David Remes, an attorney for 16 Yemeni prisoners in Guantánamo, claimed today that the government’s detention policy was “in tatters,” after District Court Judge Gladys Kessler (photo, left) comprehensively demolished the Justice Department’s case against a Yemeni prisoner held in Guantánamo without charge or trial for seven years (PDF).
Judge Kessler ruled last Monday that the government had failed to establish, “by a preponderance of the evidence,” that Alla Ali Bin Ali Ahmed was “part of, or substantially supported, Taliban or al-Qaeda forces that are engaged in hostilities against the United States or its coalition partners,” and stated that the government “should take all necessary diplomatic steps to facilitate“ his release.
This was not the first time that a judge had ordered a prisoner freed from Guantánamo because of the weakness of the government’s evidence. Since the Supreme Court reinstated the prisoners’ habeas corpus rights last June, judges have ordered the release of 25 prisoners in the 29 cases that have so far been heard.
However, although Judge Richard Leon dismissed the testimony of two witnesses in Guantánamo four months ago in the case of the Saudi resident and Chadian national Mohammed El-Gharani, stating that “the credibility and reliability of the detainees being relied upon by the government has either been directly called into question by government personnel or has been characterized by government personnel as undermined,” last week’s 45-page ruling reveals (despite extensive redactions) that Judge Kessler expressed even more comprehensive doubts about both the reliability of witnesses in Guantánamo, and the overall quality of the government’s supposed evidence. This will, I believe, have a knock-on effect on other cases, and may well be causing tremors of fear in those parts of the Justice Department and the Pentagon where, bizarrely, all indications suggest that, despite the change of administration, career officials who worked under George W. Bush are behaving as though it is still business as usual.
The case against Alla Ali Bin Ali Ahmed
Ali Ahmed, who was seized, with at least 15 other prisoners, in a raid on a house in Faisalabad, Pakistan, on March 28, 2002 (on the same night that the alleged senior al-Qaeda operative Abu Zubaydah was captured in another house raid), has always stated that he traveled to Pakistan “in order to find a religious school at which to study the Koran,” as Judge Kessler described it, and “denies ever going to Afghanistan, training at an al-Qaeda camp, fighting against anyone, or being a member of a terrorist group.”
In a military review board at Guantánamo in 2007, he explained that he traveled to Pakistan, on a one-month visa, “to learn the Koran so he could be a teacher,” but ended up stuck in the guest house “because the situation at that time was they were arresting any Arab that was found there in Pakistan so we were just sitting and waiting in that house.”
In its case against him, the government drew on allegations made by four prisoners in Guantánamo, and also attempted to rely on a “mosaic theory” of intelligence. As Judge Kessler described it, drawing on documents submitted by the government,
[the] theory is that each of these allegations — and even the individual pieces of evidence supporting these allegations — should not be examined in isolation. Rather, “[t]he probity of any single piece of evidence should be evaluated based on the evidence as a whole,” to determine whether, when considered “as a whole,” the evidence supporting these allegations comes together to create a “mosaic” that shows the Petitioner to be justifiably detained.
Judge Kessler then noted that, although it “may well be true” that “use of the mosaic approach is a common and well-established mode of analysis in the intelligence community … at this point in this long, drawn-out litigation the Court’s obligation is to make findings of fact and conclusions of law” to consider the government’s case. After pointing out that the mosaic theory “is only as persuasive as the tiles which compose it and the glue which binds them together,” she then proceeded to highlight a catalog of deficiencies in the tiles and the glue.
Judge Kessler dismisses the testimony of four witnesses
Dealing first with the witnesses, she excluded the testimony of the first, “whose credibility has been cast into serious doubt — and rejected” by Judge Leon in the case of Mohammed El-Gharani. Noting that he “has made accusations against a number of detainees” at Guantánamo, and that “Many of those accusations have been called into question by the government,” Judge Kessler dismissed his claim that he “overheard” conversations at Guantánamo about Ali Ahmed’s travels in Afghanistan, stating that, “In addition to coming from an unreliable witness,” it was “based upon multiple levels of hearsay.”
Judge Kessler then dismissed the testimony of a second witness, whose allegation was redacted, because he had made several contradictory statements to interrogators, and, moreover, because his allegation was “riddled … with equivocation and speculation,” and also dismissed the account of a third witness, who claimed to have seen Ali Ahmed while he was allegedly being smuggled from Afghanistan to Pakistan, because, as Ali Ahmed stated, he “has been diagnosed by military medical staff as having a ‘psychosis.’”
Judge Kessler was particularly troubled that Ali Ahmed “learned of the witness’ medical condition only through the diligent work of his counsel, and not as a result of the government’s obligation to provide him exculpatory information.” She was also unimpressed that the witness provided “inconsistent identifications,” and was concerned by “evidence that [he] underwent torture,” at Bagram and in the CIA’s “Dark Prison” near Kabul, “which may well have affected the accuracy of the information he supplied to interrogators.”
According to the government, the last witness, identified as al-Qahtani (probably Jabran al-Qahtani, an alleged al-Qaeda operative who was captured with Abu Zubaydah), identified Ali Ahmed, from a photograph shown to him in Bagram, as someone who had received military training near Kabul. However, Judge Kessler dismissed this statement when it became apparent that, in Bagram, where Ali Ahmed had been given the prisoner number 191, the government admitted that two detainees were given this same number,” and she therefore concluded that it was “completely unclear” to whom the allegation referred.
Judge Kessler dismisses the “mosaic” theory of intelligence
While the dismissal of all four witnesses’ statements fatally undermined the government’s case, Judge Kessler also took apart the “mosaic theory” conjured up from the prisoners’ statements, which purported to show that Ali Ahmed trained and fought in Afghanistan, and was associated with al-Qaeda because of his presence in the guest house in Faisalabad.
Dismissing the claim that he fought in Afghanistan, Judge Kessler noted that, bizarrely, the government asked that his “participation in battle be inferred from a web of statements made by witnesses who were commenting on [his] non-military activity,” by suggesting that military activity could be inferred because the witnesses claimed that Ali Ahmed undertook military training in Afghanistan and “stayed in the company of al-Qaeda fighters,” and “because Ali Ahmed’s denial of such behavior is not credible.”
Noting that “The government’s position on this charge rests on its mosaic theory,” Judge Kessler added decisively, “The theory cannot support the charge,” and proceeded to explain that it was “extremely significant” that there was “absolutely no ‘direct’ evidence, at whatever hearsay level, of Ali Ahmed’s participation in battle.” She also made the following withering dismissal of the government’s claims:
Even if the evidence is to be believed that Petitioner’s story is false and that he was in Afghanistan, there simply is no affirmative proof that he took up arms. The Court will not make the leap that the government does.
After dismissing other pieces of the mosaic that dealt with Ali Ahmed’s purported military training in Afghanistan, and his supposed use of a particular kunya (nickname), for reasons connected to the unreliable witnesses discussed above, Judge Kessler also refused to accept that, because Ali Ahmed stayed at a guest house in Faisalabad, which, according to the government, housed at least a few individuals who “were involved with terrorist groups,” it was logical to infer, as “one more piece of the mosaic,” that he was “a substantial supporter of al-Qaeda and/or the Taliban, as well as a trainee and fighter for one or both of these groups.”
Reiterating her profound doubts about the witnesses, she stated that the government’s allegation was “not the material of which a reliable hearsay identification is made. Once those pieces of the mosaic have been removed because of their unreliability, the government is left with what is essentially a charge of guilt by association.”
The problem with this charge is that there is no solid evidence that Ali Ahmed engaged in, or planned, any future wrongdoing while [redacted]. There is no evidence that he was arrested with any weapons or other terrorist paraphernalia; nothing of this kind was found in his locker. Though others at the house admitted their affiliation with al-Qaeda, they did not implicate Ali Ahmed in any terrorist activity.
She also noted that there was “ample evidence in the record to indicate that guest houses are common features of the region, serving as way stations for impoverished young men spending time away from home,” and — in a comment that is worth noting in the cases of the other men seized in the house, whom I discussed in my book The Guantánamo Files, and in an article last December — stated, “It is likely, based on evidence in the record, that at least a majority of the [redacted] guests were indeed students, living at a guest house that was located close to a university,” and added that she thought it significant that, “even though the police arrested all of the [redacted] men staying at the house, they appeared to have ignored [redacted], the man who operated the house.”
This was a valid point, as the house owner, Issa, was a Pakistani, and, as many Guantánamo prisoners seized in Pakistan have attested (see, for example, the story of two Sudanese prisoners released in 2007), the Pakistani police often made a point of apologizing to foreign Muslims as they were captured, stating that they had to seize foreign Arabs — but not, by inference, Pakistanis — to please the Bush administration.
In conclusion, Judge Kessler provided a succinct recap of her response to the government’s evidence, which should leave no one in any doubt about the extent of the administration’s failure to create a convincing case out of selection of profoundly dubious witnesses, and a “mosaic” with more holes than tiles:
As to the claim of participating in fighting, the government produced virtually no credible evidence; as to the claim of receiving military training, the conclusory nine-word hearsay statement by [redacted] does not show that it is more likely than not that he received such training; as to the claim that he traveled around Afghanistan in 2001 and 2002 in the company of terrorist fighters fleeing the battlefield, even if the government had proven this charge, which it did not, such a fact would not constitute substantial support; as to the evidence that he stayed at [redacted], the government has certainly proven that he stayed there, but has utterly failed to present evidence that he was a substantial supporter of al-Qaeda and/or the Taliban while he did stay there; as to the government’s position about the significance of locating Petitioner’s alleged kunya on a list, the Court finds this argument without any merit whatsoever.
The long reach of Judge Kessler’s ruling
As a result, Judge Kessler’s ruling casts serious doubts on the wisdom of pursuing the cases of the other men seized in the house, except, perhaps, for those few who, as the government described it, “admitted to fighting with enemy forces” — although even these bold statements may prove, under scrutiny, to be rather less clear-cut.
Moreover, her unwavering condemnation of four separate witnesses, including one who was responsible for making unreliable allegations against dozens of prisoners (which still seem to be included as part of the government’s “evidence” against these men), and her equally unwavering condemnation of a “mosaic” of intelligence composed of second- or third-hand hearsay, guilt by association and unsupportable suppositions, have repercussions that extend far beyond the case of Alla Ali Bin Ali Ahmed and the other Faisalabad guest house prisoners.
As David Remes explained to me, “Judge Kessler’s opinion exposes the flimsiness of the government’s evidence and blows a hole in many of the government’s cases. Specifically, the court rejected the government’s reliance on guilt-by-association and accusers of dubious reliability. These are two of the pillars of the government’s cases against many if not most of the prisoners. The opinion also shows that the courts will not give the government the unquestioning deference it has been counting on to win its cases. If the other judges of the court should apply the opinion in their cases, the government’s claims of detention authority will lie in tatters.”
If justice is indeed to be delivered to the Guantánamo prisoners, through a legal process that has taken many long years to establish, and is not to be hijacked instead by the Obama administration’s Executive review (which, noticeably, sidelines Congress and the judiciary in a manner that recalls the Bush years), I foresee that the release of many other prisoners will be ordered by judges in the coming months.
The government’s failure to comprehend the scale of the Bush administration’s cruelty and ineptitude
As a result, the administration might want to reflect on its reasons for claiming, as defense secretary Robert Gates stated two weeks ago, that there are 50 to 100 of the remaining 241 prisoners “who we cannot release and cannot try,” and who, it was suggested, might be held under some new kind of legislation authorizing preventive detention. If many of these cases are looked at closely enough, I suspect that it will be become apparent that the reasons that the government does not want to put them forward for trial is because the evidence against them is unreliable (in other words, that it was obtained through the use of torture, coercion or bribery), and that, moreover, much of it is composed of exactly the sort of “mosaic” of intelligence that, under close scrutiny, is revealed to be full of holes.
In addition, Attorney General Eric Holder would do well to focus significant attention on the pending habeas cases, and, preferably, to drop those which are infected by the testimony of liars (whether coerced or bribed) and are composed of broken “mosaics” of intelligence that will not convince judges seeking “findings of fact and conclusions of law.”
No one in the Obama administration should be surprised that so many of the Guantánamo cases will not stand up in a court of law, but I find myself surprised that senior officials seem to have been content to let a Bush-era approach to prosecution survive unchanged in the offices of the Justice Department and the Pentagon. Perhaps they haven’t been informed that the reason that there is no case against most of these men is because torture, coercion and bribery were used to fill in the blanks when the majority of these men were sold to the US military by their Afghan and Pakistani allies, who handed them over with a smile, and a simple phrase, “This man is an al-Qaeda/Taliban fighter. You owe me $5,000.”
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 also see my definitive Guantánamo prisoner list, published in March 2009.
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), 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).
The pressure is just going to keep growing with respect to the Kiyemba case http://ccrjustice.org/ourcases/current-cases/kiyemba-v.-bush (in which the Obama Admin. has adopted the Bush Admin.’s position that a mere finding of unlawful detention does not authorize a court to fashion a release remedy that the executive doesn’t like, especially if it means resettlement in the USA mainland); I’m not aware of any district court judge not named Richard Leon who has yet found a single lawful detention (and even Leon has found most before him to be unlawful). And Judge Leon isn’t assigned most of the cases. That said, unless the “executive reviews” start not only “clearing” prisoners but clearing
them out of GTMO, in the not too distant future we’re going to see more and more decisions like this, even as more blowhards in Congress float bills about “keeping TERRRRRRORISTS out of America”… ignoring the fact that American courts have held that there is no EVIDENCE that these ARE terrorists (“stupid” being, it seems, the coin of the realm for American legislators).
This decision of Judge Kessler, and those preceding it, and the many we can doubtless expect in the coming weeks and months, are cause for yet further “cautious optimism”… what will be interesting is what, if anything, the arch-reactionary appeals court (“the D.C. Circuit”) does with these decisions; since it has already controlled the trump card of remedy, by holding that the courts are powerless to implement a Constitutionally required habeas corpus remedy if they lack the political will!!! Hopefully, back up to the Supreme Court, and hopefully, back down again…
But to be sure, this decision demonstrates “the problem”: there is nothing but innuendo and, as Col. Stephen Abraham put it, “garbage,” connecting the overwhelming majority of men still held at GTMO between them and any lawful basis for them to be there.
The courts have woken up to this. Has anyone else?
Time will tell… but if we do not keep hammering the Obama Administration (rather than engaging in a love-fest with it) it is going to do the expedient thing, and give us George W. Bush’s third term (which, for those not paying attention, is exactly what we have had on these issues for the last four months or so, save rhetorically, which is something… but not much.)
Justice Gladys Kessler, anyone? Right after Elizabeth Holtzman?
This is very well-written and informative. Thank you.
I still say your arguments apply equally to all detainees, even Khalid Sheikh Mohammed. Especially to him.
[...] And Unreliable Witnesses by Andy Worthington Posted on May 14, 2009 by dandelionsalad by Andy Worthington Featured Writer Dandelion Salad http://www.andyworthington.co.uk 14 May [...]
Another great article and analysis, Andy. The concentration on the bogus use of “mosaic” theory is helpful, since this mysticification of what really amounts to reliance on hearsay, innuendo, bribery and torture, etc., as you point out, is totally without merit when building a prosecutor’s case.
Oddly, it is also a poor technique upon which to build an intelligence program. If one reads the history of intelligence services and actions, you will find that there is always, particularly upon the field of battle, a need to draw together disparate pieces of information and try and make sense of them.
But this is not how intelligence is ultimately used. It is but one way to organize data, and best used to stimulate leads or construct hypotheses about the enemy and their actions, not determine who is or who is not an agent, or a “terrorist” for that matter. Such use of such preliminary intel and its organization at this stage for operational purposes at such a preliminary stage amounts to stovepiping. Why not simply fire all the intelligence analysts and go by the seat of the pants inferences of the field operative?
I don’t know if you know this, but the Intel department at JPRA got shut down a few years back. Operations felt they didn’t need them anymore. Why analyze? The cowboys know what’s going on. As a source told me, it’s sheer madness and incompetence. This is what created Guantanamo, that and the need at high levels to maintain power at all costs and cover their ineptitude.
I agree with Dwight here. Even the supposed open-shut case with KSM comes under a cloud.
That way lies nothing but tyranny, i.e., guilt by association and other crimes.
[...] an article last week, “Judge Condemns ‘Mosaic’ Of Guantánamo Intelligence, And Unreliable Witnesses,” I analyzed a devastating ruling by District Court Judge Gladys Kessler in the habeas corpus [...]
[...] prisoners, which I have been writing about for over three years, and have highlighted in two recent [...]
[...] was done in order to build up a “mosaic” of intelligence not just about the small group of men responsible for the terrorist attacks on September 11, 2001 [...]
[...] determination to defend the colossal errors made by the Bush administration (as I also explained here and here), Lt. Col. Vandeveld’s experience of Jawad’s case enabled him to confirm to the [...]
[...] have brought nothing but shame and humiliation on the Department — as highlighted in the case of Alla Ali Bin Ali Ahmed, a Yemeni prisoner, and, in particular, Abdul Rahim al-Ginco, a Syrian whose case was pursued even [...]
[...] tortured, coerced or bribed, or had severe mental health problems. In addition, judges have also poured scorn on attempts to create a “mosaic” of intelligence from these and other sources that does not [...]
[...] tortured, coerced or bribed, or had severe mental health problems. In addition, judges have also poured scorn on attempts to create a “mosaic” of intelligence from these and other sources that does not [...]
[...] resulting, over the last few months, in humiliation after humiliation, first in the case of Alla Ali Bin Ali Ahmed, then in the case of Abdul Rahim al-Ginco, a young Syrian who was tortured by al-Qaeda, and now in [...]
[...] appraised yet again, this time by the Obama administration’s inter-departmental review), the 25 prisoners cleared for release by US courts (including the Uighurs and former child prisoner Mohammed El-Gharani), after judges [...]
[...] much-vaunted justice system was a farce. And yet, this is exactly the problem that currently faces Alla Ali Bin Ali Ahmed, a Yemeni prisoner in Guantánamo, whose habeas corpus petition was granted in May by Judge Gladys [...]
[...] only as persuasive as the tiles which compose it and the glue which binds them together.” As I explained at the time, Judge Kessler “then proceeded to highlight a catalog of deficiencies in the tiles and the [...]
[...] government came on May 11, when Judge Gladys Kessler granted the habeas petition of another Yemeni, Alla Ali Bin Ali Ahmed, who has always stated that he traveled to Pakistan as a student. Ali Ahmed was seized, in March [...]
[...] Specifically, Col. Wilkerson wrote about “the utter incompetence of the battlefield vetting in Afghanistan during the early stages of the US operations there,” and how “several in the US leadership became aware of this lack of proper vetting very early on and, thus, of the reality that many of the detainees were innocent of any substantial wrongdoing, had little intelligence value, and should be immediately released.” He also poured scorn on “the ad hoc intelligence philosophy that was developed to justify keeping many of these people, called the mosaic philosophy,” whose shortcomings were recognized, in May, by a District Court judge, Gladys Kessler, when she granted the habeas corpus petition of a Yemeni prisoner, Alla Ali Bin Ali Ahmed. [...]
[...] in May, when she granted the habeas appeal of another Yemeni, Alla Ali Bin Ali Ahmed, Judge Kessler had serious doubts about the manner in which the government established its case, [...]
[...] must now be allowed time to investigate the information, and the military judges are empowered, like the federal court judges ruling on the Guantánamo prisoners’ habeas corpus petitions, to “take into account all of the [...]
[...] denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built [...]
[...] Yemenis. This was revealed in the case of Alla Ali Bin Ali Ahmed, a Yemeni whose release had been ordered in May by a district court judge, who had granted his habeas corpus petition. Judge Gladys Kessler ruled [...]
[...] evidence has come from the intelligence agencies – noting, on several occasions, that the “mosaics” of intelligence put forward to justify detention may be useful in terms of gathering [...]
[...] serious doubts about the reliability of allegations made by other prisoners, as she had in previous cases, and as the judges in general have throughout the habeas process. These doubts have [...]
[...] with the way of Yemeni government handled the one individual we sent back about eight weeks ago [Alla Ali Bin Ali Ahmed, whose release was ordered by a U.S. judge in May]. And so we’re making sure that the situation [...]
[...] and other related material, that they were obtained through the torture, coercion or bribery of other prisoners or of the prisoners [...]
[...] Yemenis looked less bleak than they had for many years. Alla Ali bin Ali Ahmed, a Yemeni who had won his habeas petition in May 2009, had been successfully repatriated in September, breaking through a long-standing [...]
[...] many fundamental problems with the prisoners’ detention — primarily involving torture and unacceptable levels of hearsay. masquerading as evidence — that in 38 out of 53 cases so far decided, the prisoners have won [...]
[...] on statements made by the prisoners themselves (under torture or duress) or by unreliable witnesses in Guantánamo or in other “War on Terror” prisons (who were subjected to torture, duress, or, in a few cases, [...]
[...] narrative that he had come up with after torture and threats, and, to cite just two more examples, Alla Ali Bin Ali Ahmed, a Yemeni seized in a student guest house in Pakistan, and Mohammed El-Gharani, a Chadian national, [...]
[...] words of the Task Force) have fared no better. Although President Obama released one Yemeni who had won his habeas corpus petition in the fall of 2009, and six others the week before Christmas, the capture, on Christmas Day 2009, [...]
[...] the Justice Department recently humiliated in two habeas reviews — of Alla Ali Bin Ali Ahmed, a Yemeni, and of Abdul Rahim al-Ginco, a Syrian who was tortured by al-Qaeda before he ended up in [...]
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