. They would be completely buying into the Bush Administration’s war on terror.” This view is widely held by Obama’s political base. Yet the political risks of change are obvious…

    Read all seven pages:

    http://www.newyorker.com/reporting/2009/02/23/090223fa_fact_mayer

  7. Guantánamo: A Prison Built On Lies « Dandelion Salad says...

    [...] I have explained at length in my book The Guantánamo Files, and in numerous articles over the last two years, these hearings were monstrously unjust, as they relied on classified [...]

  8. Bagram Isn’t The New Guantánamo, It’s The Old Guantánamo « freedetainees.org says...

    [...] Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies [...]

  9. Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait « freedetainees.org says...

    [...] Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies [...]

  10. “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition « freedetainees.org says...

    [...] Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies [...]

  11. The Black Hole of Guantánamo by Andy Worthington « Dandelion Salad says...

    [...] Task Force struggled to pull together information about the prisoners that was scattered throughout various department and agencies, and took until [...]

  12. Guantanamo and Habeas Corpus : STATESMAN SENTINEL says...

    [...] Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies [...]

  13. US Mid-Term Elections: The Death of Hope and Change | War On You: Breaking Alternative News says...

    [...] Task Force of career officials from government departments and the intelligence agencies was convened to review the Guantánamo [...]

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