Why No Trials for Abu Zubaydah and Seven Other “High-Value Detainees” in Guantánamo?

19.5.12

Two weeks ago, when Khalid Sheikh Mohammed and four other “high-value detainees” were arraigned at Guantánamo, in preparation for their forthcoming trial by military commission, they brought to eight the number of “high-value detainees” tried, put forward for trials or having agreed to a plea deal to avoid a trial and secure a reduced sentence.

In total, 16 “high-value detainees” have been sent to Guantánamo — 14 in September 2006, another in 2007 and another in 2008. One, Ahmed Khalfan Ghailani, was tried and convicted in federal court in New York in 2010, another, Majid Khan, accepted a plea deal in February this year, and Khalid Sheikh Mohammed and his four co-defendants join another prisoner, Abd al-Rahim al-Nashiri, in the slow-moving queue for military commission trials at Guantánamo.

But what of the other eight? Are there any plans to try them? Or is the Obama administration happy for them to be held for the rest of their lives without charge or trial — a confirmation, if any were needed, that indefinite detention without charge or trial has, through Guantánamo, become normalized?

Abu Zubaydah asks to be put on trial

Last week, the best known of these other “high-value detainees,” Abu Zubaydah, asked these questions via his lawyers. Seized in a house raid in Faisalabad, Pakistan in March 2002, Zubaydah was held in a variety of secret CIA prisons for four and a half years, and the Bush administration’s torture program was specifically developed for him, as explained in two memos issued by the Justice Department’s Office of Legal Counsel (OLC) on August 1, 2002 that will forever be known as the “torture memos.” In another memo issued by the OLC in May 2005, it was revealed that, as part of his torture, Zubaydah was subjected to the ancient torture technique known as waterboarding, a form of controlled drowning, on 83 occasions.

On May 10, lawyers for Abu Zubaydah sent a letter to the Convening Authority, Retired Vice Admiral Bruce MacDonald, the Pentagon legal official who presides over the commissions. In it, they said they had “repeatedly sought a ‘legitimate evaluation’ of his case,” as the Associated Press described it.

The letter, signed by four lawyers, stated that Abu Zubaydah “requests that the Convening Authority commence prosecution of him before a military commission at the earliest possible date.”

One of the lawyers, Joseph Margulies, a Professor at Northwestern University School of Law in Chicago, pointed out that, despite initially touting Zubaydah as the number 3 in al-Qaeda, the US government has “since backed off earlier statements” that he “was a leader of al-Qaeda and senior associate of Osama bin Laden.” Noticeably, the FBI always maintained that he was the mentally damaged gatekeeper of an Afghan training camp that was unconnected to al-Qaeda.

In crucial court submissions in 2009 (as reported in Truthout) and 2010 (in the habeas corpus petition of Sufyian Barhoumi, an Algerian seized with Zubaydah), the government resorted to claiming that Zubaydah ran his own militia allied with al-Qaeda, an accusation based on the alleged discovery of a diary written by an unidentified Syrian.

According to Margulies, however, even this claim has since been watered down. He explained that “officials now believe he provided logistical support to militants in Pakistan and Afghanistan, but not people affiliated with” al-Qaeda, and stated, “We think one of the reasons he hasn’t been charged is because of the yawning chasm between who they thought he was when he was the poster child for the torture program and who they now understand him to be.”

In conclusion, the AP article pointed out that Zubaydah and the other “high-value detainees” are held in Camp 7, “a top-secret section of the Guantánamo Bay prison,” where secrecy is indeed the defining characteristic of the men’s detention. As the article explained, because of “secrecy rules,” Zubaydah’s attorneys are not allowed to disclose any details about him or about “the conditions of his confinement,” although Margulies noted that he “has been experiencing gradual memory loss and can no longer remember the names of his parents or his birth date as a result of his treatment in custody.” As he explained, “We are very concerned about his welfare, about his mental health.”

The seven other “high-value detainees” and a wall of silence

Despite the secrecy, however, Abu Zubaydah’s lawyers have managed to reveal enough about him over the years for him to be known to the public, to some extent. In the cases of the other “high-value detainees,” however, the wall of secrecy is so impenetrable that almost nothing at all is known about them beyond the profiles issued by the Bush administration in September 2006 (after the 14 “high-value detainees” arrived at Guantánamo), which are available here (PDF), and for the two others, the Pentagon press releases here and here.

For the five who arrived at Guantánamo in September 2006, military review boards — the Combatant Status Review Tribunals — were held in the spring of 2007, but only two took part. One was Riduan Isamuddin, an Indonesian also known as Hambali, who was seized in Ayutthaya, Thailand, on August 11, 2003 and held in secret CIA prisons for three years. He claimed that he had resigned from Jemaah Islamiya, a Southeast Asian terrorist organization allied with al-Qaeda, in 2000, and was not involved with any bombings or plots. The other was Mohammed bin Lep, a Malaysian seized with him and also known as Lillie, who denied every allegation about his supposed involvement with Jemaah Islamiya, and admitted only that he had once transferred some money to Hambali. A second Malaysian, Mohammed Farik bin Amin, also known as Zubair, who had been captured in Bangkok on June 8, 2003, and who was another alleged accomplice of Hambali, refused to participate in his tribunal, only responding occasionally to say yes or no “in a very low voice.” Over the years, there have been a number of reports of Hambali  in the media, beginning soon after his capture, although it is not known how accurate these reports are, as Time, for example, admitted in an article based on talking to CIA officials in the weeks after Hambali’s capture. Less reported have been the stories of the other two men, although in January this year Malaysian officials called for them to be tried, criticizing the US for its double standards on human rights.

Another of the “high-value detainees,” Abu Faraj al-Libi, who was seized in Mardan, Pakistan, on May 2, 2005, and was regarded as number 3 in al-Qaeda (just like Abu Zubaydah before him), refused to take part in his tribunal, challenging the legality of his detention in a written statement, in which he argued that “his freedom is too important to be decided by an administrative process,” and demanded the right to be represented by a lawyer, and to challenge the evidence against him. Al-Libi has since become known as one of the sources of the intelligence that led to the assassination of Osama bin Laden last year — with apologists for torture falsely claiming that torture had been used to secure the intelligence — but not a single word has emerged from al-Libi himself.

In the case of the last of the five, Gouled Hassan Dourad, a Somali, who was seized in Djibouti on March 4, 2004, little is known. He was allegedly a facilitator for forces allied to al-Qaeda in Somalia, but, although he took part in his tribunal, he admitted only that he had fought jihad against Ethiopians, in the defense of his country, and said that he had not fought against US forces.

For the two other “high-value detainees” who arrived at Guantánamo in April 2007 and March 2008 — Abd al-Hadi al-Iraqi and Muhammed Rahim al-Afghani — the silence is complete. Neither man has been given a Combatant Status Review Tribunal, and therefore they have not had the opportunity to mention anything about their experiences since their capture. A fact sheet on al-Iraqi — whose role as a significant figure in al-Qaeda is well-documented — was made available by the US military after his transfer to Guantánamo, although that, of course, doesn’t provide him with a voice, or explain what happened between his capture — apparently in late 2006 — and his arrival at Guantánamo up to six months later.

In the case of al-Afghani, all that is known is one line from the press release announcing his arrival at Guantánamo on March 14, 2008, in which it was stated that he “was a close associate of Osama bin Laden and had ties to al-Qaeda organizations throughout the Middle East,” and “became one of bin Laden’s most trusted facilitators and procurement specialists prior to his detention.” Further information was uncovered in August 2009, when, analyzing an internal CIA report, the Associated Press, describing him as an alleged translator for bin Laden, surmised that he was probably the prisoner referred to in the report, who had been subjected to sleep deprivation for five days straight in August 2007, and for six days straight in November 2009.

I hope that Abu Zubaydah’s lawyers extract some sort of explanation from the US authorities regarding their client’s seemingly perpetual detention without charge or trial, although I also hope that, at some point, the situation in which these other “high-value detainees” are held becomes a matter of discussion — both in public and in the corridors of power — as they are part of an even bigger and more depressing situation at Guantánamo.

That situation is one in which, although 87 of the remaining 169 prisoners were cleared for release by President Obama’s interagency Guantánamo Review Task Force in 2009, 36 others were recommended for trial, and 46 others for indefinite detention without charge or trial, almost all of them appear to be indefinitely detained without charge or trial.

In the cases of the “high-value detainees,” as is clear from the stories above, one major problem for the Obama administration is that they were all subjected to torture, although that is also true of many of the other men still held. This should not provide an excuse for them being held in limbo forever, but as Abu Zubaydah’s lawyers have realized, innovative approaches are needed to bring the stories of any of these men into the public eye and to ask, after more than ten years, if that is anything other than a complete disgrace.

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, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in April 2012, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.

22 Responses

  1. Andy Worthington says...

    On Facebook, Sandra Peevers wrote:

    ‎… and to think it could be any of us with the passage of NDAA. Watching to see what happens now that the brave Judge Katherine Forrest has issued an injunction against clause 1021.

  2. Andy Worthington says...

    Hi Sandra, I certainly appreciate Judge Forrest’s ruling, but it remains agonizingly, horribly true that what US citizens want to prevent happening to them has been happening, with impunity, to foreigners at Guantanamo for over ten years. If Guantanamo – and its 10-year establishment of indefinite military detention without charge or trial – no longer existed, lawmakers would have had no excuse for demanding the military detention of terror suspects – including Americans – in the NDAA.
    This isn’t directed at you, Sandra, but if all the Americans who cared about the NDAA cared about Guantanamo we’d have enough pressure to get the damned place closed down!

  3. Andy Worthington says...

    Sandra Peevers wrote:

    You’re absolutely right Andy. Closing Guantanamo was an Obama promise. Tough situation, to be sure (return/relocate), but those detainees need to be let go now. Here’s an ignorant question for you: are new detainees being added???

  4. Andy Worthington says...

    No, it’s not an ignorant question, Sandra. It’s a very good one. Ever since Bush left office, it’s been obvious that some lawmakers wanted Guantanamo to remain open – not just to hold those still there, but also with the intention of adding to the population. It’s been a main point of the resistance to the prison’s closure, and it was – is – a major driver of the mandatory military detention provision inserted by lawmakers into the NDAA.

  5. Andy Worthington says...

    Sandra Peevers wrote:

    So how many have been taken to Guantanamo in recent months, years?

  6. Andy Worthington says...

    No one since March 2008, Sandra. Obama has refused to even consider any demands that new prisoners should be sent to Guantanamo, which is a good thing, but the biggest encouragement he can provide to these people, unfortunately, is to keep the damned place open.

  7. Andy Worthington says...

    Jennah Freely wrote:

    The years pass and nothing changes. It’s sad. These poor men prove that justice is lost – or means next to nothing anymore. When law makers get to make up their minds as they go along (as to whether or not to apply the rule of law – or make up new ones to suit their own interests.) Sickening. I am so glad you haven’t given up, Andy. You work hard to bring these stories to light and I am sure your readers/supporters appreciate it greatly. (I do.)

  8. Andy Worthington says...

    Thanks, Jennah. It really is very good to hear from you, you know, and I’m glad you appreciate the stories. Now we have to work out how, against the odds, we can take the stories to a much wider audience and to put pressure on the next administration in January, demanding that the cleared prisoners (87 of the 169 men still held) be released, and that those against whom there are charges are finally brought to trial.

  9. Andy Worthington says...

    Jennah Freely wrote:

    How can you take them to a larger audience, one that has sway over American politics. How about form a lobby group? Has anyone done that yet?

  10. Andy Worthington says...

    I’ve been working with some well-connected people over the last few years, Jennah – well-connected politically. They can get access to lawmakers, but the problem, for the last few years, has been that no one’s interested. Even sympathetic Democrats have complained that they can’t get interest from the leadership. However, this can’t go on forever, obviously, hence the need for a new push to raise awareness of the endless injustice of Guantanamo.

  11. Andy Worthington says...

    Sandra Peevers wrote:

    Andy, what do you propose is the best way to handle the detainees who are there? How many are there?

  12. Andy Worthington says...

    169 are still held, Sandra, and what we need – and what I’ve been working on doing – is raising awareness this year, to have a major push on the new administration next January. Watch this space!

  13. Andy Worthington says...

    Sandra Peevers wrote:

    Not to bother you, but what, in your opinion, are the best options for how/where to release these prisoners? If you have the time to answer. And also, how can I/anyone help to get these people out of purgatory?

  14. Andy Worthington says...

    Hi Sandra,
    OK, so 87 have been cleared for release, but 58 are Yemenis, and no one is even prepared to consider releasing Yemenis to their home country, even when, as in some cases, they’ve been cleared since 2004. Check out this article I wrote last year: http://www.andyworthington.co.uk/2011/05/12/abandoned-in-guantanamo-wikileaks-reveals-the-yemenis-cleared-for-release-for-up-to-seven-years/
    29 others cleared for release are from a variety of countries, and it is unsafe for some to be repatriated, son they need new homes. As the well of goodwill from other countries seems to have dried up, US citizens need to exert pressure to get some men released in the US. See these recent articles, for example:
    http://www.andyworthington.co.uk/2012/05/05/close-guantanamo-washington-post-calls-for-last-three-uighur-prisoners-to-be-freed-in-the-us/
    http://www.andyworthington.co.uk/2012/05/12/close-guantanamo-calls-on-us-communities-to-demand-release-of-cleared-prisoners-in-us/
    http://www.andyworthington.co.uk/2012/05/20/ahmed-belbacha-an-algerian-refugee-in-guantanamo-has-been-waiting-for-a-new-home-since-2007/
    As for the others, those who can be put on trial should be put on trial, and 46 others – designated for indefinite detention without charge or trial, because the evidence against them is too weak for any courtroom – should, instead, either be charged, released, or, perhaps, redesignated as prisoners of war.
    As for what you can do, please join the “Close Guantanamo” campaign and “No More Guantanamos” and let’s see what we can do for 2013!
    http://www.closeguantanamo.org/
    http://www.nogitmos.org/

  15. Andy Worthington says...

    Jennah Freely wrote (in response to 10, above):

    That begs the question – How does one get people to care, show interest? It makes me think that whoever had the idea of villainizing certain groups by attaching labels to them – such as ‘terrorist’ – actually succeeded in dehumanizing them to the point that they have absolutely no voice and no value (and therefore – no right to justice.) Hmm. What a world. What if that were our brother, uncle, cousin locked away. Wouldn’t we feel the need to help? But because it is the stranger, the outsider, we feel nothing for his suffering. What a shame. What a shame.

  16. Andy Worthington says...

    Yes, I couldn’t have put it better, Jennah. As you have recognized, empathy is needed – what if it was your brother, uncle or cousin? I do believe that justice will prevail in the end ,but is certainly a test when a Democratic President, obviously a nice enough guy after the horrors of the Bush years, can’t be bothered to hold to the principles he promised he believed in on the election trail in 2008 (and in his first few days in office), and, as a result, everyone except the truly dedicated gives up or moves on from Guantanamo, leaving the men more alone than at any time since the first few years of Guantanamo’s existence. As I frequently mention, even with 602 men freed (and eight having died at Guantanamo), the 169 who remain are not “the worst of the worst.” Only 36 were recommended for trials by Obama’s advisors, and most people still don’t know that 87 of them – over half of the remaining 169 – were cleared for release by the Obama administration, but are still held. How can that be right? How can that be a source of complacency?

  17. Andy Worthington says...

    Sandra Peevers wrote (in response to 14, above):

    Thanks Andy. I will read all these links. It is good to know these figures and details. The whole mess seems like an unfathomable black hole and I am happy you have dedicated yourself to this cause, as I am sure the detainees are.

  18. Andy Worthington says...

    Thanks, Sandra. Your analysis is spot-on. I wish people in power realized that it would be better to shut it as soon as possible given how embarrassingly inept and cruel the whole experiment was – and is – but too many people believe everything that masquerades as evidence, even though it doesn’t take too much investigation for it all to fall apart. If you have the time, please have a look at my ongoing project, “The Complete Guantanamo Files”: http://www.andyworthington.co.uk/category/2002-2011-the-complete-guantanamo-files-new/

  19. Andy Worthington says...

    Jennah Freely wrote (in response to 16, above):

    Very frustrating! People really should grow some empathy! I mean just stop all this me, me, me and mine stuff and really start caring! “So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets.” Matthew 7:12 – the Prophet Muhammad (peace be upon him) said, “None of you will have faith (Iman) till he wishes for his brother what he likes for himself.” (Bukhari)

  20. Andy Worthington says...

    Amen! Thanks, Jennah. It depresses me that so many of those who claim to be Christians completely miss the point. More empathy would make the world a much, much better place.

  21. Thomas says...

    That this can be done to any human being is deeply upsetting to me. Laws are there to protect all life, not to harm it.

    Sometimes I feel when we condone this, we lost our humanity, we lose our souls. Looking in the mirror and seeing a monster staring back ..

    And it seems to be getting worse. Not better. Its like those that perpetrated this and its defenders of torture are getting their way and can’t see the wrong in what they are doing. Its so depressing.

  22. Andy Worthington says...

    Thanks, Thomas. Yes, I agree that it’s deeply unsettling, and is an indicator of us losing something profoundly important from an ethical and moral point of view – our moral compass, if you will.
    I hope that the Senate report on torture is released in the near future sufficiently unredacted to prove, conclusively, how bad an idea it is to torture people – let alone to make it official government policy.

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