Archive for December, 2009

Stranded In Chad: Mohammed El-Gharani, Once Guantánamo’s Youngest Prisoner

Mohammed El-GharaniDismal news from Chad, where Reprieve, the legal action charity whose lawyers represent dozens of Guantánamo prisoners, reports that the Chadian government is failing to provide any support whatsoever to Mohammed El-Gharani, who was released from the prison in June this year.

Once Guantánamo’s youngest prisoner (out of at least 22 juveniles held in the prison), Mohammed El-Gharani was seized in Pakistan at the age of 14, and was horribly abused in US custody — both in Afghanistan and Guantánamo — until his release, which finally took place five months after District Court Judge Richard Leon ruled that the government had failed to establish a case against him, having relied on demonstrably unreliable witnesses whose lack of credibility had been noted by its own representatives.

El-Gharani was raised in Saudi Arabia, where his parents still live, but the Saudi authorities refused to accept him, and Reprieve has revealed that the Chadian government has refused to issue him a passport, so that he is unable to be reunited with his family, and is also unable to seek medical attention for “a crippling spine injury” caused by his long years of abuse in US custody. As Reprieve explained in a statement, the Chadian government’s position has ensured that El-Gharani “remains impoverished and emotionally isolated.”

Reprieve is not the only organization to take an interest in El-Gharani’s plight. Manfred Novak, the UN Special Rapporteur on Torture, has urged the Chadian government to provide him “with a passport and to permit his travelling abroad for receiving appropriate medical and psychological torture rehabilitation treatment.” Novak added, “I am particularly concerned about the fate of Gharani, who began his captivity as a teenager, was still a child when transferred to Guantánamo and who has lost some of his most important years of adolescence in illegal detention.”

In a telephone interview with the Associated Press, El-Gharani explained that he relied on “handouts from friends” to support himself. “I’m still not free,” he said. “I have no job. I have a hard time to find somewhere to live.” He added, poignantly, “I’m innocent. I have done nothing to anyone. I should be able go to see my family.”

A week after El-Gharani’s release from Guantánamo, as I reported at the time,

Chris Chang, an investigator with Reprieve, and Ahmed Ghappour, an attorney, returned yesterday from a trip to Chad in which they had hoped to celebrate Mohammed’s freedom, but were “dismayed and disappointed” to discover that he is now a prisoner of the Chadian authorities, “sleeping on a cot in a police station while his family waits anxiously outside.” They added, “Mohammed cannot leave the main police headquarters without authorization from the Head of the Judicial Police, and even after obtaining that permission he is accompanied by a police officer wherever he goes. He has asked on several occasions to be released and reunited with his family but continues to be told, ‘Just another night, Mohammed.’” They also said that there has been no public announcement in Chad regarding his return and that he has been forbidden from speaking to the media.

Perhaps due to pressure from Reprieve, he was then released, and handed over to his uncle, but as the AP reported, without a passport or an identity card, it was impossible for him even to enrol in a class to study English. He was then mugged by a group of armed men who, ironically, thought that he had received “a multi-million dollar settlement as compensation for his imprisonment.”

Chris Chang, who has returned to Chad in an effort to help El-Gharani, explained that he was recently given an identity card, but added that the government was “still resisting calls” to issue him with a passport. This was disputed by Youssouf Takane, Chad’s deputy ambassador to the United States, who told Reuters that he would be issued with a passport in due course. “The Chadian government cannot deprive Gharani of his citizenship or his rights of citizenship,” he said, adding, “It is maybe a question of time. There are a few minor security matters to be addressed. The authorities will accelerate this issue.”

In Chris Chang’s opinion, however, the truth may be rather darker. “It stinks somewhat of an agreement between the Chadians and the Americans to restrict his movements,” he told the AP by telephone from the Chadian capital N’Djamena, as he prepared to visit the passport office to exert pressure on officials.

This is not the first time that Mohammed El-Gharani’s plight has been noted since his release from police custody in June. In July, at the launch of the Guantánamo Justice Centre, a project established by former prisoners, one of whose aims is to “assist former prisoners to reintegrate into society in a positive and peaceable manner, many of them in countries with limited available resources, and with governments hostile to human rights,” former prisoner Binyam Mohamed stated that he had recently spoken on the phone to El-Gharani, and explained that he was now “sleeping on the streets, rejected by his family, branded as a terrorist although he was released by the US and cleared of any wrong-doing.” He added, “I realized that he can not talk to others, like his lawyers, as he can to me, so I have to speak out for him here.”

To support the Guantánamo Justice Centre, please visit their website.

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.

Judge Orders Release From Guantánamo Of Unwilling Yemeni Recruit

Judge Ricardo UrbinaOn Monday, as I explained in a previous article, Judge Thomas Hogan refused the habeas corpus petition of Musa’ab al-Madhwani, a Yemeni who had been tortured in the CIA’s “Dark Prison” near Kabul, and who was described by the judge as a “model prisoner” who was not dangerous. Judge Hogan made his ruling partly on the basis that al-Madhwani had received military training at the al-Farouq camp in Afghanistan, which was associated with Osama bin Laden in the years before the 9/11 attacks, but just two days later, Judge Ricardo Urbina (who ordered the release of the Uighurs last October) granted the habeas petition of another Yemeni, Saeed Hatim, who had also trained at al-Farouq, but who told his interrogators that he “did not like anything about the training.”

The reasons for Judge Urbina’s decision on Wednesday are not yet clear, as an unclassified version of his ruling has not yet been made available, but elements of Saeed Hatim’s story are available from the Unclassified Summaries of Evidence for his Combatant Status Review Tribunal (CSRT) at Guantánamo, part of a process conducted in 2004-05 to ascertain whether the prisoners had been correctly designated as “enemy combatants,” who could be held without charge or trial, and his Administrative Review Boards (ARBs), held every year as part of a process to determine whether prisoners could be approved for release.

These were shamefully one-sided affairs, in which the authorities relied on classified evidence that was not disclosed to the prisoners, who were also prevented from having any legal representation. However, they often provide the only insight available into the prisoners’ stories, and in the case of Saeed Hatim, who was 25 years old at the time of his capture, they provide what appears to be a relatively coherent narrative, although it may, of course, be revealed as a tissue of lies, produced as a result of threats and coercion, when Judge Urbina’s ruling is made public.

In statements made by Hatim during his CSRT, or attributed to him by interrogators in submissions for his ARBs, which he did not attend, he apparently explained that he had “never held a job for more than six months” and “relied upon his father and older brother for financial support,” and stated that he went to Afghanistan in spring 2001, because he had “heard there was a lot of justice in that part of the world,” and also because, like several others who ended up in Guantánamo, he thought that he would find a way to fight in Chechnya. He “stated he became interested in Russia’s war in Chechnya because he witnessed the oppression on the television.” Explaining that he “was outraged about what the Russians were doing to the Chechens,” he “decided to travel there to fight jihad alongside his Muslim brothers.”

Hatim admitted attending al-Farouq, but said that he soon left the camp “because it was not what he expected.” He explained that he “faked a fever telling the people he was ill and needed to seek medical care,” and complained that “the trainers were always yelling at him, the food was terrible, and he was forced to sleep on the ground.” He added that “he did not like anything about the training and wanted to quit on the first day.”

Acknowledging that he was obliged to “put his decision to fight in Chechnya on the back burner for a while,” but insisting that he “did not want to partake in the war in Afghanistan because it was a civil war in which Muslims were fighting other Muslims,” he nevertheless reportedly ended up at “a place of re-supply for the front lines near Bagram,” where, on at least one occasion, he apparently traveled to the front lines to deliver food to the Taliban soldiers fighting the Northern Alliance. He also apparently spent some time in a number of guest houses, which, in the US authorities’ opinion, were associated with al-Qaeda and the Taliban.

He added, however, that once the US-led invasion began, and Kabul was being bombed, he made his way to the eastern city of Jalalabad, where he took a cab to the Pakistani border, meeting up with an Afghan who escorted him to a Pakistani police station. From there, soon after, his long ordeal in US custody began.

I await Judge Urbina’s ruling with some interest, primarily, as I mentioned above, to discover whether this account bears any resemblance to the story uncovered by the judge in what, despite the persistent fog of classified evidence that clouds so many of the Guantánamo cases, will undoubtedly be the first time that something close to an objective analysis of his case has been undertaken, after eight years in US custody.

At present, however, Judge Urbina’s ruling means little to Saeed Hatim, as the Obama administration has demonstrated that it is extremely unwilling to release any of the Yemenis who now make up nearly half of Guantánamo’s population of 210 prisoners — even those who have won their habeas petitions in the US courts. Just one Yemeni has been released since Barack Obama became President, even though, by my reckoning, Yemenis account for somewhere between 50 and 60 of the 115 prisoners who have been cleared for release by the inter-agency Task Force established by President Obama on his second day in office.

The administration’s reluctance to release Yemenis was explained by officials in September, around the time that the only Yemeni to secure his release under Obama — Alla Ali Bin Ali Ahmed, who won his habeas petition in May, after a devastating dissection of the government’s supposed evidence by Judge Gladys Kessler — was finally released. On that occasion, the officials stated that “Even if Mr. Ahmed was not dangerous in 2002 … Guantánamo itself might have radicalized him, exposing him to militants and embittering him against the United States.”

As I explained at the time:

The officials have valid fears about political instability in Yemen, and the existence of terrorist groups, even though the Yemeni authorities have stated that none of the 16 Yemenis returned from Guantánamo “have joined terrorist groups,” but whatever their fears, they do not seem to have reflected that, if their rationale for not releasing any of the Yemenis from Guantánamo was extended to the US prison system, it would mean that no prisoner would ever be released at the end of their sentence, because prison “might have radicalized” them, and also, of course, that it would lead to no prisoner ever being released from Guantánamo.

On that note, it is, I hope, time for this nonsense to end, and for Saeed Hatim, a demonstrably insignificant figure in the “War on Terror,” to be returned to his homeland, along with all the other cleared prisoners. It’s not difficult. Just find a large enough plane, fly them home, and drop them off. At the time of writing, I’m pleased to note that the Washington Post is reporting that, “according to sources with independent knowledge of the matter,” six Yemenis, along with four Afghans, “will be transferred out of Guantánamo Bay in the near future,” and that this transfer “could be a prelude to the release of dozens more detainees to Yemen.” I certainly hope that this is the case; otherwise, we may as well all stop pretending that being cleared by a court, or by the administration’s own Task Force, means anything at all.

Note: With this result, the prisoners have won 32 out of 41 habeas corpus petitions, a success rate of 78 percent.

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 on the Huffington Post, CounterPunch, Antiwar.com and ZNet. Cross-posted on Common Dreams and The Public Record.

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), What Does It Take To Get Out Of Obama’s Guantánamo? (December 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (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).

UK Court Orders Release Of Torture Evidence In The Case Of Shaker Aamer, The Last British Resident In Guantánamo

Shaker AamerReprieve, the legal action charity whose lawyers represent dozens of prisoners still held at Guantánamo, won a court victory last Tuesday, in the case of the British resident Shaker Aamer, which appears to draw on the organization’s success in securing a judicial review in the case of another of their clients, Binyam Mohamed. Initiated in May 2008, this led, eventually, to a fast-track review of Mohamed’s case by the Obama administration, and his return to the UK in February this year.

The key to the pressure exerted by Reprieve is torture, and, specifically, what the British government knew about the torture of both men while in US custody. Mohamed’s case is well-known, as he was rendered to Morocco by the CIA in July 2002, three months after his capture in Pakistan, where he was reportedly subjected to torture for 18 months.

The British government’s knowledge of, or complicity in Mohamed’s torture in Morocco has been inferred by Mohamed’s lawyers from his long-standing claims that his Moroccan interrogators asked him questions about his life in London that could only have been provided by the British intelligence services, and also because of claims, which surfaced in May this year but have largely been ignored to date, that a British informer and a British agent actually visited him while he was in Moroccan custody.

These claims, however, are not at the heart of Mohamed’s torture story as it relates to the British government. Instead, the High Court judges in his case — Lord Justice Thomas and Mr. Justice Lloyd Jones — focused on 42 documents in the possession of the British government, which, apparently, explain what, in May 2002, the CIA told their British counterparts about how they had treated Mohamed while he was being held in Pakistani custody, shortly before a British agent flew out to interrogate him.

For 16 months, the British government has refused to allow the judges to release a seven paragraph, 25-line summary of these documents, written by the judges themselves, on the basis that revealing the information would threaten the intelligence-sharing arrangement between the US and the UK.

The government’s claims about this “threat” to the intelligence-sharing relationship have been maintained despite the judges’ insistence (in a recent ruling comparing Mohamed’s treatment with that of Abu Zubaydah, the CIA’s most notorious torture victim) that the description of the treatment of Mohamed in Pakistan, which is contained in their summary, “could never properly be described as ‘a secret’ or an ‘intelligence secret’ or ‘a summary of classified intelligence.’”

The government’s claims have also been maintained despite the judges’ assertion that “the issue is one of considerable importance in the context of open justice,” and despite the fact that, in the opinion of the Special Advocates (lawyers assigned to represent Mohamed in the closed sessions of the judicial review, which included most of the cross-examination of the British agent who had interviewed him in Pakistan), the government’s Public Interest Immunity Certificate (the document urging non-disclosure) “failed to address, in the light of allegations made by BM [Mohamed], the abhorrence and condemnation accorded to torture and cruel, inhuman or degrading treatment.”

In the case of Shaker Aamer, the allegations of torture do not involve “extraordinary rendition” and Moroccan dungeons, but they do involve the alleged complicity of the British intelligence services, and they also involve the same attempts by the British government to claim that disclosure of any documents relating to British knowledge of Aamer’s treatment in US custody, while British agents were present, would threaten the intelligence-sharing relationship between the two countries.

Married to a British citizen, and with four children (the youngest of whom he has never seen), Shaker Aamer, who was born in Saudi Arabia, had traveled to Afghanistan in the summer of 2001, with his family, and with his friend Moazzam Begg and his family, to establish a girls’ school and to oversee a number of well-digging projects, as Begg explained in the new documentary film, “Outside the Law: Stories from Guantánamo” (directed by Polly Nash and myself, and featured in a recent Truthout video), which focuses on Aamer’s story, as well as those of Binyam Mohamed and another released prisoner, Omar Deghayes.

Seized in the chaos following the US-led invasion by Afghan forces, who sold him to the US military, Shaker Aamer ended up at Guantánamo, where his eloquence, his mastery of English, his natural leadership abilities, and his outspoken opposition to the conditions in which the prisoners were held as “enemy combatants” without rights marked him out, in the eyes of the authorities, as a leader of al-Qaeda. As I explained in an article earlier this year:

In 2004-05, after a Supreme Court ruling had granted the prisoners the right to file habeas corpus petitions asking why they were being held, he helped a number of prisoners with their petitions by designating himself as their “next friend,” which authorized him to file suits on their behalf. In an affidavit filed in a court in Washington D.C., he wrote, “I am their close friend as a result of being placed with them in Guantánamo. And I know they want me to act on their behalf as their next friend.”

In August 2005, he was briefly part of a six-man Prisoners’ Council that was allowed — over the course of a few weeks — to meet to discuss how to end a hunger strike that involved around 200 prisoners, but when the Council was brought to an abrupt end by the authorities, apparently because Shaker in particular had been agitating for their right to have a fair trial or to be released, they were so worried about what they regarded as the influence that he wielded over the other prisoners that they moved him to Camp Echo, a state-of-the-art isolation block … where he was held in solitary confinement for at least 18 months until he was moved to Camp 3 — for prisoners regarded as having significant intelligence value, or, like Shaker, significant leadership qualities — where he is still held.

Throughout this time, Shaker Aamer also became one of Guantánamo’s most persistent hunger strikers, but despite the fact that the authorities regarded him as a threat because of his influence in the prison, they have never managed to find any evidence whatsoever to back up their claims that he was involved, in any way, with al-Qaeda, and he was, in fact, cleared for release from Guantánamo in 2007 by a military review board.

Quite what has happened in the years since is unclear. The US authorities have, on occasion, put out propaganda attempting to justify his ongoing detention, despite having cleared him for release, and although the British government requested his return in August 2007, he remains in Guantánamo to this day.

As a result, the lawsuit filed by his lawyers in the UK was a smart move, as it shifts the focus of his case from the Byzantine maneuvering of the Pentagon and the secretive negotiations of diplomats (who may or not be doing anything worthwhile) into the courts that did so much for Binyam Mohamed in circumstances which, although in many ways dissimilar, nevertheless share certain key characteristics.

In Shaker Aamer’s case, the torture to which he was reportedly subjected took place after his capture, when he was held in the US prison at Kandahar airport in Afghanistan. There, according to his lawyers, Aamer explained that an MI5 officer was present during a brutal interrogation that led to a false confession, which only took place after he had been “subjected to weeks of torture including sleep deprivation over nine days, cold water torture which led to frostbite, ‘hog tying’ and regular beatings along with threats that he would be sent to be tortured in Egypt, Jordan, or Israel,” as the Daily Telegraph described it.

In a statement submitted to the court, Aamer explained:

Once after a few days of sleep deprivation they took me to the interrogation room and the intelligence team starting coming one after another and the room was full, up to ten or more. One of them, a British MI5 agent, was standing and they started talking to me in different languages — English, French, Arabic — and shouting. I felt someone grab my head and start beating my head into the back wall so hard that my head was bouncing. They were shouting that they would kill me or I would die. After this, they left the room and told me to think and tell them the truth or I would die. I just sat, scared.

Last Tuesday, judges in the High Court ruled that Aamer should be allowed to see classified documents in the possession of the British government, which, according to his lawyers (as described by AFP), “support his claim that confessions he made were obtained through torture,” and “include evidence that British intelligence officers were present on at least two occasions when he was tortured but failed to help him.” It was also revealed that the British government had sent material to their American allies with a strict proviso that it should not be made available to Aamer’s civilian lawyers in the United States. His lawyers in the UK also argued that the documents were urgently needed, because his case is currently being reviewed by the interagency Task Force set up by President Obama, which is expected to reach a decision sometime next month.

Lord Justice Jeremy Sullivan evidently agreed, ruling in favor of Aamer’s request, and explaining, “Our present view is that this matter is clearly very urgent. If this information is to be of any use it has to be put in the claimant’s hands as soon as possible.”

Predictably, however, given its response to Binyam Mohamed’s case, the government is reportedly planning to block disclosure by issuing a Public Interest Immunity certificate (to prevent disclosure in the interests of “national security”), as it did with Mohamed’s judicial review. A government spokesman explained:

We are disappointed by the court’s decision and will now necessarily need to consider matters of public interest immunity in relation to the documents at issue in this case. The release of these documents is not necessary to support the review of Shaker Aamer’s case in the United States. We have already provided all the relevant information held on Mr. Aamer by the UK to the US Review Panel, which is coordinated by the US Attorney General and which is considering his case, along with those of more than 200 others held in Guantánamo.

In a line that could have come directly from David Miliband, the foreign secretary, when talking about the threat to the intelligence-sharing relationship between the US and the UK in Binyam Mohamed’s case, the spokesman added:

We will continue to argue strongly the point of principle involved in this case: that it is fundamental to the national interest of the United Kingdom that our intelligence and security services are able to operate without fear of having to disclose secret intelligence material. They work to protect this country and save lives.

On Saturday, the Independent reported that, despite opposing the judge’s ruling, the Foreign Office was deeply engaged in negotiations for Shaker Aamer’s return, but the Obama administration was resistant to the British government’s demands, claiming that he still “represents a security risk.” A Foreign Office spokesman explained, “We have made an exceptional request for the release and return of Shaker Aamer, a Saudi national, to the UK,” adding, “This is because of the exceptional nature of the Guantánamo facility and our sustained efforts to see it closed. Though we were successful with securing the return of four other non-UK nationals, we have not been able yet to do so with Shaker.”

If Binyam Mohamed’s case is anything to go by, the prospect of another Transatlantic torture scandal may be just the spur that the British government needs to add the required weight to its “exceptional request,” and ensure that Shaker Aamer, like Binyam Mohamed, is fast-tracked to the top of the Guantánamo Task Force’s review pile and returned to the UK as swiftly as possible.

Otherwise, those of us who have been studying his story closely may start to suspect that the British government’s “exceptional request” is just a ruse, and that both the British and American governments would prefer him to be returned to Saudi Arabia, where there is far less chance that he will speak out about the horrors of the last eight years — not so much in connection with the brutal treatment he received in Afghanistan, but with his deep knowledge of events 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 Truthout (as “Torture in Afghanistan: UK Court Orders Release of Evidence”).

“Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition

Judge Thomas F. HoganSee postscript below.

On 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 had established, by a preponderance of the evidence, that Musa’ab al-Madhwani, a 28-year old Yemeni, could continue to be held indefinitely, because of his connections with al-Qaeda.

As the Washington Post explained, however, although Judge Hogan “said that the government had met its burden in proving the accusations … he did not think Madhwani was dangerous.” Noting that he has been a “model prisoner” since his arrival at Guantánamo in October 2002, he explained, “There is nothing in the record now that he poses any greater threat than those detainees who have already been released.”

Moreover, Judge Hogan refused to rely on any statements that al-Madhwani had made to interrogators at Guantánamo, ruling that they were “tainted by abusive interrogation techniques,” to which he was subjected in the weeks after his capture, before his arrival at Guantánamo, when he was sent to the “Dark Prison” near Kabul, a facility run by the CIA, which, in numerous accounts by released prisoners, resembled nothing less than a medieval torture dungeon, with the addition of extremely loud music and noise 24 hours a day.

Judge Hogan did, however, accept statements that al-Madhwani made during his Administrative Review Board at Guantánamo in 2005, which, he said, were not tainted because they were made years after the abuse took place. Al-Madhwani’s lawyers had argued that these statements should also have been excluded, stating, as the Post put it, that they were “contaminated because he was still worried about upsetting his captors.” One of his attorneys, Darold W. Killmer, explained, “He was threatened that if he changed his story, he would be sent back to a place worse than at the ‘Dark Prison.’”

The Ramzi bin al-Shibh connection

In truth, it was always going to be difficult to convince a judge to accept al-Madhwani’s habeas petition, for the simple reason that he was seized after a raid on an apartment block in Karachi, Pakistan, and a firefight with the Pakistani authorities, on September 11, 2002, with Ramzi bin al-Shibh, one of the five alleged 9/11 co-conspirators, and Hassan bin Attash, the brother of Walid bin Attash, another of the alleged 9/11 co-conspirators.

Unlike al-Madhwani, and five other Yemenis seized after the firefight, who were held in the “Dark Prison” for up to six weeks, before they were flown to Guantánamo, bin al-Shibh was rendered to Thailand after his capture, and held for four years in secret CIA prisons, subjected to an array of “enhanced interrogation techniques,” and bin Attash, after a week in the “Dark Prison,” was rendered to Jordan, where, despite being just 17 years old at the time of his capture, he was held for 16 months in one of the CIA’s proxy torture prisons, before being flown to the US prison at Bagram airbase in Afghanistan, and then on to Guantánamo in September 2004.

With these kinds of connections, it’s easy to see why a judge would conclude that al-Madhwani was connected to al-Qaeda, and would accept, as the Post described it, the government’s allegations that he “traveled to Pakistan to join al-Qaeda, trained at an al-Qaeda camp, traveled with al-Qaeda members in Afghanistan and Pakistan and engaged in a firefight with Pakistani authorities before his arrest.”

Musa’ab al-Madhwani’s story

As al-Madhwani explained at his Administrative Review Board, he arrived in Afghanistan in August 2001, when he was 21 years old, at the urging of a recruiters in his homeland, and trained briefly at al-Farouq (a training camp associated with Osama bin Laden in the years before the 9/11 attacks) until it closed immediately after the attacks. After spending a few months in guest houses in Afghanistan, he made his way to Pakistan via Khost, traveling with other Arabs, Pakistanis and Afghans, and then, after trying unsuccessfully to return home via Iran, where, he said, he was “beaten and questioned” before being refused entry, spent ten months being moved around various houses in Lahore, Quetta and Karachi, waiting for an opportunity to return home that never came.

Moreover, when he explained the situation in Karachi at the time of his arrest, an even less militant picture emerged. “The group I was arrested with were staying in two apartments,” he said. “One person from each apartment refused to surrender and fought the Pakistani forces sent to arrest us. I was in the group that chose to surrender.” He added that the Pakistanis were “thankful for our cooperation and surrendering without fighting.” He then explained that there were seven men in his apartment, including one who was killed, who had only been there for about five days, and that two other men — presumably bin al-Shibh and bin Attash — shared the other apartment with a family.

In his Review Board, he spoke only briefly about the “Dark Prison,” but it was easy to understand why Judge Hogan, who also spoke to him by video-link from Guantánamo, concluded that his “allegations about abusive interrogations were credible,” and, noticeably, added that they “were not challenged by government lawyers.” In 2005, when a Board Member asked him, “Are you holding anything back from the interrogators?” he replied, “That is impossible, because before I came to the prison in Guantánamo Bay I was in another prison in Afghanistan, under the ground [and] it was very dark, total dark, under torturing and without sleep. It was impossible that I could get out of there alive. I was really beaten and tortured.”

If this picture indicates someone who, as I explained in The Guantánamo Files, with reference to other prisoners seized elsewhere in Pakistan, was a “recent Taliban recruit who ended up in Karachi as part of an extended safe house system that was sheltering all Arabs from arrest, and not just those who were committed to al-Qaeda,” it is, I believe, a picture that shifts into sharper focus through the stories of the other five men seized with al-Madhwani, aged between 21 and 28 at the time of their capture, none of whom have yet had their habeas corpus petitions ruled upon by a judge.

The other five men seized with Musa’ab al-Madhwani

Ha’il al-Maythali, for example, explained in Guantánamo that he went to Afghanistan in November 2000 to “fight in the jihad,” and admitted ferrying supplies on the back lines near Kabul, but said that he was only on the front lines for a week because he had no military experience. The only one of the five to mention the “Dark Prison,” he said that “there was very bad torture conducted on people,” including himself, which was “so bad that he knew by making up and agreeing to the training it would stop the torture.” He added that “his testicles were disfigured to the point where they cannot be repaired.”

Said Nashir was accused of attending the al-Farouq camp from July to September 2001, and also attending two speeches by Osama bin Laden while he was there, which was typical of the experiences of new recruits, and Shawki Balzuhair was accused of traveling to Afghanistan in April or May 2001, attending al-Farouq, and serving on the Taliban front lines near Bagram. A greater degree of commitment was hinted at in the case of Ayoub Ali Saleh, who reportedly traveled to Afghanistan to join the jihad in 2000, and trained extensively at al-Farouq, but Bashir al-Marwalah’s story is probably the most revealing.

Al-Marwalah admitted traveling to Afghanistan in September 2000 and training at al-Farouq and another camp, but said that he then returned to Yemen to see his family, and especially his father, who was ill. He said that he then returned to Afghanistan in August 2001 and attended al-Farouq again, but refuted an allegation that he had participated in military operations against the US-led coalition, and said that he had fled to Pakistan after the US-led invasion began. When the tribunal asked him why he had gone to Afghanistan, he said that he wanted to train to fight in Chechnya, and when he was asked, “Are you a member of al-Qaeda?” he said, “I don’t know. I know I am an Arab fighter.”

I may be wide of the mark in my assessment of Musa’ab al-Madhwani and the other five men mentioned above, but no other information has been forthcoming to suggest that this is the case — from Ramzi bin al-Shibh or Hassan bin Attash, for example, in thinly-disguised references to allegations made by “senior al-Qaeda operatives,” tying the men into any terrorist plots or operations.

Challenging indefinite detention

While the others, presumably, await rulings on their habeas corpus petitions, al-Madhwani joins the other eight prisoners whose petitions failed in a peculiar legal netherworld, no longer regarded as “enemy combatants” by the Obama administration, but still detained indefinitely as though they were. This is in spite of the fact that, in most of these cases, the men in question are not the “terrorists” of right-wing propaganda, but are, instead, unacknowledged prisoners of war, who, instead of being held according to the Geneva Conventions, have had to endure long imprisonment in an experimental prison devoted to dehumanizing isolation and coercive interrogations, and remain, essentially, as a peculiar category of prisoner with no legal or historical precedent.

For someone like al-Madhwani, regarded by the judge as posing no danger, it is, perhaps, time for an appeal that draws on a case overlooked by Judge Hogan: that of Yasim Barardah, a Yemeni whose habeas petition was granted by Judge Ellen Segal Huvelle on March 31 this year.

In her ruling, Judge Huvelle suggested that the prisoners in Guantánamo were akin to prisoners of war, but with the ability to be released if it could be demonstrated that they no longer posed a threat to the United States. Judge Huvelle drew on the Authorization for Use of Military Force, passed by Congress on September 18, 2001, which authorized the President to “use all necessary and appropriate force” against those involved in the 9/11 attacks, or those who supported them. The AUMF is relied upon by the Obama administration to justify the detention of the prisoners at Guantánamo, but, as Judge Huvelle explained, it “does not authorize unlimited, unreviewable detention,” but instead authorizes holding people “in order to prevent any future acts of international terrorism”; in other words, “the AUMF does not authorize the detention of individuals beyond that which is necessary to prevent those individuals from rejoining the battle, and it certainly cannot be read to authorize detention where its purpose can no longer be attained.”

And that, I think, based on Judge Hogan’s comments, is a pretty straightforward definition of the position in which Musa’ab al-Madhwani finds himself, seven years and three months after his capture.

Note: The Pentagon referred to Musa’ab al-Madhwani as Musab al-Mudwani, or Musab al-Madoonee.

POSTSCRIPT April 2010: I have not found the opportunity to review Judge Hogan’s unclassified opinion (PDF), which was made available on January 6, 2010, but I wish to make it clear that my presumption that the capture of al-Madhwani had anything to do with the capture, around the same time, of Ramzi bin al-Shibh and Hassan bin Attash is clearly mistaken. The events appear to be entirely unconnected, as al-Madhwani was seized several miles away from the apartment occupied by bin al-Shibh and bin Attash. In my defense, I can only state that I was working with the available material, and had succumbed to a narrative that the Pentagon and the Justice Department wished to portray, even though it was untrue.

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 on the Huffington Post and CounterPunch. Cross-posted on uruknet.

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), What Does It Take To Get Out Of Obama’s Guantánamo? (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).

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

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).

Will The Maldives Take Three Guantánamo Prisoners?

President Mohamed Nasheed of the MaldivesFrom the Maldives, via a blogger named Firas, I found out that President Mohamed Nasheed (commonly known as Anni), the former Amnesty International Prisoner of Conscience whose election in October 2008 finally brought to an end the 30-year dictatorship of Maumoon Abdul Gayoom, has mentioned, in a radio address broadcast on the state radio station Voice of Maldives, that his government will accept three prisoners from Guantánamo.

Details of this agreement were not provided, but it would not be surprising if President Nasheed reached out to help cleared prisoners in Guantánamo who cannot be repatriated because of fears that they will be tortured. Between 1991 and 2006, he was imprisoned on several occasions, primarily for his opposition to the corruption of President Gayoom’s government. When Amnesty International made him a Prisoner of Conscience in 1991, he was being held in prison — where he stated that he was kept in solitary confinement and tortured — for writing an article in which he accused the government of rigging the general election in 1989.

In June 2009, President Nasheed was awarded the Anna Lindh Award “for his role in the Maldives’ peaceful transition to democracy” and his “great efforts to put people and their human rights at the heart of the debate on climate change,” and, as well as bringing the environmental plight of his country to the world’s attention, his speeches regularly focus on human rights and democracy. In his most recent radio address, for example, he said that “if any person believes his or her rights or freedoms have been violated by the government during its past one year, he or she has the opportunity to seek redress,” adding that “human rights violations in the Maldives in the past were the main obstacles that hampered development,” and that “many Maldivians had lost their lives and had gone through torture during the past 30 years.”

With reference to the three Guantánamo prisoners, he said, “While the Maldives extending a helping hand to three of those detainees will not eliminate human inhumanism from the Maldives or the world, [helping the detainees] will be a symbolic gesture,” and added that it was “a national obligation to help others as much as the country could.” Although he did not mention any specific details about his plans to accept the three prisoners, he praised President Obama for his efforts to close Guantánamo, adding that “a number of people detained were found to have no links to terrorism,” and emphasizing “the importance of assisting the innocent detainees to live in freedom.”

In his blog, Firas was enthusiastic about the President’s words. “In my opinion, this is the most important human rights gesture our government has made to date,” he wrote, adding that “other so-called Muslim nations either refuse to accept their own citizens or threaten them with more detention and torture upon their return.” This was perhaps a little harsh, although one of his inferences — that the Maldives would be the first Muslim nation to accept prisoners other than its own citizens — is certainly correct, and I hope to see this story confirmed in the near future.

Perhaps the lucky recipients of Anni’s largesse will be three of the seven remaining Uighurs in Guantánamo (Muslims from China’s Xinjiang province), who, after the resettlement of others in Bermuda and Palau, seem destined to be resettled in small island nations that are capable of resisting threats from the Chinese government, which regards the Uighurs in Guantánamo as terrorists. In the case of the Maldives, the important geo-political factor at play seems to be a move from Chinese support under President Gayoom to Indian support under President Nasheed.

In other news, the US Embassy in Sofia told AFP on Friday that “US Special Envoy for Guantánamo Closure Daniel Fried visited Bulgaria from December 2-3 and met with Bulgarian officials,” who have been asked to accept three other cleared prisoners from Guantánamo. Novinite.com, a news agency in Sofia, stated that Fried was “reported to have already met with Bulgarian Interior Minister and Deputy PM Tsvetan Tsvetanov and to have discussed the Guantánamo issue with [them],” and that a decision was now awaited from Prime Minister Boyko Borisov, although today Mr. Borisov moved to quell undue expectations by stating, “My personal opinion is that we should accept one person.”

This follows an announcement on December 2, by the Albanian Prime Minister Sali Berisha (also following a meeting with Fried), that Albania has also agreed to accept a number of Guantánamo prisoners. “Since my meeting in January with Secretary of State Hillary Clinton I have expressed a readiness to host more Guantánamo prisoners,” Berisha told reporters, adding, “My position is based on humanitarian grounds.”

Back in 2006, Albania was the only country to accept cleared prisoners from Guantánamo, taking eight men in total, including five Uighurs, but Prime Minister Berisha noted that his country would not be taking any more Uighurs, because it “does not want risk aggravating its good relationship with China.”

Since coming to power, President Obama has released just 30 prisoners, including, last week, a Kuwaiti, Fouad al-Rabiah, whose release was ordered by a US judge 12 weeks ago, after she ruled that he had been tortured to produce false confessions. 21 of these prisoners have been sent to countries that are not their home countries (including two Tunisians, whose transfer to Italy, to face trials, took the form of an extradition, or a “rendition to justice”). 210 prisoners remain in Guantánamo, and, according to an announcement last week, 115 of these men have been cleared for release, although, as I explained at the time, offers by countries including the Maldives, Bulgaria and Albania are unlikely to make a dent in these figures unless the Obama administration reaches an agreement to repatriate Yemeni prisoners (who make up nearly half of the prison’s total population), and also rediscovers its moral compass by finding a way to rehouse some cleared prisoners on the US mainland.

Note: See here for an article about Ibrahim Fauzee, the only Maldivian held at Guantánamo, who was released in May 2005, but only spoke out about his experiences in October 2008, after Mohamed Nasheed’s election victory. Fauzee, who was seized in May 2002 in Karachi, Pakistan, where he was studying, explained, “When the US allowed Maldivian police to visit me, they tried to ask me if I planned to oust Gayoom. They didn’t try to help me out of detention when they could have. That’s why I hold Gayoom responsible for my prolonged stay in detention.” He added that Gayoom’s government “had kept his arrest in Pakistan and his detention at Guantánamo a secret until some local journalists unearthed the story,” and added, “When the US finally cleared me and released me in 2005, Gayoom’s people tried to trick me into saying they helped (bring about) my release.” He also explained that he was “constantly shadowed by Gayoom’s police after being freed, forcing him into years of silence about his ordeal.”

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.

Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait

Fouad al-RabiahThe long ordeal of Fouad al-Rabiah, an innocent man and a 50-year old father of four, who had been in US custody for almost exactly eight years, finally came to an end on Wednesday, when he was flown back to his homeland of Kuwait from Guantánamo, where he had spent the majority of those lost years, after several brutal months in US custody in Afghanistan.

Until the moment of his release, everything about his treatment at the hands of the US government was shameful. 12 weeks ago, when District Court Judge Colleen Kollar-Kotelly granted his habeas corpus petition, and ordered his release, she revealed the most extraordinary — and extraordinarily depressing — story. This shone the most unflinching light on Guantánamo as a place where men who were rounded up for bounty payments by the US military’s allies in Afghanistan and Pakistan, and were never adequately screened on capture, were then sent to Guantánamo. Once there, in the absence of any information to back up the administration’s claims that they were “the worst of the worst,” they became the victims of false allegations made by other prisoners (who were either coerced to do so, or were bribed with the promise of improved living conditions), and were then tortured and abused to make false confessions.

During the prisoners’ habeas corpus petitions over the last 14 months, numerous examples of dubious allegations made by unreliable witnesses have been exposed by the judges, as well as other examples of cases that “defie[d] common sense” or exposed the use of torture, but until al-Rabiah’s case was examined, the existence of a clear chain of torture and threats inflicted to produce false confessions at Guantánamo had never been revealed with such alarming clarity.

Al-Rabiah’s story began when he traveled to Afghanistan in 2001 to provide humanitarian aid, but was caught up in the chaos following the US-led invasion, and ended up in the hands of the US military. What followed was truly shameful. In Guantánamo, unreliable witnesses — whose unreliability was acknowledged by the authorities — claimed that he had met Osama bin Laden and had provided him with a suitcase of money, and also claimed that he had played a supporting role to al-Qaeda in the battle of Tora Bora, the showdown between al-Qaeda and US-supported Afghan forces in December 2001, when bin Laden escaped into Pakistan.

Under torture, which included, but was not limited to prolonged sleep deprivation — being moved from cell to cell every few hours over a period lasting for several weeks at least, in a program that was euphemistically known as the “frequent flier program” — al-Rabiah finally broke down, inventing a story to please his captors, and dutifully repeating it in 2004 during his Combatant Status Review Tribunal, a military review board designed to establish that he had been correctly designated as an “enemy combatant,” who could continue to be held without charge or trial.

Although the authorities knew that the witnesses were unreliable, and interrogators and other personnel cast serious doubts on al-Rabiah’s story, he was, nevertheless, put forward for a trial by Military Commission at Guantánamo in November 2008, based on the credible-sounding story he had parroted at his tribunal, and it was only when Judge Kollar-Kotelly was able to review his case that the whole sordid story emerged.

As she noted in her ruling, in one of several passages loaded with controlled disdain for the Bush administration (and for the Obama administration for pursuing the case):

Not only did al-Rabiah’s interrogators repeatedly conclude that [his] confessions were not believable — which al-Rabiah’s counsel attributes to abuse and coercion, some of which is supported by the record — but it is also undisputed that al-Rabiah confessed to information that his interrogators obtained from either alleged eyewitnesses who are not credible and as to whom the Government has now largely withdrawn any reliance, or from sources that never even existed … If there exists a basis for al-Rabiah’s indefinite detention, it most certainly has not been presented to this Court.

What makes this story even more shocking is that al-Rabiah’s innocence was established in the summer of 2002, when a CIA analyst, and an Arabic expert, interviewed him as part of a fact-finding mission to Guantánamo which revealed that a large number of the men held “had no connection to terrorism whatsoever.” As Jane Mayer described his findings about al-Rabiah in her book, The Dark Side:

One man was a rich Kuwaiti businessman who took a trip to a different part of the world every year to do charity work. In 2001, the country he chose was Afghanistan. “He wasn’t a jihadi, but I told him he should have been arrested for stupidity,” the CIA officer recalled. The man was furious with the United States for rounding him up. He mentioned that every year up until then, he had bought himself a new Cadillac, but when he was released, he said, he would never buy another American car. He was switching to Mercedes.

What followed was even more disturbing, and demonstrates, succinctly, how the “enemy combatant” program developed by the Bush administration was fueled by the most damaging arrogance. As Mayer explained, when John Bellinger, the Legal Advisor to the National Security Council, and General John Gordon, the NSC’s senior terrorism expert, learned of the agent’s report and tried to reveal the information to President Bush, to ask him to urgently review the cases of the men held at Guantánamo, a meeting with Alberto Gonzales, who was then the White House counsel, was hijacked by David Addington, Vice President Dick Cheney’s legal counsel, who dismissed their concerns by declaring, imperiously, “No, there will be no review. The President has determined that they are ALL enemy combatants. We are not going to revisit it!”

As Fouad al-Rabiah prepares to greet his family for the first time in over eight years, having spent the last 12 weeks detained at Guantánamo for no reason whatsoever (beyond the two weeks’ notice demanded by Congress before any prisoner is released), David Cynamon, one of his attorneys, provided me by email with the following statement on behalf of the legal team that worked so hard to secure his release:

We are pleased that the US Government has at long last complied with the court order to return Mr. al-Rabiah to Kuwait. The court’s opinion in his case is proof that his release is long overdue. Mr. al-Rabiah is an innocent man. His complete innocence is clearly demonstrated in the trial court’s decision, which the US Government did not attempt to appeal. In fact, at the very outset of Mr. al- Rabiah’s confinement, the United States’ own expert intelligence analyst concluded Mr. al-Rabiah was an innocent man in the wrong place at the wrong time. Nonetheless, this innocent citizen of one of the United States’ best allies was wrongfully imprisoned at Guantánamo Bay for almost eight years, during which he was tortured, abused, and coerced into making false confessions. We call upon President Obama to provide both a formal apology on behalf of the United States and appropriate compensation for Mr. al-Rabiah’s ordeal. Mr. al- Rabiah can never reclaim the eight years he lost at Guantánamo Bay — and the United States must not simply turn and forget.

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 Truthout. Please feel free to Digg this story, which has, I’m glad to note, been receiving a lot of attention. Cross-posted on Global Research.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 29 prisoners released from February to November 2009, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs to Bermuda, 1 Iraqi, 3 Saudis (here and here); August 2009 — 1 Afghan (Mohamed Jawad), 2 Syrians to Portugal; September 2009 — 1 Yemeni, 2 Uzbeks to Ireland (here and here); October 2009 — 1 Kuwaiti, 1 prisoner of undisclosed nationality to Belgium; October 2009 — 6 Uighurs to Palau; November 2009 — 1 Bosnian Algerian to France, 1 unidentified Palestinian to Hungary, 2 Tunisians to Italian custody.

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).

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).

Chaos and Confusion: The Return of the Military Commissions

The courtroom at GuantanamoFor anyone who has studied Guantánamo’s Military Commissions closely over the last eight years, it was obvious that their revival last week, in a supposedly new and improved form, was bound to be a disaster.

First dragged out of obscurity in November 2001 by Dick Cheney and his close advisors, specifically to secure the convictions of “terror suspects” in a system designed to allow evidence obtained through the use of torture, the Commissions failed twice before their recent reincarnation. In June 2006, the Supreme Court ruled that they violated both the Geneva Conventions and the Uniform Code of Military Justice, and when they were revived by Congress later that year (with torture banned, but coerced evidence allowed at the discretion of the judges), they then stumbled from one disaster to another from March 2007 until January 2009, when President Obama suspended them.

Throughout that time, they secured only three contentious results, and were publicly undermined by their own military defense attorneys. On two other occasions, they were rocked even more fundamentally: in October 2007, when the Chief Prosecutor, Col. Morris Davis, resigned, complaining that the entire process was subjected to political interference, and in September 2008 when another prosecutor, Lt. Col. Darrel Vandeveld, resigned because he discovered that the system was incapable of delivering justice.

President Obama’s freeze on proceedings on his first day in office should have been the end of the story, and he should have had the courage to realize that federal courts — with their long and successful history of prosecuting cases related to terrorism — were the only valid venues for trials. Instead, he turned his back on his own pledges on the campaign trail, and his opposition to the Military Commissions Act as a Senator in 2006, and, with the support of Congress, tinkered once more with the Commissions’ rules, tightening the restrictions on the use of hearsay and coerced evidence, but neglecting to introduce either a lower age limit for those who can be charged, or a sunset clause in case it all goes horribly wrong.

Ibrahim al-Qosi at a pre-trial Military Commission hearing at Guantanamo, July 15, 2009 (sketch by court artist Janet Hamlin)Last week, when the new rules were tested on Ibrahim al-Qosi, a Sudanese prisoner who was first charged in February 2004, was charged again in February 2008, and is one of the first five prisoners charged by the Obama administration, the hearing began in chaos and confusion, and never recovered. In a demonstration of the kind of lack of attention to detail for which the Bush administration was notorious, and which left the military judges fumbling for answers, the judge, Air Force Lt. Col. Nancy Paul, was immediately confronted by a fundamental problem that, bizarrely, no one appeared to have seen on the horizon.

Under the Bush administration, for prisoners to be eligible to face trials by Military Commission, they had to have been subjected to a Combatant Status Review Tribunal, and to have been designated as an “unlawful enemy combatant.” Under the Mk. 3 Commissions, however, they are referred to as “alien unprivileged enemy belligerents.” The Washington Post explained that this description was “more in line with the Geneva Conventions,” according to military prosecutors, but no one had thought to inquire whether the change would be acceptable to the judge, and although Lt. Col. Paul did accept it, noting that it was “specifically authorized under the MCA of 2009,” she was in no mood to do so without allowing a challenge from al-Qosi’s defense team.

In a “Motion for Article 5 Status Determination, Or, Alternatively, Dismissal for lack of Personal Jurisdiction” (PDF), the defense argued, firstly, that “the only competent authority to make such a determination is an Article 5 hearing, applying the procedures set forth in Army Regulation (AR) 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees.” This was a long shot, as Article 5 tribunals, established under the Geneva Conventions to ascertain, close to the time and place of capture, whether non-uniformed personnel are combatants or not, were abandoned in the “War on Terror” by Donald Rumsfeld’s Defense Department. This was in spite of the fact that they had been successfully used by the US military in every conflict from Vietnam onwards, and, during the first Gulf War, had led to the release of 886 out of 1,196 men detained (at Guantánamo, in contrast, the lack of Article 5 tribunals meant that large numbers of innocent men ended up in the prison alongside foot soldiers for the Taliban and a handful of terrorists).

Lt. Col. Paul refused to accept this proposition, pointing out that AR 190-8 “is not determinative of jurisdiction in a Military Commission.” She did, however, accept the second part of the motion, noting that “a pre-trial finding by a military judge by a preponderance of the evidence that the Accused is an alien unprivileged enemy belligerent does not eliminate the requirement for the Commission members to find beyond reasonable doubt the Accused’s status if an element of the offense,” and set a date of January 6, 2010 for a hearing regarding the designation. According to the Washington Post, a military prosecutor explained that he “feared it could become a ‘mini-trial’ in itself, adding to the government’s burden in that case and others.”

After this terrible start, the government had no more luck when it came to the charges against al-Qosi. In his charge sheet in February 2008 (PDF), al-Qosi was accused of “conspiracy” and of “providing material support for terrorism,” primarily based on allegations that, from 1996 to 2001, he was a bodyguard and driver for Osama bin Laden. However, as Devon Chaffee, an observer of the proceedings for Human Rights First, explained, “Under the new law the defendant no longer has to have had any connection to hostilities against the US to fall within the jurisdiction of the commissions.” As a result, the government filed a “Motion to Amend Charges” (PDF), asking to “[e]xpand the time frame” for the charges from 1996 to 1992, which would include the time that al-Qosi spent with bin Laden in Sudan, before his departure for Afghanistan in 1996, and, allegedly, combat that he undertook in Chechnya in 1995, “after bin Laden financed his trip there.”

Again, Lt. Col. Paul was unimpressed, noting that, although the rules regarding proposed changes in the new Military Commissions Act appeared to provide no guidance on this point, the relevant passages in the 2006 Act, which were drawn substantially from passages in the US military’s Rules for Court-Martial, were clear that the government’s request constituted a “major change” to the charges, and that “major changes may not be made over the objection of the accused unless the charges are withdrawn and re-referred.”

She added that the proposed amendments were “troubling in nature as the four-year extension of time and addition of overt acts dramatically changes the nature of the offense alleged,” noted that the request disrupted trial preparation which “has been ongoing for almost 2 years,” and, in conclusion, denied the request because the changes “are essentially new and additional offenses and contain substantial matters not fairly included in those previously referred,” and, additionally, because they bring “unfair surprise to the Accused.” In the courtroom, as Devon Chaffee explained, Lt. Col. Paul made a point of adding that, five years after the government first filed charges against al-Qosi, the defense still “doesn’t even know what the charges are going to look like.”

As the government decides whether to start all over again in al-Qosi’s case, two other issues are worth considering. The first, as I explained in an article last month, is that, at al-Qosi’s arraignment in 2008:

[H]is civilian lawyer, Lawrence Martin, declared that his client, “far from being a war criminal, was a cook,” adding, “He was not even a cook for bin Laden, but a cook for a compound where bin Laden was sometimes a visitor.” This position is also maintained by his military defense lawyers, including Maj. Todd Pierce, who visited Sudan over the summer to meet al-Qosi’s family, and it seems, therefore, to cast al-Qosi in a similar role to that of Salim Hamdan, a Yemeni who was one of bin Laden’s drivers in Afghanistan. Hamdan received a meager sentence after his trial by Military Commission in August 2008, when the military jury threw out the conspiracy charge against him, accepting that he knew nothing about the workings of al-Qaeda.

The second is that the other charge against al-Qosi — that he provided “material support for terrorism” — may not stand up to an appeal, even if he is convicted of material support in a forthcoming trial by Military Commission. To its credit, the Obama administration recognized this in summer, and proposed to Congress that the charge of material support for terrorism should be dropped. Assistant Attorney General David Kris conceded (PDF), in Congressional testimony in July, that “there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.” The Justice Department’s position was echoed by the Pentagon, where General Counsel Jeh Johnson also accepted in July (PDF) that “material support is not a viable offense to be charged before a military commission because it is not a law of war offense.”

The irony, as the new Military Commissions began to unravel on their first outing, is not only that David Kris and Jeh Johnson failed to persuade Congress to drop the charge of material support for terrorism, but also that Congress ignored Kris’ additional suggestion that “material support charges could be pursued in federal courts where feasible.”

When Kris’ boss, Attorney General Eric Holder, announced last month that five prisoners — including al-Qosi — would face trials by Military Commission, no one piped up to ask why these men would be charged with material support, despite the opposition of both the Justice Department and the Defense Department to its incorporation in the revised Military Commissions Act. The administration will, I suppose, be able to blame Congress if the system collapses, but it would surely have made more sense for senior officials to follow the advice of their own lawyers, and to pursue these cases in federal court, along with those of Khalid Sheikh Mohammed and the other four men accused of involvement in the 9/11 attacks.

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 Truthout.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Predictable Chaos As Guantánamo Trials Resume (July 2009), David Frakt: Military Commissions “A Catastrophic Failure” (August 2009),
9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please? (September 2009), 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 2009), Military Commissions Revived: Don’t Do It, Mr. President! (November 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), Rep. Jerrold Nadler and David Frakt on Obama’s Three-Tier Justice System For Guantánamo (November 2009), Guantánamo: Idealists Leave Obama’s Sinking Ship (November 2009).

Juan Cole On Obama’s Nobel Peace Prize: Five Things He Needs To Do

Juan ColeI don’t have time to dissect how cleverly Obama’s speechwriters tried to spin a wartime President into a bearer of peace, or to explore how a promise to close Guantánamo and to ban torture doesn’t equate with holding prisoners without rights in Bagram. So here, instead, are five excellent proposals by Juan Cole, the Middle East expert and author of Engaging the Muslim World, a book that, noticeably, doesn’t include troop surges of 30,000 military personnel, which, even setting aside other complaints (the “collateral damage” of ongoing civilian deaths, for example), is unaffordable financially, and also threatens the mental health of an already overstretched military.

Top Things that would Redeem Obama’s Peace Prize
By Juan Cole

The world has noted the irony that President Barack Obama is delivering his acceptance speech for the Nobel Peace Prize after launching an escalation of the Afghanistan war. Of course, the critique is a little misplaced, since the prize is for a specific policy success, not for being a pacifist.

Still, Mr. Obama was clearly given the prize to encourage him in the direction of peace. It is the tragedy of the sole superpower that it is unconstrained by peers and so can launch wars of choice and shatter international law at will. It can be counseled but not blocked. He was awarded this honor as a counsel.

So here are the things Obama can do to redeem his prize.

1. Get out of Iraq on schedule. We can’t stop their low-intensity conflicts, and they are more likely to compromise with each other if we are not there.

2. Resist calls for Iran to be bombed. Such a raid would guarantee that Iran would start a crash program to develop a nuclear weapon, and there would be no way to stop it short of full-scale war.

3. Stop allowing the CIA to operate drones with which to assassinate people. It is illegal and shameful. […]

4. Get the Palestinians a state by the end of 2011, even if by unilateral recognition. Palestinian statelessness is the biggest human rights scandal in the world, since citizenship is the right to have rights. This step alone would solve the bulk of US problems in the Arab world and would deal a deadlier blow to al-Qaeda than capturing Bin Laden.

5. Stick to the plan of beginning a US troop withdrawal from Afghanistan in summer 2011. Karzai and the generals will attempt to embroil us in a decades-long quagmire. No one will remember his Nobel peace prize if President Obama lets that happen.

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.

Calling Time On The Use Of Secret Evidence In The UK

Lord Justice LawsOn December 1, two High Court judges, Lord Justice Laws and Mr. Justice Owen, dealt what looked like the final blows to the British government’s policies of imprisoning terror suspects without charge or trial on the basis of secret evidence — or otherwise depriving them of their liberty under a form of house arrest (also on the basis of secret evidence) — which have existed, in various forms, since December 2001, when a number of men were seized and held for three years in Belmarsh prison.

On Monday, however, in the Special Immigration Appeals Commission (SIAC), which functions as Britain’s “terror court,” these hopes were dashed when Mr. Justice Mitting refused to reinstate the bail of an Algerian prisoner, who is imprisoned facing deportation, even though his bail was revoked in March on the basis of secret evidence.

A brief history of control orders and deportation bail

To recap, the Law Lords brought the initial regime of imprisonment without charge or trial to an end in December 2004, ruling that the detention of the 17 men held in Belmarsh during this three-year period infringed their right to liberty under Article 5 of the European Convention on Human Rights, which guarantees “the lawful detention of a person after conviction by a competent court.” The government responded not by releasing the men — or, as critics had requested (PDF), by putting them on trial and arranging for sensitive intelligence material to be used, with safeguards, in the courts — but by holding them in their homes under a form of house arrest, through the use of secret evidence. This secret evidence is discussed, on the men’s behalf, by special advocates appointed by the government in closed sessions of SIAC. Absurdly, however, the special advocates are prohibited from discussing anything that occurs in the closed sessions, leaving the men and their lawyers unable to challenge whatever is decided in their absence.

It took until June this year for the Law Lords to finally decide that this is an intolerable travesty of justice, infringing the men’s right to a fair trial under Article 6 of the European Convention on Human Rights, because a suspect held under a control order is not given “sufficient information about the allegations against him to enable him to give effective instructions to the special advocate assigned to him.”

However, the Lords’ ruling applied only to those held under control orders: British citizens, who have been subjected to the orders in increasing numbers over the last few years (with barely a ripple of dissent from the British public), and foreign citizens who cannot be deported to countries where they face a risk of torture. This latter group is included because, in assessing legal challenges to prevent their deportation, judges have found themselves unable to accept the government’s attempts to bypass the UN Convention Against Torture’s absolute ban on deporting people to countries where they face a risk of torture. They have done so by refusing to accept that “Memoranda of Understanding”, which purport to guarantee the humane treatment of the deportees, and which have been agreed with such unlikely defenders of human rights as Libya’s Colonel Gaddafi, are either trustworthy or enforceable.

Detainees not covered by the control orders are those held on deportation bail (or in prison awaiting deportation): citizens of countries with whom “Memoranda of Understanding,” or, in Algeria’s case, some kind of shady word-of-mouth agreement, have not yet been overturned by the UK courts, or by the European Court of Human Rights. These men were excluded from the ramifications of this ruling until December 1, when Lord Justice Laws and Mr. Justice Owen helpfully, and appropriately, brought them under the same umbrella as the control order detainees, ruling that it was “impossible to find a legally viable route … by which to conclude that in bail cases a less stringent procedural case is required” than that vouchsafed in A and other and AF, the control order case decided by the Law Lords in June 2009.

The judges were ruling in the case of two “terror suspects.” One man, XC, is a 23-year old Pakistani student and one of the North West 10 (students rounded up in connection with a wildly hyped and seemingly unsubstantiated terror plot in April). His case, and that of another student, UF, will be decided next week, but on Monday, armed with the ruling of Lord Justice Laws and Mr. Justice Owen, lawyers for U returned to SIAC in the hope of reinstating his bail.

Detainee U: eight years in prison, and eight months on bail

To give some necessary background, U is a 46-year old Algerian who, as the judges noted on December 1, “save for a period from July 2008 until February 2009, when he was on bail … has been continuously in custody since March 2001,” without charge or trial. As the judges explained, “U first applied for bail in July 2007. His application was heard in SIAC on 23 August 2007 and was rejected on the basis that the length of time for which he had been detained pending deportation was not yet excessive.”

On 11 March 2008, the House of Lords granted him leave to appeal, which he did, along with other Algerians detained pending deportation. As the judges explained, “The Secretary of State did not oppose the application but sought U’s admission to bail at an address in Liverpool on a 22 hour curfew. U proposed an address in Brighton. For reasons not disclosed at the time the Secretary of State objected to the Brighton address. On 30 April 2008 SIAC ordered that U be released on bail to the Brighton address subject to stringent conditions, including a 24 hour curfew.”

In July 2008, U was moved to the address in Brighton, where he remained until February 2009. On 18 February, the House of Lords dismissed his appeal (along with those of Abu Qatada, a Jordanian, and another Algerian known as RB), and on the same day Jacqui Smith, the Home Secretary, “applied to SIAC to revoke U’s bail on the basis of ‘an increased risk of absconding due to the terms of the judgment’” (as well as requesting revocation of bail in the cases of RB and three other men, identified as Y, Z and VV). The application reached SIAC on 26 February, but when SIAC adjourned further consideration of it until 5 March, and refused Jacqui Smith’s “request for bail to be revoked pending the resumed hearing,” she took the law into her own hands. As I explained at the time, in an article entitled, “Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh,”

[W]hen the two men who attended the hearing — U and VV — were driven away from the court, expecting to return home, as ordered by the SIAC judge, they were, instead, delivered to Belmarsh prison, where they were joined by the other three men, who had been seized in raids on their homes. This was clearly planned by the Home Secretary in advance, even though she had informed neither the men’s lawyers nor the SIAC judge. The first the lawyers heard about it was when one of the men’s wives rang, inquiring why he had not yet returned home.

The following day, as the judges described it on December 1, “together with the four appellants detained overnight, U sought his immediate release and made an urgent application for judicial review of the decision to detain him on the grounds that it was an abuse of power.” Although the other men were subsequently released on bail, a closed hearing in U’s case resulted in Mr. Justice Mitting siding with the government (despite U’s extra-legal kidnapping the day before), revoking his bail “on a temporary basis (pending the adjourned hearing) on the ground that the closed material indicated an increased risk to national security and of U’s absconding.”

At the following hearing, U’s submission that “sufficient details of any closed material sought to be relied on by the Secretary of State should be disclosed so that effective instructions might be given to U’s special advocate” was rejected by SIAC, “without at that stage giving reasons,” and on 20 March SIAC followed up by “rejecting the Secretary of State’s application to revoke the bail of the four other appellants, but holding that U’s bail should be revoked,” explaining, “For the reasons which are wholly set out in the closed judgment, we are satisfied that the risk that U will breach his bail conditions has significantly increased.”

The judges’ ruling last week in the cases of U and XC is an extraordinary document, in which Lord Justice Laws took a tour through 900 years of English law in order to decide that it was “impossible” to conclude “that in bail cases a less stringent procedural standard is required” than in control order cases (and also to refute a claim by SIAC that its decisions should be “immune from judicial review”). The judges did, however, grant the government leave to appeal, and it was for this reason that SIAC reconvened on Monday to decide how to proceed in U’s case.

Revoking U’s bail

In the run-up to the hearing, those who have been watching the deportation bail cases closely wondered what would happen when the government was required not to rely on secret evidence, but to make its case in open court. In a separate article, “Living With A Terror Suspect: Detainee U’s Landlord Tells His Story,” Jack Hazelgrove, the man who made a room available in his house from August 2008 until U was kidnapped by Jacqui Smith in February 2009, described the surreal and intimidating circumstances under which U was required to live, and the raids by Home Office representatives in search of evidence that he was breaking his bail conditions and was preparing to abscond. These episodes, which involved a fig tree in Mr. Hazelgrove’s garden interfering with the surveillance equipment, Home Office Representatives confusing a map of Maidstone with a map of Folkestone, and the most extraordinary paranoia surrounding U’s request to be allowed to walk in a small park near the house for one hour once a fortnight, seem to demonstrate, above all, how the Home Office appeared to be determined to return U to prison using any means necessary.

As I explained in an article in March, “Britain’s insane secret terror evidence,” these suspicions appeared to be confirmed when, in the portion of U’s bail-stripping hearing that was open to the public, the government claimed that U’s bail conditions were “difficult to manage,” and that the address was “unmanageable,” and Robin Tam QC, the Treasury Solicitor, claimed that, even though the route for U’s first, brief excursions into the wider world since 2001 “had been approved by his own government department, there was allegedly a risk that U would abscond because the route passed by a main road, was two km from a railway station, and was not far from a number of ports.”

As I noted at the time, “Quite how this bookish man was supposed to overwhelm four Home Office representatives and make a run for it was not explained,” and it was difficult, therefore, to see how any of this would stand up to objective scrutiny, and how it would be possible to overturn the main conclusion of the High Court ruling on December 1. As with the Law Lords’ ruling on control orders in June, it appeared to be unarguable that those held under control orders or deportation bail are deprived of their right to a fair trial under Article 6 of the ECHR, because they are not given “sufficient information about the allegations against [them] to enable [them] to give effective instructions to the special advocate assigned to [them].”

SIAC refuses to reinstate U’s bail

Mr. Justice MittingIn the end, however, the anticipated showdown failed to materialize. Mr. Justice Mitting acknowledged that last week’s High Court ruling had removed “a vital tool” in SIAC’s appraisal of deportation bail issues related to those held in connection with alleged terrorist activities. He added that, in the cases of other men held pending deportation, the removal of this “vital tool” might cause problems in future, but concluded, in U’s case, that it “doesn’t mean we cannot appeal it afresh in light of considerations we did not then consider.” What this meant, in practice, was that Mitting was prepared to turn the clock back to March, when the revocation of bail was first established, and to review that decision based not on closed evidence, but on the open evidence, establishing, to the satisfaction of the court, that U is a major threat to national security and at risk of absconding.

This was a bitter disappointment for those who hoped that Monday’s hearing would significantly damage the government’s reliance on secret evidence in the cases of those, like U, who are facing deportation despite their long imprisonment without charge or trial, and in fact all the signs were that the government is using this latest setback not to appraise how it deals with secret evidence, but to reinforce its position that, in cases related to terrorism, the ad-hoc system dreamt up in 2001 and reinterpreted in 2005 must be defended at all costs.

Speaking for the government, Robin Tam QC went so far as to suggest that, in future, it was possible that the Home Secretary would consider refusing bail in all deportation cases involving secret evidence related to allegations of terrorism. This prompted Mr. Justice Mitting to note that the government appeared to be indicating that SIAC would be cut out of the process, and his concerns were not mitigated when Robin Tam drew his attention to a number of historical cases in which the courts had deferred to the government on national security issues, including one in which it was stated that the judicial process was “totally inept” regarding matters of national security.

Tam’s argument, essentially, was that, “If SIAC does not have the tools to make fine decisions, then it must take a broader view and apply a lighter touch,” which would give the Home Secretary a greater role in deciding how to proceed with deportation cases related to allegations of terrorism. This, of course, is yet another step away from what those who seek an end to the use of secret evidence have long been demanding, but in court on Monday, Stephanie Harrison, U’s barrister, appeared to be sailing against the wind when she argued that the obligation to provide fair hearings overrides national security concerns, and when she attempted to question the entire architecture of the secret evidence system.

As a result, Monday’s ruling was a bitter blow for those who, in recent months, have had their hopes raised that the government will abandon the use of secret evidence in cases related to allegations of terrorism, and will be obliged to rethink the entire system, finding a way to use sensitive intelligence information in a regular court (as most countries in the world have done), without compromising their sources or methods, so that this parallel judicial world can be brought to an end.

The way forward

Although next Monday’s hearing (in the cases of XC and UF) may be more challenging for the government, Monday’s events suggest that the best way forward for those opposed to the use of secret evidence is to shift the focus back to the control order cases. As the government has been learning in recent months, following the Law Lords’ ruling in June, when it comes to justifying control orders, the only way forward for the government is to release further information to the detainees and their lawyers, although the new Home Secretary, Alan Johnson, has been unwilling to do so. As a result, several men who were once so casually described as terrorists have actually had their control orders quashed, indicating that, when it comes down to it, the government has been required to look long and hard at its supposed evidence, and has, in fact, decided that some of these men are less dangerous than others, and that others are not dangerous at all.

The same principles apply to those held pending deportation, as was revealed in SIAC on Monday, when, having repeatedly described U as “the top of the tree” in terms of the threat that he allegedly poses to national security, Mr. Justice Mitting conceded that there was, in fact, a sliding scale regarding the threat posed by those held on deportation bail, particularly when he stated, “One individual has been a terrible nuisance but the risk he poses is towards the bottom of the scale.”

In U’s case, it appears that there is no way out of his apparently unending limbo, in which he has now been held for nearly nine years, even though neither the government nor SIAC can, in all honesty, predict how this story will end. As Mr. Justice Mitting noted on Monday, he is near the end point of exhausting the appeals procedure against deportation in the UK, and if all avenues are exhausted by next year, he will then be obliged to appeal to the European Court of Human Rights in Strasbourg, which may take another 18 months. At the end of that process (when he will have been held for 11 or 12 years), it is possible that the government will be told that they cannot deport him, and will have to think again about what it intends to do with him, but at present no one is prepared to look into the future.

This is, to put it bluntly, a rather depressing scenario, as U remains in a place where, on the basis of untested allegations, he is regarded permanently as an active threat, while those responsible for depriving him of a trial breezily discuss how long it is possible to hold someone in such circumstances before their detention becomes “excessive.” It also, dangerously, removes him from the cycle of conviction and sentencing that has existed since the establishment of habeas corpus nearly 800 years ago, creating the impression that those accused of activities related to terrorism are a separate class of being for whom the normal laws do not apply, and who, as a result, can legitimately be deprived of their liberty, perhaps for the rest of their lives, despite never having been tried or convicted of any crime.

In conclusion, I can only reiterate that, while complaints about yesterday’s hearing are demonstrably valid, campaigners may find that a useful plan of attack on the whole system needs to focus not just on the injustice of the entire apparatus, but specifically on its discrepancies, and on the concept of a sliding scale whose existence, while mentioned by Mr. Justice Mitting on Monday, and by the Law Lords in February, when they declared that the Algerian, RB, was a “small fish,” is most readily apparent in the control order cases. To my mind, the only reason that such a sliding scale can exist is because the form of “preventive detention” practiced in the UK — which caused widespread consternation in human rights circles, when President Obama proposed passing legislation to introduce it earlier this year in relation to prisoners held at Guantánamo — is inherently corrupt.

The use of secret evidence is corrosive precisely because, under the guise of protecting intelligence agents and their sources, the government is free to declare that certain individuals are a ”threat” without ever being challenged adequately about the basis of these fears. We, the public, are left to trust the interpretation made by the judges, who, essentially, are working within a biased system in which the prosecutors are free to present their cases, but the defense teams are kept — to an unknown extent — in the dark. And that, of course, is neither just nor prudent, however much the government and SIAC pretend that it is.

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 Cageprisoners. Cross-posted on The Public Record.

For other articles dealing with Belmarsh, control orders, deportation bail, deportations and extraditions, see Deals with dictators undermined by British request for return of five Guantánamo detainees (August 2007), Britain’s Guantánamo: the troubling tale of Tunisian Belmarsh detainee Hedi Boudhiba, extradited, cleared and abandoned in Spain (August 2007), Guantánamo as house arrest: Britain’s law lords capitulate on control orders (November 2007), The Guantánamo Britons and Spain’s dubious extradition request (December 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 2008), Spanish drop “inhuman” extradition request for Guantánamo Britons (March 2008), UK government deports 60 Iraqi Kurds; no one notices (March 2008), Repatriation as Russian Roulette: Will the Two Algerians Freed from Guantánamo Be Treated Fairly? (July 2008), Abu Qatada: Law Lords and Government Endorse Torture (February 2009), Ex-Guantánamo prisoner refused entry into UK, held in deportation centre (February 2009), Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh (February 2009), Britain’s insane secret terror evidence (March 2009), Torture taints all our lives (published in the Guardian’s Comment is free), Britain’s Guantánamo: Calling For An End To Secret Evidence, Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (3) Detainee U, Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara, Five Stories From Britain’s Guantánamo: (5) Detainee Z, Britain’s Guantánamo: Fact or Fiction? and URGENT APPEAL on British terror laws: Get your MP to support Diane Abbott’s Early Day Motion on the use of secret evidence (all April 2009), and Taking liberties with our justice system and Death in Libya, betrayal in the West (both for the Guardian), Law Lords Condemn UK’s Use of Secret Evidence And Control Orders (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009), Britain’s Torture Troubles: What Tony Blair Knew (June 2009), Seven years of madness: the harrowing tale of Mahmoud Abu Rideh and Britain’s anti-terror laws, Would you be able to cope?: Letters by the children of control order detainee Mahmoud Abu Rideh, Control order detainee Mahmoud Abu Rideh to be allowed to leave the UK (all June 2009), Testing control orders and Dismantle the secret state (for the Guardian), UK government issues travel document to control order detainee Mahmoud Abu Rideh after horrific suicide attempt (July 2009), Secret evidence in the case of the North West 10 “terror suspects” (August 2009), Letting go of control orders (for the Guardian, September 2009), Another Blow To Britain’s Crumbling Control Order Regime (September 2009), UK Judge Approves Use of Secret Evidence in Guantánamo Case (November 2009).

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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