Back in March, when Judge James Robertson of the District Court in Washington D.C. granted the habeas corpus petition of Guantánamo prisoner Mohamedou Ould Slahi, there was uproar in Congress. For many years, Slahi, a Mauritanian national who had lived in Germany and Canada, was touted by the Bush administration as the “highest-value detainee at the facility,” and was cited in the 9/11 Commission Report as “a significant al-Qaeda operative” who “recruited 9/11 hijackers in Germany.” This was an assertion that, in part, had emerged through the interrogations of Ramzi bin al-Shibh, a “high-value detainee” held in secret CIA prisons for four years (where the use of torture had been approved by lawyers in the Justice Department’s Office of Legal Counsel), before his transfer to Guantánamo in 2006.
Slahi (also identified as Salahi) had certainly met bin al-Shibh and some of the 9/11 hijackers while living in Germany, but when Judge Robertson examined the evidence against him in detail, he was unable to establish that he had been involved in facilitating the trip to Afghanistan that resulted in al-Qaeda’s support of the 9/11 attacks. Instead, Judge Robertson concluded that, although Slahi “traveled to Afghanistan in early 1990 to fight jihad against communists and that there he swore bayat to al-Qaeda … his association with al-Qaeda ended after 1992, [and], even though he remained in contact thereafter with people he knew to be al-Qaeda members, he did nothing for al-Qaeda after that time.”
Judge Robertson added:
[A] habeas court may not permit a man to be held indefinitely upon suspicion, or because of the government’s prediction that he may do unlawful acts in the future — any more than a habeas court may rely on its prediction that a man will not be dangerous in the future and order his release if he was lawfully detained in the first place. The question, upon which the government had the burden of proof, was whether, at the time of his capture, Salahi was a “part of” al-Qaeda. On the record before me, I cannot find that he was.
Critics of Slahi’s habeas victory, and their silence regarding torture
For Republicans in Congress, it was completely irrelevant that a judge with access to all the evidence had concluded that the government had failed to establish that Slahi was a “part of” al-Qaeda, and had pointed out that the government now “acknowledg[es] that Slahi probably did not even know about the 9/11 attacks.” To these critics, it was also completely irrelevant that, in 2008, Der Spiegel reported that “German investigators familiar with the history leading up to the 9/11 attacks … say that bin al-Shibh’s statements about Slahi recruiting the attackers has ‘legend status,’ and that none of their information supports his assertions.”
Seduced by the 9/11 Commission’s assessment of Slahi, Republican critics savaged the ruling as soon as it was announced. The Hill reported that Sen. Kit Bond (R-Mo.), the ranking member of the Intelligence Committee, stated, “While Holder’s Justice Department should appeal this outrageous decision, I’m not holding my breath. Holder seems more intent on closing Guantánamo Bay than keeping terrorists locked up where they belong.” The Hill also stated that Rep. Lamar Smith (R-Texas) sent a letter to Holder asking him to appeal the ruling, in which he wrote, “It is certainly possible, if not likely, that Mr. Slahi will re-engage in efforts to commit terrorist attacks against innocent Americans if allowed to go free. This ruling clearly puts the American people in danger and should not be allowed to stand.”
Critics also demonstrated that they had no regard for another complication in Slahi’s case; that, as the supposedly “highest-value detainee at the facility” in 2003, he had been subjected to “extraordinary rendition” and torture after the Mauritanian authorities seized him in November 2001, at the request of the CIA, who then flew him to a special torture prison in Jordan, and had also been subjected to a specially tailored torture program in Guantánamo. As I explained in an article in April:
[The program] included prolonged isolation, prolonged sleep deprivation, beatings, death threats, and threats that his mother would be brought to Guantánamo and gang-raped. This program, which was implemented in May 2003, and augmented with further “enhanced interrogation techniques” authorized by defense secretary Donald Rumsfeld, culminated, in August 2003, in an incident when Slahi was taken out on a boat, wearing isolation goggles, while agents whispered, within earshot, that he was “about to be executed and made to disappear.”
Those supporting Slahi’s continued detention also ignored the fact that his treatment in Guantánamo was so severe that, in May 2004, Lt. Col. Stuart Couch of the Marine Corps, who had been assigned his case as a prosecutor the year before, resigned rather than pursuing the case. In a meeting with the chief prosecutor, Army Col. Bob Swann, Lt. Col. Couch “told Col. Swann that in addition to legal reasons, he was ‘morally opposed’ to the interrogation techniques ‘and for that reason alone refused to participate in [the Slahi] prosecution in any manner.’”
However, despite all this, the most distressing response to Slahi’s victory in the District Court came not from Republican critics, but from the Justice Department. As soon as Judge Robertson’s ruling was announced, Attorney General Eric Holder said that, although “[w]e obviously respect the decision that the judge made, [h]opefully an appeals court will look at the evidence that we presented in the habeas proceeding and come to a contrary conclusion.”
The D.C. Circuit Court’s pushback on Guantánamo
The government duly appealed, and on September 17, a three-judge panel of the D.C. Circuit Court convened to hear the appeal. In recent months, a number of judges in the D.C. Circuit have been pushing back against the prisoners’ victories in the District Court (where they have won 38 out of the 55 cases so far decided). In June, the court dismissed the threshold for detention decided last year by Judge John D. Bates — that evidence of involvement in the “command structure” of al-Qaeda or the Taliban is required — and asserted that it need only be demonstrated that prisoners were “part of” al-Qaeda and/or the Taliban.
Moreover, in July, a panel led by Judge A. Raymond Randolph (who supported all the Bush administration cases regarding Guantánamo that were later overturned by the Supreme Court) reversed the successful petition of a Yemeni, Mohammed al-Adahi, in a ruling notable for Judge Randolph’s personal assaults on Judge Gladys Kessler of the District Court, and for his provocative claim that the “preponderance of the evidence” standard used in the District Courts — which is already a much lower threshold than in federal court trials — might actually be too high.
Judge Randolph was absent from the government’s appeal in Slahi’s case, as were two other advocates of largely unfettered executive power — Judges Janice Rogers Brown, and Brett M. Kavanaugh, both appointees of George W. Bush — who, in January, had argued (against the government’s own wishes) that the President’s detention powers were not limited by the international laws of war. This ruling was effectively dismissed by the full D.C. Circuit Court on August 31, but Slahi’s lawyers had good reason to fear that an unholy alliance between a Conservative court and President Obama’s Justice Department might lead to the kind of result that would have pleased the senior Bush administration officials who conceived Guantánamo in the first place.
The D.C. Circuit Court considers the government’s appeal
In the end, the panel, led by Chief Judge David B. Sentelle, approached Slahi’s appeal with more of an open mind than anticipated, even though the Washington Post reported that the court would “likely overturn” Judge Robertson’s ruling. What actually happened, as was revealed below this slightly misleading opening gambit, was that “the judges mused aloud over a key question: How could Slahi ever prove that he quit al-Qaeda, even if the law requires that Guantánamo prisoners do so before being freed?” As Judge Sentelle noted, there was no way that Slahi could have told al-Qaeda that he wanted to sever ties with the organization, because “That would have gotten him killed.”
In further probing of the government’s position, Judge David S. Tatel was particularly critical, noting, as the Associated Press described it, that he questioned whether Slahi’s swearing of bayat to al-Qaeda ten years before the 9/11 attacks could be described as “evidence that he engaged in hostilities against the United States.” As Judge Tatel stated, “When he swore bayat, the United States and al-Qaeda had a common goal. Both the United States and al-Qaeda were opposing a communist government of Afghanistan.”
This is a very important point — and one that few commentators, let alone judges, mention when discussing the rise of al-Qaeda in the 1990s. Judge Tatel also indicated that it might be more appropriate to send the case back down to the District Court, given that the D.C. Circuit Court’s rulings since April had required judges “to consider al-Qaeda membership and compliance with its ‘command structure’ in a broader, ‘functional, not formalistic’ sense” than when Judge Robertson made his ruling in Slahi’s favor. “Wouldn’t it make sense” to return the case, Judge Tatel asked, “so we have as consistent decision-making as possible?”
Slahi’s lawyer, Theresa M. Duncan, acknowledged that “it might,” but after the hearing she said she hoped that would not happen, because it would mean “starting from scratch,” following the retirement of Judge Robertson since he delivered his ruling. As she explained before the hearing, “After reviewing thousand of pages of records and hearing four days of testimony — including from Mr. Slahi himself — the district court correctly found that the government did not have enough evidence to support subjecting Mr. Slahi to indefinite military detention. The appeals court should uphold that ruling. It is well past time for Mr. Slahi to go home.”
The biggest failure: not rewarding informants
Unnoticed in all of the recent reporting on the government’s appeal is another facet of Slahi’s story that casts the government in an even more unfavorable light. As Peter Finn explained for the Washington Post in an article in March this year, Slahi and another man, Tariq al-Sawah, an Egyptian explosives expert for al-Qaeda, have, over the years, become “two of the most significant informants ever to be held at Guantánamo” — in al-Sawah’s case because he was thoroughly disillusioned with his former life, and in Slahi’s case because he began cooperating after his torture in 2003.
As a result of their cooperation, both men “are housed in a little fenced-in compound at the military prison, where they live a life of relative privilege — gardening, writing and painting — separated from other detainees in a cocoon designed to reward and protect … Each has a modular unit outfitted with a television. Each has a well-stocked refrigerator. They share a garden, where they grow mint for tea [and] are reported to have become close.”
As Peter Finn stated, although the government has, to some extent, “rewarded them for their cooperation,” no one in a position of authority has dared to propose the next logical step: releasing them under some sort of witness protection program. Finn explained that some military officials endorsed this proposal, believing that the establishment of a witness protection program, “in conjunction with allies,” might well “cultivate more informants.”
W. Patrick Lang, a retired senior military intelligence officer, told Finn bluntly, “I don’t see why they aren’t given asylum. If we don’t do this right, it will be that much harder to get other people to cooperate with us. And if I was still in the business, I’d want it known we protected them. It’s good advertising.” This, a current military official at Guantánamo told Finn, was a fair argument, but was “a hard-sell argument around here” — and evidently in Washington as well.
The government’s appeal against Slahi’s habeas victory therefore confirms that, instead of being rewarded in any meaningful manner (instead of being granted a privileged prison environment with mint tea on tap), Slahi actually finds himself in a horribly Kafkaesque predicament. Despite having cooperated fully with the authorities and having transformed himself from the “highest-value detainee at the facility” to one of the prison’s “most significant informants,” he finds that none of it makes any difference, and that, for him, there is literally no escape from Guantánamo.
In addition, of course, the message still being sent out to would-be informants, who might be able to shed important light on the enemy, is that the United States is a dangerous place bent on vengeance at all costs, and should not be trusted.
As I explained in an article in April, after Judge Robertson’s unclassified opinion had been made publicly available, the problem with this short-sighted approach to intelligence was perfectly expressed by veteran FBI interrogator Jack Cloonan in 2006. Speaking to Jane Mayer of the New Yorker, and reflecting on the self-defeating nature of the brutality that was central to the Bush administration’s “War on Terror,” Cloonan, an old school interrogator, who succeeded in securing confessions without the use of torture, told Mayer that resorting to such tactics would cut off “the possibility that other people with useful information about al-Qaeda [would] consider becoming informants.” As he explained, “You think all of this stuff about torture is going to make people want to come to us? That’s why I get upset when I hear people talking about stress positions, loud music, and dogs.”
If that was upsetting, what would Cloonan make of securing valuable intelligence from Slahi, and then leaving him to languish in prison forever? I can’t speak for Cloonan, but in my opinion, it’s unjust, counter-productive and fundamentally idiotic.
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 “The Betrayal of Mohamedou Ould Slahi.” Cross-posted on The Public Record, Cageprisoners, Uruknet, and New Left Project.
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), Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part One) (July 2010), Obama and US Courts Repatriate Algerian from Guantánamo Against His Will; May Be Complicit in Torture (July 2010), In Abu Zubaydah’s Case, Court Relies on Propaganda and Lies (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) (July 2010), Judge Orders Release from Guantánamo of Mentally Ill Yemeni; 2nd Judge Approves Detention of Minor Taliban Recruit (August 2010), Judge Denies Habeas Petition of Afghan Shopkeeper at Guantánamo (September 2010), Nine Years After 9/11, US Court Concedes that International Laws of War Restrict President’s Wartime Powers (September 2010), Fayiz Al-Kandari, A Kuwaiti Aid Worker in Guantánamo, Loses His Habeas Petition (September 2010).
Good update. I’ve been waiting to read about Salahi’s case in your recent series. Why I started I don’t know, but I’ve followed his story for several years. One point I’m wondering about is regarding detainee testimony against Salahi. The 9/11 commission report notes bin al-Shibh as a source, from “interrogations” on Oct. 7, 2002 and May 20, 2003, a time that he was in the CIA black site program. But it also mentions “a detainee” as later corroborating al-Shibh. (See footnotes 1 and 2 on Wiki for links) How can we find out who this detainee was? Could it have been Slahi himself?
It seems the government is relying on coerced testimony, mostly from the accused himself, in many of its cases. “Interrogation of detainee” is cited 45 times in the 9/11 commission notes. I think it would be incredibly worthwhile to find out who these detainees were. What if each of these were coerced confessions?
Yes, good point. In this article, I decided to focus on bin al-Shibh, but in my article analyzing Judge Robertson’s opinion, I pointed out that Karim Mehdi, a Moroccan convicted of an alleged bomb plot on the French island of Réunion in 2003, who received a nine-year prison sentence in France in October 2006, was the source of many of the false allegations, in addition to Slahi’s own tortured confessions:
There are, of course, other false witnesses in Guantanamo, but they haven’t been explicitly referenced in Slahi’s case, although they’re readily found in other habeas rulings — and they include other Guantanamo prisoners (including a few notorious liars) and, of course, “high-value detainees” held in secret CIA prisons.
Over on Facebook, Luke Brandt wrote:
Andy, Your work is invaluable. Jurisprudence such as that of James Robertson is becoming rare, and in the course of your work you show graphically why the United States is the poorer for the loss http://en.wikipedia.org/wiki/James_Robertson_(judge)
Spencer Spratley wrote:
Yes, this important point is ignored by some and lost on many: “When he swore bayat, the United States and al-Qaeda had a common goal. Both the United States and al-Qaeda were opposing a communist government of Afghanistan.” Brzezinski’s freedom fighters became Bush and Obama’s terrorists. Proving you had quit al-Qaeda is like trying to prove you had left the mafia. If you’re going to do it, you’re not going to advertise it — lest you quickly meet your maker. Good work as usual Andy.
Mui J. Steph wrote:
Yes, Spencer. 1990-1992. Wasn’t that when all “anti-commies” were called Freedom Fighters?
Maybe we should ask Congressman (R) Dana Rohrabacher. He was a um freedom fighter. http://motherjones.com/politics/2010/03/dana-rohrabacher-afghanistan-war
Wittes, Chesney and Goldsmith have started a blog, Lawfare: Hard National Security Choices. They already have several posts on Salahi, search his name. In Why Salahi is Important, Wittes seems to endorse indefinite detention for membership in al-Qaeda, not any specific acts or plans. Didn’t he read the opinion: “Associations alone are not enough, of course, to make detention lawful.”
They don’t allow comments, but you could trackback with a posting of your own and it will appear on their blog.
Sadly, Ben Wittes doesn’t care what the judges in the District Court think. He wants Congress to enact new legislation authorizing indefinite detention so that the kind of unsubstantiated allegations that constitute much of the supposed evidence in Guantanamo can be treated on face value as sufficient reason to hold men indefinitely. We exchanged emails when he was preparing his first major report into the Guantanamo prisoners, back in January 2009, and he was kind enough to cite my research, but I haven’t followed up since, as his report was so irresponsibly one-sided. Confirmation of this can be found in the prisoners’ successful habeas petitions, but as you have pointed out, Wittes and his companions don’t like it when District Court judges dare to challenge the reliability of the government’s supposed evidence.
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