On Friday, District Court Judge Gladys Kessler ordered the release from Guantánamo of Farhi Saeed bin Mohammed, a 48-year old Algerian, after granting his habeas corpus petition. Her ruling has not yet been unclassified, so the reasons for her decision are not yet clear, but it is significant that the ruling now brings to 31 the number of prisoners who have successfully challenged the basis of their detention in US courts. In contrast, just eight prisoners have lost their habeas petitions, meaning that the success rate in the prisoners’ legal challenges now stands at 80 percent.
It is also likely that her ruling will, as in all the other successful petitions, involve lambasting the government for relying on statements made by other prisoners whose unreliability has been noted by the authorities, and who were either tortured, coerced or bribed, or on statements made by the prisoners themselves while subjected to grueling and often abusive conditions, It also seems probable that the ruling will refute the government’s claims that its rag-bag of hearsay, innuendo and snippets of intelligence is coherent enough to constitute real evidence.
As reported in the Miami Herald by Carol Rosenberg, who was the first journalist to write about the story, bin Mohammed has been represented for four years by Boston lawyer Jerry Cohen, who said that his client “fled his homeland and lived between Britain, France and Italy as an itinerant laborer in the 1990s before going to Afghanistan months before the 9/11 attacks. He fled the US invasion to Pakistan, where he was captured and sent to Guantánamo in February 2002.” Cohen added, “He’s an easy guy to like, and certainly not the worst of the worst and not even close to it.”
According to the Pentagon, bin Mohammed, who was a conscript in the Algerian army from 1981 to 1983, lived and worked illegally in Rome using a stolen French passport. As Rosenberg noted, he was also “fingered by another detainee for having stayed in an al-Qaeda safehouse in Afghanistan,” a typical, unsubstantiated allegation that has provoked skepticism in many of the habeas judges. The Pentagon also claimed that he trained in Afghanistan, after traveling there from Europe, but as Cohen maintained, “He never fought anyone anywhere, never handled a weapon since his service in the Algerian army.”
This is a fair précis of the government’s supposed case against bin Mohammed, which contained no actual allegations of militant activity when the first “Unclassified Summary of Evidence” was compiled in 2004. In that short document, it was noted that bin Mohammed stated that he traveled to Afghanistan to find a wife (apparently a Swedish woman recommended by a Moroccan friend in England), and, in an attempt to portray him as a danger, the Pentagon resorted to claiming that he visited two “known extremist mosques” in London.
It was only later that further allegations emerged, made by other prisoners whose reliability has presumably been called into doubt by Judge Kessler. His first annual Administrative Review Board, in March 2005, featured an unsubstantiated claim that he “received weapons training at the Bagram Front,” and another claim that he “saw Osama bin Laden” while attending a funeral in Kabul shortly after the 9/11 attacks, and in his review the following year it was reported that “Another detainee identified [him] as an individual who trained at the Algerian camp and they eventually traveled to Kandahar.” It was also noted, in this second review, that he only saw bin Laden because he and a friend “happened to be passing by on the street and stopped to attend the funeral.”
By the time of his third review, in March 2007, the authorities had evidently secured the services of another unreliable informer, and claimed that, even though bin Mohammed was only in Afghanistan for a few months before the 9/11 attacks, and had clearly spent time in both Jalalabad and Kabul, he “reportedly attended training at al-Qaeda’s Durunta and al-Farouq Training Camps,” and was, therefore, “a suspected member of al-Qaeda.”
Sadly for bin Mohammed, it is unlikely that his victory will lead to his release from Guantánamo anytime soon. Although Judge Kessler ordered the government “to take all necessary and appropriate diplomatic steps to facilitate petitioner’s release forthwith,” and also “ordered the Justice Department to give her an update on his status or release by Dec. 17,’” Carol Rosenberg added that, according to Jerry Cohen, he “fears return to his homeland,” and “seek[s] resettlement in a third country, where he would like to work in construction and marry.”
This is a depressingly familiar story. Of the 31 prisoners cleared in the last 13 months, 12 still remain at Guantánamo. Some, like the seven remaining Uighurs (Muslims from China’s Xinjiang province), cannot be repatriated because of fears that they will be tortured in their homeland, while others, like Fouad al-Rabiah, a Kuwaiti who was tortured until he made a false confession that was used by the government to justify his ongoing detention until a judge saw through it, remain only because the government is dragging its heels over his release. The Kuwaiti government would have him back tomorrow, and his lawyers have been obliged to threaten the government with contempt of court in an attempt to secure his release.
Judge Kessler’s ruling comes at an inconvenient time for the administration, which has just conceded that it will miss President Obama’s deadline of January 22, 2010 for the prison’s closure, although many Americans may not notice, as they are likely to remain transfixed by the unprincipled right-wing assault on the administration’s decision to bring five prisoners to New York to face a federal court trial for their alleged involvement in the 9/11 attacks, including Khalid Sheikh Mohammed, the self-confessed mastermind of the attacks. This is a shame, as Farhi Saeed bin Mohammed is a more typical prisoner than Khalid Sheikh Mohammed and his co-defendants.
Because of Congressional obstruction, the administration is currently prevented from bringing any Guantánamo prisoner to the US mainland for any reason other than to be put on trial, leaving around 175 of the remaining 215 prisoners in a disturbing limbo that closely resembles the conditions in which they were held throughout the long years of the Bush administration. Around half of these men have been cleared for release, and the others have been tarred by the administration as being “too dangerous to release,” but impossible to put on trial because of difficulties with the evidence against them (in other words, because it was obtained through torture or coercion, or is as unreliable as the supposed evidence against bin Mohammed).
It is not known to which category bin Mohammed belonged, although he had been cleared by an Administrative Review Board before the Bush administration left office, and it seems likely, therefore, that he was also probably cleared by the Obama administration’s interagency Task Force, which has been reviewing the prisoners’ cases all year, and which announced last month that seven of the remaining nine Algerians at Guantánamo had been cleared for release.
Sadly, however, his court victory, which probably means that he has now been cleared for release on three occasions, does not guarantee that he will finally regain his freedom. Like the Uighurs and dozens of other prisoners from countries including Algeria, China, Libya, Syria, Tunisia and Uzbekistan, he cannot be repatriated because of fears that he will be tortured on his return, and must wait to see if another country can be found that is prepared to take him, while the government responsible for his long and unjust detention continues to wash its hands of all responsibility, hiding behind Republican fearmongering and refusing to allow cleared prisoners to be rehoused in the United States.
Without a concerted effort by the administration, by lawmakers or by the American people to address their responsibility for these men, Farhi Saeed bin Mohammed will be left to reflect that it actually makes no difference whether you have been cleared for release on three occasions, or whether you are still regarded as a threat, despite the lack of any credible evidence against you, as the end result is the same: you will, in the end, remain at Guantánamo, possibly for the rest of your life, while those who could do something about your plight either ignore the fact that there is no evidence against you, and continue to smear you as a terrorist, or remain paralyzed by inertia.
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.
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), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (September 2009), 75 Guantánamo Prisoners Cleared For Release; 31 Could Leave Today (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).
Congratulations to Farhi Saeedbin Mohammad;
alas, I don’t think he’ll be going to Algeria given American insistence that he is a terrorist (even as Judge Kessler clearly concluded he is not), and unless a European country (or Palau) steps up, the best he’ll do is Camp Iguana, a less restrictive military prison, but still a military prison.
The 80% habeas case success rate is, if anything, arguably a high-water mark for the Government because it only involves cases the Government thinks it can win a nd hence is willing to have adjudicated (kind of like federal trials for KSM, et al.) If we counted the 75, 80, 85 or whatever the hell it is of so-called “executive review” cleared detainees, where the Gov’t itself acknowledges it has nothing, detainees’ win rate would be well into the 90+ % range.
We have kind of known for some time (and Candace Gorman’s post that Andy has reproduced below confirms) that supposedly “cleared” prisoners get a new label attached to their name (“cleared for transfer”) that is every bit as meaningless as the one they had before (“enemy combatant,” “unlawful enemy combatant,” or my personal choice, “FRED” [forcibly renditioned executive detainee]). The Obama Administration– again, you read that right– is, in this area, not merely as bad as the Bush Administration, but worse (and not just for ex post facto censoring Candace for having the audacity to try to bring its overreaching to public light). It is worse because the Bush Administration wasn’t duplicitous, — it campaigned on its “get tough” attitude,and I have no doubt that it was sincere in it. Further, the Bush Admin. didn’t purport to be headed by a “constitutional law
professor senior lecturer.”
And the Bush Administration had the decency– you read that word right– to believe at least that what it was doing was kind of ad hoc, an emergent circumstance caused by the sui generis nature of the al Qaeda threat, even if it largely proceeded incompetently and, thanks to Dick Cheney, David Addington and John Yoo, criminally and insanely. But at least we didn’t hear about legislation enshrining indefinite executive detention, and as loathsome as the military commissions were (and are), we didn’t hear the President of the United States promise convictions… and executions in specific cases (at least I don’t think we did).
And worse still, we have reached the ineluctable conclusion that “hope and change” and the entire inauguration speech and a year of campaigning were a load of bulls***. I don’t care that I went to college with the man: the President’s first ten and a half months have been an unmitigated disappointment, and I see little “hope” for “change” in that.
Did I say all that out loud?
[…] Andy Worthington Featured Writer Dandelion Salad http://www.andyworthington.co.uk 24 November […]
You did indeed, and we should all be grateful that you’ve spelled out so clearly the extent of the Obama administration’s failures.
And that post of Candace’s that TD was referring to is here:
[…] I would have said that the trial courts have looked at the cases of 38 of the prisoners at Guantánamo, and determined that in 30 of them the prisoner was actually an innocent civilian, not an enemy soldier or terrorist. [Note: Judges have now ruled in favor of the prisoners in 31 out of 39 cases]. […]
[…] which has been seen through by the judges in the prisoners’ habeas corpus petitions, where, in 80 percent of the cases on which District Court judges have ruled, they have dismissed the government’s supposed evidence […]
[…] Monday, District Court Judge Thomas F. Hogan handed the government its ninth victory (against 31 losses to date) in the habeas corpus petitions of the prisoners held at Guantánamo, ruling that the government […]
[…] 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) (November 2009), Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait […]
[…] Afghanistan or Pakistan to Cuba, and then unlawfully depriving him of his liberty for eight years, after his 2002 capture in Pakistan by Pakistani authorities: As reported in the Miami Herald [link broken, 2/2012; […]
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