Archive for July, 2010

Who Are the Guantánamo Prisoners Released in Cape Verde, Latvia and Spain?

Last week, the enforced repatriation of Abdul Aziz Naji, an Algerian prisoner in Guantánamo, diverted attention from the stories of three other men who were released in less worrying circumstances: a Syrian who was rehoused in Cape Verde, a former Portuguese colony off the west coast of Africa; an Uzbek rehoused in Latvia; and an Afghan rehoused in Spain.

With Abdul Aziz Naji now apparently home with his family (also see this interview here), valid concerns still remain about whether he is safe from extremists, about whether the Algerian government can be trusted, and about whether the Obama administration has been sufficiently stung by international criticism to call off its planned repatriation of other Algerians in Guantánamo who fear returning home. These are questions that I discussed in a recent article, and I’d like now to run through the stories of the other men released last week, which, yet again, demonstrate that those who insist on flagging up all the remaining prisoners at Guantánamo as terrorists are either cynical opportunists, preying on the message of permanent fear that was promoted by the Bush administration, or blinkered ideologues, incapable of separating fact from fiction.

Abdul Nasser Khantumani: A 50-year old economic migrant from Syria, resettled in Cape Verde

Abdul Nasser Khantumani (identified on his release as Abd al-Nisr Mohammed Khantumani, and also known in Guantánamo as Abdul Nasir al-Tumani), a 50-year old Syrian, was released at the same time as Abdul Aziz Naji, but, given undisputed fears about what would await him if he was repatriated to Syria, he was, instead, given a new home on the former Portuguese colony of Cape Verde, an archipelago of islands off the west coast of Africa.

Well respected as a stable democracy, Cape Verde has a population of 500,000, but only a very small Muslim population, so it will be difficult for him to adjust to his new life, especially as he is alone, with no members of his family or fellow ex-prisoners to provide any support. What is unusual about this arrangement is that his son, Muhammed, who was seized with him in Pakistan in December 2001, was given a new home in Portugal last August, and it would, therefore, have made sense for him to have been rehoused in Portugal as well.

As economic migrants to Afghanistan, the Khantumanis never posed a threat to anyone, and it is distressing that it took so long for both men to be released. In my book The Guantánamo Files, I discussed their story, based on accounts that they gave in their military review boards at Guantánamo (the Combatant Status Review Tribunals) in 2004-05:

The father had traveled to Afghanistan in 1999 in search of work, finding a job in a restaurant in Kabul and bringing ten members of his family over in June 2001, including Muhammed, his grandmother and an eight-month old baby. Another six family members — [Muhammed]’s uncle’s family — arrived a week before 9/11, but after hearing about the attack on America the family fled to Jalalabad, where they stayed for a month, and then made their way on foot to Pakistan. On the way, their guide advised [Abdul Nasser] to let the women and children travel by car, to make them less of a target for highway robbers, but when he and his son arrived in Pakistan the local villagers handed them over to the Pakistani army.

In his tribunal, Abdul Nasser also spoke about his reasons for traveling to Afghanistan, stating, “I was always looking for an alternative country that I could immigrate to and live with my family. I thought about going to the free world, which is the Western world, especially after I heard a lot about freedom, stability and justice in these countries, but all the doors were closed.”

Unfortunately, both father and son experienced brutal treatment after their capture, both in Pakistani and US custody. Muhammed explained that, while in Pakistani custody, in three separate prisons, he and his father were “subjected to beatings and harsh torture,” and his nose was broken. He added that throughout this ordeal “there were Americans present,” and this account was echoed by his father, who said that the Pakistanis “were torturing us really hard,” and the Americans “were looking and standing right there. The Americans were present. I am sure about that because they were the ones who interrogated us.”

In addition, Muhammed explained that, in the US prison at Kandahar airport (where the prisoners were processed for Guantánamo), his father’s forehead was fractured “and the Red Cross saw this and wrote a report,” and he added that he received a fracture to his left hand, as well as suffering “many diseases” and “other methods of psychological torture,” including sleep deprivation.

He also explained that, during interrogation at Camp X-Ray (the rudimentary first prison at Guantánamo), “one of the interrogators brought two wires connected to electricity and said that if you do not say that you and your father are from al-Qaeda or Taliban, I will place these in your neck,’” and that the abuse continued in Camp Delta (Camp X-Ray’s more permanent replacement), where he said that he was “threatened with violence,” and that “an interrogator threatened to send him to torture in a foreign country.”

Muhammed’s story is also notable for a number of false allegations made by one of his fellow prisoners, which were exposed by his Personal Representative (a military officer assigned to him in place of a lawyer) during his tribunal. As I explained in an article in 2007, based on a series of ground-breaking stories by Corine Hegland for the National Journal:

In his tribunal, [Muhammed Khantumani] denied an allegation that he had attended the al-Farouq training camp [the main training camp for Arabs, associated with Osama bin Laden in the years before 9/11] with such vigor that his Personal Representative decided to investigate the matter further. When he looked at the classified evidence, however, he found that only one man … claimed to have seen him at al-Farouq, and had identified him as being there three months before he arrived in Afghanistan. As Corine Hegland described it, “The curious US officer pulled the classified file of the accuser, saw that he had accused 60 men, and, suddenly skeptical, pulled the files of every detainee the accuser had placed at the one training camp. None of the men had been in Afghanistan at the time the accuser said he saw them at the camp.”

Even so, the Personal Representative’s protestations were in vain, because, as I explained on Muhammed Khantumani’s release, he was “judged to be an ‘enemy combatant,’ and had to wait for nearly five years before President Obama’s Guantánamo Review Task Force finally conducted a comprehensive review of his case, and … established that the evidence against him was unreliable.”

The same conclusion, it should be noted, was also reached by the Task Force in Abdul Nasser’s case. As the Center for Constitutional Rights explained to me, although his habeas corpus petition had not been heard by the time of his release, he was “cleared to leave Guantánamo on the basis of a unanimous determination” by the Task Force, which suggests that the lurid allegations against him that can be found in publicly available documents — including claims that he “was identified by a senior al-Qaeda operative as reportedly being part of a terrorist group,” and that he was “commonly known as an explosives expert” — were conjured up either by the same prisoner who caused his son such problems, or by other patently unreliable witnesses whose lies have been regularly exposed by judges in the District Court in Washington D.C., in their rulings on the prisoners’ habeas petitions.

With Abdul Nasser’s release, the long years of torture, lies and brutality are now behind him, but as CCR also noted, “father and son’s profound hope now is for the day when they may finally be reunited as a family.”

An Uzbek resettled in Latvia

Last Thursday, following the release of Abdul Aziz Naji and Abdul Nasser Khantumani, the Pentagon announced that two more prisoners had been released, in Latvia and Spain, bringing the prison’s population to 176. Neither was publicly identified, but in February this year RFE/RL reported that Latvia had “agreed to accept an Uzbek citizen currently held at the US detention center at Guantánamo Bay.” The report added, “The name of the Uzbek citizen was not disclosed, although it was reported that he speaks fluent Russian, is single, has relatives in Uzbekistan, and is prepared to learn the Latvian language.” In addition, Latvian Foreign Minister Maris Riekstins told journalists at the time that the government “will provide the man with refugee status, a monthly allowance, and an apartment.” It was also reported that the Latvian security service would “monitor” the ex-prisoner.

Given that, at the start of the year, just two Uzbeks remained at Guantánamo, and that one of these men, Ali Sher Hamidullah, was reportedly the Uzbek rehoused in Switzerland on January 26, it seems likely that the man given a new home in Latvia is Kamalludin Kasimbekov, who was cleared for release in 2006 by a military review board under the Bush administration, but who continued to be held because of well-founded fears that he would be tortured if returned to his homeland.

24 years old at the time of his capture, Kasimbekov told his tribunal at Guantánamo that he and a friend had fled Uzbekistan after his friend accidentally killed a policeman while driving his car, and had ended up in a training camp run by the Islamic Movement of Uzbekistan, a militant group aligned with the Taliban, where, he said, those in charge of the camp took away his military ID, which he needed to go home, and flew him and five or six others to Kabul, where he worked in an auto shop.

He went on to explain that in 2001 he requested to go home, and asked for money and his military ID, but that when he received no response he decided to run away, only to be captured while traveling from Kabul to Mazar-e-Sharif in a minivan taxi, imprisoned by the IMU for six months and then released on September 16, 2001 “with agreement that I will help in a battle.” Sent to the front lines in Kunduz, the last Taliban stronghold in northern Afghanistan, he explained that he was “helping with all kinds of household work for about a month or so,” but that, after the aerial bombardment of Kunduz by US forces, when there were “lots of dead bodies” and a surrender was negotiated between the Taliban and the Northern Alliance, he refused to retreat with the IMU and instead went to Abdul Mumin, a Northern Alliance commander, and handed himself in with his gun. He added, “There were no bullets shot from my weapon.”

An Afghan resettled in Spain

For now, the remaining mystery regarding the prisoners released last week concerns the man released in Spain. In February this year, the Spanish government agreed to accept five men from Guantánamo. On the basis that none of them must have criminal record, the government pledged to give them a residence permit and the right to work, and also pledged that they would have freedom of movement within Spain, but would not be allowed to leave the country.

The first of these men, Walid Hijazi, a Palestinian, arrived in February, the second, Yasim Basardah, a Yemeni, arrived in May, and the third, who arrived last week, has, to date, only been identified as an Afghan. With no clues as to his identity, it is difficult to speculate as to why he was not released in Afghanistan, but as a website, The Americas Post, explained this week, confirming his arrival at the military base of Torrejón de Ardoz, the Spanish government’s arrangement with the US “has not been easy for the hosting country, because most of the former prisoners have deep psychological problems and their insertion into society is difficult,” and, perhaps as a result, “no more arrivals are expected at least until after the summer.”

Updating the story of Walid Hijazi, which I reported in May, the blog explained that he arrived with “serious psychological” problems as a result of his detention, “and lived [for] several months in a room [in] a small family hotel in a city in northern Spain. He was offered a transfer to a flat, but the NGO in charge [was] unable to reach an agreement with him. Finally, the city government moved him and brought him to live in a residence of the same NGO.” The blog added that Hijazi is having problems learning Spanish, a “fundamental issue that can truly integrate him in Spain and get a job.”

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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 July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on The Public Record, Eurasia Review, and New Left Project.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 60 prisoners released from February 2009 to mid-July 2010, 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; December 2009 — 1 Kuwaiti (Fouad al-Rabiah); December 2009 — 2 Somalis, 4 Afghans, 6 Yemenis; January 2010 — 2 Algerians, 1 Uzbek to Switzerland, 1 Egyptian, 1 Azerbaijani and 1 Tunisian to Slovakia; February 2010 — 1 Egyptian, 1 Libyan, 1 Tunisian to Albania, 1 Palestinian to Spain; March 2010 — 1 Libyan, 2 unidentified prisoners to Georgia, 2 Uighurs to Switzerland; May 2010 — 1 Syrian to Bulgaria, 1 Yemeni to Spain; July 2010 — 1 Yemeni (Mohammed Hassan Odaini).

Abdul Aziz Naji, Released from Guantánamo Last Week, Speaks to Algerian Media

In the first detailed interview with a prisoner released from Guantánamo to Algeria, Abdul Aziz Naji, forcibly repatriated last week, has spoken to the Algerian newspaper El Khabar, describing his experiences during his eight years in US custody. While this is a welcome demonstration of transparency on the part of the Algerian authorities, it is also indicative of what can be achieved through international criticism. After the Obama administration and the US Supreme Court conspired to repatriate a cleared prisoner against his will, for the first time, human rights groups and the United Nations all expressed their disgust with the United States’ actions, and their fears that a “diplomatic assurance” with the Algerian government, guaranteeing Naji’s humane treatment on his return, was fundamentally untrustworthy, given Algeria’s poor human rights record.

As a result, although this interview is good PR for both the Algerian government and the Obama administration, it should in no way be construed as a green light for the forcible repatriation of five other Algerians in Guantánamo who are unwilling to return home, as I explained in an accompanying article, “Guantánamo Algerian Returns Home; Will Obama Suspend Further Transfers?” and should also not be taken as proof that Abdul Aziz Naji will not, in future, be put on trial, as has happened to other prisoners who returned voluntarily from Guantánamo.

The interview began by explaining that Naji “[a]rrived on Monday to his neighbourhood in Batna province” (overlooking the fact that he spent a week in Algerian custody prior to being released), and that he “tells the suffering he endured there under the pretext of alleged[] international terrorism charges,” and “says the world has to know the truth about abuses against humanity committed by US soldiers in the Guantánamo detention camp.”

“They force detainees to take some medicines for three months to drive them crazy, losing [their] memory and committing suicide,” Naji told El Khabar, adding, “I still remember how a Yemeni prisoner killed himself [because] he couldn’t resist the torture and sexual abuse practiced by the prison caretakers.” That man is not identified, but it may have been Abdul Rahman al-Amri, who died on May 30, 2007, reportedly by committing suicide. As I explained in an article on the third anniversary of his death, former prisoner Omar Deghayes “recalled a devout man who was deeply troubled by the kinds of humiliation that were used on him at Guantánamo.”

The interview also explained that Naji said that in Guantánamo “prisoners suffered different kind[s] of torture to force them [to] confess [to] terror charges” that were falsely leveled against them, and that he criticized the International Committee of the Red Cross because they reportedly “avoided evoking the bad treatment of the soldiers against the prisoners,” and “the majority of detainees accused the Red Cross of collusion with the US soldiers.” This is a common complaint, but it seems to me that it may be based on a misunderstanding of the basis on which Red Cross representatives are allowed access to prisoners — on the understanding that they are prohibited from publicly reporting on the conditions they encounter — and it certainly fails to acknowledge the uproar caused in October 2003, when Christophe Girod of the International Committee of the Red Cross broke with protocol, telling the New York Times, “The open-endedness of the situation [at Guantánamo] and its impact on the mental health of the population has become a major problem.”

Perhaps the most revealing section of Naji’s interview was his discussion of “how some detainees had been promised to be granted [a] political asylum opportunity in exchange [for] a ‘spying role’ within the detention camp,” and how, after their release, they were “maintained as spies serving for the US, under the cover of political refugees.” He specifically mentioned one Algerian, known as “Bavardad,” who “was forced to become a spy within a mosque in a European country, because he was told [that if] he return[ed] to Algeria, [the] intelligence services would consider him a traitor and would kill him. He concluded, however, that once he returned to the country, he had been well treated by [the] Algerian security services.”

Clarifying the circumstances of Naji’s capture, El Khabar also reported that he was “arrested in Pakistan with another Algerian, Mustapha Hamlili, who had lived there for 15 years with his Afghan wife,” and that he was “taken to Bagram military base in Afghanistan, for cross-examinations and torture, before flying to Guantánamo.” The interview neglected to mention that Hamlili’s voluntary repatriation from Guantánamo in July 2008 — along with seven other Algerians between July 2008 and January 2009 — received little international criticism, and that, along with other released men, he was subsequently charged with “membership in a terrorist organization abroad and using forged travel documents.” The interview also neglected to mention that it took another 19 months until he was finally cleared, after a trial that concluded in February this year, or that, in the cases of two other men who were cleared after trials that took place 15 months after their repatriation, the prosecutor had called for prison sentences of 20 years.

Welcome though it is to see Abdul Aziz Naji safely at home, and interviewed by an Algerian newspaper, it is the fate of Mustapha Hamlili and the other returned Algerians that is more generally indicative of what awaits former Guantánamo prisoners in Algeria, and that should give pause to the Obama administration as it contemplates forcibly repatriating five other prisoners from Guantánamo.

Personally, I hope that Abdul Aziz Naji is able to stay in contact with his lawyers, and that he can establish contact with representatives of human rights groups, to ensure that his appearance in the Algerian media is indicative of a new openness on the part of the Algerian government, as is not just a PR stunt, and also, hopefully, to avoid the farcical charges and long-winded trials to which all the other returned Algerians have been subjected.

Note: The El Khabar interview no longer appears to be available online, but I suspect that this is a problem with the website archive, rather than anything more sinister. If readers are interested, the original is mirrored here.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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 July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

Cross-posted on Eurasia Review, Cageprisoners and Uruknet.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 60 prisoners released from February 2009 to mid-July 2010, 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; December 2009 — 1 Kuwaiti (Fouad al-Rabiah); December 2009 — 2 Somalis, 4 Afghans, 6 Yemenis; January 2010 — 2 Algerians, 1 Uzbek to Switzerland, 1 Egyptian, 1 Azerbaijani and 1 Tunisian to Slovakia; February 2010 — 1 Egyptian, 1 Libyan, 1 Tunisian to Albania, 1 Palestinian to Spain; March 2010 — 1 Libyan, 2 unidentified prisoners to Georgia, 2 Uighurs to Switzerland; May 2010 — 1 Syrian to Bulgaria, 1 Yemeni to Spain; July 2010 — 1 Yemeni (Mohammed Hassan Odaini).

Guantánamo Algerian Returns Home; Will Obama Suspend Further Transfers?

Last week, the release from Guantánamo of Abdul Aziz Naji, who was transferred to Algerian custody against his wishes, overshadowed other news from the prison, and with good reason. As I explained in an article at the time, the Obama administration, the Supreme Court and the D.C. Circuit Court, which all played prominent roles in his enforced repatriation, had flouted the United States’ commitment, under the terms of the UN Convention Against Torture, not to “expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

Given that, in its 2009 report on human rights in Algeria, the US State Department noted, “Local human rights lawyers maintained that torture continued to occur in detention facilities, most often against those arrested on ‘security grounds’” it was not entirely reassuring that an Obama administration official told the Washington Post that the Algerian government had “provided diplomatic assurances” that prisoners returned from Guantánamo “would not be mistreated,” and added, “We take some care in evaluating countries for repatriation. In the case of Algeria, there is an established track record and we have given that a lot of weight. The Algerians have handled this pretty well: You don’t have recidivism and you don’t have torture.”

Following Naji’s transfer, Human Rights Watch and the Center for Constitutional Rights issued immediate press releases urging the Obama administration to recognize its international obligations, and warning that Naji had legitimate fears of both the Algerian government and of extremists who might prey on him, and on Wednesday Manfred Nowak, the UN Special Rapporteur on Torture, and Martin Scheinin, the UN Special Rapporteur on the Protection of Human Rights while Countering Terrorism, issued a statement drawing attention to the Supreme Court rulings that paved the way for the enforced transfer of Naji and another Algerian, Farhi Saeed bin Mohammed, who won his habeas corpus petition last November, but is still held.

Criticism of Obama and the Supreme Court by the UN and the New York Times

The UN experts stated, “We are extremely worried that the lives of two Algerian detainees could be put in danger without a proper assessment of the risks they could face if returned against their will to their country of origin. While we appreciate the efforts of the authorities to close the Guantánamo detention facility, the risk assessment should be a meaningful and fair process, and the courts should be part of it.” The experts also called into question the Obama administration’s reliance on diplomatic assurances that Naji — and bin Mohammed — would be treated humanely, stating, “Diplomatic assurances are unreliable or difficult to monitor,” and reiterating that they “cannot substitute the sending country’s obligation to assess the real risk facing the individual.”

Over the weekend, the New York Times became involved, noting, in a sternly worded editorial, that “A prisoner who begs to stay indefinitely at the Guantánamo Bay detention center rather than be sent back to Algeria probably has a strong reason to fear the welcoming reception at home,” reminding the Obama administration of Naji’s belief that “he would be tortured if he was transferred to Algeria, by either the Algerian government or fundamentalist groups there,” and criticizing the decision to forcibly repatriate him as “an act of cruelty that seems to defy explanation.”

The Times also noted that Naji had asked for political asylum in Switzerland, which Ellen Lubell, one of his lawyers, elaborated on at the weekend, telling supporters, “We had applied for asylum in Switzerland for Aziz and his application was proceeding through the Swiss courts with support from many in that country.” The Times also ran through the outline of Naji’s story, noting that he was “picked up by the police in Pakistan in May 2002 and turned over to the Americans on suspicion of being a terrorist,” and adding that, although he “admitted working for the humanitarian wing of Lashkar-e-Taiba, the Pakistani terrorist organization,” the Bush administration “never charged him with a crime, explained why he was being held, or demonstrated any connection to terrorist acts.”

Abdul Aziz Naji’s story

This was a fair précis of Naji’s case, although it is worth elaborating on in more detail. As the Center for Constitutional Rights explained (PDF), he was born in 1975 in Batna (about 300 miles east of Algiers), and, after completing his schooling, worked in his father’s blacksmith shop and then undertook his obligatory military service in the Algerian army. In early 2001, he traveled to Pakistan to provide humanitarian aid to Muslims and Christians in Kashmir, but one night, while carrying food and clothing to poor villagers with a group of other volunteers, he stepped on a landmine and sustained a serious injury, which led to the loss of his lower right leg.

After being treated in a hospital in Lahore, where he was fitted with a prosthetic leg, he was taken in by a few generous families while he recuperated, and was then recommended to visit an Algerian in Peshawar, near the Afghan border, who would be able to help him find a wife. While visiting this man in May 2002, he was seized in a raid by Pakistani police — one of many raids at the time that helped to fill Guantánamo — even though he was never told why he had been seized, and, in fact, was told by the Pakistanis who seized him that he would be released.

In Guantánamo, Naji told his interrogators that he was unaware that Lashkar-e-Taiba was affiliated with al-Qaeda, as the Americans alleged (which was understandable, as LeT’s humanitarian work was separate from its military operations), and was also obliged to counter an allegation that he had received de-mining training at an LeT camp, pointing out that the fact that he lost his leg after stepping on a mine made a mockery of the allegation, and explaining that it was something he had been forced to admit when he was tortured in the US prison at Bagram airbase after his capture. He also explained the meaning of jihad to a military review board that reviewed his case, telling the panel of three officers, “The jihad does not have to be a jihad where you fight. Jihad can be carrying food or helping others. It does not have to be fighting.”

The latest news from Algeria

After Naji’s return, there were alarming indications that the worst fears about the Algerian authorities had been confirmed, when the Associated Press reported that the state prosecutor’s office in Algiers had stated on Monday that Naji had been “indicted,” on unspecified grounds. It later transpired that this was not the case, and that, as Reuters explained, Naji had been reunited with his family after approximately a week in lawful detention (according to Algerian law, terror suspects can be held for up to 12 days before appearing in court). A judicial source “who did not want to be identified” told Reuters, “He is at home in Batna. He just needs to go every week to the local police station to sign a form.”

In a statement, the prosecutor’s office said Naji “was released after appearing before a judge on Sunday who placed him under judicial control — which means he has to report regularly to police pending a further decision on his case,” as Reuters described it. The statement also explained, “Contrary to what has been falsely reported, this person’s case has been dealt with in the most complete transparency and in respect for the law, whether in terms of procedure or the length of his detention.”

The Algerian government could still spring a surprise on Naji, by deciding to put him forward for a trial, but even if the authorities leave him unmolested, there is no guarantee that the extremists that Naji fears will do the same — and it remains deeply troubling that the Obama administration may still seek to forcibly repatriate four other Algerians, also cleared for release after the deliberations of the President’s interagency Guantánamo Review Task Force, who are also terrified of returning home, as the Washington Post explained three weeks ago in an article entitled, “Six detainees would rather stay at Guantánamo Bay than be returned to Algeria.”

Although administration officials conceded last week that they would “continue to examine each case individually before any repatriation,” noting that some officials “have expressed some concern about returning one of the Algerians [Ahmed Belbacha] who was sentenced to 20 years in prison in absentia” last year (for speaking out about his fears of repatriation), it now appears, as I explained last week, that there is “no obstacle to prevent the Obama administration from sending the other four Algerians home whenever it feels like it.”

The other Algerians who fear enforced repatriation from Guantánamo

From what I can ascertain, given that the Obama administration has not released details about the men cleared for release by the Guantánamo Review Task Force, these men are, in addition to Farhi Saeed bin Mohammed, Nabil Hadjarab (PDF), Motai Saib and Djamel Ameziane (PDF), who were all cleared for release by military review boards under the Bush administration, and who all have legitimate fears about returning to Algeria.

Last February, in an article entitled, “Guantánamo’s refugees,” I described Nabil Hadjarab, who was 22 years old when he was seized, as “a young Algerian from a broken home, with relatives in Lyon, who was only persuaded to travel to Afghanistan because he was caught in limbo between Algeria and France as his family disintegrated around him.” As Afghanistan descended into chaos following the US-led invasion in October 2001, Hadjarab, who had been living in Kabul and had then moved to the eastern city of Jalalabad, tried to flee across the mountains to Pakistan, but was wounded by a bomb and taken to a hospital in Jalalabad, where he was sold to US forces.

Returning Nabil Hadjarab to Algeria would be, to extend the New York Times’ comment about Abdul Aziz Naji, “an act of cruelty that seems to defy explanation,” because his extended family is in France, and is willing to take him in, and because he has almost no family connections in Algeria, making him particularly vulnerable to both the government and to extremists who might wish to prey on him. Given that a guard in Guantánamo described him as “a brilliant artist, a keen footballer, and a sweet kid,” it is apparent that the French government should offer him a home, as his lawyers at the legal action charity Reprieve have requested.

Motai Saib, who was 25 years old when he was seized crossing the Pakistani border, had also been living in Jalalabad, and had traveled to Afghanistan via France and London. As his lawyers noted in a court filing in July 2008 (PDF), in February 2008 the Department of Defense notified them that Saib “’has been approved to leave Guantánamo,’ but stated obliquely that ‘such a decision does not equate [to] a determination that your client is not an enemy combatant, nor does is it a determination that he does not pose a threat to the United States or its allies. I cannot provide you any information regarding when your client may be leaving Guantánamo as his departure is subject to ongoing discussions.” As Saib’s lawyers noted, “Saib has serious concerns that this ambiguous and damaging language will prevent his safe release from Guantánamo.”

Djamel Ameziane, who was 34 years old when he was seized crossing the Pakistani border, had also been living in Jalalabad. A Berber, he left Algeria in 1992 “in order to escape persecution and make a better life for himself,” and unsuccessfully sought asylum in Austria, where he worked legally for three years, becoming the top chef at an Italian restaurant in Vienna, until a new government clamped down on immigrants, and his work permit was denied without explanation. From there, he moved to Canada, where he obtained a temporary work permit and worked for an office supply company and for various restaurants in Montreal. In 2000, after five years in Canada, his asylum claim was denied, and, as his lawyers explained, “Fearful of being forcibly returned to Algeria, and with few options, [he] went to Afghanistan, where he could live freely without discrimination as a Muslim man, and where he would not fear deportation to Algeria.”

Ameziane fears returning to Algeria because of the stigma of Guantánamo and the instability in his hometown of Kabylie, where, as his lawyers explained, practicing Muslims are “targeted for arrests and detention by the government based solely on their religious practices” and “The stigma of having spent time at Guantánamo would alone be enough to put him at risk of being imprisoned if he is returned.”

Advice for President Obama

With the uproar over the return of Abdul Aziz Naji, the Obama administration must surely be having second thoughts about proceeding with further enforced repatriations to Algeria, and if any further encouragement is needed, senior officials should recall that, although there were periodic threats to stealthily repatriate Algerians against their will under the Bush administration (as I reported here), the Bush administration was aware of Algeria’s dubious human rights record, and refused to repatriate Algerians who believed that they faced the risk of torture.

I leave the final word of advice to the editors of the New York Times, who concluded their editorial on Sunday with the following words:

We support the administration’s efforts to close Guantánamo, and understand the concern that if there is a more heavily Republican Congress next year, doing so may become harder. That is no reason to deliver prisoners to governments that the United States considers hostile and that have a record of torture and lawlessness.

The government refuses to deport prisoners to Libya, Syria and other countries known for abuse. It could find a new home for the Algerians.

I doubt that we will hear anything about discussions taking place behind the scenes, but for the sake of President Obama’s credibility (and, sadly, that of the Supreme Court), I hope that discussions are ongoing regarding the return of Nabil Hadjarab to France, of Ahmed Belbacha to the UK (where he lived without incident for nearly two years), of Djamel Ameziane to either Austria or Canada, and of Farhi Saeed bin Mohammed and Motai Saib to countries where dubious “diplomatic assurances” are not required to ensure their welfare as refugees who have already lost over eight years of their lives for being in the wrong place at the wrong time.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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 July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on Eurasia Review and The Public Record.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 60 prisoners released from February 2009 to mid-July 2010, 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; December 2009 — 1 Kuwaiti (Fouad al-Rabiah); December 2009 — 2 Somalis, 4 Afghans, 6 Yemenis; January 2010 — 2 Algerians, 1 Uzbek to Switzerland, 1 Egyptian, 1 Azerbaijani and 1 Tunisian to Slovakia; February 2010 — 1 Egyptian, 1 Libyan, 1 Tunisian to Albania, 1 Palestinian to Spain; March 2010 — 1 Libyan, 2 unidentified prisoners to Georgia, 2 Uighurs to Switzerland; May 2010 — 1 Syrian to Bulgaria, 1 Yemeni to Spain; July 2010 — 1 Yemeni (Mohammed Hassan Odaini).

In the Guardian: Court ruling should encourage government to drop control orders

For the Guardian’s Comment is free, “Ruling sends message on control orders” is an article I wrote following a Court of Appeal ruling that two former control order detainees — AE, an Iraqi national and an imam in the north of England, and AF, a dual British/Libyan national, who was born in Derby — are entitled to compensation for the three years that they were held on control orders, a form of house arrest to which British nationals and foreign nationals are subjected, on the basis of secret evidence.

As I explain in the article, former home secretary Alan Johnson revoked the men’s control orders last autumn, preferring to set them free rather than providing them with information about why they were being held. This followed a significant ruling last June, when the Law Lords ruled that control orders breached Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial, 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” (absurdly, in the court sessions where secret evidence is discussed, the men are represented by special advocates who are prohibited from discussing anything with their clients that takes place in these sessions).

Today’s ruling in the Court of Appeal follows a High Court ruling in January, when Lord Justice Silber ordered the men’s control orders to be quashed rather than revoked, which meant, essentially, that they had been wrongly imposed, and that the men would be able to claim compensation.

As I mention in the article, the Court’s decision will no doubt provoke a tabloid backlash, but the truth is that the control order regime itself is rotten, and needs scrapping immediately, to be replaced by trials that, if necessary, involve the use of intercept evidence. Moreover, as the Liberal Democrats voted en masse to oppose the renewal of control orders in March this year, the pressure is now on them to urge their Conservative colleagues to implement these much-needed changes.

Civil libertarians will be watching developments closely — and also hoping for a demonstration that the Liberal Democrats have not been entirely sidelined in the coalition government. It is time for Nick Clegg to act.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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 July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

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? (all April 2009), 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), Calling Time On The Use Of Secret Evidence In The UK (December 2009), Compensation for control orders is a distraction (for the Guardian, January 2010), Control Orders Take Another Blow: Libyan Cartoonist Freed (Detainee DD) (January 2010), Control Orders: Solicitors’ Evidence before the Joint Committee on Human Rights, February 3, 2010 and Control Orders: Special Advocates’ Evidence before the Joint Committee on Human Rights, February 3, 2010 (both February 2010), Will Parliament Rid Us of the Cruel and Unjust Control Order Regime? (February 2010), Don’t renew control orders, CAMPACC, JUSTICE and the Joint Committee on Human Rights tell MPs (February 2010), Fahad Hashmi and Terrorist Hysteria in US Courts (April 2010), 98 MPs Who Supported Human Rights While Countering Terrorism (May 2010), UK Terror Ruling Provides Urgent Test for New Government (May 2010), An uncivilized society (in the Guardian), New letter to MPs asking them to oppose the use of secret evidence in UK courts, and to support the return from Guantánamo of Shaker Aamer (May 2010), Torture Complicity Under the Spotlight in Europe (Part One): The UK (July 2010).

A Letter from Omar Khadr in Guantánamo

The Washington Post has just made available a letter from Guantánamo (PDF), written by Omar Khadr, the Canadian citizen who was just 15 years old when he was seized in Afghanistan in July 2002. The letter, to one of Khadr’s Canadian lawyers, Dennis Edney, was written on May 26, and touches on aspects of Khadr’s impending trial by Military Commission — including his constant desire to fire his lawyers, which surfaced in recent pre-trial hearings, and which I discussed in two articles, Defiance in Isolation: The Last Stand of Omar Khadr and Omar Khadr Accepts US Military Lawyer for Forthcoming Trial by Military Commission.

The Washington Post described the letter as “providing a glimpse into the thinking of one of the most high-profile inmates there in advance of his August military commission trial on murder and war crimes charges,” and, in a press release that accompanied the release of the letter, one of Khadr’s supporters explained that, in it, “we see both the boy and the man; the boy in his awkward phrasing and grammar — the man in his sophisticated assessment of his predicament and the role he appears destined to play in the Guantánamo Bay story.”

What is also readily apparent is how Edney has come to be regarded by Khadr as a father figure, a substitute for his own father, killed in Pakistan in 2003, and, presumably, one of the very few people that Khadr has been able to trust during the long years of his incarceration. I think a measure of hard-heartedness can be gleaned from readers’ responses to Khadr’s description of himself as “Your truly son [sic],” and his encouragement to Edney to “Just think about me as a child who died and get along with your life,” if he were to fire Edney and not see him again.

The press release also stated, “Omar’s supporters would also like to announce their intent to embark on a renewed campaign of appeals to Canadian Prime Minister Stephen Harper and American President Barack Obama to re-establish the once solid international reputation of their countries as just enforcers of the rule of law. To do so, we hold that they must take immediate action to insure that Mr. Khadr receive a fair trial, either in an American federal court or in a Canadian court which recognizes his rights under the Canadian Charter of Rights and Freedoms.”

The letter is cross-posted below.

Omar Khadr’s letter from Guantánamo

Dear Dennis:

I’m writing to you because sometimes there are things you can’t say, but rather write on paper, and even if I were to tell you you won’t understand. So anyway here are the things:

First: About this whole MC thing we all don’t believe in and know it’s unfair and know Dennis that there must be somebody to sacrifice to really show the world the unfairness, and really it seems that it’s me. Know Dennis that I don’t want that, I want my freedom and life, but I really don’t see it coming from this way. Dennis you always say that I have an obligation to show the world what is going on down here and it seems that we’ve done every thing but the world doesn’t get it, so it might work if the world sees the US sentencing a child to life in prison, it might show the world how unfair and sham this process is, and if the world doesn’t see all this, to what world am I being released to? A world of hate, unjust and discrimination! I really don’t want to live in a life like this. Dennis justice and freedom have a very high cost and value, and history is a good witness to it, not too far ago or far away how many people sacrificed for the civil right law to take affect. Dennis I hate being the head of the spear, but life has put me, and as life have put me in the past in hard position and still is, I just have to deal with it and hope for the best results.

Second: The thought of firing everybody as you know is always on my mind so if one day I stop coming or fire you please respect it and forget about me, I know it is hard for you. Just think about me as a child who died and get along with your life. Of course I am not saying that will or willn’t happen but its on my mind all the time.

Dennis. I’m so sorry to cause you this pain, but consider it one of your sons hard decisions that you don’t like, but you have to deal with, and always know what you mean to me and know that I will always be the same person you’ve known me and will never change, and please don’t be sad and be hopeful and know that there is a very merciful and compassionate creator watching us and looking out for us and taking care of us all, you might not understand these thing, but know by experience they have kept me how and who I am.

With love and my best wishes to you, and the family, and everybody who loves me, and I love them back in Canada, and I leave you with HOPE and I am living on it, so take care.

Your truly son,

Omar

26 May 2010 at 11:37am

P.S. Please keep this letter as private as can be, and as you see appropriate.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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 July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

Cross-posted on Eurasia Review, Cageprisoners, Progressive Democrats of America, Uruknet and New Left Project.

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), Chaos and Confusion: The Return of the Military Commissions (December 2009), Afghan Nobody Faces Trial by Military Commission (January 2010), Lawyers Appeal Guantánamo Trial Convictions (February 2010), When Rhetoric Trumps Good Sense: The GOP’s Counter-Productive Call for Military Commissions (March 2010), David Frakt’s Damning Verdict on the New Military Commissions Manual (May 2010), Prosecuting a Tortured Child: Obama’s Guantánamo Legacy (May 2010), The Torture of Omar Khadr, a Child in Bagram and Guantánamo (May 2010), Bin Laden Cook Accepts Plea Deal at Guantánamo Trial (July 2010).

Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part Two)

Last week, in the first part of this two-part series, I began looking at how the Conservative-dominated D.C. Circuit Court has responded to the rulings in the District Court regarding the habeas petitions of the prisoners held at Guantánamo Bay, where, to date, 38 out of 53 cases have been won by the prisoners. In my article, I examined the first three appeals considered by the Circuit Court, and noted that, although none were contentious (to the extent that they were appeals against habeas petitions that had been denied), in each case the Circuit Court, while upholding the men’s detention, made a point of trying to expand the government’s powers.

In January this year, the Court attempted (against the government’s wishes) to argue that the international laws of war were irrelevant to the detention of men at Guantánamo and the legislation underpinning it (the Authorization for Use of Military Force, passed the week after the 9/11 attacks), and in two cases in June, the Court took exception to the prevailing requirement for detention accepted in the District Court — that the men be part of the “command structure” of al-Qaeda or the Taliban — arguing that merely being “part of” either organization was enough.

As I have maintained for the last year and half, the problems with the AUMF — which the District Court judges are not empowered to discuss, even if they wanted — is that it fails to distinguish between al-Qaeda (a terrorist organization) and the Taliban (the government of Afghanistan at the time of the US-led invasion in October 2001). The result of this confusion is that the majority of the men who have lost their habeas petitions (and whose detention is being robustly upheld by the Circuit Court) were, at best, minor players in a military conflict that had nothing to do with al-Qaeda’s international terrorist operations, and therefore the Circuit Court, with its enthusiasm for endorsing detention, is taking us further away from the kind of discussion we should be having about the purpose of Guantánamo and the ongoing detention of the men held there.

A rare victory: Circuit Court orders lower court to reconsider the case of Belkacem Bensayah, an Algerian kidnapped in Bosnia

Despite the Circuit Court’s prevailing enthusiasm for endorsing ongoing detention, there was a surprise on June 28, when a panel led by Judge Douglas Ginsburg actually ruled in favor of a prisoner, ordering the lower court to reconsider whether Belkacem Bensayah, an Algerian, and one of six men kidnapped in Bosnia-Herzegovina in January 2002 and rendered to Guantánamo, was involved in any way with al-Qaeda.

In November 2008, Judge Richard Leon had granted the habeas petitions of five men seized with Bensayah, but had ruled that the government had provided “credible and reliable evidence,” from a number of sources, “linking Mr. Bensayah to al-Qaeda and, more specifically, to a senior al-Qaeda facilitator,” and had denied his petition.

In dismissing Judge Leon’s conclusion on June 28 (PDF), Judge Ginsburg said “the evidence upon which the district court relied in concluding Bensayah ‘supported’ al-Qaeda is insufficient … to show he was part of that organization.” He added, “The government presented no direct evidence of actual communication between Bensayah and any al-Qaeda member,” and also noted that, after Judge Leon had delivered his ruling, the Obama administration stepped back from a claim that a “senior al-Qaeda operative and facilitator” was a witness against Bensayah.

That man, it is clear from analyses of the case over many years, was Abu Zubaydah, the supposed “high-value detainee,” for whom the CIA’s torture program was initially introduced, and who, it turned out, was not a member of al-Qaeda at all, and had no knowledge of any international terrorist plots, including 9/11. In a case appealed in the Circuit Court the week before Bensayah’s — that of Sufyian Barhoumi, an Algerian seized with Zubaydah — the judges failed to recognize that the government had backed down from most of its claims about Zubaydah, and, shamefully, relied on long-discredited statements made by Ahmed Ressam, the failed “Millennium Bomber,” who is now serving a 22-year sentence in a US prison, as part of its justification for upholding Barhoumi’s detention.

The collapse of the case against Zubaydah — primarily because torture encourages its victims to make up a pack of lies to get it to stop — has been so significant that allegations made by him or about him have stealthily disappeared from the charge sheets in numerous cases — not only at Guantánamo, but also in other countries. In Bensayah’s case, however, the discussions regarding his significance — or lack of it — have surfaced over the years, and in an article in the New York Times in March this year, Charlie Savage explained how Bensayah’s case had also provided a test for the Obama administration regarding the perceived scope of its detention powers.

The article was fascinating for the revelations that, last spring, career lawyers at the Justice Department resisted narrowing the definition of who could legally be held at Guantánamo, after Judge John D. Bates asked for a current definition, fearing that “rolling back the Bush position might make it harder to win,” but that White House Counsel Greg Craig shepherded President Obama to a position in which “only people who were part of al-Qaeda or its affiliates, or their ‘substantial’ supporters” could be detained — the definition that Judge Bates later refined by proposing that the “key inquiry” for determining whether an individual has become “part of” one or more of these organizations is “whether the individual functions or participates within or under the command structure of the organization — i.e., whether he receives and executes orders or directions.”

Last summer, after Craig had already been sidelined for his fearless approach to dismantling the Bush administration’s policies, the case of Belkacem Bensayah arose as a test for the administration, given that he had been seized “far from the active combat zone” and had, essentially, only been accused of “facilitating the travel of people who wanted to go to Afghanistan to join al-Qaeda.”

Savage reported that Harold Koh, who became the State Department’s senior lawyer in June, “produced a lengthy, secret memo contending that there was no support in the laws of war for the United States’ position in the Bensayah case.” Koh was up against Jeh Johnson at the Pentagon, who also produced a secret memo arguing for “a more flexible interpretation of who could be detained under the laws of war.”

In September, according to Savage, Koh and Johnson debated the issues in a packed room in the Justice Department’s Office of Legal Counsel (which advices the Executive branch on what is legally permissible), with David Barron, the OLC’s acting head, called upon to “decide who was right.” Instead, however, Barron refused to decide, circulating a memo in which he stated that the OLC “had found no precedents justifying the detention of mere supporters of al-Qaeda who were picked up far from enemy forces” and “was not prepared to state any definite conclusion.”

As Savage explained, the upshot was a mess, a “tactical approach” that involved lawyers trying to avoid the question “as long as possible.” He added, “They changed the subject by instead asking courts to agree that people like Mr. Bensayah, looked at from another angle, had performed functions that made them effectively part of the terrorist organization — and so were clearly detainable.”

In the end, however, the Circuit Court concluded that there was no evidence that Bensayah had “performed” any “functions” for al-Qaeda at all. The key allegation, which apparently involved phone calls that Bensayah had supposedly made to Abu Zubaydah, disappeared like a will o’ the wisp, and perhaps hinged on a solitary document marked, “INFORMATION REPORT, NOT FINALLY EVALUATED INTELLIGENCE.” In its place, as Judge Ginsburg noted, there was little more than a claim that Bensayah had “experience in obtaining and traveling in and out of numerous countries on fraudulent passports,” and, as Bensayah himself admitted, he had “used multiple travel documents, ‘some of which were in an assumed name,’ but [only] in order to avoid being sent back to Algeria, “where he reasonably feared prosecution.” As Judge Ginsburg added:

He presented “unrebutted declarations” that “mere possession and use of false travel documents is neither proof of involvement with terrorism nor evidence of facilitation of travel by others.” We agree.

While Bensayah waits to see if his case will indeed by reconsidered by Judge Leon, or whether, as his Bosnian wife told a Balkan website, he “will be released soon,” he is probably fortunate that, even with no evidence against him, his appeal came up before a panel led by Judge Ginsburg, rather than, for example, Judge A. Raymond Randolph, whose record on Guantánamo is notoriously inflexible, and is discussed below.

Fawzi al-Odah, who attended a training camp for one day, has his appeal denied

Two days after the Bensayah ruling, on June 30, a different Circuit Court panel dismissed the appeal of Fawzi al-Odah, a Kuwaiti who lost his habeas petition last August, when, as I explained at the time:

[T]he government secured another shallow victory when Judge Colleen Kollar-Kotelly denied the habeas petition of Fawzi al-Odah, a Kuwaiti prisoner, agreeing with the government that it was “more likely than not” that he “became part of Taliban and al-Qaeda forces in Afghanistan.” Judge Kollar-Kotelly’s ruling was based on a dubious assemblage of information that relied more on inconsistencies in al-Odah’s account of his activities than it did on anything resembling concrete evidence, as she herself admitted, when she wrote that there were “significant reasons why the Government’s proffered evidence may not be accurate or authentic.”

Al-Odah has always claimed that he took a break from work and traveled to Afghanistan in August 2001 to teach the Koran and provide humanitarian aid (which he had done previously in other countries), and has also admitted that he established contact with the Taliban, as they were the government at the time, and spent one day at a Taliban-controlled training camp. He has also stated that, after the US-led invasion, he was sent by a Taliban representative to a safer location outside Kabul, and, from there, traveled to Jalalabad, where he stayed with another family, who gave him an AK-47 assault rifle to protect himself. He then joined other people crossing the mountains to Pakistan, where he handed himself in to the border guards, and was subsequently handed over — or sold — to US forces.

While Judge Kollar-Kotelly was undoubtedly justified in finding numerous holes in al-Odah’s account of his activities, including asking why he did not flee Afghanistan before traveling to Jalalabad, and why he allowed himself to travel with other armed men through the Tora Bora mountains, the result of her ruling, as I explained at the time, was that:

[N]early eight years after the 9/11 attacks, the United States is still asserting that it has the right to hold a young man who spent just one day at a training camp, who did not flee Afghanistan after the 9/11 attacks (perhaps because he feared reprisals if he was found escaping), who traveled with other men to Kabul, and then to Logar and then to Tora Bora and his eventual capture, with no evidence that he ever used the weapon he was given, and no evidence that his training involved anything more than firing a few rounds from an AK-47 in a practice session.

In al-Odah’s appeal, the Circuit Court panel, led by Chief Judge David B. Sentelle, dismissed challenges regarding the “preponderance of evidence” standard for detention, and the use of hearsay evidence, dismissing the first “under binding precedent in this circuit,” and the second because the Supreme Court in Hamdi [v. Rumsfeld, the 2004 case that approved the detention of prisoners under the AUMF] stated that “[h]earsay … may need to be accepted as the most reliable available evidence from the Government” in the prisoners’ habeas petitions, and because of the precedent established by the Circuit Court in the cases of Adham Ali Awad and Sufyian Barhoumi, discussed in the first part of this article.

When it came to examining the basis of the evidence against al-Odah, the court began by noting that he “has a heavy burden to meet to have this court reverse the district court’s factual findings that are the underpinnings of its determination,” and then, predictably, dismissed all of his challenges, leaving unanswered the question I asked last year — about whether it ought to be justifiable to hold indefinitely a young man who attended a training camp for one day, and does not appear to have ever raised arms against US forces.

The Circuit Court’s disdainful dismissal of Mohammed al-Adahi’s successful habeas petition

A final blow for the prisoners came on July 13, when the Circuit Court, for the first time, reversed a successful habeas petition (PDF). The prisoner in question is Mohammed al-Adahi, a Yemeni who had accompanied his sister to Afghanistan to marry a man who was undoubtedly connected to al-Qaeda. Nevertheless, last August, Judge Gladys Kessler ruled that, despite this, al-Adahi himself had no connection to al-Qaeda, and granted his habeas petition.

There was abundant evidence to suggest that she was correct — primarily that he had never previously left Yemen, where he had a respectable job, that he was obliged to accompany his sister, who was not allowed to travel alone, and that he was kicked out of a training camp during his stay because he broke the rules by smoking — but when the government’s appeal came before a panel including Judge Randolph (notorious for endorsing every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court), the Court reversed Judge Kessler’s ruling, with Judge Randolph describing it as “manifestly incorrect — indeed startling.”

In what I can only characterize as a vile assault on Judge Kessler’s integrity, Judge Randolph, as Law.com explained, wrote that Kessler’s “consideration of each piece of evidence on its own merits, instead of as part of a whole, was a ‘fundamental mistake that infected the court’s entire analysis.’” He then chastised Kessler for having “failed to consider ‘conditional probability analysis’ in weighing the government’s evidence, which he explain[ed] as a theory that the occurrence of one event makes another event either more or less likely.”

Judge Randolph also stated that the District Court “erred in its treatment of the evidence” and “reached [its] conclusion through a series of legal errors,” adding, “When the evidence is properly considered, it becomes clear that Al-Adahi was — at the very least — more likely than not a part of al-Qaeda. And that is all the government had to show in order to satisfy the preponderance standard.”

One of al-Adahi’s lawyers, John A. Chandler, said he was “utterly stunned” by the ruling, telling the New York Times, “Mr. al-Adahi is not and has never been a member of al-Qaeda or a terrorist.” Law.com reported that his team would either ask for an en banc rehearing or petition the Supreme Court to hear the case, and stated that Chandler “criticized the appeals court for reassessing the evidence being used to hold al-Adahi instead of assessing the trial court’s ruling for errors of law.” As Chandler explained, “The appellate court pretty clearly wanted to find he was al-Qaeda and substituted their judgment on the facts for the judgment of the trial court, when the trial court is supposed to make decisions of fact.”

However, what was more worrying than Judge Randolph’s dismissal of Judge Kessler’s reasoning was his additional assault on the “preponderance of the evidence” standard established by Senior District Judge Thomas F. Hogan in the Case Management Order governing the habeas petitions in November 2008, which, of course, is already considerably lower than what is required in federal court trials.

After a hearing in February in al-Adahi’s case, Judge Randolph had ordered the government and al-Adahi’s lawyers to file new briefs “suggesting what factual proof — ‘if any’ — the government needed to support continued detention,” as SCOTUSblog explained, and had found that the results “were not exactly illuminating.” Fudging — as was to be expected from the analysis of backroom maneuvering described above — the government defended the “preponderance” standard as “appropriate,” but added that “a different and more deferential standard” might be appropriate in other, unexplained situations.

Seemingly out of nowhere, Judge Randolph stated in the ruling on al-Adahi that “we doubt” that the Constitution “requires the use of the preponderance standard.” He added that the District Court judges “had not said why they were using that approach, but that Judge Hogan had indicated it was based on the Supreme Court’s Boumediene decision” in June 2008, which granted the prisoners habeas rights.

“But,” Judge Randolph wrote, “Boumediene held only that the ‘extent of the showing required of the Government in these cases is a matter to be determined,’” and then proposed that it “should equal the scope of habeas rights as they existed in 1789, when the Constitution was written” (as SCOTUSblog described it), and when, as Randolph obviously delighted in pointing out, there appeared to be “no precedent in which 18th Century English courts adopted a preponderance standard.”

To understand quite how depressing this proposal is, it should be noted that, the last time anyone argued in a court that “some evidence” should be sufficient to justify detentions in wartime — or, to be more accurate, in the “War on Terror” — was during the Bush administration, before the Supreme Court intervened to try to ensure that the men in Guantánamo were held for some reason other than the kind of inadequate evidence that Judge Randolph finds appropriate.

And yet, eight and a half years after Guantánamo opened, Judge Randolph has shifted the clock back to the intolerably poor detention standards of those years, which the District Court has been doing so much to challenge in the two years since Boumediene. The result, as SCOTUSblog explained, is that “even if the Justice Department did not now take the Circuit Court’s hint to propose a ‘some evidence’ standard for use in the remaining Guantánamo cases, the way the panel interpreted the preponderance standard would seem to ease the government’s burden of proof significantly.”

If al-Adahi’s case is anything to go by, that is nothing short of a disaster.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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 July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation, as “Guantánamo and Habeas Corpus: Wins and Losses, Part 2.” Cross-posted on The Public Record and Uruknet.

For an overview of all the habeas rulings, including links to all my articles, and to the judges’ unclassified opinions, see: Guantánamo Habeas Results: The Definitive List. 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), Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit (April 2010), An Insignificant Yemeni at Guantánamo Loses His Habeas Petition (April 2010), With Regrets, Judge Allows Indefinite Detention at Guantánamo of a Medic (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), Why Judges Can’t Free Torture Victims from Guantánamo (April 2010), How Binyam Mohamed’s Torture Was Revealed in a US Court (May 2010), Guantánamo and Habeas Corpus: Consigning Soldiers to Oblivion (May 2010), Judge Denies Habeas Petition of an Ill and Abused Libyan in Guantánamo (May 2010), Judge Orders Release from Guantánamo of Russian Caught in Abu Zubaydah’s Web (May 2010), No Escape from Guantánamo: Uighurs Lose Again in US Court (June 2010), Does Obama Really Know or Care About Who Is at Guantánamo? (June 2010), Guantánamo and Habeas Corpus: 2 Years, 50 Cases, 36 Victories for the Prisoners (June 2010), Obama Thinks About Releasing Innocent Yemenis from Guantánamo (June 2010), Calling for US Accountability on the International Day in Support of Victims of Torture (June 2010), Judge Orders Release from Guantánamo of Yemeni Seized in Iran, Held in Secret CIA Prisons (July 2010), Innocent Student Finally Released from Guantánamo (July 2010).

I’m Off, Then; I’ll See You on Monday

So I hope I left enough food in the cupboards and the fridge. And don’t forget to water the plants, please. I certainly left enough reading material. If you missed any of it, there’s the latest in the case of Omar Khadr, the “child soldier” that Obama, of all people, wants to try for invented war crimes (Defiance in Isolation: The Last Stand of Omar Khadr and Omar Khadr Accepts US Military Lawyer for Forthcoming Trial by Military Commission), some updates on the story of the UK torture inquiry, its inappropriate judge and the selective censorship of damaging intelligence material (Omar Deghayes Complains About “Highly Selective” Disclosure of UK Documents Relating to his Interrogations in Bagram and Guantánamo and Reprieve Demands Resignation of “Fatally Compromised” Head of UK Torture Inquiry), and a promising update on the three ex-Guantánamo prisoners in Slovakia who embarked on a hunger strike after the government dragged its heels sorting out new lives for them (Former Guantánamo Prisoners in Slovakia Finally Receive Residence Permits).

There are also a few updates on torture: some evasive Congressional testimony from Jay Bybee, who signed off on the “torture memos” of August 2002, and who appears to have set up the CIA for prosecution, for exceeding his guidelines or using unapproved techniques (How Jay Bybee Has Approved the Prosecution of CIA Operatives for Torture), and the truly disturbing story of how the Obama administration, the Supreme Court and the D.C. Circuit Court have all conspired to forcibly repatriate an Algerian from Guantánamo, even though he faces the risk of torture (Obama and US Courts Repatriate Algerian from Guantánamo Against His Will; May Be Complicit in Torture).

Related are two other stories: one reviewing the D.C. Circuit Court’s treatment of Guantánamo prisoners’ habeas corpus appeals, explaining how the judges appear to be obsessed with granting the President unfettered executive power, and with undermining the District Court judges who have granted 37 out of 51 habeas petitions (Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals — it’s Part One; Part Two will follow next week). The other, focusing on one of these appeals, tells the disgraceful story of how the D.C. Circuit Court, in the case of a prisoner allegedly associated with Abu Zubaydah (the “high-value detainee” for whom the CIA torture program was invented), has drawn on long-discredited allegations about Zubaydah, ignoring the fact that, four months ago, the government conceded in a court filing that he was never a member of al-Qaeda, and has also drawn on a dubious diary by a supposed “associate” of Zubaydah, whose whereabouts are unknown (In Abu Zubaydah’s Case, Court Relies on Propaganda and Lies).

If that’s not enough, you could explore my definitive Guantánamo prisoner list, recently updated, which provides references and links for all 779 prisoners held at Guantánamo, or you could come and join me in Wiltshire.

Oh, I’m sorry. Did I forget to tell you here I’m going? I’m going here:

And hopefully it will be like this (last year):

And not like this (three years ago):

If you don’t make it, then I’ll see you back here on Monday evening!

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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 July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

In Abu Zubaydah’s Case, Court Relies on Propaganda and Lies

In the history of the “War on Terror,” few stories are as disturbing as that of Abu Zubaydah. Seized in Pakistan in March 2002, Zubaydah was initially regarded as a “high-value detainee” of such significance that the Bush administration conceived its torture program specifically for use on him, but the case against him has steadily unraveled over the years, as officials — first in the Bush administration, and then under President Obama — have conceded that his significance was monstrously overstated, and that he was not a member of al-Qaeda, was not involved in planning any international terrorist attacks, and had no advance knowledge of the 9/11 attacks.

With this in mind, it is distressing to note that, last month, in the case of Sufyian Barhoumi, an Algerian seized with Zubaydah, who lost his habeas corpus petition last September, the Court of Appeals in Washington D.C. drew on discredited information about Zubaydah to overstate his importance, and to justify Barhoumi’s ongoing detention. The Circuit Court also drew on the diary of a previously unknown associate of Zubaydah’s to present another view of Zubaydah — as the leader of a militia allied with al-Qaeda — to justify Barhoumi’s detention, and, by extension, that of Zubaydah himself, even though there are doubts about the government’s interpretation of the diary, and the whereabouts of the diary’s author are unknown.

On June 22, when a panel of judges led by Judge David S. Tatel upheld Barhoumi’s detention, the ruling was superficially unsurprising. Barhoumi was not only seized in the house raid in Faisalabad, Pakistan on March 28, 2002, that led to the capture Abu Zubaydah, along with other alleged terror suspects, but he had also conceded, in publicly available documents from Guantánamo, that he had attended military training camps in Afghanistan.

This, on its own, may not have been sufficient for Barhoumi’s detention to be upheld, but last September, when his habeas petition was denied, Judge Rosemary Collyer provided another reason. Although she noted that Barhoumi “said that he is not now and has never been a member of al-Qaeda,” and added, “I have no reason not to believe that,” she nevertheless concluded that “he was with an associated force that was engaged in hostilities against the United States or its coalition partners and therefore was properly detained.”

At the time, Judge Collyer’s unclassified opinion was not made publicly available (and has still not been made available), and the quotes above are from the court transcript that was eventually unearthed by researchers at ProPublica (PDF). It was not, therefore, until the Circuit Court upheld his detention last month (PDF) that the details of this “associated force” were revealed as a militia that was allegedly maintained by Abu Zubaydah, and it was also revealed that the Circuit Court was relying on a long-discredited opinion of Zubaydah as the leader of a training camp in Afghanistan and an associate of Osama bin Laden.

How the case against Abu Zubaydah collapsed

What is troubling about this is the fact that, since Zubaydah’s capture, when Donald Rumsfeld described it as “well established” that he was “a close associate” of Osama bin Laden, “and if not the number two, very close to the number two person in the organization”), the government has steadily backed away from these claims, as accounts have emerged that thoroughly discredit the allegations.

These include devastating statements by Dan Coleman, the FBI’s senior expert on al-Qaeda. Coleman and his FBI colleagues had access to Zubaydah’s diaries, in which they found entries in the voices of three people — a boy, a young man and a middle-aged alter ego — which recorded in numbing detail, over the course of ten years, “what people ate, or wore, or trifling things they said,” and Coleman’s conclusion, which he told his superiors, was, “This guy is insane, certifiable, split personality.”

That was reported in 2006, and in December 2007, Coleman followed up, describing Zubaydah as a “safehouse keeper” who “claimed to know more about al-Qaeda and its inner workings than he really did,” and explaining how he and others at the FBI had concluded not only that he had severe mental problems — particularly because of a head injury that he had suffered in 1992 — but also that this explained why he was regarded with suspicion by the al-Qaeda leadership. “They all knew he was crazy, and they knew he was always on the damn phone,” Coleman said. “You think they’re going to tell him anything?”

This analysis was, essentially, reinforced last March by a Justice Department official who spoke anonymously to the Washington Post. As I reported at the time:

[Abu Zubaydah] “was not even an official member of al-Qaeda,” and was, instead, “a “kind of travel agent” for would-be jihadists. A former Justice Department official, who knows his case, explained, “He was the above-ground support. He was the guy keeping the safe house, and that’s not someone who gets to know the details of the plans. To make him the mastermind of anything is ridiculous.” What happened, it transpired, was that “because his name often turned up in intelligence traffic linked to al-Qaeda transactions,” some within the intelligence community presumed that he was a significant figure, whereas the truth was that, although committed to the idea of jihad, he did not share Osama bin Laden’s aims, and “regarded the United States as an enemy principally because of its support of Israel.” The officials explained that he “had strained and limited relations with bin Laden and only vague knowledge before the Sept. 11 attacks that something was brewing.”

The Circuit Court’s reliance on discredited intelligence

Alarmingly, despite these concessions on the government’s part, both the District Court and the Circuit Court drew on another source in Barhoumi’s habeas petition in an attempt to demonstrate that Zubaydah was “the person in charge” of the Khaldan training camp, and that he was “an associate of [Osama bin Laden]” who “coordinates and cooperates with [bin Laden] in the conduct of training and trainee movements between [redacted] camps and al-Qaeda camps.”

As the judges explained, the source of this information, which also fooled the authors of the 9/11 Commission Report, who referred to “Abu Zubaydah’s Khaldan Camp” (PDF, p. 175), was Ahmed Ressam, the failed “Millennium Bomber” who is currently serving a 22-year sentence in the US. The problem with Ressam’s evidence is that, although he initially cooperated with the authorities in exchange for a reduced sentence, and provided information about dozens of alleged terrorist suspects, including Zubaydah, he then stopped cooperating and withdrew his statements. As a result, numerous cases involving Ressam’s statements have collapsed — including that of Ahcene Zemiri (aka Hassan Zemiri), falsely fingered by Ressam as an associate in the bomb plot, who was freed from Guantánamo in January this year — and the portrayal of Zubaydah accepted by the judges is fundamentally at odds with the one now accepted by the Obama administration.

The government concedes that Abu Zubaydah was not a member of al-Qaeda

As Jason Leopold explained in an article for Truthout in March this year, in a federal court filing the government officially endorsed the view put forward by the anonymous Justice Department official to the Washington Post in March 2009, “back[ing] away from the Bush administration’s statements that Zubaydah was the No. 2 or No. 3 official in al-Qaeda who had helped plan the 9/11 attacks, as well as even earlier claims from the Clinton administration that he was directly involved in planning the 1998 embassy bombings in East Africa,” and admitting for the first time that “Zubaydah did not have ‘any direct role in or advance knowledge of the terrorist attacks of September 11, 2001,’ and was neither a ‘member’ of al-Qaeda nor ‘formally’ identified with the terrorist organization.”

The government also appeared to have accepted that that “the military camp he was alleged to be affiliated with, Khaldan, was closed by the Afghan Taliban after refusing to let it go under the formal control of bin Laden and al-Qaeda,” conceding, in its court filing, that Khaldan was “organizationally and operationally independent” of al-Qaeda’s camps.

This corresponds with Zubaydah’s own revelation, during his Combatant Status Review Tribunal at Guantánamo in 2007 (in a passage that was only unclassified in June 2009, in response to a lawsuit filed by the ACLU), that, after his extensive torture, his interrogators told him, “sorry we discover that you are not number three [in al-Qaeda], not a partner, even not a fighter.” It also confirms other accounts about Khaldan, which was actually run by Ibn al-Shaykh al-Libi, a former CIA “ghost prisoner,” who died in mysterious circumstances in a Libyan jail last year. Al-Libi, notoriously, was tortured in Egypt, on behalf of the CIA, until he produced a false confession about links between al-Qaeda and Saddam Hussein that was used to justify the invasion of Iraq, and his death means that a key witness has been lost who might have been able to explain the strained relationship he had with bin Laden, and how Khaldan was closed in 2000 after he refused to allow it to come under bin Laden’s control.

Dubious allegations about Abu Zubaydah’s “militia”

While these revelations indicate that the Circuit Court is lamentably out-of-date in its consideration of Abu Zubaydah, it is also noticeable that the judges relied on another document, the diary of an alleged associate of Zubaydah, Abu Kamil al-Suri, to demonstrate that Zubaydah was in charge of a militia, which included Sufyian Barhoumi. Whether there is any truth in this is difficult to ascertain, as Abu Kamil al-Suri is not available to ask about his diary, His whereabouts are unknown, but he may have died in the raid that led to Zubaydah’s capture, or he may be one of a handful of men — and boys — seized with Zubaydah who were rendered to Syria, and have never been heard of since.

This is deeply troubling, of course, in the wider context of “disappearances” in the “War on Terror,” but its relevance to Sufyian Barhoumi’s case — and to that of Abu Zubaydah — is also significant. The diary purports to identify the movements of various men, including Barhoumi, to and from Tora Bora, where a showdown between al-Qaeda and the US took place in December 2001, and from Afghanistan to Pakistan, although it should be noted that, in Guantánamo, Barhoumi strenuously and repeatedly denied ever being in Tora Bora. Al-Suri’s diary also identifies 15 members of what is described as “Zubaydah’s militia,” although, in the translation of al-Suri’s own words, it is described, less spectacularly, as a “group,” and a fractious one, moreover, with al-Suri noting that several of the members were “trying to take over this group,” to “lead us to join Sheikh Osama bin Laden.”

The interpretation of the diary is clearly of importance not only to Sufyian Barhoumi, but also to Abu Zubaydah, as it seems to form part of the government’s revised claims about Zubaydah, mentioned in the court filing in March, in which the Justice Department maintained that Zubaydah should still be detained based on his “actions” as an “affiliate” of al-Qaeda, and alleged that he “supported enemy forces and participated in hostilities” and “facilitat[ed] the retreat and escape of enemy forces” after the US-led invasion of Afghanistan in October 2001.

His lawyers have countered this by stating that “the persons whom [Zubaydah] assisted in escaping Afghanistan in 2001 included ‘women, children, and/or other non-combatants’” and that the government has “evidence to support those assertions,” which contrasts starkly with the Circuit Court’s conclusions about both Sufyian Barhoumi and Abu Zubaydah. The scope of Zubaydah’s involvement with securing the escape of non-combatants from Afghanistan is unknown, because the government has not provided any information about this publicly, and Zubaydah’s lawyers are prevented from discussing almost anything about their client’s case because of sweeping classification rules relating to the “high-value detainees.”

However, it seems clear that one non-combatant whose escape from Afghanistan was facilitated by a network in which Zubaydah played a part is Ravil Mingazov, a Russian seized in a guest house in Faisalabad (with over a dozen other men, mostly students) on the night Zubaydah was seized. Mingazov recently won his habeas corpus petition, and he explained in Guantánamo that, after fleeing Afghanistan, where he had traveled in search of a new life free from religious persecution, he had spent three months at a religious center in Lahore run by the missionary organization Jamaat-al-Tablighi, until he and two other men accepted an offer of safe passage to a house in Faisalabad, where, they were told, it would be easier for them to leave the country.

This example of a civilian helped out of Afghanistan as part of some sort of loose transportation network, in which Zubaydah was involved, is starkly at odds with the Circuit Court’s assertion of Zubaydah’s role as the head of a militia, in which Barhoumi was implicated. In their ruling, the judges noted that Barhoumi does not “dispute that Zubaydah’s militia qualifies as an ‘associated force’ that engaged in hostilities against US or coalition forces. The only dispute, then, is whether Barhoumi was, as the district court found, ‘part of’ Zubaydah’s organization.”

Ulterior motives?

In light of the failed claims about Zubaydah’s status as a senior figure in al-Qaeda, and the government’s revised analysis of him as someone who “supported enemy forces and participated in hostilities” and “facilitat[ed] the retreat and escape of enemy forces,” it is obviously alarming that the Circuit Court clung to a discredited view of Zubaydah’s role in upholding Sufyian Barhoumi’s detention, and it is, moreover, no less alarming that the allegation about Zubaydah’s purported “militia” was allowed to pass unchallenged.

In contrast to this claim, all the evidence suggests that, in its desperation to find charges that will stick to Zubaydah, the government has every incentive to dress up a fractious group of men, nominally led by Zubaydah, as an organized “militia,” and to ignore counter-claims that he was not involved in fighting US forces, but was involved in facilitating the escape from Afghanistan of a variety of individuals, including “women, children, and/or other non-combatants.”

In establishing this picture of Zubaydah as the leader of a militia — based on a translation of a diary by a man who appears to have vanished off the face of the earth — the government, with the support of the Circuit Court, appears determined to use it in a last-ditch attempt to cover up the much more distressing fact that the US government brutally tortured someone who was never part of al-Qaeda at all.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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 July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout. Cross-posted on Information Clearing House, Eurasia Review, Free Detainees, The World Can’t Wait, War Criminals Watch, Uruknet, Blog from Middle East and The 2012 Scenario.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison , Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010), Torture Whitewash: How “Professional Misconduct” Became “Poor Judgment” in the OPR Report (February 2010), Judges Restore Damning Passage on MI5 to the Binyam Mohamed Torture Ruling (February 2010), What Torture Is, and Why It’s Illegal and Not “Poor Judgment” (March 2010), Abu Zubaydah’s Torture Diary (March 2010), Seven Years of War in Iraq: Still Based on Cheney’s Torture and Lies (March 2010), Protests worldwide on Aafia Siddiqui Day, Sunday March 28, 2010 (March 2010), Abu Zubaydah: Tortured for Nothing (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), How Binyam Mohammed’s Torture Was Revealed in a US Court (May 2010), What is Obama Doing at Bagram? (Part One): Torture and the “Black Prison” (June 2010), New Report Reveals How Bush Torture Program Involved Human Experimentation (June 2010), UN Secret Detention Report (Part One): The CIA’s “High-Value Detainee” Program and Secret Prisons, UN Secret Detention Report (Part Two): CIA Prisons in Afghanistan and Iraq, UN Secret Detention Report (Part Three): Proxy Detention, Other Countries’ Complicity, and Obama’s Record (all June 2010), Abu Zubaydah and the Case Against Torture Architect James Mitchell (June 2010), The Torture of Abu Zubaydah: The Complaint Filed Against James Mitchell for Ethical Violations (June 2010), Calling for US Accountability on the International Day in Support of Victims of Torture (June 2010), How Jay Bybee Has Approved the Prosecution of CIA Operatives for Torture (July 2010). Also see the extensive archive of articles about the Military Commissions.

Obama and US Courts Repatriate Algerian from Guantánamo Against His Will; May Be Complicit in Torture

On Monday, the Pentagon announced that two prisoners had been released from Guantánamo. Abd al-Nisr Mohammed Khantumani, a 50-year old Syrian (also known as Abdul Nasir al-Tumani) was given a new home in Cape Verde, a former Portuguese colony off the West African coast, while Abdul Aziz Naji, a 35-year old Algerian, was repatriated to Algeria.

I’ll discuss the stories of Abd al-Nisr Mohammed Khantumani and Abdul Aziz Naji in a separate article, but for now the focus must be on the legal maneuvering that led to the repatriation of Abdul Aziz Naji, because, for the first time in Guantánamo’s history, a prisoner has been sent home against his will, even though Doris Tennant, one of his lawyers, told the Washington Post two weeks ago that he was “adamantly opposed to going back.” At the weekend, another of his lawyers, Ellen Lubell, told the Miami Herald that Naji “fears extremists will try to recruit him — associating him with Guantánamo — and will torture or kill him if he resists.” She added, “He has nothing against the Algerian government, but he fears that the government will be unable to protect him from Algerian extremists.” In a press release, the Center for Constitutional Rights explained that Naji “fled various forms of persecution in Algeria many years ago, including having been attacked by an extremist.” CCR also sounded a note of caution about how the Algerian government will receive Naji, stating, “we are deeply concerned that he will disappear into secret detention.”

These are valid concerns, as Algeria has a poor human rights record. Amnesty International, Human Rights Watch and the United Nations (PDF, pp. 108-9) regularly express concerns about the use of torture in Algeria, and in its 2009 report on human rights in Algeria, the US State Department noted, “Local human rights lawyers maintained that torture continued to occur in detention facilities, most often against those arrested on ‘security grounds.’”

In contrast, an Obama administration official, speaking anonymously, told the Washington Post two weeks ago, “We take some care in evaluating countries for repatriation. In the case of Algeria, there is an established track record and we have given that a lot of weight. The Algerians have handled this pretty well: You don’t have recidivism and you don’t have torture.” This was a bold statement to make, in light of the allegations made by NGOs and the UN, and concerns about torture or other ill-treatment were not diminished by a response to the news of Naji’s repatriation in Monday’s Washington Post, in which it was noted that “The government said that Algeria has provided diplomatic assurances that Naji would not be mistreated, assurances that administration officials say are credible because 10 other detainees have been returned to Algeria without incident.”

The problems with this statement concern the “diplomatic assurances,” and the claim that 10 men have been repatriated “without incident.” On the “diplomatic assurances,” Human Rights Watch explained in a press release that its own research “has shown that diplomatic assurances provided by receiving countries, which are legally unenforceable, do not provide an effective safeguard against torture and ill-treatment,” and, on the status of the 10 men returned, although there have been no allegations of torture, there has been very little information at all about the conditions in which they have been held, and what has emerged publicly is not reassuring, as it reveals both prolonged pre-trial detention, and calls for punitive sentences from the prosecutors. As I explained in January this year:

[F]rustratingly little is known about the eight Algerians repatriated from Guantánamo between July 2008 and January 2009, although one indication of how the Algerian justice system deals with returned Guantánamo prisoners was provided in November 2009, when the BBC reported that, 15 months after two of these men were repatriated, they had been acquitted after a trial in which the prosecutor had called for prison sentences of 20 years.

Alarmingly, despite Abdul Aziz Naji’s fear of being repatriated — and the fears of five other Algerians, as revealed by the Washington Post two weeks ago — his release was not only supported by the Obama administration, but also by the Supreme Court.

Judge Gladys Kessler takes on the D.C. Circuit Court – and the Supreme Court

The spur for a legal battle that has largely been taking place without the mainstream media paying much attention — and with an alarming reliance on secrecy — was a principled stand taken by Judge Gladys Kessler, of the District Court in Washington D.C., who, single-handedly, has been attempting to uphold the United States’ obligation, under the UN Convention Against Torture, not to “expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

In November, Judge Kessler granted the habeas corpus petition of Farhi Saeed bin Mohammed, a 49-year old Algerian, after concluding that the government’s supposed evidence relied almost entirely on unreliable confessions produced by Binyam Mohamed, a British resident who was subjected to torture in Pakistan, Morocco and at the CIA’s “Dark Prison” in Kabul from April 2002 to May 2004.

Six months after Judge Kessler delivered her ruling, with bin Mohammed still not released, his lawyers asked her “to order the government to carry out his release, but to bar his transfer to Algeria, where he fears persecution or even death from either the Algerian government or from armed terrorist groups there,” as SCOTUSblog described it. As a result of two depressing rulings in the Court of Appeals in Washington D.C. Circuit Court (the District Court), judges are not actually able to order the release of prisoners who have won their habeas petitions, and are not even supposed to interfere with the disposition of prisoners, whose fate, according to the Circuit Court, is entirely dependent on the whims of the Executive branch. Judge Kessler, however, was undeterred.

On June 3, she issued a temporary order barring bin Mohammed’s transfer to Algeria, and on June 10 mounted a stout defense of his right not to be forcibly repatriated, noting (PDF):

Petitioner has voiced great fear about being transferred to Algeria. He has not lived in Algeria for more than 20 years, and has no ties to that country. Because he has been designated an “enemy combatant,” he greatly fears retribution by the Algerian authorities and that he will be formally charged under the Algerian Penal Code, tortured, convicted, and very possibly executed by the Algerian Government. He has claimed that he will be caught between the Algerian Government, which will brand him as an international terrorist, and armed domestic terrorists, who oppose the existing government, often pressure individuals to join their ranks, and retaliate violently when such individuals refuse. Petitioner has made clear that he would rather suffer continued confinement in Guantánamo Bay than be placed in the control of the Algerian Government.

In response to a brief filed by the government, Judge Kessler complained that two declarations submitted, which purported to guarantee bin Mohammed’s humane treatment if returned to Algeria, “appear to be boilerplate statements which have been filed in a number of the Government’s Oppositions to Motions,” and that a third, written by Daniel Fried, President Obama’s Special Envoy on Guantánamo, “was submitted ex parte so that [bin Mohammed] has not had an opportunity to read it.” After noting that bin Mohammed’s fears “are of great concern,” and that it is “essential” that assurances received from the Algerian government, purporting to guarantee that bin Mohammed will receive “humane treatment,” are “tested,” Judge Kessler ordered Fried to appear in person in her court, explaining, “Given the centrality of those representations and assurances to the future of [bin Mohammed] and possibly to his very life, this Court has an obligation to ensure that there is real substance behind the conclusory phrases contained in Special Envoy Fried’s declarations.”

Fried never turned up, of course, because the Justice Department immediately filed an appeal with the Circuit Court, which then ordered Judge Kessler to “resolve all outstanding motions” in the case with reference to Munaf v. Geren and Kiyemba v. Obama (aka Kiyemba II), the cases that the Circuit Court had drawn on (Munaf) and issued (Kiyemba II) to demonstrate that only the Executive branch was entitled to make decisions about where to send Guantánamo prisoners. As SCOTUSblog noted, “While the order did not say that Kessler could not hold a hearing on Mohammed’s plea not to be sent to Algeria, it specified that the judge was to rule on that issue ‘without requiring testimony from Special Envoy Fried or any other United States government official,’” which, of course, “completely undercut the purpose that Kessler had” for calling the hearing in the first place.

The Circuit Court then issued an amended ruling, instructing Judge Kessler to decide the Mohammed plea “in an order from which a party can take an immediate appeal,” and as SCOTUSblog noted in response to this instruction:

The Circuit Court thus had taken over, in a significant way, the further proceedings in Kessler’s Court, and has sent her the strongest hint that she risked being overturned if she barred his transfer anew. Since it noted the binding nature of the precedents she was to observe, the Circuit Court clearly was signaling that, if it accepted the government’s view that Mohammed’s case was no different, Kessler would be found to be without authority to prevent his transfer to Algeria.

After this, the struggle between Judge Kessler and the Circuit Court was swamped in secrecy. At a hearing convened by Kessler on June 28, all the documentation was sealed, but SCOTUSblog was able to deduce, from a subsequent appeal filed by the government, that she had once more barred bin Mohammed’s transfer to Algeria. On July 8, however, in another secret hearing, the Circuit Court “summarily overturned” Judge Kessler’s ban, prompting SCOTUSblog to note that the court’s order “continues a seldom-interrupted string of rulings by the Circuit Court against detainees challenging their confinement or transfer,” which “contrasts with a majority of rulings by District Court judges upholding detainees’ challenges under federal habeas law.”

The final blow for bin Mohammed — and for those who, like Judge Kessler, had quaintly presumed that the “non-refoulement” requirement of the UN Convention Against Torture might actually mean something to the judiciary and the Executive branch — came last Friday, when, by 5 votes to 3, the Supreme Court sided with the Circuit Court. As SCOTUSblog noted, the ruling was “the first indication that the Supreme Court will not allow federal judges to interfere with government controls on who leaves or stays at Guantánamo Bay.”

Although three of the justices — Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor — dissented, noting that they “would grant the stay to afford the Court time to consider, in the ordinary course, important questions raised in this case and not resolved in Munaf v. Geren,” just a few hours later the Supreme Court unanimously approved the forced repatriation of Abdul Aziz Naji.

This was a bleak day for US justice, not only because it involved the Supreme Court blithely disregarding the UN Convention Against Torture’s “non-refoulement” obligation, joining in an unholy trinity with the D.C. Circuit Court and the Obama administration, but also because it brings to an abrupt, cruel, and — I believe — illegal conclusion a struggle to release prisoners without violating the UN Convention Against Torture, which, for the most part, was actually respected by the Bush administration.

The Bush administration’s record on not returning prisoners to torture

The long history of the authorities grappling with the “non-refoulement” obligation at Guantánamo began with the Uighurs, 22 Muslims from China’s oppressed Xinjiang province, who were mostly seized in Pakistan in December 2001 after crossing from Afghanistan, where they had been living in a run-down settlement in the Tora Bora mountains, thwarted in their attempts to travel to Turkey or Europe in search of work, or nursing futile hopes of rising up against their only enemy, the Chinese government.

With the Uighurs, the Bush administration recognized its “non-refoulement” obligation, refusing to return them to China, and finding new homes for five of the men in Albania in 2006. When the Obama administration inherited the problem of the remaining 17 men, who had, in the meantime, won their habeas corpus petitions, it found new homes for 12 of them in Bermuda, Palau and Switzerland, although five still remain at Guantánamo, and, last spring, the administration turned down a plan by White House Counsel Greg Craig to bring some of the men to live in the US, which would have done more in the long run to defuse scaremongering about Guantánamo than any other gesture.

Despite the Bush administration locating some principles when it came to the Uighurs, in other cases prisoners had to fight in the courts to prevent their forcible repatriation to countries where they faced the risk of torture. In 2007, a Libyan, Abdul Rauf al-Qassim, sought the intervention of the courts to prevent his return to Libya, and after two Tunisians were repatriated in June 2007 — and were subsequently mistreated and given jail sentences (of three and seven years) after show trials — a judge intervened to prevent the repatriation of a third, Mohammed Abdul Rahman (also known as Lotfi bin Ali), and, by extension, other Tunisians in Guantánamo.

In other cases, like that of Ahmed Belbacha, an Algerian who had lived in the UK, lawyers successfully sought injunctions preventing their return, and by the time Obama came to power, it was generally understood that prisoners were not be involuntarily returned to China, Egypt, Libya, Syria, Tunisia or Uzbekistan. As a result, in the last year, the Obama administration has resettled prisoners from Egypt, Libya, Syria, Tunisia and Uzbekistan in Albania, Belgium, Bulgaria, Georgia, Ireland, Portugal, Slovakia and Switzerland. Algeria was more problematical, as was demonstrated by the cases of the men who had returned voluntarily, even though there was, to be honest, no guarantee that they would be treated humanely, and my constant analogy was that return to Algeria was like Russian Roulette.

How the Circuit Court defended expansive executive power

However, all this came to an end with the Circuit Court’s intervention in the Uighurs’ case — firstly, in February 2009 (in Kiyemba v. Obama, aka Kiyemba I), when a panel of judges ruled that the courts could not order the resettlement in the US of prisoners who had won their habeas petitions but could not be repatriated, because only the Executive branch could decide matters relating to immigration. As I explained in a review of the ruling:

The judges were seemingly unmoved that this would leave the Uighurs (and, very possibly, others in Guantánamo) with no means of leaving the prison, and that it stripped the Supreme Court’s ruling in June 2008, granting the prisoners habeas corpus rights, of all practical meaning, if it was not possible for judges to order their release. In the judges’ words, however, “the political branches have the exclusive power … to decide which aliens may, and which aliens may not, enter the United States, and on what terms.”

The second blow came last September (in another Kiyemba v. Obama case, identified as Kiyemba II), after the Uighurs’ lawyers asked the Court of Appeals to reconsider its opinion en banc (in other words, with all the judges ruling, instead of just a panel of three), and also sought assurances that the courts would be able to act if the government proposed sending their clients to countries where they faced the risk of torture. However, as I explained at the time:

[N]ot only did the court refuse to reconsider its ruling, but the judges also refused the Uighurs’ request for the court’s assistance “to prevent their transfer to a country where they are likely to be subjected to further detention or to torture,”, drawing on Munaf v. Geren, a case from 2008 in which “two American citizens held in the custody of the United States military in Iraq petitioned for writs of habeas corpus, seeking to enjoin the Government from transferring them to Iraqi custody for criminal prosecution in the Iraqi courts.” In Munaf, although “The Court held the district court had jurisdiction over the petitions,” it also ruled that “it could not enjoin the Government from transferring the petitioners to Iraqi custody,” because “that concern is to be addressed by the political branches, not the judiciary.”

It is this narrow reading of Munaf that has particularly enraged those opposed to the Circuit Court’s resolute endorsement of executive power — and which at least caused some consternation last Friday to Justices Ginsburg, Breyer and Sotomayor. Essentially, though, the Circuit Court’s ruling in Kiyemba II dictates what happens to prisoners like Abdul Aziz Naji — and, presumably, Farhi Saeed bin Mohammed — when the administration tires of trying to find new homes for them, and decides to subject them involuntarily to the Russian Roulette repatriation package that Abdul Aziz Naji received this week.

Although government officials told the Washington Post on Monday that they “will nonetheless continue to examine each case individually before any repatriation,” noting that some officials “have expressed some concern about returning one of the Algerians [Ahmed Belbacha] who was sentenced to 20 years in prison in absentia” last year, for what his lawyers think was the crime of speaking out about his fears of repatriation, there now appears to be no obstacle to prevent the Obama administration from sending the other four Algerians home whenever it feels like it.

To discover that such shameless disregard for the UN Convention Against Torture has come not only from the Supreme Court, but also from the man who promised to close Guantánamo (but then failed to do so), and who also promised to uphold the absolute ban on torture (while refusing to prosecute anyone who authorized its use in the previous eight years), is depressing news indeed.

Note: With these releases, 178 prisoners remain at Guantánamo. One of these men, Ali Hamza al-Bahlul, is serving a life sentence in solitary confinement, after a one-sided trial by Military Commission in October 2008, in which he refused to mount a defense. Another prisoner, Ahmed Khalfan Ghailani, is in prison in New York, awaiting a federal court trial that was recently approved. 594 prisoners have been released (or, in some cases, transferred to the custody of their home governments, or of other governments), and six men died, five in mysterious circumstances.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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 July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on The Smirking Chimp, The Public Record and New Left Project.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 60 prisoners released from February 2009 to mid-July 2010, 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; December 2009 — 1 Kuwaiti (Fouad al-Rabiah); December 2009 — 2 Somalis, 4 Afghans, 6 Yemenis; January 2010 — 2 Algerians, 1 Uzbek to Switzerland, 1 Egyptian, 1 Azerbaijani and 1 Tunisian to Slovakia; February 2010 — 1 Egyptian, 1 Libyan, 1 Tunisian to Albania, 1 Palestinian to Spain; March 2010 — 1 Libyan, 2 unidentified prisoners to Georgia, 2 Uighurs to Switzerland; May 2010 — 1 Syrian to Bulgaria, 1 Yemeni to Spain; July 2010 — 1 Yemeni (Mohammed Hassan Odaini).

Former Guantánamo Prisoners in Slovakia Finally Receive Residence Permits

In a rare piece of Guantánamo-related good news, the Slovak Spectator reports today that the three former prisoners released in Slovakia in January have finally been “given permission to permanently reside in the Slovak Republic.”

The three men — Adel Fattough Ali El-Gazzar, from Egypt, Poolad Tsiradzho, from Azerbaijan, and Rafiq al-Hami, from Tunisia — embarked on a hunger strike last month to protest about the conditions in which they were held, in a detention center described by the Slovak Spectator today as “a police detention facility for illegal migrants.”

According to El-Gazzar, the men’s unofficial spokesman, he and his colleagues were “not allowed contact with anyone except for personnel in the facility and their lawyer,” and he “described their living conditions as poor — having only beds and a sink at their disposal and being allowed to leave their rooms for only an hour per day.” He later explained that it was “better” in Guantánamo, because “[w]e could communicate with everyone, [but] here we cannot.”

These statements were contested by the Slovakian authorities, but it was clear that they had been ill-prepared for the men’s arrival — for which the Obama administration must take the ultimate responsibility — because, as a representative of Amnesty International Slovensko explained, the men were concerned because, after five months, their legal status “was still not clear.”

While refuting the men’s claims about their living conditions, Bernard Priecel, the chief officer at the Interior Ministry’s Migration Bureau, conceded that “the lack of clarity on their legal status could be a burden for them.” In a further explanation of their status — or the lack of it — the news agency dpa added, “At the moment they [are] simply foreigners, without asylum seeker status,” even though, when they arrived in Slovakia in January, Interior Minister Robert Kalinak had “promised that their residence permit status would be cleared up quickly.”

A few days after the men started their hunger strike, Tomas Vasilko, a Slovakian journalist, told me that he had spoken to El-Gazzar by phone, and provided a detailed explanation of why he and the other men were so frustrated. “He was really upset about the conditions they live in here,” Vasilko explained, adding, “He told me that firstly, in Guantánamo, the Slovak delegation didn’t mention the word detention — they told them that they would be free with some restrictions. When they arrived in Slovakia they told them they had to stay in a detention facility for asylum seekers for six months, but after that they would get a house in a town with a Muslim community. But one month ago they told the men that plan had changed and they would go to another detention facility for another six months. He was really frustrated and that’s the reason why they started the hunger strike.”

According to the Slovak Spectator, the men have now been “moved to the integration center of the Interior Ministry’s Migration Office in Zvolen where they will take part in six-month integration program.” As was noted in a European Parliament report on “Migration and Asylum in Central and Eastern Europe,” in Zvolen, “recognized refugees are provided with assistance in job seeking, renting an apartment or obtaining other social services.”

This is similar to what the Slovak Spectator noted about the men’s proposed integration, explaining that “Slovakia’s conditions when accepting the former Guantánamo prisoners included that all would learn the Slovak language, receive accommodation and Slovakia would help take care of jobs for them.”

While there has, to date, been some progress on the first of these “conditions,” it is to be hoped that, at the end of this “integration program,” the men will receive decent accommodation and a meaningful opportunity to find employment — and that, throughout this time, a method will also be found to ensure they also receive psychiatric counseling in an effort to recover from their eight-year ordeal in US custody, and the difficult circumstances in which they have been obliged to live for the last six months.

One hopeful sign is that, according to another report in the Slovakian media, the men “will be joined by their families in the integration center,” and if this is confirmed, it will be very good news indeed.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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 July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

Cross-posted on Cageprisoners.

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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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