Archive for April, 2009

Ten Terrible Truths About The CIA Torture Memos (Part One)

Andy Worthington, author of The Guantánamo Files, analyzes ten particularly disturbing facts to emerge from the four memos, purporting to justify the use of torture by the CIA, which were issued by the Justice Department’s Office of Legal Counsel (OLC) in August 2002 and May 2005, and released by the Obama administration last week. The article is published in two parts.

The OLC, as the New York Times explained in September 2007, holds a uniquely influential position, as it “interprets all laws that bear on the powers of the executive branch. The opinions of the head of the office are binding, except on the rare occasions when they are reversed by the attorney general or the president.” The legal opinions were, therefore, regarded as a “golden shield” by the administration, although, as lawyer Peter Weiss noted after I last wrote about the Bush administration’s war crimes, “it cannot be binding if it violates the constitution, or a jus cogens prohibition of international law, e.g. torture, or, perhaps, if it was made to order for the executive, as you demonstrate it was.”

1: The “torture memos” (August 2002)

The first of the four memos (PDF), dated August 1, 2002, is a companion piece to the notorious “Torture Memo” of the same day (PDF), leaked in the wake of the Abu Ghraib scandal, which, notoriously, attempted to redefine torture as the infliction of physical pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” or the infliction of mental pain which “result[s] in significant psychological harm of significant duration e.g. lasting for months or even years.”

These definitions were justified as legitimate attempts to interpret what the memo’s authors — OLC lawyer John Yoo and Assistant Attorney General Jay S. Bybee — regarded as imprecision in the wording of the prohibition against torture in the UN Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, as implemented by Sections 2340-2340A of title 18 of the United States Code, which defines torture as any act committed by an individual that is “specifically intended to inflict severe physical or mental pain or suffering … upon another person within his custody of physical control.”

In their attempts to justify the use of torture by US forces, Yoo and Bybee not only sought to redefine “severe pain or suffering” and “severe mental pain or suffering”; they also sought to nullify the concept of “specific intent” by providing a defense for anyone whose actions were undertaken “in good faith,” and, in addition, noted, “Even if an interrogation method arguably were to violate Section 2340A, the statute would be unconstitutional if it impermissibly encroached on the President’s constitutional power to conduct a military campaign.”

The “torture memo” was disturbing enough in and of itself, of course, and in particular because it provided so much of the justification for the horrendous mistreatment of prisoners that followed, in Guantánamo, Afghanistan and Iraq, but until last week the contents of the second memo — authorizing the use of specific torture techniques for the CIA to use on the supposed “high-value detainee” Abu Zubaydah — had never even been glimpsed, although we knew much of what it contained from the reports of Red Cross interviews with the 14 “high-value detainees” transferred to Guantánamo in September 2006 — including, of course, Abu Zubaydah and Khalid Sheikh Mohammed (KSM) — which were first reported by Jane Mayer, and featured prominently in her book The Dark Side, and were then analyzed in detail by Mark Danner for the New York Review of Books, in an article published last month, and a follow-up article, accompanied by the Red Cross report itself (PDF), that was published two weeks ago.

In the 18-page memo, John Yoo and Jay Bybee approved the use of ten techniques prohibited in the Army Field Manual, which eschews physical violence, and, instead, lays out a series of psychological maneuvers to secure cooperation. When applied with patience by skilled interrogators, these techniques (which are, essentially, also followed by several intelligence agencies including the FBI) are demonstrably effective, and have, for years, served to demonstrate that the US is capable of operating without resorting to the use of torture, but the Bush administration ignored their effectiveness, introducing torture into the military and the CIA, and sidelining those, like the FBI, who had actually begun to achieve results with both Abu Zubaydah and some of the Guantánamo prisoners without resorting to the use of torture.

The ten techniques — whose use is minutely micro-managed with a chillingly cold attention to detail — include a handful of physical tactics which, to my mind, seem mild compared to the widespread physical violence that accompanied detention in the “War on Terror” (“attention grasp,” “facial hold,” and “facial slap (insult slap)”), and a more insidious form of violence (“walling”), which involves repeatedly hurling prisoners against a false wall. Much more disturbing are the use of stress positions, sleep deprivation, confinement in small boxes, waterboarding, and — straight out of George Orwell’s 1984 — a proposal to prey on Zubaydah’s fear of insects by placing an insect into his “confinement box.”

This latter technique was, apparently, never used, but the others all were, and the memo blithely attempted to dismiss long-standing proof that all can be regarded as torture by being satisfied with time limits imposed on imprisonment in the “confinement boxes,” by declaring that the use of painful stress positions (on which no time limit seems to have been imposed) was only undertaken “to induce muscle fatigue,” and by claiming that the well-chronicled mental collapse that can result from sleep deprivation would, instead, only involve mild discomfort that “will generally remit after one or two nights of uninterrupted sleep,” even though, as Yoo and Bybee also noted, “You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time.”

Justifying the use of waterboarding — a form of controlled drowning that was known to the honest torturers of the Spanish Inquisition as “tortura del agua,” and that, in a previous incarnation of the United States (Vietnam), involved prosecuting US soldiers for its use — Yoo (photo, left) and Bybee calmly approved of 20-minute sessions in which, presumably, the 20- to 40-second procedure was repeatedly as frequently as required, and shrugged off waterboarding’s demonstrably well-documented use as a form of torture by noting that, in the US military schools, where it is taught in the counter-interrogation program known as SERE (Survival, Evasion, Resistance, Escape), from which it was reverse-engineered for the “War on Terror,” it has never, according to “experts” consulted by the administration, produced “any adverse mental health effects.”

2: The Bradbury memos (May 2005)

This assertion is, of course, monstrously untrue, as psychologist Jeffrey Kaye demonstrated in an article last week, but the underlying premise of the August 2002 memo — that, although torture was needed to “break” the CIA’s prisoners, it was not actually torture because it did not inflict “severe physical or mental pain or suffering” — was spelled out much more clearly in May 2005, when the OLC’s Principal Deputy Assistant Attorney General, Steven G. Bradbury, produced another three memos, also released last week (and available as PDFs here, here and here), which picked up where Yoo and Bybee had left off.

Over the course of 106 pages, as he attempted to interpret torture so that it did not contravene the Convention Against Torture and Sections 2340-2340A of title 18 of the United States Code, Bradbury revisited much of the ground covered by Yoo and Bybee (photo, left), but inadvertently made it even clearer than his predecessors had that there was a ludicrous gulf between, on the one hand, endorsing torture, and, on the other, attempting to claim that it would not cause either severe physical or mental harm.

As with the earlier memos, from my point of view the arguments about the techniques not causing severe physical pain were more plausible than those in which Bradbury attempted to argue that techniques derived from the SERE program — which are based on teaching soldiers to resist techniques designed to cause a complete mental collapse — do not cause severe mental pain or suffering. The very fact that SERE psychologists were so prominent in the CIA’s torture program makes it clear that “learned helplessness” — involving the brutal training of prisoners to become dependent on their interrogators for every crumb of comfort in their wretched, tortured lives — was designed not just to cause them severe mental pain or suffering, but to completely destroy them mentally. As Bradbury himself noted, when discussing the “conditioning techniques” that underpin the CIA prisoners’ conditions of confinement, “they are used to ‘demonstrate to the [detainee] that he has no control over basic human needs.’”

And yet, for page after page, Bradbury concluded that “nudity, dietary manipulation and sleep deprivation” — now revealed explicitly as not just keeping a prisoner awake, but hanging him, naked except for a diaper, by a chain attached to shackles around his wrists — are, essentially, techniques that produce insignificant and transient discomfort. We are, for example, breezily told that caloric intake “will always be set at or above 1,000 kcal/day,” and are encouraged to compare this enforced starvation with “several commercial weight-loss programs in the United States which involve similar or even greater reductions in calorific intake.”

In “water dousing,” a new technique introduced since 2002, in which naked prisoners are repeatedly doused with cold water, we are informed that “maximum exposure directions have been ‘set at two-thirds the time at which, based on extensive medical literature and experience, hypothermia could be expected to develop in healthy individuals who are submerged in water of the same temperature,’” and when it comes to waterboarding, Bradbury clinically confirms that it can be used 12 times a day over five days in a period of a month — a total of 60 times for a technique that is so horrible that one application is supposed to have even the most hardened terrorist literally gagging to tell all.

3: The ticking time-bomb scenario

The Bradbury memos are littered with fascinating snippets of information — “Careful records are kept of each interrogation,” for example — but one of the most revealing is the establishment that, although the array of techniques ”are not used unless the CIA reasonably believes that the detainee is a ‘senior member of al-Qaeda or [its affiliates], and the detainee has knowledge of imminent terrorist threats against the USA or has been directly involved in the planning of attacks,” use of the waterboard is “limited still further, requiring credible intelligence that a terrorist attack is imminent … substantial and credible indicators that the subject has actionable intelligence that can prevent, disrupt or delay this attack; and [a determination that o]ther interrogation methods have failed to elicit the information [and that] other … methods are unlikely to elicit this information within the perceived time limit for preventing the attack”; in other words, the ticking time-bomb scenario, which, outside the world of Jack Bauer, has never actually occurred.

4: The relentless waterboarding of Abu Zubaydah and Khalid Sheikh Mohammed

I find this distortion of reality disturbing enough, but, having decided that this was indeed the case with Abu Zubaydah, KSM and one other prisoner, Abdul Rahim al-Nashiri, the CIA and its masters then decided that, in the case of Zubaydah, it was, as Bradbury reveals in an extraordinarily telling passage, “necessary to use the waterboard ‘at least 83 times during August 2002,’” and “183 times during March 2003” in the interrogation of KSM.

These are mind-boggling figures, and, in addition, they seem to reveal not that each horrific round of near-drowning and panic, repeated over and over again, defused a single ticking time-bomb, but, instead, that it became a macabre compulsion on the part of the torturers, which led only to the countless false alarms reported by CIA and FBI officials who spoke to David Rose for Vanity Fair last December, or, as the author Ron Suskind reported in 2006, after Zubaydah “confessed” to all manner of supposed plots — against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, and the Statue of Liberty — “thousands of uniformed men and women raced in a panic to each target … The United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered.”

One sign that this is indeed the case comes in a disturbing footnote, in which Bradbury (photo, left) noted, “This is not to say that the interrogation program has worked perfectly. According to the IG Report [a massive and unpublished internal report that was clearly critical of much of the program], the CIA, at least initially, could not always distinguish detainees who had information but were successfully resisting interrogation from those who did not actually have the information … on at least one occasion, this may have resulted in what might be deemed in retrospect to have been the unnecessary use of enhanced techniques. On that occasion, although the on-scene interrogation team judged Zubaydah to be compliant, elements within CIA Headquarters still believed he was withholding information [passage redacted]. At the direction of CIA headquarters, interrogators therefore used the waterboard one more time on Zubaydah [passage redacted].”

5: The crucial differences between SERE and CIA waterboarding

Furthermore, as another revealing footnote makes clear, the IG Report also noted that, “in some cases the waterboard was used with far greater frequency than initially indicated,” and also that it was “used in a different manner” than the technique described in the DoJ opinion and used in SERE training. As the report explained, “The difference was in the manner in which the detainees’ breathing was obstructed. At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency interrogator … applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychiatrist/interrogators acknowledged that the Agency’s use of the technique is different from that used in SERE training because it is ‘for real’ and is more poignant and convincing.”

In addition, the IG Report noted that the OMS, the CIA’s Office of Medical Services, contended that “the experience of the SERE psychologist/interrogators on the waterboard was probably misrepresented at the time, as the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant.” Chillingly, the report continued, “Consequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

In the second part of this article, Andy looks at further revelations in the Bradbury memos about other “ghost prisoners” held in secret CIA custody, analyzes the important role played by former OLC head Jack Goldsmith in resisting the culture of torture, calls for the release of a damning internal report into the OLC’s legal advice, and also calls on Barack Obama to prosecute those responsible for turning the United States into a nation that, under the cover of unjustifiable legal advice, embraced the use of torture.

Both parts of this article were published exclusively on the website of the Future of Freedom Foundation, in four parts (click on the following for Part One, Part Two, Part Three and Part Four). Also cross-posted on Common Dreams and Dandelion Salad.

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 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), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 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.

ACLU podcast: Andy Worthington discusses Guantánamo: The Definitive Prisoner List

A few weeks ago, following my publication of the first definitive Guantánamo prisoner list, the American Civil Liberties Union (ACLU) arranged for me to be interviewed by Jonathan Hafetz, National Security Project Staff Attorney, for a podcast on the ACLU’s website.

My working relationship with Jonathan goes back several years, to June 2007, when I first began writing about one of his clientsAli al-Marri, the last “enemy combatant” held on US soil — and I was delighted that Jonathan also agreed to be part of a panel discussion on “The Future of Guantánamo” — with Wells Dixon of the Center for Constitutional Rights and Joanne Mariner of Human Rights Watch — when I visited the United States to promote my book The Guantánamo Files last year.

In the podcast, Jonathan was kind enough to describe me as “one of the most important chroniclers and commentators on Guantánamo and related detention issues over the past years,” and called the prisoner list “an incredible resource.” I then explained how the list had come into being — as the result of three years’ research — and why I hoped that it would prove particularly useful as a research tool: essentially, because my work has focused on humanizing the prisoners and on providing a context for their capture and imprisonment.

Without this context, it is, I believe, almost impossible to appreciate the extent to which prisoners were seized because they were in the wrong place at the wrong time (in Pakistan, for example, far from the battlefields of Afghanistan), and how bounty payments played a major role in securing mainly Arab prisoners who could be dressed up as “al-Qaeda and Taliban suspects.”

We also talked about how the entire “War on Terror” detention project attempted to justify itself by building up allegations against prisoners based largely on the dubious confessions of other prisoners — I explained how the military “basically had blank slates as prisoners, and then had to graft allegations onto them” — and we also talked about the plight of the Afghan prisoner and ACLU client Mohamed Jawad, seized as a juvenile, tortured into making a false confession and put forward for a trial by Military Commission. I have covered Mohammed’s story in depth over the last year and a half, in a series of articles that includes a guest post for the ACLU in January.

I’d like to thank Jonathan and Suzanne Ito at the ACLU for conducting the interview and making it available. The ACLU has also put together a page about The Guantánamo Files, and a transcript is available here.

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.

The Story of Ayman Batarfi, a Doctor in Guantánamo

Andy Worthington, author of The Guantánamo Files, tells the strange story of Ayman Batarfi, a Yemeni doctor held as an “enemy combatant” for over seven years, whose release from Guantánamo was approved by the Obama administration’s Guantánamo review board on March 30.

No one in the US military ever doubted that Ayman Batarfi, a slim and articulate Yemeni, who was seized in Afghanistan’s Tora Bora mountains after a US bombing raid in December 2001, was a doctor — and, moreover, an orthopedic surgeon with the dedication and the frontline skills required to help out those less fortunate than himself in the humanitarian disaster area that was Afghanistan in 2001. However, for seven years the 38-year old was regarded as a threat to the United States, because he had worked for a charity that the US authorities regarded as being aligned with al-Qaeda, and also because, through a series of accidents, he had met Osama bin Laden and had found himself in Tora Bora, when remnants of al-Qaeda and the Taliban were fighting the US and their Afghan allies, and the US military allowed bin Laden, Ayman al-Zawahiri and numerous other senior figures in al-Qaeda and the Taliban to escape across the unguarded Pakistani border.

In 2001, twenty years of war, and three years of drought, had turned Afghanistan into the poorest and most desperate place on earth, a situation that was only exacerbated after the US-led invasion that October. As Clive Stafford Smith, the director of the London-based legal charity Reprieve, explained in an article last year, “The winter harvest was a near-total failure and five million Afghans faced potential starvation. The countryside was littered with landmines and unexploded ordnance. The hospitals were old and overwhelmed, and the medical infrastructure had collapsed. Sixty-five percent of Afghans had no access to health facilities. Half a million people were internally displaced and tens of thousands were migrating, often on foot, to refugee camps in Pakistan and Iran. Domestic health care workers were also leaving Afghanistan to escape the poverty and strife.”

Stafford Smith added that “A few altruistic health care workers” — including Ayman Batarfi — “were going in the other direction.” Born in Egypt to a Yemeni father and Egyptian mother, Batarfi attended high school in Saudi Arabia, where he taught himself English and earned a scholarship to Sindh Medical College in Karachi, Pakistan. After graduating in 1995, he took a one-year internship in general surgery, and then, as a post-graduate, studied orthopedic surgery under one of the leading orthopedic surgeons in Pakistan for another three and a half years.

As Clive Stafford Smith also explained, Batarfi “specialized in repairing wrist fractures with ‘external fixators,’ a brace that screws into arm bones and allows injured patients use of their hands and wrists shortly after surgery. In the course of his practice in Pakistan, Dr. Batarfi operated on many Afghan children who had fled to Pakistan with untreated injuries. He came to believe, as a physician and a Muslim, that he had a deeper responsibility to these injured children.”

Ayman Batarfi’s story first came to light — for those prepared to delve deeply enough — in spring 2006, when the Pentagon lost a lawsuit to the Associated Press, and was obliged to release the names and nationalities of all the prisoners held at Guantánamo, as well as transcripts of the one-sided tribunals that had been held to prove — to the Pentagon’s own satisfaction, if no one else’s — that those held at Guantánamo had been correctly designated as “enemy combatants,” who could be held without charge or trial.

As I discovered, while researching my book The Guantánamo Files, Ayman Batarfi made one of the most notable appearances during the tribunals at Guantánamo. After explaining that he had first traveled to Afghanistan during the mujahideen resistance to the Soviet occupation, and again in the summer of 2000, he said that in May 2001 he traveled to Afghanistan again, in the hope of providing medical assistance to refugees from the conflict in Chechnya. In conversations with Stafford Smith at Guantánamo, he added that he had taken a short break from his post-graduate studies, and had applied to both western and Arabic NGOs, but without any success.

However, he then discovered al-Wafa, a Saudi charity based in Kabul, and began working for them. As Stafford Smith described it, “Al-Wafa was in the process of renovating a hospital in Kabul and furnishing it with medical equipment and medications,” and Batarfi “was asked not only to assist in treatment, but to identify and purchase the equipment and medication that the hospital would need for full-scale operations. He made several trips to Pakistan to purchase medical supplies and equipment for transport back to Kabul, where they were so desperately needed.”

What Batarfi did not know was that al-Wafa was regarded with suspicion by the US authorities because of a belief that it was a front for terrorism, and was blacklisted at the end of September 2001. Batarfi told Stafford Smith that he was shocked by the announcement — and, noticeably, al-Wafa’s leadership emphatically denied the allegations — but he nevertheless resigned from the organization and sought out new ways to help the Afghan people.

In Guantánamo, Batarfi was asked about al-Wafa’s purported connection to al-Qaeda and the Taliban, which, at the time, was being used, at least partly, to justify not only his own imprisonment, but also that of al-Wafa’s director, Abdul Aziz al-Matrafi, and several dozen prisoners who had been involved in the organization’s humanitarian aid efforts. He made a point of stressing that al-Wafa was, of course, obliged to work with the Taliban, as they were the government, but that the organization had no connection with al-Qaeda or Osama bin Laden, because of the latter’s suspicions regarding its Saudi connections.

He explained that “the al-Wafa office worked well with the Taliban office, especially with the Ministry of Health and Ministry of Education because they built the hospital, the schools and the mosque there,” but insisted that there was no relationship whatsoever between al-Wafa and Osama bin Laden, and that bin Laden’s people “believed al-Wafa was spying for Saudi Arabia, because some friends in Saudi Arabia support them financially.”

Batarfi proceeded to explain that, although he wanted to stay in Afghanistan after resigning from al-Wafa, the chaos was such that he made his way back to Karachi by a “backdoors” route, but returned almost immediately to Afghanistan, after al-Wafa’s representative in Karachi — Jamal Mar’i, a Yemeni who is still held in Guantánamo, who was seized from his house in Karachi on September 23, 2001 — had been taken to Jordan “on a special flight” (in other words, had been kidnapped and subjected to “extraordinary rendition”). He added that he also left because the person who supplied money to the organization returned to the United Arab Emirates, and because 300 students in Karachi had been rounded up and investigated, and he had been told that his name “was mentioned on the wanted list with al-Wafa because it was said you were purchasing medicine for them.”

After returning to Afghanistan, Batarfi gained permission from the Taliban to work in a clinic in Jalalabad, but was only there for two weeks before the city fell to the Northern Alliance, and he was obliged to flee once more. He explained that he made his way to the mountains when the city “collapsed within a half of an hour” and the Afghan doctors told him, “Arabs here have a very bad history; if they find you they will kill you. It would be best for you to go back to Pakistan.” However, he added that he hoped to rescue $11,000 worth of surgical equipment and medicine for the hospital in Jalalabad — which, he said, had been purchased by the hospital supervisor from Pakistan when the Taliban agreed to open a new orthopedic department — and wrote to “the head of the mountains” for assistance, not knowing that it was Osama bin Laden.

After the tribunal got over its surprise, he added that he had met bin Laden once before — when he was burying someone who had died in a mortar attack, and bin Laden, who had been passing in his car, had stopped to talk to him — but explained that when he met him in Tora Bora he was unable to help, and told him that “he didn’t have any route to leave the mountains and he was stuck there himself.” He added, “According to my knowledge he stays a maximum of three days in one location … He was running from the bombing and he was trying to go to Pakistan.”

During an administrative review at Guantánamo in 2006, Batarfi elaborated on the story, explaining that he had told bin Laden that the defense of Tora Bora was a lost cause, because “Most of all the total guns in the Tora Bora area was 16 Kalashnikovs and there are 200 people.” He noted, however, that bin Laden “did not prepare himself for Tora Bora and to be frank he didn’t care about anyone but himself. He came for a day to visit the area and we talked to him and we wanted to leave this area. He said he didn’t know where to go himself and the second day he escaped and was gone.” Abandoned in the mountains, Batarfi said that the men who had been left by bin Laden were overwhelmed by American air power, and that he struggled to tend to the wounded and dying. “I was out of medicine and I had a lot of casualties,” he explained. “I did a hand amputation by a knife and I did a finger amputation with scissors, and if someone was injured badly I was just operating on the table.”

As I explained in The Guantánamo Files, the effect of this story on Batarfi’s tribunal, whose members were clearly drawn in by his eloquence and the drama of his narrative, was noticeable, and echoed his treatment from his earliest days in US custody, when, after being wounded in the US bombing raid as he attempted to leave the Tora Bora mountains, he had been taken to the US prison at Bagram airbase, north of Kabul, instead of being taken to Kandahar, where the majority of the prisoners processed for Guantánamo were taken in the first few months of 2002.

At Bagram, as former interrogator Chris Mackey explained in The Interrogators, a book he wrote (with the journalist Greg Miller) about his experiences in Afghanistan, Batarfi had been recommended for release, and had been given VIP status, including a private room to sleep in. When he was delivered to Kandahar, Mackey wrote that he was escorted by a 20-year old interrogator, “wearing cool-kid skater clothes,” who horsed around with him as though they were “a couple of junior high school chums.”

Mackey admitted that he was not entirely convinced by this scenario, and, as a result, assigned his most subtle interrogator to Batarfi, who, over the following weeks, developed a rapport with the doctor, engaging him in educated conversation, bringing him gifts, playing chess with him, and slowly attempting to find out if there was more to his story than he had previously revealed. In response, Batarfi apparently told more of his life story than he had before, and requested a second meeting with representatives of the CIA, who, he said, had approached him in Bagram and had offered him an opportunity to work as a spy. However, when a woman from the CIA duly turned up to talk to Batarfi, she launched into a sudden tirade, declaring that the agency knew that al-Wafa and al-Qaeda were “running an unconventional weapons program out of hospitals in Kandahar and Kabul,” that Batarfi was “apparently running all manner of nefarious research in the basements of these medical facilities,” and alluding to suspicions that “there might be plans to put these substances to use.”

As Mackey noted ruefully, in response to this verbal assault, the bond with the interrogator was broken, Batarfi clammed up completely, and he was soon sent to Guantánamo, where he has been held ever since, awaiting his release, seemingly in vain, as the grandiose plot between al-Wafa and al-Qaeda melted away, like the illusion it clearly was, and, one by one, al-Wafa’s workers were steadily released, a process that culminated in the repatriation of Abdul Aziz al-Matrafi, the organization’s founder and director, in December 2007.

On March 30, however, an announcement by the Justice Department signaled that Ayman Batarfi’s long and unfortunate imprisonment — as an emblem of a prisoner who ended at Guantánamo because he was in the wrong place at the wrong time — would shortly be coming to an end. As part of an inter-departmental review of the Guantánamo prisoners’ cases, which was initiated by President Obama on his second day in office, the Justice Department announced in a court filing with the District Court in Washington D.C. that it would not be contesting his forthcoming appeal for habeas corpus (scheduled to begin last week), and would, instead, “initiate the appropriate diplomatic process” to facilitate his “prompt transfer from Guantánamo Bay to an appropriate destination country.”

It is not yet known where Batarfi will be sent, as he no longer has family members in Yemen, although he does have siblings in Saudi Arabia. He may, therefore, remain in Guantánamo for some time before he finally secures his freedom. For now, he will have to be content with knowing that he is only the second prisoner to have his release approved by President Obama’s review board. The first, British resident Binyam Mohamed, was released on February 23, after his case — which, notoriously, involved “extraordinary rendition” and torture, and resulted in court cases on both sides of the Atlantic that were troubling for both the US and the British governments — was fast-tracked to the top of the review board’s list of priorities.

To the best of my knowledge, Ayman Batarfi was not subjected to exceptional abuse in US custody, but his wrongful imprisonment is a direct result of the extraordinary arrogance of the Bush administration. Notoriously, senior officials refused to allow the military to screen prisoners at the time of their capture, according to the competent tribunals laid down in the Geneva Conventions. These allow prisoners, close to the time and place of capture, to call witnesses to ascertain whether they are soldiers or civilians, and were used, successfully, in every other US war from Vietnam onwards. As Ayman Batarfi’s story shows, the refusal to screen prisoners adequately continued in Guantánamo, because four separate review boards concluded that he was an “enemy combatant” who could be detained indefinitely without charge or trial.

The Obama administration has finally addressed these egregious errors in Batarfi’s case, but there are many more prisoners in Guantánamo who are still seeking an objective appraisal of their alleged crimes, including, of course, Jamal Mar’i, the al-Wafa employee who, like Batarfi, had been partly responsible for buying medicine for the organization in Pakistan. Mar’i explained to his lawyer, Marc Falkoff, that this had involved him traveling to Kandahar for two weeks in May 2001 “to find out how the work was done and how the medicine is distributed,” and that he had then been responsible for purchasing medicines from specialist stores in Pakistan.

After he was kidnapped from the house in Karachi that he shared with his wife and four children, and was sent to Jordan for four months, where he said, he was “not physically abused by the GID [Jordan’s notorious intelligence service] but was hidden from visiting Red Cross inspectors,” he too has languished in Guantánamo, apparently waiting in vain for justice to come his way. Unlike Ayman Batarfi, Jamal Mar’i’s plight seems to have driven him to despair. In June 2006, Marc Falkoff explained, “When I first met Jamal, he said all he needed was to have his case heard and everyone would see that he was innocent,” but he added, “Now he won’t even meet with us. He said that we initially brought him hope but that we’re now like a mirage in the desert and he can no longer live with hope.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

This article, which draws on passages in The Guantánamo Files, was published exclusively on the website of the Future of Freedom Foundation.

Farce at Guantánamo, as cleared prisoner’s habeas petition is denied

In 2007, after four rounds of administrative reviews at Guantánamo, Hedi Hammamy, a Tunisian prisoner, born in 1969, was cleared for release, having satisfied the Pentagon that he no longer represented a threat to the United States or its allies, and no longer possessed any ongoing intelligence value. He was not released, however, because, although the US government had secured a “diplomatic assurance” from the government of the Tunisian dictator Zine El Abidine Ben Ali (photo, left), which purported to guarantee that returned prisoners would be treated humanely, two prisoners returned in June 2007 were apparently mistreated in Tunisian custody, and were then imprisoned after what were regarded by human rights observers as show trials.

This prompted a District Court judge to prevent the return of a third Tunisian in November 2007, with the result that this man, Lotfi bin Ali, and several other cleared Tunisians — including Hedi Hammamy — have languished in Guantánamo ever since, as the State Department has tried in vain to find a third country prepared to accept them.

In the surreal world of Guantánamo, the annual reviews — which rely largely on classified evidence that is not disclosed to the prisoners and cannot, therefore, be challenged by them — were introduced by the Bush administration as a rebuke to the Supreme Court, which granted the prisoners habeas corpus rights (the right to ask a judge why they were being held) in June 2004. It was not until last June (almost exactly four years later) that the Supreme Court once more addressed the prisoners’ habeas rights, ruling as unconstitutional the provisions in two pieces of legislation — the Detainee Treatment Act of 2005, and the Military Commissions Act of 2006 — which had purported to strip the prisoners of their habeas rights in the intervening years.

As a result, the first court reviews of the Guantánamo prisoners’ cases only finally took place last November, nearly seven years after the prison opened, when Judge Richard Leon, an appointee of George W. Bush, surprised the administration by granting the habeas appeals of five Bosnian prisoners of Algerian origin, and ordering their release after ruling that the government had failed to justify their detention. Since then, Judge Leon has also ordered the release of Mohammed El-Gharani, a Saudi resident of Chadian origin, who was just 14 years old when he was seized by Pakistani soldiers in a raid on a mosque in Pakistan, and subsequently sold to US forces.

However, Judge Leon also ruled, in four other cases, that the government had established, “by a preponderance of the evidence,” that a sixth Bosnian Algerian, the Yemeni Moaz al-Alawi, Hisham Sliti (a Tunisian), and another Yemeni, Ghaleb al-Bihani, had been correctly designated as “enemy combatants” and could continue to be held. In articles at the time, I took exception to these rulings, for three particular reasons: firstly, because it appeared that none of the men had actually engaged in terrorist activities, and secondly, because the definition of an “enemy combatant” was inappropriately broad, and, instead of focusing on individuals who had contributed directly to the planning and execution of terrorist attacks, persisted in conflating al-Qaeda with the Taliban, even though the first is a terrorist group, and the latter — though widely reviled — was in fact the government of Afghanistan.

The definition of an “enemy combatant’ that was chosen by Judge Leon before the habeas hearings began (and that was plucked from several different versions proposed by the Pentagon over the years) declared that an “enemy combatant” was someone who “was part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners,” and also included anyone “who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

My third reason for taking exception to Judge Leon’s rulings is based on the release from Guantánamo of another Yemeni prisoner, Salim Hamdan, who was sent home last November to serve out the last month of a short sentence he had been given by a military jury last summer, after a trial at Guantánamo in the Military Commission system invented by Dick Cheney and his close advisers. Hamdan had actually been one of several drivers for Osama bin Laden, but his release, after a trial of the government’s own devising, made a mockery both of the government’s rationale for continuing to hold prisoners who were regarded as less significant (essentially, the majority of the 241 prisoners still held), and, it should be noted, of the rulings by Judge Leon in the cases of prisoners who had no connection with al-Qaeda, and had never even met Osama bin Laden.

Nevertheless, last Thursday, over two months since his last ruling, Judge Leon decided that Hedi Hammamy had been correctly designated as an “enemy combatant,” and could, therefore, continue to be held for an unspecified amount of time. This was in spite of the fact that, just three weeks ago, the new administration of Barack Obama made a decision to stop using the term “enemy combatant,” and, in addition, amended the definition of the prisoners so that only those whose support for the Taliban or al-Qaeda was “substantial” were supposed to be held.

As I noted at the time, the situation faced by the “Nobodies Formerly Known As Enemy Combatants” — as the Justice Department had not given them a new designation — was little improved, as the government considered “substantial” support to include those who “have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations,” and others who had not raised arms against anybody but had “stay[ed] at al-Qaeda or Taliban safehouses that are regularly used to house militant recruits.”

However, Judge Leon appears not only to have failed to observe the new government’s semantic shift, but also to have attempted to weave unconnected events into a coherent whole in his appraisal of the government’s evidence. Hammamy, who was seized in Pakistan in April 2002, lived in Italy before traveling to Pakistan, and Judge Leon used an allegation that he was “a member of an Italy-based terrorist cell that provided support to various Islamic terrorist groups” as the basis for presuming that he had therefore arrived in Pakistan in connection with terrorism, even though the charges leveled against him in Italy — of “supporting terrorism, in part, by furnishing false documents and currency” — had not been tested in a court of law.

As Leon himself noted, “a judicial finding from a foreign government of Hammamy’s involvement in that terrorist cell would be clearly preferable to a US government agency’s review and evaluation of that government’s investigative reports.” Nevertheless, he concluded that, “in the absence of any reason to question its accuracy, the report deserves, at a minimum, a rebuttable presumption for these limited purposes,” even though, to my mind, this was a conclusion bedeviled with caveats.

Judge Leon was clearly persuaded to regard the unsubstantiated Italian allegations as trustworthy, because he concluded that they tied in with another claim put forward by the government, regarding Hammamy’s identity papers, which were apparently “found after the Battle of Tora Bora in the al-Qaeda cave complex.” As with the Italian allegation, which he has persistently refuted, Hammamy has always denied being in Tora Bora, and has claimed that his papers were in fact stolen from him, and that the government has evidence that this is the case.

Critically for Hammamy, however, Judge Leon was not persuaded, and dismissively noted that he had failed “to account for how his identity papers somehow mysteriously traveled the hundreds of miles from the point of their theft in Pakistan to the highly secluded mountain hideaway of Tora Bora in Afghanistan,” adding, “While theoretically it is possible that this supposed thief was heading for Tora Bora himself, common sense dictates that such a conclusion is not in the least likely.”

With Judge Leon’s ruling, Hedy Hammamy finds himself in a unique — and uniquely disturbing position — in Guantánamo’s long and ignoble history. As one of his lawyers, Cori Crider of the legal charity Reprieve explained to me, “While this doesn’t change the military’s opinion that Hedi Hammamy is transferable, it certainly isn’t going to help him in the political context. Being found subject to military detention is not remotely the same thing as a criminal conviction, but that won’t stop right-wing elements in potential resettlement states from conflating the two issues.”

There is, moreover, a troubling subtext to Hammamy’s case, as it is worth bearing in mind that it is President Obama’s Justice Department, and not that of George W. Bush, which is now shepherding the Guantánamo case files. It is possible, therefore, that the new administration is playing a game of political football with the prisoners, content to defend a detention that it has already decided to end in order to avoid racking up too many losses in court.

As so often in the last seven years and three months, it appears that Guantánamo has precious little to do with justice, and is, instead, a place where politics holds sway. For Hedi Hammamy, the price is his continued detention, with no end in sight, and the knowledge that the decisions made by the review boards at Guantánamo are — as many of the prisoners have maintained over the years — almost unutterably hollow.

Note: Throughout his detention, Hedi Hammamy has been identified by the Pentagon as Abdulhadi bin Haddidi.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prisononline casino (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.

This article was published exclusively on the website of the Future of Freedom Foundation.

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), 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), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 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).

Justice extends to Bagram, Guantánamo’s Dark Mirror

Since coming to power in a blaze of reforming glory, promising to close Guantánamo within a year, to stop the CIA from running offshore torture prisons, and to restore the Geneva Conventions to prisoners seized in wartime, the Obama administration has proceeded to make a number of poor decisions in relation to its predecessors’ reviled “War on Terror” policies.

One was the decision to invoke the state secrets privilege to quash a lawsuit against Boeing subsidiary Jeppesen for its role as the CIA’s travel agent in a case brought by a number of prisoners subjected to “extraordinary rendition,” although this was understandable if the floodgates were not to be opened with regard to everyone involved in the Bush administration’s lawless policies rather than, say, the senior officials who authorized the crimes. Another, I believe, was the refusal to substantially redefine the terms of reference for “enemy combatants,” while the administration was scoring a propaganda point by dropping the use of the term.

There are, of course, many challenges to come — not least, the question of prosecutions for senior officials (from President Bush down), which Obama is clearly unwilling to tackle — but so far the poorest decision came in February, when, in its first response to habeas corpus claims filed on behalf of four prisoners held in the US prison at Bagram airbase, the Justice Department responded to a request by District Court Judge John D. Bates, asking if the new administration would like to review the position maintained by the Bush administration — essentially, that the prisoners in Bagram have no rights — by stating simply, in a one-paragraph response, “This Court’s Order of January 22, 2009 invited the Government to inform the Court by February 20, 2009, whether it intends to refine its position on whether the Court has jurisdiction over habeas petitions filed by detainees held at the United States military base in Bagram, Afghanistan. Having considered the matter, the Government adheres to its previously articulated position.”

What made this decision so poor was that the situation in which these men found themselves was essentially the same as that experienced by the prisoners in Guantánamo. The men in question — Redha al-Najar, a Tunisian seized in Karachi, Pakistan, Amin al-Bakri, a Yemeni gemstone dealer seized in Bangkok, Thailand, Fadi al-Maqaleh, a Yemeni, and Haji Wazir, an Afghan businessman seized in the United Arab Emirates — were all captured between five and seven years ago, and transferred to Bagram, where only an administrative accident — or some as yet unknown decision that involved keeping a handful of foreign prisoners in Bagram, instead of sending them all to Guantánamo — prevented them from joining the 779 men in the offshore prison in Cuba.

Moreover, what made the Bagram prisoners’ situation even worse was that, whereas the prisoners in Guantánamo had, over the years, secured habeas corpus rights (the right to challenge the basis of their detention in a court) and the right to meet with and be represented by lawyers, none of these privileges had been extended to the prisoners in Bagram. Their isolation meant that, increasingly, the prison in Afghanistan — which was, and is, under the complete control of the US military — was nothing less than Guantánamo’s Dark Mirror, or, as Judge Bates suggested in a review of the men’s cases in January, “a ‘black hole’ for detainees in a ‘law-free zone.’”

At the time, Judge Bates was only hinting that he thought it might be necessary to extend habeas rights to these particular prisoners in Bagram. In February, of course, the Obama administration thought that it had crushed his nascent dissent, when it declared, with an imperiousness that was reminiscent of Dick Cheney and David Addington, that the reach of the law did not extend to Bagram.

However, last Thursday, after studying closely the differences between the prisoners held at Bagram — in other words, between foreigners captured in other countries and “rendered” to Bagram, Afghans captured in other countries and “rendered” to Bagram, and Afghans captured in Afghanistan — Judge Bates ruled (PDF) that the habeas rights granted by the Supreme Court to the Guantánamo prisoners last June in Boumediene v. Bush also extended to the foreign prisoners in Bagram, because, as he explained succinctly, “the detainees themselves as well as the rationale for detention are essentially the same.”

What this involved, to recap on Boumediene, was that the government had no right to revoke the Suspension Clause of the US Constitution, under the Military Commissions Act of 2006, to prevent the prisoners from seeking “the protection of the writ of habeas corpus,” because, as the Supreme Court made clear, “At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.”

The Supreme Court also noted that “the Judiciary — not the Executive — must decide when and where the Suspension Clause applies,” and, also drew on a case from 1803, which stated, “The writ of habeas corpus itself is an indispensable mechanism for monitoring the separation of powers …The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain.”

Judge Bates added that the military’s justification for holding the prisoners at Bagram involves a review process that is both “inadequate” and “more error-prone” than the tribunal process used at Guantánamo (which has, of course, been condemned by former officials who worked on it, including, in particular, Lt. Col. Stephen Abraham), and concluded that the US military’s control over Bagram “is not appreciably different than at Guantánamo.”

His précis of the review process was, in fact, genuinely disturbing, as he quoted from a government declaration which stated that the Unlawful Enemy Combatant Review Board (UECRB) at Bagram does not even allow the prisoners to have a “personal representative” from the military in place of a lawyer (as at Guantánamo), and that “Bagram detainees represent themselves.” In addition,

Detainees cannot even speak for themselves; they are only permitted to submit a written statement. But in submitting that statement, detainees do not know what evidence the United States relies upon to justify an “enemy combatant” designation — so they lack a meaningful opportunity to rebut that evidence. [The government’s] far-reaching and ever-changing definition of enemy combatant, coupled with the uncertain evidentiary standards, further undercut the reliability of the UECRB review. And, unlike the CSRT process, Bagram detainees receive no review beyond the UECRB itself.

This Court need not determine how extensive the process must be to stave off the reach of the Suspension Clause to Bagram. It suffices to recognize that the UECRB process at Bagram falls well short of what the Supreme Court found inadequate at Guantánamo.

Judge Bates also explained that, although Bagram is “located in an active theater of war,” and that this may pose some “practical obstacles” to a court review of their cases, these obstacles “are not as great” as the government suggested, are “not insurmountable,” and are, moreover, “largely of the Executive’s choosing,” because the prisoners were specifically transported to Bagram from other locations.

As with the Supreme Court’s ruling in Boumediene, Judge Bates was also concerned by the length of time that the prisoners have been held without an adequate review of their cases. As he explained, “the Supreme Court’s observation in Boumediene is equally powerful here: ‘the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.’”

Nevertheless, although Judge Bates ruled that the three foreign prisoners could challenge the basis of their detention, he refused to extend habeas rights to the Afghan prisoners who make up the majority of the 670 or so prisoners held in Bagram, agreeing with the government’s claim that to do so would cause “friction” with the Afghan government, because of ongoing negotiations regarding the transfer of Afghan prisoners to the custody of their own government. As a result, he also refused to extend habeas rights to Haji Wazir, even though he was captured outside Afghanistan, although he did not dismiss his claim outright, and wondered whether there was any other mechanism whereby he might seek habeas relief.

On SCOTUSblog, Lyle Denniston noted that this part of the ruling “seemed to suggest a potential impact of the ruling for detainees in places other than Bagram,” as Judge Bates stated that one possible route, about which he requested further briefing, involved ascertaining whether Congress “usurped” the constitutional authority of the federal courts, in the Military Commissions Act of 2006, when it prohibited habeas claims by any prisoner in US custody, anywhere in the world, who was held as an “enemy combatant.”

In conclusion, then, this was an extraordinarily important result for those who have been struggling for years to secure rights for the prisoners in Bagram –- in particular, Tina Foster and Barbara Olshansky of the International Justice Network, who first filed the cases in October 2006. Judge Bates gave the government until April 23 to respond to his question about Congress usurping the federal courts’ constitutional authority, and gave Haji Wazir’s lawyers until May 7 to respond to the government’s brief. As for Redha al-Najar, Fadi al-Maqaleh and Amin al-Bakri, their cases now move to a detailed review, with Judge Bates taking the cases of al-Najar and al-Maqaleh, and Judge Ellen Segal Huvelle taking the case of al-Bakri.

Expect sparks to fly, as, in addition to being held for up to seven years without charge or trial, it appears that some, if not all of these men passed through a secret prison network in Afghanistan, which involved brutal torture, before they even arrived at Bagram.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on the Huffington Post, Antiwar.com, CounterPunch and ZNet. Also cross-posted on Common Dreams.

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), 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), Lies, Damned Lies and Statistics (February 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).

Britain’s Guantánamo: Fact or Fiction?

On Monday March 30, in a committee room in the House of Commons, Diane Abbott MP chaired a meeting entitled, “Britain’s Guantánamo? The use of secret evidence and evidence based on torture in the UK courts,” to discuss the stories of some of the men held as “terror suspects” on the basis of secret evidence, and to work out how to persuade the government to change its policies. A detailed report of the meeting is available here, and the profiles of five prisoners are available by following this link, but I thought it was also worth addressing a question posed by the meeting’s title, and to ask if it is fair to compare the bitter fruits of Britain’s anti-terror legislation with the iconic symbol of the Bush administration’s “War on Terror.”

In some ways, of course, it is not. The British government, while clearly complicit, to some extent, in the rendition and torture of prisoners by or on behalf of the Bush administration, and in interrogating them while they were held in illegal and unjustifiable conditions, was not directly involved in their industrial-scale rendition, in the establishment of a vast offshore prison devoted to coercive intelligence-gathering, or in the direct implementation of torture, under the cover of flawed legal advice which included blatant attempts to redefine its very meaning.

That said, there are, in fact, many unnerving similarities between the Bush administration’s policies, which prompted universal condemnation on an unprecedented scale, and those implemented in the UK, which have caused barely a ripple of protest.

The similarities between Guantánamo and the UK terror laws

At Guantánamo, since January 2002, the US government has, at various times, held 779 men, mostly without charge or trial, who were picked up in 20 different countries but detained neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects, to be tried in a recognized court. When, after three and a half years, the Supreme Court ruled that they had habeas corpus rights, the government responded not by allowing them access to the US courts, but by holding military tribunals, designed to justify their detention through the use of secret evidence that the prisoners — known as “detainees” — were not allowed to see.

In the UK, since December 2001, the British government has, at various times, held around 70 men without charge or trial, refusing to try them as criminal suspects in recognized courts. The policy began with the imprisonment of 17 men in Belmarsh high-security prison, but when, after three years, the Law Lords ruled that their imprisonment was in contravention of the Human Rights Act, the government responded by introducing control orders and deportation bail, both of which involve draconian restrictions that amount to house arrest. Throughout this whole period, the government has justified the men’s detention through the use of secret evidence that the prisoners — known as “detainees” — are not allowed to see.

Another similarity concerns attempts by both the British and American governments to bypass their obligations under the UN Convention Against Torture — which prevents the return of foreign nationals to countries where they face the risk of torture — by reaching diplomatic agreements with various dictatorships in North Africa and the Middle East. These purport to guarantee that repatriated prisoners will be treated humanely, but in reality they have proved worthless.

Deportation to Tunisia

In June 2007, for example, after the US government signed a “diplomatic assurance” with the Tunisian dictator Zine El Abidine Ben Ali, so that prisoners cleared for release from Guantánamo could be repatriated, two prisoners who were returned — Lotfi Lagha and Abdullah bin Omar — reported that they were threatened and mistreated in Tunisian custody. They were then subjected to show trials, apparently based on evidence obtained through the torture of other prisoners, and received prison sentences of three and seven years.

In the UK, the British government has been involved in a similar policy, signing “memoranda of understanding” (MoUs) in 2005 with Jordan, Libya and Lebanon, and attempting, without success, to do the same with Algeria, in order to deport “detainees” held on the basis of secret evidence, instead of putting them forward for trial in the UK. This is apparently because of the British government’s refusal to join the rest of the world in finding ways to use information obtained by the intelligence services in court, while preserving the confidentiality of sources and methods (PDF), but it is difficult not to conclude that, in fact, the government has been swept up in its own rhetoric, and has actually lost sight of the correct balance between liberty and security.

There are further disturbing parallels. After the demonstrable failure of the Americans’ “diplomatic assurance” with Tunisia, a District Court judge intervened to prevent the return of a third Tunisian — Lotfi bin Ali — in November 2007, arguing that he could suffer “irreparable harm” that the US courts would be powerless to reverse. Since then, no other Tunisians have been repatriated from Guantánamo, and, although the British government subsequently persisted in attempts to deport Tunisians from Europe, intervening in an Italian case, Saadi v. Italy, which was being considered by the European Court of Human Rights at the same time, the British attempts were struck down by the Court, which ruled, in March 2008, that attempts to return Nassim Saadi to Tunisia would be a clear breach of Article 3 of the European Convention on Human Rights (which states that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”).

Deportation to Libya

Both the US and the UK have faced struggles with repatriating foreign nationals to Libya, not because of any difficulties either government has with its enemy-turned-ally, the dictator Moammar Gaddafi, but because courts on both sides of the Atlantic have intervened to prevent Libyans from being repatriated: a Libyan in Guantánamo, Abdul Rauf al-Qassim, has been resisting his enforced return since June 2007, and in the UK, attempts to return 12 Libyans accused of having connections with terrorism were scuppered when, in April 2008, as the Independent described it, the Court of Appeal “gave a damning verdict on promises” that two men — identified only as AS and DD — “would not be tortured in their home country.” The judges ruled that the government “failed to give enough weight to the risk of torture.”

What is particularly galling in the Libyans’ case is that nowhere along the line has a single voice in authority been heard pointing out that those who once opposed Colonel Gaddafi’s regime — and are now wanted in his dungeons — would, not so long ago, have been regarded as our friends, but that observation, of course, succinctly demonstrates an uncomfortable truth: that yesterday’s freedom fighters can all too easily become today’s terrorists when the winds of politics change.

Deportation to Algeria

Where both the British and American governments seem to be in accord — and seem also to be meeting with some success in their mission to discard the UN Convention Against Torture and the European Convention on Human Rights — is with Algeria. Although some Algerians in Guantánamo — most notably Ahmed Belbacha, who had lived peacefully in the UK for two years before he took an ill-timed holiday in Pakistan — are still striving to prevent their enforced repatriation from Guantánamo, others are on record as having returned willingly, even though the fate that awaited them — whether freedom, or a bent trial followed by further imprisonment — seems to be akin to a round of Russian Roulette.

Given the choice of two evils, eight Algerians (see here, here, here, here and here) settled for Algeria over Guantánamo between July 2008 and January 2009, and the same thing has happened with a number of “terror suspects” in the UK, who, exhausted by the imprisonment and house arrest foisted on them by the British government, on the basis of unknowable and unchallengeable secret evidence, opted to return “voluntarily “ to Algeria, with mixed results, as Amnesty International has reported (PDF). Some were released without charge, while others received prison sentences after dubious trials, and in all cases it has been next to impossible for human rights observers to monitor what has been happening with the kind of diligence that is necessary.

The British government — or the Law Lords, at least — know how shaky is the assumption that Algerians returned from the UK will be treated humanely and given fair trials, for two particular reasons: firstly, because the Algerian government has refused even to sign a worthless “memorandum of understanding” and has also refused to allow any British representatives to monitor what happens to those who are returned, and secondly, because, when the Lords approved the deportation in February of two prisoners — BB and U — they resorted, as I explained in an article at the time, to claiming that President Bouteflika has improved Algeria’s human rights record, and has “acknowledged and approved a letter from the Prime Minster which included the statement that ‘this exchange of letters underscores the absolute commitment of our two governments to human rights and fundamental freedoms.’”

In quiet desperation, the Lords also quoted the judges of SIAC (Britain’s secret terror court), who had noted that “Very considerable efforts have been made at the highest political levels on both sides to strengthen these ties,” and concluded that, as a result, “it is barely conceivable, let alone likely, that the Algerian government would put them at risk by reneging on solemn assurances.” As I noted at the time, it was hardly reassuring that, if returned prisoners did find themselves abused, they could be comforted by the fact that the government, SIAC and the Law Lords had thought that such abuse was “barely conceivable.”

Deportation to Jordan

And finally, while the US managed to return all the Jordanians it was holding in Guantánamo without apparent incident, the British government faced an even more uphill struggle to conclude that it most-celebrated would-be deportee, Abu Qatada, would be treated humanely on his return. In the same ruling in which the Law Lords declared that it was safe for BB and U to be returned to Algeria, they concluded that Abu Qatada would not be tortured, and would receive a fair trial — or at least, would not receive “a flagrant denial of a fair trial” — for two reasons; firstly, because, in October 2005, a human rights organization in Jordan “signed an agreement with the United Kingdom government under which it would monitor the due performance of the obligations undertaken by Jordan under the MoU,” and, secondly, because “the fact that he would have a very high profile, coupled with the MoU, and the diplomatic capital invested in it, meant that the Jordanian authorities were likely to make sure that he was not ill-treated in custody or when he emerged from it.”

The judges made their decision in spite of the fact that Abu Qatada had been previously tortured in Jordan, and had been convicted in absentia in a terror trial at which witnesses claimed they had been tortured to make false confessions. In addition, their ruling was disappointing because a “likelihood” that he would not be tortured is far from reassuring, and seems, instead, to be another form of Russian Roulette that plays games with a man’s life and with the universal torture ban.

An unnerving conclusion

For now, the deportations of Abu Qatada, BB and U are on hold, pending a review by the European Court of Human Rights, which may mean — if both torture and judicial secrecy are regarded with the horror and scorn that they deserve — that the British government will eventually be obliged to abandon its blanket use of secret evidence and its labyrinthine attempts to circumvent the universal torture ban, by allowing the use of intercept evidence and reintroducing fair trials.

Ministers might also want to reflect that, although Barack Obama has not magically dismantled the legacy of the Bush administration’s “War on Terror,” he is at least committed to closing Guantánamo within a year, has established a review of the prisoners’ cases that has started to approve the release of prisoners, and is continuing to allow judges — empowered by a Supreme Court ruling last June — to challenge the Bush administration’s secret evidence, with the result that, in 24 of the 28 cases so far reviewed, the judges involved have ordered the prisoners’ release because the government failed to provide sufficient evidence that they should ever have been held in the first place (a summary is here, and see here for the latest decision).

In Britain, in contrast, the government would still have us believe that all of its supposed “terror” evidence is infallible, and cannot be challenged, even though much of what is known appears to be misguided intelligence, or intelligence obtained through torture, and even though glaring errors on the part of the Home Office and the security services have been repeatedly noted over the last seven years. This not only makes a mockery of due process; it also leaves the government — and Home Secretary Jacqui Smith in particular — looking like the last bastion of the kind of unprincipled and unfettered executive power embraced by former US Vice President Dick Cheney and his chief of staff David Addington, the architects of the “War on Terror.”

As Jane Mayer explained in her book The Dark Side, in the summer of 2002, when John Bellinger, the National Security Council’s top lawyer, tried to approach the White House counsel, Alberto Gonzales, to seek a review of the prisoners’ cases — expressing some of the same doubts about the US intelligence services that lawyers have sought to expose in relation to the intelligence services in the UK, and that judges in the US have finally been allowed to prove in some of the Guantánamo cases — he was met with the sternest of rebukes, when a scheduled meeting was hijacked by David Addington, who declared, imperiously, “No, there will be no review. The President has determined that they are ALL enemy combatants. We are not going to revisit it.”

Without fair trials for “terror suspects” in the UK, Jacqui Smith, like Jack Straw, David Blunkett, Charles Clarke and John Reid before her, appears to be nothing less than David Addington’s Anglicized twin, and in Addington’s statement above, all that needs changing are the words “President” to “Tony Blair,” and “enemy combatants” to “terrorists,” and the picture is complete. In democracies founded on the rule of law, it is not sufficient for an elected minister to maintain, as President Bush declared for over seven years, that it was true because he said so.

This article is part of a series of four articles and five statements examining the use of secret evidence in the British courts. For an introduction, see Britain’s Guantánamo: An Introduction, and for the first two articles, see Torture taints all our lives (published in the Guardian’s Comment is free), and Britain’s Guantánamo: Calling For An End To Secret Evidence. For the statements, see: Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (3) Detainee U, Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara and Five Stories From Britain’s Guantánamo: (5) Detainee Z.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

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

Five Stories From Britain’s Guantánamo: (5) Detainee Z

I am a 42-year old married man with two children, who has lived in this country for almost 18 years.

I was detained in September 2005 under immigration powers, and I have been informed, to my surprise, that I am a threat to national security. Until now I have not been told what the allegation is, but I will challenge you — if you can bring any secret evidence against me that is true, and prove that I am a threat to this country in the past, present or future, I will plead guilty to any crime that has been committed and you can lock me up forever.

I believe that oppressing people, robbing them of their liberty, making their family and especially their children suffer by depriving them of their childhood is the worst crime of injustice.

For a country to be the beacon for the world it is not by military power or abuse of power or economic power — it is by its true and fair justice system for everyone, regardless of the colour of their skin, country of origin, or their religion.

But I am very sorry to tell you the painful and bitter truth. Since 1997 I have witnessed this justice declining bit by bit, starting by passing unnecessary and oppressive laws, manipulating the media who in turn mislead the public, and the unfair legal rulings by a biased judge. This is far more dangerous a situation than the present economic crisis, because following this path leads to chaos and public disorder.

A nation without a fair justice system is a doomed nation. You may not see it now but all the signs lead to it. You need to act immediately to prevent it, and to save your country from such a disaster, if you truly love your country. If you think you are safe from this injustice — and this only applies to some foreign Muslims and it won’t apply to you in the future — I say think again.

I advise you to look back in history and learn what makes nations strong and what destroys nations. History will tell you that nations are weak when they don’t have strong and fair justice systems. I quote from Hermann Goering:

Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the peacemakers for lack of patriotism and exposing the country to danger.

It is claimed that I am “not conducive to the public good.” Please give me the chance to prove this wrong. All I ask is the security to dedicate myself to the well-being of my family, and prove my worth to this society, where I have made my home for nearly two decades.

I invite any MP present this afternoon to visit my home, meet me and my family and discover that I am no different from any of you.

This statement was written by Detainee Z, and was read out, with his permission, by the actor Tom Peters, at “Britain’s Guantánamo? The use of secret evidence and evidence based on torture in the UK courts,” a parliamentary meeting in the House of Commons, chaired by Diane Abbott MP, on March 30, 2009.

This statement (the last of five) is part of a series of four articles and five statements examining the use of secret evidence in the British courts. For an introduction, see Britain’s Guantánamo: An Introduction, and for the first three articles, see Torture taints all our lives (published in the Guardian’s Comment is free), Britain’s Guantánamo: Calling For An End To Secret Evidence and Britain’s Guantánamo: Fact or Fiction? For the first four statements, see: Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (3) Detainee U and Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

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

Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara

My name is Hussain Al-Samamara. I’m Jordanian, and I’m 33 years old. I’m a husband and I’m a father. I’m a brother and a son. I’m a friend and I’m an artist. But I am not a terrorist.

To be honest with you I don’t know how I got here. This was never meant to happen to me.

Lately I’ve been feeling so tired. I get headaches all the time, but I am gonna do my best to tell you my story.

I live in London with my wife and daughter. She is two years old. That little girl, with all that amazing curly hair, she holds me together. She’s the glue to my crumbling world. I owe her so much.

I’ll never forget the day I was arrested. For many reasons.

My daughter was just four days old, and we were having a gathering at home to celebrate the birth. It’s a tradition. I had just popped out for five minutes. That’s when it happened.

They took me to Long Lartin prison. The other men told me I was there because the Home Office think I’m a threat to national security. I thought they were joking. Me?

Then things stopped being funny. And I stopped laughing. That was when my wife first started crying. She hasn’t really stopped for two years.

I left Jordan because of the torture. It was just too much to keep bearing. I still have the broken bones in my hand.

When I got here I applied for asylum. I thought I could start to live without fear and pain, but it didn’t last long. You know, my ambition was to study. I had wanted to be a doctor, but that’s all gone now.

Last year, when I was released on bail, my wife and I suffered racial abuse. I was shot with a stun gun and left unconscious. That was in Birmingham. My wife became agoraphobic. She was doing a Masters in business  when I met her. There’s no way she could do that now.

Now the Home Office wants to move me to Birkenhead. Refugees have a hard time up there. Can you imagine how it’s gonna be for a so-called “threat to national security”?

Recently my father came to visit me. It was hard with all the strange bail conditions — like getting him vetted to come into my flat. He planned to stay longer but he left after a couple of months. It was too hard for him to see me like this.

Can you imagine for just a second how it feels to be taken, to be labelled, to feel so useless in front of your family, to have a whole government of a country turn against you, and you don’t know why? They say they have something on you. They won’t tell you what. You have no real way of challenging it, and so you have to live like this. I am here today because of this “something,” because of secret evidence.

With Hussain’s permission, this was read out, by the actor Derek Howard, at “Britain’s Guantánamo? The use of secret evidence and evidence based on torture in the UK courts,” a parliamentary meeting in the House of Commons, chaired by Diane Abbott MP, on March 30, 2009. The script was written by Saleyha Ahsan, using material gathered from interviews.

This statement (the fourth of five) is part of a series of four articles and five statements examining the use of secret evidence in the British courts. For an introduction, see Britain’s Guantánamo: An Introduction, and for the first three articles, see Torture taints all our lives (published in the Guardian’s Comment is free), Britain’s Guantánamo: Calling For An End To Secret Evidence and Britain’s Guantánamo: Fact or Fiction? For the other four statements, see: Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (3) Detainee U and Five Stories From Britain’s Guantánamo: (5) Detainee Z.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

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

Five Stories From Britain’s Guantánamo: (3) Detainee U

You know me as Amer Makhlulif, because I have been arrested, but never charged, as a threat to the national security, and I was therefore afraid to disclose my real name for fear of threats. Amer Makhlulif was the name given me by the immigration officer when I sought asylum in the UK, as he was aware that there may be repercussions for my family, as there are for any family back in Algeria if the authorities knew I had applied for refugee status elsewhere.

After eight years in prison my incarceration was reviewed and bail recommended. During my bail, for eight months, under very strict conditions, I did abide by the conditions rigorously.

I truly believe that when my case gets to the European Court of Human Rights I will win. I believe in justice and although it is a long process to get justice I am patient. Justice takes much determination and dedication.

As I have said, I believe in justice and I would never abscond or run away from these proceedings. I am now 46 years old and I long for and want a wife, family and a stable life. I want everything to be resolved so that I can move on with my life. If I ran away I would be running forever and I would have nothing. I do not want this.

Education is very important to me — in fact my sole lifeline for the last eight years. This is the means by which I have managed to retain my mental stability.

When I was in prison I taught myself English to a sufficient standard so I could enrol in an Open University course. I achieved a degree while I was in prison and have just, after great difficulty due to my conditions, managed to enrol on a Masters course. My commitment to this is despite the difficulties I will have in studying without access to the Internet.

While I was on bail in Brighton I made very good friends who I admire and respect. I am very proud to have friends like these. I would never deceive them. They have opened their home and their hearts to me and I would never do anything to hurt them. This would include deceiving them, as it would be immoral and against Islam.

I understand that I have been held in custody because of secret evidence. I would very much like to know what the evidence is. If I do, then I can attempt to explain it. It may be a misunderstanding. I do not think it is fair that I do not know the evidence against me — it is to do with my liberty. I have racked my brains to think what it could be, but I truly have no idea.

We have to keep fighting this unfair system. We have to send this system of secret evidence to the rubbish bin of history. Tell my friends I miss them and to keep their spirits up.

With the permission of Detainee U, this was read out, by the actor Kate Dyson, at “Britain’s Guantánamo? The use of secret evidence and evidence based on torture in the UK courts,” a parliamentary meeting in the House of Commons, chaired by Diane Abbott MP, on March 30, 2009. The script was based on statements made by Detainee U, who has been a prisoner since 2001, and is now being held as a Category “A” prisoner in Belmarsh high-security prison.

This statement (the third of five) is part of a series of four articles and five statements examining the use of secret evidence in the British courts. For an introduction, see Britain’s Guantánamo: An Introduction, and for the first two articles, see Torture taints all our lives (published in the Guardian’s Comment is free), Britain’s Guantánamo: Calling For An End To Secret Evidence and Britain’s Guantánamo: Fact or Fiction? For the other four statements, see: Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara and Five Stories From Britain’s Guantánamo: (5) Detainee Z.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

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

Five Stories From Britain’s Guantánamo: (2) Detainee BB

They call me BB. I can’t tell you my real name. I’m an Algerian and I’ve been in this country since 1995.

I’m 43 years old. I live with my wife and three children. I’ve got two girls and one boy — he’s only three. The bail conditions I’m under apply to me, but in reality they affect my whole family. The girls can’t have friends around. Nobody is allowed in unless they are Home Office cleared.

Someone asked me the other day, when was the last time I had seen my own friends. I had to stop and think. It’s been years.

Of course my wife misses all her friends too. She feels so isolated sometimes.

I can’t go out with the kids much, only between my set hours, when I’m allowed out. They don’t understand why. They ask me questions, like most kids. Normally as an adult you feel you can answer most of their questions, explain things, but in this case I know as much as they do. No more.

On the other hand no amount of explanation will be enough for my children when it comes to the police searches. They come and turn the whole house upside down. It scares my family.

I am an electrical engineer by trade. I used to love studying, thinking, learning. Now it’s all gone. My mind is empty. And I can’t sit still long enough to focus on anything.

I was taken to Long Lartin prison in 2005. The Home Office served me with a deportation order. They want to send me back to Algeria. But they can’t guarantee me a safe return. Algeria won’t sign the memorandum of understanding.

The Home Office don’t tell me why they want to send me back, when it could be dangerous for me. I do ask why. They say I’m a threat to national security. How did I become that?

Thinking about things, one issue sticks in my mind. Remember that famous speech? You know, when Tony Blair said all the rules of the game are changing? My thoughts always go back to this. Well, is this all part of that game? Are we the scapegoats?

You can’t even imagine the relief last week when it was decided I wasn’t going back to prison. The Home Office wanted to revoke my bail, because they said I wanted to abscond. That was based on secret evidence. Any reasonable person can see that my life is with my family — I do the shopping, I care for my family, I take the kids out. If I wasn’t here, who would do that?

I was really keen on sport once. I even did a gym qualification in prison, but my motivation has gone. It’s hard to keep pushing, when you don’t know what you are pushing against. I am here, like this, not moving forward, not going anywhere, stuck. I don’t know why. I want to know why. It’s natural to want answers. But everything on my case has been built on one thing and one thing only. I’m here today, like this, because of secret evidence.

With the permission of Detainee BB, this was read out, by the actor Andi Osho, at “Britain’s Guantánamo? The use of secret evidence and evidence based on torture in the UK courts,” a parliamentary meeting in the House of Commons, chaired by Diane Abbott MP, on March 30, 2009. The script was written by Saleyha Ahsan, and the material used was gained through a series of interviews.

This statement (the second of five) is part of a series of four articles and five statements examining the use of secret evidence in the British courts. For an introduction, see Britain’s Guantánamo: An Introduction, and for the first three articles, see Torture taints all our lives (published in the Guardian’s Comment is free), Britain’s Guantánamo: Calling For An End To Secret Evidence and Britain’s Guantánamo: Fact or Fiction? For the other statements, see: Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (3) Detainee U, Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara and Five Stories From Britain’s Guantánamo: (5) Detainee Z.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

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

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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