Such is the hysterical disregard for the law in parts of the United States that when, on March 22, District Court Judge James Robertson ordered the release from Guantánamo of Mohamedou Ould Slahi, a 38-year old Mauritanian who was once described as the “highest-value detainee at the facility,” Republican lawmakers were in uproar.
The Hill reported that Sen. Kit Bond (R-Mo.), the ranking member of the Intelligence Committee, stated, “While Holder’s Justice Department should appeal this outrageous decision, I’m not holding my breath. Holder seems more intent on closing Guantánamo Bay than keeping terrorists locked up where they belong.” The Hill also reported that Rep. Lamar Smith (R-Texas) sent a letter to Holder asking him to appeal the ruling, in which he wrote, “It is certainly possible, if not likely, that Mr. Slahi will re-engage in efforts to commit terrorist attacks against innocent Americans if allowed to go free. This ruling clearly puts the American people in danger and should not be allowed to stand.”
As it transpired, Eric Holder was not happy with the ruling either, and did not need to be slandered by Sen. Bond to issue his own complaint. Speaking from a meeting in Phoenix, Arizona, Holder said that, although “[w]e obviously respect the decision that the judge made, [h]opefully an appeals court will look at the evidence that we presented in the habeas proceeding and come to a contrary conclusion.”
The torture of Mohamedou Ould Slahi
The reasoning behind Judge Robertson’s ruling is not yet clear, as his opinion has not been publicly released. Noticeably, however, Slahi was subjected to several years of torture, which began soon after he was taken in by the Mauritanian authorities on November 20, 2001, at the request of the Bush administration. “My country turned me over, shortcutting all kinds of due process of law, like a candy bar to the United States,” he said in his Combatant Status Review Tribunal at Guantánamo in 2004.
After he was seized, he was transferred by the US to Jordan — one of at least 15 prisoners rendered to Jordan by the CIA between 2001 and 2004 — where he was held for eight months, and where, he said, what happened to him was “beyond description” and he was tortured “maybe twice a week, a couple times, sometimes more.” He was then transferred to the US prison at Bagram in Afghanistan for two weeks, and arrived in Guantánamo on August 4, 2002.
As the “highest-value detainee” at Guantánamo — in the days before Khalid Sheikh Mohammed and 13 other “high-value detainees” were flown in from secret CIA prisons in September 2006 — Slahi was again subjected to torture, which included prolonged isolation, prolonged sleep deprivation, beatings, death threats, and threats that his mother would be brought to Guantánamo and gang-raped. This program, which was implemented in May 2003, and augmented with further “enhanced interrogation techniques” authorized by defense secretary Donald Rumsfeld, culminated, in August 2003, in an incident when Slahi was taken out on a boat, wearing isolation goggles, while agents whispered, within earshot, that he was “about to be executed and made to disappear.” As Der Spiegel explained in an article in 2008, “He was so terrified that he urinated in his pants.”
After this, as Slahi himself described it (in a letter to his lawyers dated November 9, 2006), “I yes-sed every accusation my interrogators made. I even wrote the infamous confession about me was planning to hit the CN Tower in Toronto based on SSG [redacted] advise. I just wanted to get the monkeys off my back.”
However, his treatment was so severe that, in May 2004, Lt. Col. Stuart Couch of the Marine Corps, who had been assigned his case as a prosecutor the year before, resigned rather than pursuing the case. In a meeting with the chief prosecutor, Army Col. Bob Swann, Lt. Col. Couch “told Col. Swann that in addition to legal reasons, he was ‘morally opposed’ to the interrogation techniques ‘and for that reason alone refused to participate in [the Slahi] prosecution in any manner.’”
By all accounts, Slahi’s torture ended as soon as he began cooperating. As Der Spiegel explained in 2008, and the Washington Post reported last week, after he “broke,” he became one of Guantánamo’s most cooperative prisoners, granted special privileges, including fast food and a small garden plot, and regarded as a source of invaluable information — even though more skeptical observers might conclude that the information provided by a man broken by torture might, in fact, be less than reliable.
However, it is improbable that whatever tortured confessions were extracted from Slahi — who has persistently maintained that he had no prior knowledge of the 9/11 attacks — would have been enough for Judge Robertson to grant his habeas petition, unless it was, in addition, demonstrated to him that other sources alleging Slahi’s involvement with the 9/11 hijackers were also unreliable.
Doubts about Slahi’s significance
Here the US authorities’ claims about Slahi begin to look rather dubious. Although the 9/11 Commission Report described him as “a significant al-Qaeda operative” who “recruited 9/11 hijackers in Germany,” the more detailed narrative, as revealed in the report, is less conclusive. Instead, as I explained in my book The Guantánamo Files:
[I]t was stated that Ramzi bin al-Shibh and three of the 9/11 hijackers — Mohammed Atta, Marwan al-Shehhi and Ziad Jeddah — were traveling on a train in Germany when they met a man named Khalid El-Masri, and “struck up a conversation about jihad in Chechnya.” El-Masri told them to contact a man named Abu Musab (Slahi’s alias) in Duisburg, but when they met him, he told them it was difficult to get to Chechnya because travelers were generally detained in Georgia, and advised them to go to Afghanistan for training instead.
As I also explained:
Slahi himself has disputed this story, denying an allegation that he “recruited for jihad,” but even if it were true, it proves only that he was a recruiter for a war in Chechnya that was regarded by many Muslims as a legitimate struggle, who sent would-be recruits for training in long-established training camps in Afghanistan, and does not connect him in any meaningful way to 9/11.
Despite this, the US authorities have persistently presented his activities in Germany as more significant than the 9/11 Commission Report suggested, choosing to ignore the official story — that the hijackers attracted bin Laden’s attention once they were in Afghanistan — and claiming that Slahi arranged for one of them “to meet Osama bin Laden, and that this individual then swore allegiance to Osama bin Laden and became an important and influential al-Qaeda member.”
The US government’s star witness is Ramzi bin al-Shibh, and as Der Spiegel explained in 2008, the recruitment story originally came from him. However, bin al-Shibh was also tortured in US custody, and, in addition, as Der Spiegel noted:
The German investigators familiar with the history leading up to the 9/11 attacks are more cautious in their assessment of Slahi’s position within al-Qaeda. They say that bin al-Shibh’s statements about Slahi recruiting the attackers has “legend status,” and that none of their information supports his assertions.
We will have to wait for Judge Robertson’s opinion to be released to discover whether these were his conclusions too, but it certainly seems possible, just as it also seems probable that the authorities’ attempts to implicate Slahi in all manner of other plots — in particular Ahmed Ressam’s plot to blow up Los Angeles airport in 1999 — are also overblown. Slahi said that he falsely confessed to being part of Ressam’s plot while being tortured in Jordan, and explained that, although he moved to Canada in 1998, hoping to find work as an electrical engineer, he returned to Mauritania in January 2000 because he was kept under constant surveillance by the intelligence services. “Wherever I went I had people right behind me at the market watching my butt,” he said in his tribunal at Guantánamo. “I said what the heck? This is not the life I want to live.”
Overlooked in the assertions that Slahi was a key figure in the 9/11 attacks, rather than, perhaps, a peripheral figure in jihadi circles, is a specific explanation for why the Americans asked the Mauritanian authorities to detain him in November 2001. As I also explained in The Guantánamo Files:
It was not as if he was an unknown quantity. As well as being questioned in Canada, he had been investigated in Germany, had been questioned in Senegal on his way to Mauritania in January 2000, and had also been questioned on two occasions by the Americans themselves: by three FBI agents and “another guy from the Department of Justice” in Mauritania in February 2000, and again in October 2001, when an American agent took part in an interrogation and, according to Slahi, threatened to bring in “black people” to torture him.
If he really had anything to hide, after all this, it seems unlikely that he would have so willingly waited around for the Mauritanian authorities to pick him up at his house on November 20, 2001, when his long ordeal began.
While Mohamedou Ould Slahi’s story, stripped of its core allegations, begs questions about what kind of involvement with jihadi groups is necessary for a judge to deny a Guantánamo prisoner’s habeas corpus petition and hurl him back into ongoing detention without charge or trial, a case that followed Slahi’s a few days later demonstrated that being in Afghanistan at the time of the US-led invasion in October 2001, and being in some sort of proximity to Arab forces fighting with the Taliban, was enough for a prisoner to lose their habeas petition.
A Taliban recruit loses his habeas petition
The prisoner in question, Mukhtar al-Warafi, a Yemeni who was 27 years old when he was seized in northern Afghanistan in November 2001, survived a massacre in a mud-walled fortress, Qala-i-Janghi, where hundreds of prisoners — mostly, but not all foot soldiers for the Taliban — had been taken after surrendering to the Northern Alliance. According to a statement read out by a military officer assigned to represent him at a review board at Guantánamo, al-Warafi studied medical procedures in Yemen, “had nothing to do whatsoever with the Taliban,” and went to Afghanistan “to help provide medical assistance to the poor and the public.”
As with Slahi, the opinion of the judge in his case, Royce C. Lamberth, has not yet been released, but it is certain that Judge Lamberth will not have been convinced by al-Warafi’s story, and will not have accepted his statement that, although he admitted traveling to Khawaja Ghar in Afghanistan and carrying an AK-47, he said that he had it for self-defense and that it was given to him by a doctor he worked with at a clinic, nor his statement that he provided first aid at the al-Ansar clinic in Kunduz, for all types of people, but not “to wounded soldiers.”
I am not yet in any position to say whether I think Judge Lamberth made the correct call in Mukhtar al-Warafi’s case, but as with other cases where peripheral figures involved with the Taliban have been consigned to indefinite detention as a result of losing their habeas petitions, I must reiterate that each of these results does nothing to justify the Bush administration’s detention policies in the “War on Terror.”
Instead, rulings like these demonstrate only that, in defining who can legitimately continue to be held at Guantánamo, the Executive, lawmakers, the Supreme Court and the lower courts have all allowed an unjustifiable situation to prevail in which minor foot soldiers are still being equated with terrorists. This is in spite of the fact that it is patently obvious that the former should, all along, have been held as prisoners of war protected by the Geneva Conventions, rather than being flown halfway around the world to an experimental interrogation camp where large numbers of them were, in one way or another, subjected to variations of the “enhanced interrogation techniques” to which Mohamedou Ould Slahi was subjected.
To critics of the habeas cases, like the Brookings Institute’s Benjamin Wittes and Robert Chesney, the seeming discrepancy between the ruling in the cases of Mohamedou Ould Slahi and Mukhtar al-Warafi will only reinforce the opinions they voiced in an op-ed for the Washington Post back in February, when they claimed that judges were making wildly different rulings because, when “[t]he Supreme Court asserted jurisdiction over Guantánamo in summer 2008,” the justices “coyly refrained from giving any guidance on the myriad important questions that the cases it authorized would predictably generate.”
Wittes and Chesney want Congress to establish new rules, but, in a letter to the Post, David Cole of the Center for Constitutional Rights demolished this argument, pointing out that that “their complaints are predicated on a naive view of both the judicial process and the legislative process, and their prescription is unlikely to solve the ‘problem’ they identify.”
No one should be surprised that different judges reach different results on difficult legal issues. That’s why we fight about judicial appointments and why we have an appellate process that facilitates uniform rules.
Nor is legislation likely to reduce the disagreements. First, it is wildly optimistic to think that this Congress could agree on a detention standard. Second, the inquiries involved — such as assessing whether statements are voluntary or coerced, how far the “taint” from a coerced statement extends to other evidence, or whether an individual poses a threat that warrants preventive detention — are not susceptible to bright-line rules, but require careful case-by-case application of standards. It’s a job for judges, not Congress.
Cole is undoubtedly correct. However, what these recent rulings have shown is not that anyone should have a problem with judges reaching different verdicts, but that in ordering the release of Mohamedou Ould Slahi, but not the release of Mukhtar al-Warafi, the problems are not with the judges, who can discern whether there is any evidence or not, but with the fundamental confusion between al-Qaeda and the Taliban. This confusion is enshrined in the Authorization for Use of Military Force, passed by Congress in the wake of the 9/11 attacks, which provides the basis for detaining those associated with either al-Qaeda or the Taliban.
If no proof was found that Mohamedou Ould Slahi was associated with al-Qaeda, that should be enough to secure his release. If, on the other hand, Mukhtar al-Warafi was associated with the Taliban, on the very fringes of al-Qaeda activity in Afghanistan during the US-led invasion, I cannot see how that justifies his ongoing detention.
There are, we are told, a number of terrorists in Guantánamo — as many as 35, according to the recommendations made by President Obama’s interagency Task Force, regarding those who should be put forward for trials. On last week’s evidence, however, neither Mohamedou Ould Slahi nor Mukhtar al-Warafi qualify as terrorists, and neither, I believe, should continue to be held.
POSTSCRIPT: The unclassified opinion in the Slahi ruling is now available (PDF), and I will be writing an update soon.
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, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.
For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (September 2009), 75 Guantánamo Prisoners Cleared For Release; 31 Could Leave Today (September 2009), 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), Judge Orders Release From Guantánamo Of Unwilling Yemeni Recruit (December 2009), Serious Problems With Obama’s Plan To Move Guantánamo To Illinois (December 2009), Appeals Court Extends President’s Wartime Powers, Limits Guantánamo Prisoners’ Rights (January 2010), Fear and Paranoia as Guantánamo Marks its Eighth Anniversary (January 2010), Rubbing Salt in Guantánamo’s Wounds: Task Force Announces Indefinite Detention (January 2010), The Black Hole of Guantánamo (March 2010), Guantánamo Uighurs Back in Legal Limbo (March 2010).
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), Dark Revelations in the Bagram Prisoner List (January 2010), Bagram: Graveyard of the Geneva Conventions (February 2010).
There is always going to be a degree of arbitrariness in the decision of just who is properly the wheat of an actual combatant engaged in hostilities (even remotely or obliquely) and who is just a purely innocent schnook who has been coerced into confessing, but other than that, has no demonstrable basis to be detained.
Under what we thought were international treaty obligations to which the United States was responsible dating from 1949, a Geneva conventions article 5 tribunal was supposed to make calls like this. Alas, this was deemed “quaint” by our friends in the Bush Administration, and so, what was always intended to be an immediate decision based on facts immediately available more or less “in the field” is instead done in an abstract academic setting over eight years later thousands of miles away in a courtroom in Washington, D.C. (without the prisoner even personally present).
What is amazing is that, even with these intrinsic limitations, how thoughtful, and dare I say it, “fair” the decisions have been (even the ones I disagree with). Naturally, for American politicians these days (both parties are guilty, albeit not equally), anything approaching “fairness” for “the other” is just too much, whether it be due process for swarthy Muslims, or health care (or any social benefits at all) for swarthy Americans (of the “not White” persuasion).
What is so galling about these decisions, quite frankly, is not what they are (yes, there is a troubling inability to discern the Taliban, many or most of whom were conscripts from willing al Qaeda terrorists), but after over eight years, this is a somewhat minor consolation for the fact that no fair hearing at all had ever been held before. The mistakes in the individual adjudications are understandable, and dare I say it, forgivable. The attitude that fair determinations for swarthy people we don’t like is somehow a luxury that can be dispensed with…. is unforgivable.
Thanks, TD. What a pleasure to hear you tear into the elites running the show, with their disdain for the poor, and their increasing insistence that legal outcomes should be preordained. Unforgivable indeed!
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