Hiding Horrific Tales of Torture: Why The US Government Reached A Plea Deal with Guantánamo Prisoner Noor Uthman Muhammed

16.2.11

At Guantánamo on Tuesday, following hints last week, Noor Uthman Muhammed, a Sudanese prisoner in his 40s, and formerly a trainer at the Khaldan training camp in Afghanistan, accepted a plea deal in his trial by Military Commission. He is only the sixth prisoner convicted since the Commissions were dragged from the grave by Dick Cheney in November 2001, and the fourth to accept a plea deal. Noticeably, of the three prisoners convicted under President Obama, all have accepted plea deals, demonstrating, I believe, that the administration knows that the system itself is weak.

As legal experts have repeatedly pointed out, the charges in the Military Commissions (since their revival by Congress in 2006, after the US Supreme Court ruled that Cheney’s version was illegal) consist of spurious war crimes specifically invented by Congress (“Murder in Violation of the Law of War,” for example, which, as in the case of Omar Khadr — who was obliged to accept that he was an “alien unprivileged enemy belligerent” in his plea deal last October — attempts, absurdly and shockingly, to claim that any attempt to fight Americans or coalition forces is a war crime) or of crimes traditionally triable in federal court (conspiracy and providing material support to terrorism), which, very probably, would not stand up on appeal, as senior Obama administration officials conceded when reviving the Commissions in 2009.

In Muhammed’s case, an additional complication is that the authorities were trying to convict him for war crimes that took place before the US was at war with al-Qaeda. Last September, Raha Wala, a Georgetown Fellow in Law and Security, who attended a pre-trial hearing on behalf of Human Rights First, specifically touched on these problems, noting, “Most of the criminal acts Noor allegedly committed took place from the mid-1990’s to 2000, purportedly before the United States was at war with anyone. Yet the military commissions were originally created in response to the September 11th terrorist attacks to try individuals for war crimes, raising questions about whether the military commission even has jurisdiction to hear Noor’s case.”

Another fundamental problem, however, and one which casts a dark shadow over the entire proceedings, concerns Muhammed’s role at the Khaldan training camp, which is central to the allegations against him, and the possibility, or probability that an actual trial — rather than a plea deal followed by a brief sentencing phase — would have focused attention on the stories of two other men involved in Khaldan — Abu Zubaydah and Ibn al-Shaykh al-Libi — which the authorities would rather not air too publicly, and on the role of Khaldan itself.

Muhammed was seized in a house raid in Faisalabad, on March 28, 2002, which also led to the capture of Abu Zubaydah, who was touted as a significant figure in al-Qaeda, and flown to Thailand, to the first of a series of secret prisons in other countries that were used by the CIA to torture “high-value detainees.” On August 1, 2002, before he was moved to another secret prison in Poland, he became the first “War on Terror” prisoner to be subjected to a specific torture program for “high-value detainees,” when John Yoo, a lawyer in the Justice Department’s Office of Legal Counsel (which is supposed to provide impartial legal advice to the executive branch) wrote two memos — the “torture memos,” signed by OLC head Jay S. Bybee — in which he cynically attempted to redefine torture, and endorsed an interrogation plan for Abu Zubaydah using torture techniques including waterboarding, a form of controlled drowning.

Despite this, however, the US authorities have been unable to prevent the emergence of damning evidence — not least from FBI interrogators — demonstrating that Zubaydah was actually mentally ill, and was little more than a glorified travel agent for the Khaldan camp. In a court submission in October 2009, the government abandoned its claims that he was a member of al-Qaeda, or had any inside information about the 9/11 attacks or other terrorist attacks, proposing instead that he was the head of a militia that “was ‘part of’ hostile forces and ‘substantially supported’ those forces,” and that he “facilitat[ed] the retreat and escape of enemy forces” after the US-led invasion of Afghanistan in October 2001.

This narrative — and other, uncorrected claims that Abu Zubaydah was a “terrorist leader” and was “the person in charge” of Khaldan — have, distressingly, been accepted by judges in the District Court in Washington D.C., where they have been ruling on Guantánamo prisoners’ habeas corpus petitions, and also in the D.C. Circuit Court, which hears appeals following the District Court rulings, as I explained in my articles, In Abu Zubaydah’s Case, Court Relies on Propaganda and Lies and Algerian in Guantánamo Loses Habeas Petition for Being in a Guest House with Abu Zubaydah. The courts’ inability, or unwillingness to investigate the evidence about Abu Zubaydah has been disastrous for Sufyian Barhoumi and Abdul Razak Ali, who have lost in court, as discussed in the articles above, and can, therefore, continue to be held indefinitely, although it is certain that Noor Uthman Muhammed’s defense team was better briefed, and, had their client’s trial by Military Commission proceeded, might have been able to raise some awkward questions.

Also central to the government’s allegations that Muhammed sometimes served as the deputy emir of Khaldan is the role played by the camp’s emir, Ibn al-Shaykh al-Libi, although al-Libi cannot provide any information himself, as he died in mysterious circumstances in a Libyan prison in May 2009. His death conveniently prevents the US from having to account for what happened to him between December 2001, when he was seized following the US-led invasion of Afghanistan, and 2006, when he was returned to Libya. This is convenient because, towards the beginning of what appears to have been a horrific tour of secret prisons operated by the CIA or on the CIA’s behalf, lasting several years, al-Libi was sent to Egypt, where, under torture, he falsely confessed that two al-Qaeda agents had been discussing the use of chemical and biological weapons with Saddam Hussein. This confession was used to justify the US-led invasion of Iraq in March 2003, even though al-Libi retracted it before Colin Powell presented it as “evidence” at a crucial UN security council meeting a month before the invasion.

In addition, the role of Khaldan as an “al-Qaeda camp” has also been dispelled over the years, as it has become clear that it was founded during the US-backed mujahideen resistance to the Soviet occupation of Afghanistan, that it was only marginally connected to al-Qaeda’s activities, and that, in fact, the Taliban closed it in 2000 after al-Libi refused to allow it to come under the control of Osama bin Laden. This does not necessarily mean that the camp did not play a role in the training of men who later became involved in terrorist activities, despite Abu Zubaydah’s claim that it was “committed to a defensive, not offensive, jihad” (as it appears that the mentally damaged would-be terrorists Richard Reid and Zacarias Moussaoui both trained there, as, reportedly, did three of the 9/11 hijackers), but it certainly adds weight to Muhammed’s explanation, at his tribunal in Guantánamo in 2004, that Khaldan was “a place to get training” that had nothing to do with either al-Qaeda or the Taliban. “People come over to that camp, train for about a month to a month and a half, then they go back to their hometown,” he said, adding that what the people did with the training they received was their own business.

A military jury will shortly begin deliberations about what sentence Muhammed should receive — a largely symbolic gesture, as it will be irrelevant if, as expected, it exceeds the term agreed in the plea deal. This is under seal, but the Miami Herald reported that “Military sources said the deal could send Noor home by January 2015,” and the Associated Press stated, “Arabic broadcaster Al-Arabiya, citing an anonymous source, reported that Noor … will serve no more than three years at Guantánamo and has agreed to testify against other prisoners, including Abu Zubaydah.”

It remains to be seen whether the Obama administration will actually press ahead with a trial by Military Commission for Abu Zubaydah, as suggested by Al-Arabiya. It certainly seems unlikely, given his central role in the Bush administration’s torture program, but in the meantime, the jury in Muhammed’s case will probably deliver a punitive symbolic sentence, which will be used by the administration to justify the Commissions, and to show Republicans how tough the government is on “terrorists.”

This will no doubt play well to the many cheerleaders for the Military Commissions in the Republican party — and to those Democrats who, like Obama himself, approved their revival despite never seeming to be entirely convinced — although the truth was pointed out to the Miami Herald by Mary Cheh, a law professor at George Washington University, who “said the strategy of trading short prison sentences for guilty pleas lets the government ‘gloss over fundamental legal issues’ still bedeviling” the Commissions, leaving defense lawyers “to resolve a tension between ‘what’s in the best interest of the client and whether to challenge a system that is fundamentally flawed.'”

As ever, “justice” and “Guantánamo” are not words that fit well together.

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, on tour in the UK throughout 2011, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners.

25 Responses

  1. Andy Worthington says...

    On Facebook, Fiona Nedeff wrote:

    For David Hicks, who was gagged so tight…. thanks for sharing Andy.

  2. Andy Worthington says...

    George Kenneth Berger wrote:

    Sharing now.

  3. Andy Worthington says...

    Carol Anne Grayson wrote:

    Very interesting…shared…

  4. Andy Worthington says...

    Willy Bach wrote:

    Andy, all, as you say, outside the law. Because these abductees have no rights all of us have our rights threatened.

  5. Norwegian Shooter says...

    What are the other pre- 9/11 training camps inside Afghanistan and what was their relationships to al Qaeda / the Taliban? Who is said to have led them? I’ve heard of al Farouq, but that’s about it. See this post on the current requirements for indefinite detention: Training at al Farouq and studying at an unnamed religious institute pre- 9/11; being caught near Tora Bora in late 2001; and being Arab, of course. Ignoring the state of the case law, why would the US ever want to detain someone like Esmail indefinitely?

  6. Andy Worthington says...

    Hi Norwegian Shooter,
    This is from Chapter One of “The Guantanamo Files”:
    “On the night of 7 October 2001, the American mission to ‘destroy’ al-Qaeda and the Taliban commenced in a rain of bombs –- on Taliban military facilities, and on 23 military training camps in the south and east of the country, which, in a sign of the hyperbole to come, were all alleged to belong to al-Qaeda.”
    In a footnote, I wrote:
    “Of the dozens of training camps established in Afghanistan from the 1980s onwards, most were funded by Pakistan and wealthy donors in the Gulf countries. Some were run by Afghan warlords, others by Pakistani groups and others by militant groups from other countries. Although bin Laden had a few camps of his own, it was inappropriate to describe all the training camps in Afghanistan as ‘al-Qaeda camps.'”
    Al-Farouq is the one that dominates the US government’s Guantanamo narrative as THE “al-Qaeda camp”; the others alleged to be bin Laden’s barely get a look-in.
    Most important, however, is your statement and question about the D.C. Circuit Court’s current examination of the failed habeas corpus petition of Yasein Esmail (aka Yasin Ismail), who lost his habeas petition in April last year. Your summary of the reasons he is being held (derived from Ben Wittes) is accurate, as, therefore, is your question as to why the US would want to continue holding him indefinitely. Essentially, it’s because the courts are caught up in their own self-referential little world (in which the Circuit Court is justifying detention – possibly for life – on the basis of peripheral involvement with either al-Qaeda or the Taliban), but most importantly it’s because they were never empowered by the Supreme Court to distinguish between al-Qaeda and the Taliban, or to insist, for example, that soldiers should have been held as prisoners of war.
    The longer this goes on, the more disgraceful it is, frankly. I hope to be writing about it soon.

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  9. arcticredriver says...

    Norwegian shooter, I hope Andy doesn’t mind if I add a few more details about other camps in Afghanistan. There were some press reports from early in the war that quoted officials in India’s intelligence establishment, who asserted there had been one hundred or more training camps in Afghanistan under the Taliban.

    How many were Al Qaeda camps? That is a good question.

    In addition to the Al Qaeda camps, and non-affiliated camps like Khaldan, and camps operated by independent Afghan warlords, and by groups fighting against the Taliban, there was one other type of camp in Afghanistan.

    Just as the Viet Cong had camps in Cambodia and Laos, just as all the Nicaraugan Contras camps were in El Salvador, the Taliban allowed the militias of groups fighting to overthrow the governments of Uzbekistan and some other neighboring countries to maintain bases and training camps in Afghanistan.

    The BBC published an article about attempts the Taliban regime’s last Foreign Minister made to warn the USA about al Qaeda’s impending attacks — in August 2001. The Taliban is not a monolith, there were/are factions within it. And the Taliban’s last Foreign Minister Muttakiwil, and his proteges Abdul Salam Zaeff, and Khirullah Khairkha, were leaders of a liberal faction. According to the BBC the leader of one of those groups of foreign resistance fighters the Taliban allowed to use Afghan territory learned of the 9-11 plot in the summer of 2001. According to the BBC he appealed to Muttakiwil, to warn the USA of the impending 911 attack — because he presciently anticipated that an al Qaeda attack would trigger a US counter-attack, which would end up with making it impossible for his group to conduct its training and other operations against Uzbekistan, from Afghanistan.

    FWIW Muttakiwil says he did use the diplomatic channels he had access to to warn the USA. And FWIW after the attacks Muttakiwil was the leader of the faction within the Taliban who argued, after 9-11, that the Taliban should not harbor Osama bin Laden and Al Qaeda. He argued that the Taliban should accede to the US demand that they hand over OBL and Al Qaeda, and thus avoid invasion. FWIW while Zaeff was released from Guantanamo, years ago, Khairkhwa is one of the few Afghans still held there.

  10. arcticredriver says...

    Further to Norwegian shooter’s question as to how many al Qaeda training camps there were — I counted up once those mentioned in the allegation memos prepared for the captives’ annual status review. If you take those memos at face value al Qaeda maintained dozens of camps. But most were mentioned in just one or two captives’ memos.

    As Andy has documented, the authorities at Guantanamo, even with years to work on it, were not able to establish who many of the captives really were. Similarly, I think, there were unable to establish the real names, locations, and affiliations of these camps. After reading reading these memos I am convinced that the drafters realized that they were using different names for the same camp. Osama bin Laden had a home within walking distance of Kandahar Airport, called Tarnak Farms. Advanced training was conducted there. I believe most or all of the references to the “Airport camp”, and the “Urban Warfare Camp” were references to Tarnak Farms.

    I suspect that, even if you count the camps Clinton destroyed with cruise missiles in retaliation for Al Qaeda’s bombings of US embassies in Africa in 1998, Al Qaeda had less than a dozen camps in total.

  11. arcticredriver says...

    I agree with Andy that there is strong reason to doubt that Khalden was an official al Qaeda camp.

    I live in Toronto. I happened to have the local news channel turned on the day that Omar Khadr’s brother, Abdurahman Khadr returned to Canada.
    Abdurahman and Omar are the 2nd and 3rd of the four sons in their family. According to the excellent documentary “Son of Al Qaeda” Abdurahman was the “black sheep” of the family.

    Canadians knew Abdurahman had been in Guantanamo. Then the press learned that he had phoned family members here in Canada, asking for help to return to Canada from Bosnia. If he had been in Guantanamo how the heck had he ended up in Bosnia.

    The cover story the CIA wanted him to tell was that when the USA had released him, they had released him in Afghanistan, even though he was a Canadian citizen, and that he had made his way overland, all the way from Afghanistan to Bosnia, before it occurred to him to phone home.

    There is no reason why Abdurahman should offer a press conference upon his arrival, even though the Canadian press had many questions for him.

    Early in the press conference he was asked whether he had been trained to use an AK47 rifle. He replied that of course he had, that being shown how to use an AK47 was as common for a kid in Afghanistan as it was for a Canadian kid to learn how to play hockey. Then he was asked if he had attended an Al Qaeda training camp. He said No. Paraphrasing from memory, he said something like: “I did attend a training camp, but it was not an al Qaeda training camp.” Then he paused, and said something like: “It was merely an al Qaeda related camp”.

    Uproar swept the room full of reporters with this statement. And, in the weeks that followed editorial writers and other commentators showed they could not recognize a distinction between an al Qaeda camp and an al Qaeda related camp.

    Khalden was the camp Abdurahaman had been sent to.

    I do believe it is in our interest to recognize a distinction between Khaldan and bona fide al Qaeda camps. I have speculated about what Abdurahman really meant.

    He could have meant that the camps had similar curricula in field stripping, marksmanship, obstacle course running, etc. He could have meant that when the really crazy jihadists wanted to attend Khaldan Abu Zubaydah told them: “Sorry, we are all fully booked for our next couple of sessions, why don’t you contact OBL about his al Qaeda camps? I hear he still has some openings”.

    Or maybe he meant some closer association.

    Up until this week’s plea deal nothing had been made public that would contradict the testimony of these two men, that (1) Khaldan was not an al Qaeda camp; (2) that the Taliban closed the camp down at OBL’s request in 2000.

    It would be a tragic if careerists put protecting the reputation of those who worked at Guantanamo ahead of public safety, and advanced a plea bargain built around a false confession.

    I think what would have been in the public interest would have been to take Abu Zubaydah, Noor Uthman and Al Libi’s claim the camp was not an al Qaeda camp, that it did not teach death to America, at face value. I think it is highly likely that the claim was essentially true, and that this was the ideological difference that caused OBL to get the Taliban to shut the camp down.

    I think they should have been put under some kind of supervised release, or house arrest, provided they publicly stated they would cooperate with the Karzai regime, and denounced the Taliban and al Qaeda. I think they would have been far more effectively used in the war against al Qaeda as figure-head allies of the USA and Karzai than as victims of the USA. I think even if their claim was only partly true, or even if the USA never fully trusted them, if they were under the right kind of non-obvious supervised release, it wouldn’t matter if they retained some sympathy for the other side, so long as their continued freedom required them to play-act sympathy for our side. Heck, the USA treated them well enough they may very well have changed sides of their own accord.

  12. Norwegian Shooter says...

    I’ve read the habeas opinion now. The section on training camps and guesthouses includes some general background notes from a declaration of an analyst at the DIA. Of course, they are redacted. It also uses statements from ISN 2 – that’s David Hicks, right? (Everyone should read the Jason Leopold article).

    The religious institute is the Institute of Islamic / Arabic Studies in Kandahar, run by Abu Hafs al-Mauritania (Salahi’s cousin and ex-brother in-law, BTW).

    The key question is his actions at Tora Bora: the government is “unable to point to a piece of evidence directly supporting the contention the Esmail fought for Al Qaeda at Tora Bora, but they argue that the Court should nevertheless infer that fact.” Another DIA redacted comment is used as support. The Court obliges: “The Court, necessarily dealing in probabilities, finds that because Esmail went to Tora Bora, he was more likely than not an Al Qaeda fighter.” Under current law, case closed – indefinite detention throughout the war on terror.

    So al Farouq and Khaldan are the two most cited camps by a long way?

  13. Andy Worthington says...

    On Facebook, Malcolm Bush (in response to 4, above) wrote:

    Yes, Willy Bach makes a good point; since all this is outside of the law, we are all threatened. This all started before the so called ‘war on terror’ and will not end after it.

  14. Andy Worthington says...

    Tashi Farmilo-Marouf wrote:

    ‎”al-Libi was sent to Egypt, where, under torture, he falsely confessed that two al-Qaeda agents had been discussing the use of chemical and biological weapons with Saddam Hussein. This confession was used to justify the US-led invasion of Iraq in March 2003…”
    Fascinating. If I was being tortured, I would probably say anything to free myself of the pain. How can anyone rationally, logically or intentionally use information gained this way?

  15. Andy Worthington says...

    Fiona Nedeff wrote:

    ‎….. to further their own agenda.

  16. Andy Worthington says...

    George Kenneth Berger wrote:

    Those who use it lie about the value of what they got. They do so intentionally. And the rest is as Fiona just said.

  17. Andy Worthington says...

    Tashi Farmilo-Marouf wrote:

    Why bother with the facade? Is any justification better than no justification, however unconscionable.

  18. Andy Worthington says...

    George Kenneth Berger wrote:

    That’s something I never thought of. Perhaps they are all sadists or people who really believe that torture is the way to go. Or people who are “just following orders.” Who knows? Frederik The Great made judicial torture illegal in late 18th Century Prussia. Have we progressed?

  19. Andy Worthington says...

    Tashi Farmilo-Marouf wrote:

    I wonder sometimes if we are capable of progressing at all.

  20. Andy Worthington says...

    Joan S. Livingston wrote:

    When will this madness end? Oops, forgot: Gitmo’s been “US property” since 19th C.

  21. Andy Worthington says...

    Khan Sohail wrote:

    Post 9/11 era, a dark period in which innocent humans were picked from different parts of the world, not only from Iraq & Afghanistan but from Europe and other parts of the world and tortured/abused for years in secret prisons without any evidences, just to win the support for war on terror.

  22. Andy Worthington says...

    Thanks, everyone. I would have replied sooner, but I’ve been out of Internet contact — at my father’s funeral yesterday, I’m sad to report, and in Durham this evening, for a screening of “Outside the Law: Stories from Guantanamo,” and then on to Edinburgh, where I am now, for another screening tomorrow (Saturday).
    Strange times, it would be fair to say …

  23. Andy Worthington says...

    Thanks also to arcticredriver for those detailed and very useful explanations. Btw, I added a “not” to your line about how Khalden “did teach death to America.” Was that right?
    And Norwegian Shooter, thanks also for update on Yasein Ismael — and your sad but accurate conclusion.
    As for camps, yes, al-Farouq and Khaldan are most commonly cited — but al-Farouq in particular.

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  25. The Progressive Mind » Eleven Years after 9/11, Guantanamo Is a Political Prison says...

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