What Does It Take To Get Out Of Obama’s Guantánamo?

14.12.09

District Court Judge Gladys KesslerOn August 21, District Court Judge Gladys Kessler granted the habeas corpus petition of Mohammed al-Adahi, a Yemeni prisoner in Guantánamo who was 39 years old when he was seized on a bus in Pakistan. I described the broad outline of al-Adahi’s story in my book The Guantánamo Files as follows:

Married with two children, al-Adahi had never left the Yemen until August 2001, when he took a vacation from the oil company where he had worked for 21 years to accompany his sister to meet her husband … As he told his tribunal, “In Muslim society, a woman does not travel by herself.” After flying to Karachi, they traveled to Kandahar, where his brother-in-law was living. Al-Adahi stayed in Afghanistan for a month, “to ease his sister’s transition to life in Afghanistan,” and then made his way back to Pakistan, where he was arrested by soldiers while traveling on a bus. “They were capturing everybody with Arabic features,” he said. “I gave them my passport and that shows that I’m an Arab. They said, ‘why don’t you follow us, we need you at the Center.’ From that point on they brought us over here.”

As I explained in an article following Judge Kessler’s ruling, the government’s case against al-Adahi rested on claims, acknowledged by Judge Kessler, that he “had close familial ties to prominent members of the jihad community in Afghanistan.” The brother-in-law, for example, was “a prominent man in Kandahar,” who had fought the Russians in Afghanistan, and Judge Kessler also noted that it was “undisputed” that Osama bin Laden “hosted and attended [the] wedding reception in Kandahar,” that al-Adahi “was briefly introduced to bin Laden,” and that “A few days later, al-Adahi met bin Laden again and the two chatted briefly about religious matters in Yemen.”

Crucially, however, Judge Kessler ruled that it did not follow, as the government tried to assert, that al-Adahi “was part of the inner circle of the enemy organization al-Qaeda.” Accepting that there was no reason to doubt that al-Adahi’s visit was, as he stated, to accompany his sister to her wedding (and also to receive medical treatment for a back problem), and also noting that he had not tried to hide the fact that he had met bin Laden, she proceeded to demolish the government’s “central accusation”: that al-Adahi’s brief attendance at al-Farouq (the main training camp for Arabs, associated with Osama bin Laden in the years before 9/11) helped to confirm that he occupied “some sort of ‘structured’ role in the ‘hierarchy’ of the enemy force.” As I explained at the time:

Noting his claim that he “pursued training at al-Farouq to satisfy ‘curiosity’ about jihad, and because he found himself in Afghanistan with idle time,” she took particular exception to the government’s claim because, “After seven to ten days at al-Farouq, the camp leaders expelled al-Adahi for failing to comply with the rules.” Referring, incredibly, to the case of Abdul Rahim al-Ginco, the Syrian who was tortured by al-Qaeda (and whose case the Justice Department had pursued in the habeas courts until it was thoroughly humiliated by Judge Richard Leon in June), the government’s lawyers attempted to claim that, because al-Adahi was not imprisoned and tortured as a spy after he was expelled (like al-Ginco), this proved that he was being given preferential treatment because of his ties to al-Qaeda. However, Judge Kessler concluded instead that it was more likely that he “was being protected by a concerned family member” with considerable influence, and that “it most certainly is not affirmative evidence that al-Adahi embraced al-Qaeda, accepted its philosophy, and endorsed its terrorist activities.”

She was also dismissive of an allied claim — that al-Adahi was an instructor at al-Farouq in February 2000 — noting that the only source for this allegation was another prisoner at Guantánamo, for whom “the record contains evidence that [he] suffered from ‘serious psychological issues,’” and dismissed another claim — that al-Adahi was a bodyguard for bin Laden — by pointing out that this claim had been made by another prisoner who “suffers from serious credibility problems that undermine the reliability of his statements.” It seems probable, from references to a “report of torture by the Taliban” in the case of this witness, that he was Abdul Rahim al-Ginco, who, as Judge Kessler noted, admitted in August 2005 that he had “lied in the past.” She also noted that “interrogators had expressed concern that he was being manipulated by another detainee,” and quoted from a report stating that “before being placed next to that detainee [he] had never made any of the claims that he made to interrogators, including the accusation against al-Adahi.”

This should really have been the end of the story, but incredibly, after Judge Kessler concluded her ruling by ordering the government to “take all necessary and appropriate diplomatic steps to facilitate [al-Adahi’s] release forthwith,” the Justice Department chose instead to challenge the ruling, filing a Notice of Appeal on September 21.

No one knows how long it takes for an appeal against a habeas ruling to crawl back through the courts, as only a few have been mounted to date. Several of the eight prisoners who have lost their habeas petitions have mounted appeals, but only one, on behalf of Belkacem Bensayah, an Algerian whose habeas petition was denied in November 2008, has begun to be heard by the Court of Appeals, and those hearings only began this September. On the government’s side, only one appeal has been mounted — against the successful habeas petition in March of Yasim Basardah, another Yemeni and a well-known and contentious informer within Guantánamo. The stumbling progress in this case, involving a cross-appeal and an appeal to the Supreme Court, was reported by SCOTUSblog six weeks ago.

To this extent, Mohammed al-Adahi is more fortunate, as, last Thursday, Judge Kessler issued a Memorandum Order (PDF), holding the government in contempt, which, although essentially toothless, may be provocative enough to persuade senior officials to drop their unnecessary appeal and release him.

Judge Kessler explained that her decision to hold the government in contempt stemmed from al-Adahi’s Merits hearing back in June. Although the proceedings were closed to the public, to allow for the presentation of classified material, Judge Kessler was determined to “afford the public and the press an opportunity to observe the greatest possible portion of [al-Adahi’s] testimony,” and therefore “instructed ‘the Government, through the appropriate agency, [to] videotape [al-Adahi’s] testimony and maintain copies of the complete testimony as given, as well as a redacted version of that testimony.”

On July 23, the government admitted that al-Adahi’s testimony “had not been videotaped.” His lawyers responded with a Motion for Sanctions, which included a request for his release “as a sanction for the Government’s failure to comply with the Order.” In response, Judge Kessler’s contempt ruling last week noted that the Court “may ‘punish,’ at its discretion, ‘disobedience of resistance to its lawful writ, process, order, rule, decree, or command’ through the issuance of a contempt citation,” adding that “Courts have classified contempt as either criminal or civil, depending on the character or purpose of the sanctions imposed.”

She refused to accept criminal contempt on the part of the government, which requires “both a contemptuous act and a wrongful state of mind,” because the government “does not dispute that the Court’s Order was clear, nor does it deny that it violated the Order.” As an explanation, the government stated that “the Order was violated ‘due to oversight and miscommunication,’ and that its actions were ‘inadvertent.’” This may strike some observers as a rather unlikely explanation, given that Judge Kessler made one very specific order, which was completely ignored, and it is tempting, therefore, to accept an allegation made by al-Adahi’s lawyers: that the government acted “to conceal the brutality of Guantánamo from the general public.”

However, Judge Kessler ruled that, because there was no proof that the government’s omission was “intentional,” the only appropriate course of action was to hold the government in civil contempt. This, she noted, did not allow her to order al-Adahi’s release, because it was impossible to “demonstrate prejudice,” and also failed to make up for the loss of the videotaped recording, because “a picture is truly worth 1,000 words, and the full import of [al-Adahi’s] testimony cannot be gained from the cold, dry transcript alone.” However, she arranged for a transcript of the testimony to be “posted to the US District Court Public Information Page for Guantánamo Bay Cases,” and also ordered the government to submit, within 30 days, “a detailed explanation of all steps it has taken to ensure that such errors shall not occur in future.”

The best that can be hoped for, therefore, is that the government and the authorities at Guantánamo will not be able to overlook — or ignore — any future Order to videotape a prisoner’s testimony, which would provide the public with an “opportunity to observe an actual Guantánamo Bay trial,” as Judge Kessler noted.

In the end, however, it is disappointing that this opportunity has been lost, and that the government has escaped without any actual punishment, and without being obliged to release Mohammed al-Adahi. I can only hope, as I mentioned above, that Judge Kessler’s actions have, as she clearly intended, put pressure on the government to abandon its appeal, and to let this man return to his family, after nearly eight lost years in Guantánamo.

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.

As published exclusively on the website of the Future of Freedom Foundation.

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), 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), 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) (November 2009), Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait (December 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).

4 Responses

  1. What Does It Take To Get Out Of Obama’s Guantánamo? by Andy Worthington « Dandelion Salad says...

    [...] Andy Worthington Featured Writer Dandelion Salad http://www.andyworthington.co.uk 14 December [...]

  2. “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition « freedetainees.org says...

    [...] 2009), Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait (December 2009), What Does It Take To Get Out Of Obama’s Guantánamo? (December [...]

  3. Judge Orders Release From Guantánamo Of Yemeni Seized In Iran, Held In Secret CIA Prisons « Eurasia Review says...

    [...] petitions were still held, although one of these cases — that of Mohammed al-Adahi — had been appealed by the government (and was won today), and since the moratorium three more Yemenis (including Hussein Almerfedi) have [...]

  4. House Kills Plan to Close Guantanamo | Mediaroots says...

    [...] to take advantage of these rulings in its dealings with Congress, and has preferred to either appeal them, or to release those who have won their petitions with extreme [...]

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