Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari

17.10.09

Fayiz al-Kandari, in a photo taken by representatives of the International Red Cross in Guantanamo, February 2009At Guantánamo, as was recently revealed in the ruling of a District Court judge in the habeas corpus petition of one of the remaining 222 prisoners, the authorities’ view about the prisoners, back in 2003 or 2004, was that “there is no innocent person here.” The man who spoke these words was an unidentified senior interrogator, and he was not explaining the truth, but was explaining the prevailing attitude that passes for the truth in Guantánamo.

The truth is that hundreds of innocent men have been held at Guantánamo. Many have been released, and many are still held, but as far as the authorities are concerned, the situation that existed five or six years ago, when these words were spoken to a Kuwaiti prisoner, Fouad al-Rabiah, still exists today.

The impossibility of being innocent in Guantánamo

Fouad al-Rabiah was a humanitarian aid worker caught up in the chaos of Afghanistan following the US-led invasion in October 2001, and his own protestations of innocence came to an end when he was subjected to some of the notorious “enhanced interrogation techniques” used in Guantánamo. These were torture techniques reverse engineered from those taught in US military schools to train US personnel to resist interrogation if captured, and were modeled on techniques used on captured US pilots during the Korean War to produce false confessions.

After being subjected to techniques including a form of prolonged sleep deprivation — known, euphemistically, as the “frequent flier program” — which involved being moved from cell to cell every few hours over a period of several weeks, al-Rabiah accepted a false narrative produced by a number of his fellow prisoners (who may themselves have been subjected to “enhanced interrogation”) and confessed that he had met Osama bin Laden in Afghanistan and had been involved with al-Qaeda in the battle of Tora Bora, a showdown between al-Qaeda and US forces in December 2001.

It was all lies, but it was not until a month ago, after his case had been examined by a District Court judge for his habeas corpus petition, that the truth was revealed and his innocence was finally restored. In a 65-page ruling, which was devastating for the government, and which I wrote about here, Judge Colleen Kollar-Kotelly concluded, witheringly, “If there exists a basis for al-Rabiah’s indefinite detention, it most certainly has not been presented to this Court.”

However, although Fouad al-Rabiah regained his innocence (if not yet his freedom, as, astonishingly, the government is considering whether to appeal Judge Kollar-Kotelly’s ruling), the dark charade of Guantánamo, conceived by Dick Cheney and his close advisors, whose arrogance and disdain for the law allowed them to construct a detention policy in which it was impossible to be innocent, has not come to an end for numerous other men held in Guantánamo, and has, in fact, continued under President Obama.

Obama’s motives are different, to be sure. Spooked by the inflexible opposition with which his decision to close Guantánamo and “regain America’s moral stature in the world” has been received by Republican lawmakers and by members of his own party, the President and his advisors have approached Guantánamo with extreme caution.

Instead of seizing the initiative, the administration has generally been content to behave as though Bush was still in power, opposing the prisoners’ habeas corpus petitions in the District Courts, and letting judges expose the tortured lies, false confessions and feeble intelligence that the Bush administration passed off as evidence. It has been left to the courts to reveal how the Bush administration attempted to use this generally dismal material in an attempt to justify its contention that the prisoners in Guantánamo were all associated with al-Qaeda or the Taliban, simply because the President said they were, even though it has been demonstrated conclusively over the years that they were largely seized by the US military’s Afghan and Pakistani allies, when bounty payments for “al-Qaeda suspects” were widespread, and were never adequately screened in an attempt to ascertain whether they were soldiers or terrorists.

Time moves slowly in the world of the habeas petitions, even though the outcome for the prisoners has generally been worth the wait. Despite the fact that Justice Department lawyers have been doing all in their power to obstruct the prisoners’ defense teams, judges have ruled on 38 petitions, and in all but eight have found that the government failed to establish that the men in question were either al-Qaeda terrorists or soldiers for the Taliban. However, 185 prisoners have not had their cases heard, and although the government has attempted to make the habeas petitions unnecessary in 56 of these cases, by clearing the prisoners for release, it remains apparent that, amongst the remaining 129 prisoners, other difficult cases — of prisoners who insist on maintaining their innocence, in spite of the unwritten law that “there is no innocent person here” — are still waiting to be heard.

One of these men, who has maintained his innocence throughout nearly eight years in US custody, is Fayiz al-Kandari, a 30-year old Kuwaiti, from a wealthy family, who has always maintained that he was a humanitarian aid worker who arrived in Afghanistan in August 2001, was caught up in the chaos following the 9/11 attacks and the US-led invasion of October 2001, and was seized by Afghan forces and sold to the US military in December 2001, as he tried to cross the mountains to Pakistan.

Fayiz al-Kandari’s history of charitable deeds

Does this sound implausible? It certainly does to the US military, but it is important to note that many dozens of prisoners released from Guantánamo were humanitarian aid workers or missionaries, and that two other Kuwaiti humanitarian aid workers — Khalid al-Mutairi as well as Fouad al-Rabiah — recently had their habeas petitions granted because Judge Kollar-Kotelly accepted that they were indeed in Afghanistan to help the poor and needy. In light of conversations that Fayiz al-Kandari has had in the last year with Lt. Col. Barry Wingard, an Air Force Judge Advocate General, who is his military defense attorney, I believe that his story is no different.

In several email exchanges, Lt. Col. Wingard explained to me that al-Kandari has always taken the charitable obligations of Islam very seriously, and, in their many conversations at Guantánamo, has spoken about the role that charity has played in his life from an early age. He recalls his father giving him money in the market to give to the poor when he was a child, for example. As he explained, his father could have given the money to the poor himself, but he chose instead to teach his children that helping the poor is not only a religious requirement, but also that giving help personally is particularly satisfying.

He also recalls how his mother — particularly at Ramadan — cooked large amounts of food and instructed him and his siblings to deliver it to all the neighbors, especially those who were in particular need of additional help, even though he regularly delivered the food to the wrong people so that his mother had to label the plates he was to deliver to make sure that the food ended up in the right hands.

As a teenager, aged 15, al-Kandari lived through the invasion of Kuwait by Saddam Hussein, which taught him more about generosity, and also about cooperation. He recalls working with other teenagers in his neighborhood to deliver food to his fellow citizens, who were afraid to leave their houses because, during the occupation, rape, robbery, kidnapping and murder were experienced on a daily basis. Every morning, before sunrise, al-Kandari and his friends would take a truck to a warehouse in the desert and, for a small sum paid to a local official, would receive flour, rice, tomato sauce, and baby milk, to be delivered to those in need. He has spoken of carrying 80 lbs bags of flour and rice to central locations in his neighborhood for others to use.

After the food was delivered, he and the other teenagers would load the truck with garbage and would accompany the driver to the desert to burn it. He has explained that this same process was repeated every day throughout the long months of the occupation, and that he has never forgotten that it was the Americans who liberated his country. “The Americans and Kuwaitis have had a mutual relationship ever since,” he told Lt. Col. Wingard recently, “which is why this whole thing is even more strange.”

When al-Kandari was 20, he recalls seeing on TV the horrific aftermath of the war in Bosnia: people without homes, suffering from hunger and with their loved ones missing. He perceived it as being very similar to what the Kuwaiti people had gone through during the Iraqi occupation, and so, in between semesters at the Kuwait University School of Engineering, he took a ten-day trip to Sarajevo to visit the various Kuwaiti charities that had been established to help the poor, the wounded, the homeless and the orphans, taking several duffel bags of clothes with him. In Bosnia, he noted many similarities between the occupation of Kuwait and and the siege of Sarajevo.

Life in Afghanistan

With this history of charitable deeds, it was unsurprising that al-Kandari’s interest finally turned to Afghanistan. As he recently explained to Lt. Col. Wingard, for many years prior to his visit in August 2001 he had contributed money to various charities, “but it is not the same as being there to provide muscle.” After realizing that Afghanistan was one of the poorest countries in the Islamic world, and that its people might benefit from his assistance, he decided to visit, to provide assistance to the Afghan people, but was shocked to discover, on the ground, that “those people had less than anyone I had ever met.”

In a village, he met up with local officials, and agreed to provide work for some of the local people, building two wells and repairing a mosque. Life was peaceful and productive for two months — and the dreadful events of September 11, 2001 were far away, and of little import in this remote location — but in October, after the US-led invasion began, he recalls hearing the sounds of explosions in the distance and was surprised when the village erupted in celebration, as the locals were overcome with joy that they were again at war.

The reason was not to do with fighting, but with the opportunity to make money from the war’s fallout. As al-Kandari explained to Lt. Col. Wingard, in the days that followed, the local people clambered onto trucks and drove towards the places where bombs had dropped the day before, hoping to gather shrapnel to sell as scrap metal before rival villages beat them to it. Because they were short of manpower, the villagers sometimes took their children and sent them out to watch for explosions across the mountains, and al-Kandari recalls the children demonstrating how they would handle metal that was still hot by bouncing it between their hands.

However, one day in particular will always stands out for Fayiz al-Kandari; a day when the locals came back with a leaflet that had a picture of an Afghan holding a bag with a dollar sign on it, accompanied by some text, which, in essence, said: turn in Arabs and this will be you. Although the wells were finished, the mosque was not, but al-Kandari knew that it was time to leave. He paid the locals for their labor and set off for Pakistan. After all, he thought, even if I am seized by the Americans, they are an old ally of Kuwait, and with their courts and system of justice I will be cleared within a few weeks.

This is not what happened, of course. Al-Kandari was seized in the mountains by Afghan forces, and became one of the victims of the leaflet he had seen in the village: sold for money to US forces, who had no interest in his innocence, nor in the long-standing bonds of friendship between the United States and Kuwait.

Resistance in Guantánamo

In Guantánamo, Fayiz al-Kandari’s refusal to accept that “there is no innocent person here” has marked him out as a particularly resistant prisoner — and resistant prisoners are given a particularly hard time. Over the years, he has been subjected to a vast array of “enhanced interrogation techniques,” which, as Lt. Col. Wingard described them, “have included but are not limited to sleep deprivation, physical and verbal assaults, attempts at sexual humiliation through the use of female interrogators, the “frequent flier program,” the prolonged use of stress positions, the use of dogs, the use of loud music and strobe lights, and the use of extreme heat and cold.”

Despite all this, he has not been “broken,” and has been able, unlike Fouad al-Rabiah and numerous other prisoners, to resist making false confessions about his own activities. He has also refused to make false confessions about the activities of other prisoners, despite being offered many opportunities to do so, and despite being told about others who have made false allegations against him.

As a result, the allegations against him consist almost entirely of unsubstantiated claims made by other prisoners, but to the authorities, in the absence of his own confessions, these have been sufficient not only to hold him for nearly eight years, but also, in November 2008, for the Bush administration to put him forward for a trial by Military Commission (the “terror trials” supposedly reserved for the most significant prisoners in Guantánamo), along with Fouad al-Rabiah, the Kuwaiti whose supposed significance was recently dismissed so comprehensively by Judge Kollar-Kotelly.

In this version of reality, concocted almost exclusively from the multiple levels of hearsay provided by other prisoners, the Pentagon alleged, in al-Kandari’s charge sheet for his Military Commission, that, between August and December 2001, he visited the al-Farouq training camp (the main training camp for Arabs in the years before 9/11) and “provided instruction to al-Qaeda members and trainees,” that he “served as an adviser to Osama bin Laden,” and that he “produced recruitment audio and video tapes which encouraged membership in al-Qaeda and participation in jihad.”

Over the years, he has faced an even lengthier list of allegations, including claims that he attended two training camps, fought on the Taliban front lines against the Northern Alliance, was with Osama bin Laden in Tora Bora, was a religious leader for al-Qaeda and the Taliban, and was associated with al-Wafa, a Saudi charity that the US authorities regarded as being associated with terrorism.

These particular allegations were not included in his Military Commission charge sheet, but even so, the government has never attempted to explain how he “provided instruction to al-Qaeda members and trainees” at al-Farouq, when the camp closed less than a month after his arrival in Afghanistan, and, more importantly, how he was supposed to have undertaken all this training, provided all this instruction and advice, and produced videos and audiotapes during the small amount of time that he actually spent in Afghanistan. As he stated during a military review in 2005:

At the end of this exciting story and after all these various accusations, when I spent most of my time alongside bin Laden as his advisor and his religious leader … All this happened in a period of three months, which is the period of time I stayed in Afghanistan? I ask, are these accusations against Fayiz or against Superman?

It remains to be seen, when Judge Kollar-Kotelly examines the government’s evidence against Fayiz al-Kandari (in a hearing scheduled to begin next week), whether she too will be unimpressed by the Superman-style allegations leveled against him. Certainly, she will have her work cut out. As al-Kandari recently explained to Lt. Col. Wingard, he has been interrogated over 400 times by at least 70 different interrogators and translators in various combinations.

It is to be hoped that, throughout the many thousands of pages of interrogation logs and interrogators’ reports, Judge Kollar-Kotelly will discover that the allegations against him were made by the same unreliable witnesses whose implausible confessions have undermined so many other habeas cases. Perhaps she will also discover that, as an educated man with a decent command of the English language, he regularly caught interrogators and translators misinterpreting his answers to questions. And perhaps she will even discover information related to the following anecdote, which, although darkly amusing, captures for me the absurd lengths to which the authorities are prepared to go to prove that “there is no innocent person” in Guantánamo. As Lt. Col. Wingard explained it to me:

Fayiz recalled being shown a doctored photo of himself and Osama bin Laden in Africa. As he had never met bin Laden, had never been to Africa, and had no intention of cooperating with the interrogators’ treacherous games, he refused to play along, and the interrogators eventually stopped using the doctored photo as it became the focus of ridicule for everyone involved.

In July, when Lt. Col. Wingard wrote an op-ed about Fayiz al-Kandari for the Washington Post, he noted:

Each time I travel to Guantanamo Bay to visit Fayiz, his first question is, “Have you found justice for me today?” This leads to an awkward hesitation. “Unfortunately, Fayiz,” I tell him, “I have no justice today.”

When Judge Kollar-Kotelly announces her ruling, I hope that she can finally deliver the justice that Lt. Col. Wingard and Fayiz al-Kandari’s civilian attorneys have been unable to deliver for many long years, and that al-Kandari himself expected from the US government when he was first seized nearly eight years ago.

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 I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout.

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), 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), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 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), Bagram Isn’t The New Guantánamo, It’s The Old Guantánamo (August 2009), Obama Brings Guantánamo And Rendition To Bagram (And Not The Geneva Conventions) and Is Bagram Obama’s New Secret Prison? (both September 2009).

9 Responses

  1. Coleen Rowley says...

    Condeleezza Rice is coming to Minnesota on November 8th. She is apparently attempting to cash in on her notorious fame as Bush’s top female confidante. See http://seminal.firedoglake.com/diary/9449 Although the exact financial arrangement between her and the Synagogue who invited her is not yet known, they are selling the chance to be in her presence for $12,500.00 for a table of ten: http://www.bethelsynagogue.org/tickets/.

    So we’re planning a respectful anti-torture rally outside Condi’s appearance on November 8.

    We are asking people: If you had the $1000 to go inside for Condi’s “unscripted Q and A” what would be the one question you would most want to ask her?

    If you have one, let me know. I’m your FB friend and we will soon have an event page up there.

  2. Andy Worthington says...

    Hi Coleen,
    Thanks for the message. I think I’d like to ask her what she knew, as National Security Advisor, about the establishment of the CIA’s secret detention program back in September 2001, when, as the ACLU discovered in 2007, President Bush sent a 12-page “notification memorandum” to the National Security Council “regarding a ‘clandesine intelligence activity.’”
    See here: http://www.aclu.org/safefree/torture/27926prs20070110.html

  3. Military Commissions Revived: Don’t Do It, Mr. President! « freedetainees.org says...

    [...] Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October [...]

  4. arcticredriver says...

    Andy, forgive me for replying months after you wrote this excellent article.

    Do you know whether Lieutenant Colonel Wingard noticed how closely the allegations Faiz al Kandari faced were to allegations his country-man Abdullah Kamel Al Kandari faced?

    I am sure the same so-called “evidence” was used to justify the detention of the these two men, even when those allegations should only have been levelled, at most, at a single individual. I am sure the allegations these men faced that their names were found on a suspicious list showed that all the Guantanamo analysts looked for was that the lists contained “al Kandari”. If Osama bin Laden really did have a close friend and advisor named “al Kandari” he was most likely a third individual who either remains at large or who was killed during the bombing of Tora Bora.

  5. Andy Worthington says...

    Hi arcticredriver,
    I hadn’t noticed that. Thanks for being so perceptive, and so diligent at analyzing the Pentagon’s documents. I’m sure Barry Wingard will also find this interesting.

  6. sara says...

    i’m from kuwait ,, thanks for making this issue clear

  7. Christmas At Guantánamo « Eurasia Review says...

    [...] an Algerian, also cleared for release in 2007, who is terrified of being forcibly repatriated; and Fayiz al-Kandari, a Kuwaiti who lost his habeas petition in September, but who appears, by any objective measure, to [...]

  8. On Anniversary Of Nuremberg Trials, Nazi Mothers Appeal For Release Of Sons…uh, no, wait | Conservatives for America says...

    [...] with a new article focusing on the mothers of the two remaining Kuwaitis in the prison, Fayiz al-Kandari and Fawzi al-Odah. The publication of the article is timely, as, in just nine days, the “war on [...]

  9. July 4th, 2013: Independence Day for America…147 days of Hunger Strike – men starving for America’s humanity | FreakOutNation says...

    [...] For more on Fayiz Mohammad al Kandari, here [...]

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