Justice Department Pointlessly Gags Guantánamo Lawyer

22.11.09

Prisoners in Camp 6, Guantanamo (Photo: Brennan Linsley)One of the saddest stories in Guantánamo is that of Abdul Hamid al-Ghizzawi, a Libyan married to an Afghan woman and with a newly-born baby daughter, who was running a small bakery in Jalalabad, Afghanistan at the time of the US-led invasion of Afghanistan in late 2001. Fearing that he would be seized in the widespread anti-Arab sentiment that followed the collapse of the Taliban, he traveled with his family to the house of his wife’s parents, but instead of finding safety he was seized by bounty hunters and sold to US forces.

Al-Ghizzawi is clearly an innocent man. Back in 2004, when the Bush administration convened military review boards — the Combatant Status Review Tribunals — to review the prisoners’ cases, his panel of three military officers concluded that there was insufficient evidence to declare him an “enemy combatant,” and that he should therefore be released.

We know this because one of the members of this particular tribunal, Lt. Col. Stephen Abraham, a veteran of US intelligence who also compiled the information used in the tribunals, and who memorably declared in 2007 that they were severely flawed, relying on intelligence “of a generalized nature — often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status,” wrote about serving on al-Ghizzawi’s tribunal, explaining:

On one occasion, I was assigned to a CSRT panel with two other officers, an Air Force Colonel and an Air Force Major, the latter understood by me to be a judge advocate. We reviewed the evidence presented to us regarding the recommended status of [Mr. al-Ghizzawi]. All of us found the information presented to lack substance.

He added:

On the basis of the paucity and weakness of the information provided both during and after the CSRT hearing, we determined that there was no factual basis for concluding that the individual should be classified as an enemy combatant.

Lt. Col. Abraham also explained — as was backed up in October 2007 by a second whistleblower, an Army Major who had taken part in 49 tribunals — that unfavorable decisions were overruled by those in charge, who then convened a second tribunal to produce the desired result, and added that this is what had happened in the case of Mr. al-Ghizzawi. Lt. Col. Abraham and his fellow tribunal members were prohibited from taking part in any more tribunals, and a second, secret tribunal was held in Washington D.C., at which it was duly decided that Mr. al-Ghizzawi was an “enemy combatant” after all.

In the five years since this shocking demonstration of rigged justice, Abdul Hamid al-Ghizzawi has languished in Guantánamo, plagued with health problems, including, at one point, an apparently mistaken belief that he had been infected with AIDS, while his attorney, H. Candace Gorman, has waged a relentless campaign to try to secure justice for him, which she has chronicled on her website, The Guantánamo Blog, as well as for the Huffington Post and In These Times.

Last Tuesday, November 17, Candace finally had some good news about her client that she could announce to the world: he had finally been cleared for release, and she was at liberty to tell us, five months after first hearing about it, which she did in a blog post entitled, “The Muzzle Is Off.” This is reproduced below, as, for insane reasons described afterwards, the Justice Department has just ordered her to remove it from her blog (she has done so, but a cached copy is retained by Google here — the ironic italics in reference to the justice department are Candace’s):

The Muzzle Is Off
By Candace Gorman

In June of this year I received a call from a foreign reporter who asked if I could give her a profile of my client Al-Ghizzawi as he was on a list of men whom the US was looking for a new home and her country was considering accepting him. This was the first I had learned that Al-Ghizzawi had been “cleared” by the Obama review team for release. I gave her information about my client and for all I know a story was published about the plight of Al-Ghizzawi at Guantánamo, his status as “cleared” and why he needed a country in Europe to take him.

A few days later an attorney from the justice department called to tell me that Al-Ghizzawi was cleared for release and we laughed about the fact that I already knew the information. However the laughing stopped when the attorney told me that the justice department had designated the information as “protected” and I could not tell anyone except my client and those people who had signed on to the protective order (a court document that outlines the procedures for the Guantánamo cases) about his status as “cleared for release.” I told the attorney that he could not declare something “protected” that was already in the public domain. To make a long story short we were not in agreement and the attorney filed an emergency motion with the judge to muzzle me. Despite the fact that the information was in the public domain I was muzzled by the good judge who apparently doesn’t believe that the Constitution applies to me. I couldn’t even tell Mr. Al-Ghizzawi’s brother what I thought was good news (I didn’t know then that this was just another stall tactic by the justice department).

Not only was I muzzled but Mr. Al-Ghizzawi’s case was put on hold. The habeas hearing that we had been fighting to obtain literally for years was stayed by the judge despite the fact that the US Supreme Court held in June of 2008 that the men were entitled to swift hearings … So much for the Supreme Court! The president asked the judges to stop the hearings for those men who were “cleared” for release and the judges have fallen into lockstep, shamefully abandoning their duties as judges.

A few months later when I visited Al-Ghizzawi (at the end of August) he had just received word from his wife that she could no longer wait for his release and she asked him if she would sign papers for a divorce. Bad news is an everyday occurrence for Al-Ghizzawi and he was holding up well despite this latest blow.

When I returned from the base I asked the justice department to allow me to contact Al-Ghizzawi’s wife and tell her that he had been cleared for release. I hoped that if she knew he was to be released she would hang in there and not go through with the divorce. I was told they would get back to me. When they didn’t I asked again but they still would not give me the OK. In Court papers I pleaded with the judge to let me tell Al-Ghizzawi’s brother and wife, telling the judge about the wife’s request for a divorce, but the judge, the same judge who has apparently decided to ignore the Supreme Court’s directive for quick habeas hearings, ignored this plea as well.

I seriously thought about disobeying the order and trying to get word to Al-Ghizzawi’s wife and then taking whatever lumps were thrown my way … however, despite the fact that the judicial system has failed Al-Ghizzawi and most of the men at Guantánamo I could not bring myself to blatantly disobey a court order. For five months I have kept this information confidential despite the injustice to both my client, Mr. Al-Ghizzawi, and to what was our rule of law … until yesterday, when the muzzle was lifted.

*****

Four days later, and Candace has now reported that “The Muzzle Is Back On,” explaining:

On Tuesday I reported that the Government finally allowed me to discuss matters that had previously been “protected” in regards to my client Al-Ghizzawi. In fact the Government unclassified and allowed for public release a Petition for Original Habeas Corpus that I filed in the US Supreme Court. I released that Petition to the public in accordance with the Government’s designation of “unclassified.” On Friday the Department of Justice (DOJ) told me that it had made a mistake and that it had apparently violated the Protective Order (an Order that sets out the rules for the DOJ and Habeas counsel in regards to the Guantánamo cases) entered in the case when it “unclassified” and allowed for public release information in the Petition that it wanted to “protect” and that therefore I must remove my post of November 17 because of the DOJ’s mistake. I explained to the DOJ attorneys that the Petition and my Post of November 17 were widely distributed and are available at various sites on the web … they do not seem to care about that … they only care that I not report about what they are now trying to declare “protected information” … 5 days after they unclassified the material and made it available for public release.

This is of course outrageous conduct by the DOJ … in trying to declare something as “protected” after being clearly designated and distributed to the public, but what else is new? For those of you who either remember my November 17 post or have it available on your website, I originally learned of the so-called “protected” information from a public source and the judge in Al-Ghizzawi’s case still ruled that I could not discuss it. […]

This is not the end of this story. Under the Protective Order the Government must actually get the judge’s permission to retroactively keep me (and only me) from publishing and discussing the information that the Government now seeks to “protect.” The DOJ will have to file a document with the Court explaining why this now very public information should be “protected.” Ultimately it will be the judge’s decision. If you do not see my post back up that will mean that the judge agreed with the Government, that I alone cannot talk about those things that you are privy to discuss.

So there you have it. As I am not Candace, and am not prohibited from reproducing her words, I thought that this whole depressing saga was worth relating in full. I’d also like to include Candace’s parting words from the post that has been removed at the insistence of the Justice Department, as they shine a light on the Byzantine workings of the Guantánamo litigation. As Candace explained:

[I]f you hear from a habeas attorney that his or her case has been stayed you will know about the injustice that their client is continuing to suffer, you will know that the client has been cleared for release, that the attorney cannot discuss that fact and that the judge in that case has abandoned his or her duty to be a judge. You will also know that being cleared for release is just as meaningless as everything else that has been happening to these unfortunate men … because being cleared for release means nothing.

Or, as my good friend The Talking Dog explained just a few days ago:

For advocates of “hope and change” who foolishly think that with our young and handsome new President everything is somehow “better” now … I just want you to know that while the nomenclature has changed (Al-Ghizzawi is no longer an “enemy combatant” or “unlawful enemy combatant” … he is simply a poor schmuck we’re holding) … and he is “cleared for release” … the same great executive overreach with its very real and very tragic personal consequences just goes on … and on … and on …

Americans should look at Al-Ghizzawi’s story (he was simply a baker in Afghanistan, handed in to American forces for bounty money, and we just can’t bring ourselves to let him go, even as he suffers egregious medical problems) and ask ourselves, “What kind of people are we?” The fact that most of us are probably not capable of that level of introspection probably best answers the question, I’m afraid.

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 the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

Cross-posted on The Public Record.

19 Responses

  1. Justice Department Pointlessly Gags Guantánamo Lawyer by Andy Worthington « Dandelion Salad says...

    [...] Andy Worthington Featured Writer Dandelion Salad http://www.andyworthington.co.uk 22 November [...]

  2. Schmice says...

    Simply outrageous behavior on the part of U.S. government. I believe that dark episodes like these are among the reasons many people don’t want public trials in civilian courts to proceed. God forbid the we, the people, should find out what is being done in our name.

  3. Justice Department Pointlessly Gags Guantánamo Lawyer « Norcaltruth says...

    [...] Source: AndyWorthington [...]

  4. Andy Worthington says...

    Thanks for the comment. Even more to the point, I think this is why around 75 prisoners are not going to be charged, but the government doesn’t want to release them anyway, because it’s clearly impossible to take the supposed evidence against them anywhere near a courtroom — or even a trial by Military Commission. Thankfully, though still obstructed by the DoJ, judges in the habeas petitions are gradually exposing more and more of the lies and false confessions used to justify holding these men and are ordering their release, although in Mr. al-Ghizzawi’s case, of course, he has now entered another apparently unreleasable category of prisoner: those who have been cleared, but have no place to go. Outrageous, indeed.

  5. George Collins says...

    Kudos to Candace. Compassion for her client. Where’s the outrage? Both Lithuania and the UK are examining questionable past behavior that we, Obama Administration, refuse to examine. The constant portrayal of Khalid Sheikh Mohammed in that photo showing him disheveled and possibly just ruffed up after his arrest in Pakistan, seems to violate international norms. The AG’s blurt out that ‘failure is not an option’ in his prosecution seems to violate prosecutorial protocol and Obama’s observation that the public will be pleased when he, Khalid, is found guilty and executed, despite his effort to restate, is embarrassing.

    How do we get our reputation back?

  6. Andy Worthington says...

    Thanks for the comments, George. Good points about Obama and Holder violating prosecutorial protocol, which, I believe, not only shows the extent to which the norms of trying criminals have been warped by the Bush administration, so that the President of the United States has to justify putting criminals on trial, but also — disturbingly — reveals how Obama and Holder have fallen for this outrageous shift in perception to the extent of only authorizing federal court trials for those they are sure they can convict. Hence the Military Commissions for those where they are less sure of the result (and want less opportunity to fail), and continued detention without charge or trial for those against whom — let’s be blunt — they don’t actually have any evidence.
    We get out reputation back by recognizing this and fighting back.

  7. Andy Worthington says...

    Over on Facebook, Christine Stone wrote:

    This in conjunction with the jailing of Lynne Stewart is dire articulation of political repression and a fascist direction continuing under Obama.

  8. Andy Worthington says...

    This was my reply:

    Hi Christine,
    The most miserable aspect of the Guantanamo litigation is how neither Obama nor Eric Holder have done anything to alter the DOJ’s mismanagement of the Guantanamo cases that they inherited from Bush.

  9. Andy Worthington says...

    And this was Christine’s reply:

    Andy …Yes, and their inaction expresses a position, don’t you think?

  10. Andy Worthington says...

    And this was my reply:

    Hi Christine,
    It does, and I tend to think that it was because they intended that their interagency Task Force would sort everything out, but that didn’t happen:
    http://www.andyworthington.co.uk/2009/10/13/finding-new-homes-for-44-cleared-guantanamo-prisoners/
    At the very least, it reveals that they preferred an executive review to trusting the judges to sort out the mess, and that’s worrying, of course, as it’s reminiscent of the Bush administration’s position — and also counter-productive, as the judges are really the only ones who can objectively get us out of this hole, whittling down the remaining prisoners until we’re left with however many dozens of men who, according to the Bush doctrine inherited and maintained by Obama, can continue to be held, apparently indefinitely, as what once used be called “enemy combatants.”

  11. Andy Worthington says...

    And this from The Talking Dog:

    Bravo, Andy! Of course, if the lads at MI-5 or 6 want to have a word with you …

    One expected these things under Bush — after all, sadism was affirmatively part of the policy. In many senses, things are now worse, because there’s no general cognizance of how bad things are … and the Obama people have no idea what they are doing, or why they are doing it.

  12. Andy Worthington says...

    Thanks, TD. And I particularly like your insight into the Obama administration’s Guantanamo policy, which is sharper and more succinct than anything I’ve seen:

    “The Obama people have no idea what they are doing, or why they are doing it.”

    I would like it on a T-shirt, under a picture of Guantanamo.

  13. Justice Department Pointlessly Gags Guantánamo Lawyer | World of Ulysses says...

    [...] One of the saddest stories in Guantánamo is that of Abdul Hamid al-Ghizzawi, a Libyan married to an Afghan woman and with a newly-born baby daughter, who was running a small bakery in Jalalabad, Afghanistan at the time of the US-led invasion of Afghanistan in late 2001. Fearing that he would be seized in the widespread anti-Arab sentiment that followed the collapse of the Taliban, he traveled with his family to the house of his wife’s parents, but instead of finding safety he was seized by bounty hunters and sold to US forces. full story [...]

  14. opit says...

    Kindly note the precise instructions given regarding this supposed ‘investigation’ Andy. It only covers acts which exceeded the legal opinions solicited from Yoo…which have been variously described as perversions of the law.
    Not that any ‘justice’ will be forthcoming regardless. I doubt very much you are familiar enough with my research to have picked up on this, cached in ‘Law’ at my.opera.com/oldephartte/links/

    American Service Members Protection Act 2002
    Agreement NOT to hand Americans over to the International Tribunal

  15. Archie1954 says...

    This dissemination of information is scant as everyone should know who the judge was that didn’t believe in justice for the innocent. Why is that so called judge not searching for a new job as he is very good at kissing DOJ asses but not at providing justice. The prosecutors should all have complaints filed against them for egregious behaviour.

  16. Hannah K. O'Luthon says...

    Praise to all those who hunger and thirst for justice, and act to provide justice to those in need. A specific question regarding Ammar al Baluchi, the (second) husband of Aafia Siddiqui,
    the alleged Grey Lady of Bagram and Brandeis: what is his status and what are the judicial prospects for the couple?

  17. Stories from Sunday Nov. 22 « Radioactive Gavin is Out of Print says...

    [...] Justice Dept pointlessly gags Guantanamo lawyer by Andy Worthington [...]

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

    [...] (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Justice Department Pointlessly Gags Guantánamo Lawyer (November 2009), Judge Orders Release Of Algerian From Guantánamo (But He’s Not Going Anywhere) [...]

  19. AWorthington: Guantanamo Habeas Results, Prisoners 34 – Government 13 « On Now says...

    [...] (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Justice Department Pointlessly Gags Guantánamo Lawyer (November 2009), Judge Orders Release Of Algerian From Guantánamo (But He’s Not Going Anywhere) [...]

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