In a hugely important ruling in the US District Court in Washington D.C., relating to the treatment of prisoners at Guantánamo Bay, Judge Gladys Kessler has ordered the government to suspend the force-feeding of a hunger-striking prisoner, and to preserve video evidence of his force-feeding.
The prisoner, Abu Wa’el Dhiab, a father of four, is a Syrian national, who is confined to a wheelchair as a result of his deteriorating health during his 12 years in US custody. Significantly, he was cleared for release by President Obama’s high-level, inter-agency Guantánamo Review Task Force in 2009, but is still held, along with 74 other men cleared for release by the task force. The majority of these men are Yemenis, who have not been freed because of US concerns about the security situation in Yemen, but in Dhiab’s case, he is still held because of the civil war in his home country, and the need for a third country to be found to take him in.
The fact that he is on a hunger strike, in despair at his abandonment in Guantánamo, and is being force-fed in response ought to be a source of profound shame for the administration, although it is worth noting that he is not the only prisoner cleared for release who was involved in the prison-wide hunger strike last year, and is still on a hunger strike now.
In her order, issued on Friday, Judge Kessler also stated that the government must preserve all videotaped evidence of Abu Wa’el Dhiab’s force-feedings and “forcible cell extractions,” in which, as his lawyers at the London-based legal action charity Reprieve explained, “a team of guards in riot gear storms a prisoner’s cell to move him by force to feedings if he refuses to go.”
The existence of the videotapes was unknown until last week, when Jon B. Eisenberg, Abu Wa’el Dhiab’s US-based attorney, found out about their existence in an email exchange with a lawyer in the Justice Department. In response, as Jason Leopold explained for Al-Jazeera, Dhiab’s attorneys “filed an emergency motion asking that Kessler order the government to preserve the videos,” a motion that was opposed by the government.
Judge Kessler also ordered the government to stop the “forcible cell extractions,” at least until Wednesday, when she scheduled another hearing at which the government “should be prepared to say when it can turn over Mr. [Dhiab’s] medical records and the videotapes,” as the New York Times described it.
As I explained in an article last July, after Abu Wa’el Dhiab and three other men — Shaker Aamer, the last British prisoner, and two Algerians, who were subsequently released — had asked a judge to order the government to stop their force-feeding and forced medication, he had “run a food import business with his family in Kabul before the 9/11 attacks,” and “is one of the numerous prisoners in Guantánamo, past and present, to be in the wrong place at the wrong time when the US went fishing for Muslim prisoners.”
I added, “Having escaped to Pakistan with his family, he was seized in Lahore, in one of the opportunistic raids that showed the Americans that Pakistan was on their side in the ‘war on terror,’ and that also secured millions of dollars for the Pakistani government, as former President Pervez Musharraf boasted in his autobiography in 2006.”
Last summer, Abu Wa’el Dhiab’s motion asking a judge to order the government to stop his force-feeding was turned down by Judge Kessler, but only because of a prior case from 2009 establishing that “no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant.”
However, Judge Kessler made a point of stating that it was “perfectly clear” that “force-feeding is a painful, humiliating and degrading process.”
She also stated that Abu Wa’el Dhiab had “set out in great detail in his papers what appears to be a consensus that force-feeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights which prohibits torture or cruel, inhumane, and degrading treatment,” and added that, although she was “obligated to dismiss the Application for lack of jurisdiction, and therefore lacks any authority to rule on Petitioner’s request,” there was one individual “who does have the authority to address the issue”; namely, President Obama.
In February, the court of appeals overturned Judge Kessler’s ruling — and another similar ruling from last summer — ruling that hunger-striking prisoners can challenge their force-feeding in a federal court, and, more generally, that judges have “the power to oversee complaints” by prisoners “about the conditions of their confinement,” as the New York Times described it. The TImes added that the appeals court judges specifically noted that the courts “may oversee conditions at the prison as part of a habeas corpus lawsuit.”
In response to Friday’s news, Katherine O’Shea of Reprieve US explained to me in an email that Judge Kessler “clearly thinks our client needs temporary relief; it’s the first time a judge has enjoined abuse of a detainee in connection with the hunger strike.” She added, “In and of itself it’s quite an indictment of Gitmo.”
Cori Crider, Reprieve’s Strategic Director, who has been Abu Wa’el Dhiab’s attorney for many years, said, “This is a major crack in Guantánamo’s years-long effort to oppress prisoners and to exercise total control over information about the prison. Dhiab is cleared for release and should have been returned to his family years ago. He is on hunger strike because he feels he has no other option left. I am glad Judge Kessler has taken this seriously, and we look forward to our full day in court to expose the appalling way Dhiab and others have been treated.”
Jon Eisenberg added, “We are very grateful to Judge Kessler for recognizing the urgent need for judicial relief. The force feeding that has been happening at Guantánamo Bay is a stain on our country and must end.”
It is to be hoped that, in response to this development, President Obama will take steps to hasten Abu Wa’el Dhiab’s release. Although he cannot return home, he is one of six prisoners that President José Mujica of Uruguay stated his willingness to accept in March. Just days before the court ruling, President Mujica met President Obama in Washington D.C. and, in an interview with the Washington Post, stated that his country was still willing to take six men who cannot be safely repatriated, but added that the Obama administration needs to take action soon. “It can’t be too long,” President Mujica said. “I only have a few months of government left.”
Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and 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. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).
To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list and the chronological list of all Andy’s articles.
The lasting tragedy of 9/11 is that it has given the worst people in our government an excuse to turn our constitution into toilet paper.
Great to hear from you, William, and thank you for that succinct and powerful analysis of what went wrong after 9/11. If only more people thought like you.
On Facebook, Moon Mohamed wrote:
Good job Andy Worthington always there, and your action changes a lot of their situation .
Thank you, Moon. Good to hear from you. I try to be a permanent reminder of the permanent injustice of Guantanamo. Nothing less than its closure and a cast-iron promise that indefinite detention without charge or trial and the use of torture will no longer be US policy – will suffice.
Adam Hawa wrote:
InshaaAllah I try to help at least by small action even I am alone, inshaaAllha for write letter to our brother in Guantanamo
Thank you, Adam. Every action is important. What is needed is action from everyone who claims to care. I am sure the prisoners still appreciate being reminded that they have not been forgotten. This was my last article urging people to write to the prisoners, and providing advice about how to do so. I’ll be promoting a new appeal in July: http://www.andyworthington.co.uk/2014/01/10/on-the-12th-anniversary-of-the-opening-of-guantanamo-please-write-to-the-prisoners/
Eric Schwing ·wrote:
Hooray!!!, it looks like some judges are NOT WILLING TO BECOME PART OF THIS JUDICIAL FASCISM!!!
Yes. Good news, Eric!
This is a great development, although it’s long overdue; I hope the ruling will lead to the swift end of force-feeding for the other hunger strikers as well. (Of course, it’s a shame that even when the barbaric practices at Guantanamo someday end, no one responsible — from individual guards and torturers to those in the government who have kept things going — will face trial or punishment.) I also hope that your work will be remembered by history and valued as a record of injustices that the US media and public are too keen to ignore (and as an American, I think it’s to our shame that the most tireless chronicler of Guantanamo’s injustice is from another country rather than the US itself).
Great to hear from you, and thanks for your comments. I too hope it will force the administration to no longer accept that how things are run at Guantanamo is the military’s own business. No one should be being force-fed, but doing it to men who have been cleared for release is an act of particular cruelty. The ruling needs to put pressure on the administration to release as many prisoners as possible as soon as possible.
Like you, I also lament the fact that it seems that no one will face trial or punishment for their actions past and present.
Thanks also for your supportive words about my work. Much appreciated!
Charmaine Dolan wrote:
Thanks for the updates Andy.
You’re welcome, Charmaine. This has come at a very good time. I know Reprieve and Jon Eisenberg have been working very hard trying to get a breakthrough in the courts, and it was desperately needed, as the plight of the men still held at Guantanamo had slipped off the radar – again – and it was difficult to see what would bring it back into people’s awareness. No let’s see what happens at the meeting on Wednesday with Judge Kessler, Abu Wa’el Dhiab’s lawyers and the Justice Department. And I hope that then there’ll be a deluge of motions from lawyers for many, many other prisoners …
I am trying to remember if it was Justice Kessler who presided over Murat Kurnaz’s 2005 hearing, when the Judge’s classified analysis was accidentally published.
I think we have to be grateful to those judges willing and able to give the classified documents a skeptical analysis. In far too many cases the habeas judges have been the first people to have access to the classified files who were both able and willing to provide some kind of sanity check.
But this important task shouldn’t fall to judges, who lack the training, background, and investigative staff, to perform that sanity checking. We know it costs millions of dollars a year to hold men in Guantanamo, and the sad truth is that, in many cases, this enormous expense could have been eliminated if only there had been devil’s advocates as part of the process. Some captives claimed alibis that could have been refuted or confirmed with relatively trivial efforts. Yet US intelligence analysts showed zero interest in sanity checking. Poor old Abdul Matin confirmed his own alibi through the letters the Red Cross carried out for him. And those shockingly incompetent intelligence analysts released the wrong guy — just like in the tragicomic end of Life of Brian.
I had forgotten the exact sequence of events back in 2005, in what now appear in many ways to be the mists of time – although they are still of great relevance to many of the men still held. I found the Washington Post article from March 2005 about Murat Kurnaz’s hearing. It’s available here:
Mostly, it shows how the Combatant Status Review Tribunals were a total sham, as Lt. Col. Stephen Abraham exposed, of course, back in 2007. How depressing that this material is still out there to be regarded as “accurate” by defendants of Guantanamo.
On Kurnaz’s lack of guilt:
[I]n nearly 100 pages of documents, now declassified by the government, U.S. military investigators and German law enforcement authorities said they had no such evidence. The Command Intelligence Task Force, the investigative arm of the U.S. Southern Command, which oversees the Guantanamo Bay facility, repeatedly suggested that it may have been a mistake to take Kurnaz off a bus of Islamic missionaries traveling through Pakistan in October 2001.
“CITF has no definite link/evidence of detainee having an association with Al Qaida or making any specific threat against the U.S.,” one document says. “CITF is not aware of evidence that Kurnaz was or is a member of Al Quaeda.”
Another newly declassified document reports that the “Germans confirmed this detainee has no connection to an al-Qaida cell in Germany.”
The judge seems to have been Judge Joyce Hens Green, who, in January 2005, “ruled that the tribunals are illegal, unfairly stacked against detainees and in violation of the Constitution,” as the Post described it.
I absolutely agree about the importance of those judges who have examined the supposed evidence objectively, and also how this job should have been undertaken by intelligence analysts for the Pentagon and the intelligence agencies. Depressingly, the devil’s advocates you mention still don’t really exist. Stephen Abraham played a hugely important role demolishing the tribunals’ credibility back in 2007, but a thorough challenge to the so-called evidence has never taken place internally – although I hope to have done some of that myself over the last eight years.
For captives with alibis that could have been checked, I always find it hard to beat the story of Abdul Razzaq Hekmati, who I wrote about for a front-page New York Times story with Carlotta Gall back in 2008: http://www.nytimes.com/2008/02/05/world/asia/05gitmo.html
I don’t recall the Abdul Matin story. I recall a science teacher named Abdul Matin, who was eventually released. Perhaps you could remind me of the letters, and the release of the wrong person.
Thanks Andy — Joyce Hens Green, not her colleague Gladys Kessler.
I think Abdul Matin’s story is one of the more heartbreaking ones. He was one of several expatriates who decided to respond to President Karzai’s plea for well-educated expatriates to return to Afghanistan. Karzai correctly recognized something obvious from the transcripts — decades of civil war had practically shut down the education of more than a generation of Afghans. Why, we had that other captive, press-ganged into serving an illiterate Afghan Governor. That Governor’s one literate subordinate wanted to take a couple of months leave, and the Governor said, “You can take your leave so long as you find someone who can write stuff down, on those occasions I need to have something written down.”
As you said, Abdul Matin was from what passed for a rich family. During Afghanistan’s communist period his family was able to make sure he attended a school, in the Northern Kurnaz region they were from, even though the Communists had nationalized most of their property. After the Communist regime collapsed, they were able to produce deeds and get their property restored, and they decamped to Pakistan to wait out the warlord period.
As you said, Abdul Matin finished his modern education in Pakistan, and became a Science teacher, at a modern high school in Pakistan — making him one of the captives with the easiest alibis to confirm or refute. The allegations that he had served as the Taliban’s Chief of Intelligence in Kurnaz durng the Taliban regime was clearly nonsense if the payroll records at his school showed he was in Pakistan teaching Science — not serving as an Intelligence Chief.
During his testimony he said that, for the first eight months or so that he was in Guantanamo, his interrogators kept insisting he was a Taliban leader named Shahzada. As I recall, he testified that, after replies came in to letters he had been able to send out through the ICRC, they stopped insisting he was named Shahzada. But they did keep insisting his was a Taliban leader.
Well, for several years, the only three former captives the USA named who had “returned to the battlefield” were Mullah Shahzada, Abdullah Mehsud, and Mawlawi Abdul Ghafour. I think you have noted these names were NOT on the official list of captives the DoD made public on May 15 2006. A year or so later various US officials, including our good friend Commander Gordon, published the names of three additional “recidivists” — only one of which was named on the official list.
I looked up Commander Gordon’s email address, and I asked him to clarify how these individuals described as recidivists could have been former Guantanamo captives, when they weren’t named on the official list. He claimed the confusion was due to ‘how many aliases and different transliterations there were for the captives’. A bullshit claim so far as I am concerned. After five years there was no excuse for failing to have picked and always use one consistent name for every captive.
The US claim, back then, was that these men had “tricked” their way out of Guantanamo. But I did some back of the envelope calculations. About eight months after Abdul Matin’s arrival was when Geoffrey Miller signed off on the release of the other guy they thought was a Taliban leader named Shahzada.
I am morally convinced what actually happened is that this is yet another instance illustrating the Guantanamo intelligence establishment’s almost total failure to manage the records they were keeping. I think that the replies to the letters Abdul Matin sent out should have been enough to totally clear him, and trigger his release. What I am afraid happened was that the letters that should have triggered Abdul Matin’s release, instead triggered the release of the other guy they were accusing of being the Taliban leader Mullah Shahzada.
If I have interpreted the record properly, that other guy didn’t “trick” his way out of Guantanamo, he was the lucky beneficiary of the arrogance, hubris and incompetence of Miller and his subordinates.
What should Miller have done after realizing they released the wrong guy they suspected was Mullah Shahzada, and still held the one who was genuinely obviously innocent? Why release the innocent guy.
In Life of Brian a very despondent Brian, and a dozen other guys, drag their crosses to the execution grounds, oppressed by one of their number, a cheeky wise guy, who insists on being cheerful. Just before the actual crucifixion, a Roman sergeant shows up. Unknown to Brian and the other captives, he carries a pardon for Brian. The Roman sergeant calls out in a Sergeant-Major’s voice, “Which one of you is Brian?” Our hero, Brian, is too despondent and fearful to say anything. When the Sergeant calls out again, the cheeky wise guy sings out he is Brian. When the Sergeant tells the cheeky wise guy he is free to go, all the other captives claim they are Brian.
Well, the military mind is not known for imagination, or flexibility. The Roman Sergeant wasn’t willing to release two guys named Brian. And that war criminal Miller wasn’t willing to release Abdul Matin — even when it should have been painfully obvious that they still held the innocent man, and had released a genuine Taliban leader.
According to Abdul Matin he was injured by an explosion in a marketplace, within a day or two of his return to Afghanistan. He decided he would seek out one of his school chums, from the time he attended school in Afghanistan during the communist period. He sought out the one who lived closest to the marketplace. A bad choice as this chum didn’t drive him to a hospital, instead he delivered him for a bounty. There seems to be one grain of truth in Abdul Matin’s allegations. Like Hekmati, Guantanamo analysts completely misinterpreted that grain of truth. The Grain of truth in Hekmati’s file is that he had something to do with freeing senior leaders from a prison. As you and Carlotta Gall pointed out Hekmati was a Northern Alliance hero, who freed Northern Alliance leaders from a Taliban prison, who stood accused of plotting to free Taliban leaders from a Northern Alliance prison.
When his father died, young and naive Abdul Matin started to have to make annual visits to the Kurnaz region, to collect rents. He testified that, on his first recent collection trip the guy who was actually the Taliban’s corrupt Chief of Intelligence for Kurnaz, imprisoned him, tortured him, and eventually succeeded in extorting a ransom in return for his release. He testified that, during this 1995 imprisonment, when he was a prisoner, and essentially a slave, he was compelled to perform some translations, and other tasks related to the intelligence operations. In the allegations against him, Matin is the Chief of Intelligence, not his captive.
One of the most outrageous statement in the transcripts comes from one of the members of Matin’s Tribunal, who says even if he was a high school teacher in Pakistan, he still could have been the Taliban’s Chief of Intelligence in Kurnaz — during his summer vacations.
Matin’s leg was seriously injured during that explosion in the marketplace. In contrast to the meme that Guantanamo captives get excellent medical care Matin was refused an operation that mgiht have enabled him to bend the knee of his injured leg. He offered to pay for the operation himself. He described what a hardship it was going to the toilet was with a leg that couldn’t bend, and that it would be totally impossible for him to use the squat toilets used in Afghanistan.
Matin was held for a further four years, only being transferred to Afghanistan after the period when former captives weren’t released back into the general population, but were instead transferred to the infamous Pul-i-Charki prison. The USA had built an American wing to this prison, to hold former Guantanamo captives, picked, trained and supervised their own hand-picked Afghan guards. They built this wing with a courtroom, for the Afghans to “try” these men. I know I read an account of some of these trials, that strongly implied the only evidence against the men were the same old unreliable allegations they faced during their OARDEC hearings.
I have wondered how long Matin was held in Pul-i-Charkhi. I wondered whether the Afghan officials charged with trying them instead used the trials as a means of extorting a ransom from defenceless men they knew were innocent. I’ve wondered if he ever got the operation that allowed him to bend his knee. I’ve wondered if he stayed in Afghanistan, which still needed to call upon educated expats, or whether he returned to Pakistan.
Another element of his story — he testified that his torturer, from the months he was imprisoned in Kurnaz, was also in Guantanamo, and that this genuine Taliban war criminal was in the camp for “compliant” captives, while he was still in the camp for non-compliant captives. It wasn’t clear to me whether his torturer was the Taliban’s actual Chief of Intelligence for Kurnaz, or merely one of his subordinates.
I think we were told that whether the captives got medical care, whether they were transferred to camp four, had nothing to do with their interrogations. But it wouldn’t surprise me if Matin’s torturer ended up in camp four because he had more credulous interrogators than Matin.
There is a news report that one of Colonel Bogdan’s Sergeants threatened to brutalize Dhiab, with further force-feedings, in spite of the court order.
Accusations Ahead of Gitmo Force-Feeding Hearing
Bogdan was the commandant of a more secret camp, in Africa, prior to being made number two in Guantanamo. I suspect Bogdan has allies, in Washington, who are more senior than the one-star Admirals and Generals he reports to at JTF-GTMO, and the extra brutality he is dishing out is endorsed at that level.
Obama is Commander-in-Chief, but I think he has learned, or been told, that he has to go through channels, that he can’t reach down and fire individual officers. During Truman’s administration he had a great deal of friction with Douglas MacArthur. MacArthur’s father had risen to be the US Army’s senior officer, and nepotism lead to MacArthur being treated like a prodigy. By the end of World War 1, he was a Brigadier-General himself. Among his posts was commandant of West Point, a post that allowed him to forge ties with a large number of officers who would be future allies. By the mid-thirties he had risen to be the US Army’s senior officer himself, at a very young age for that post. All of the Army’s senior officers retire. So he accepted a role in forming the nascent army for the Phillippines. The USA acquired the Phillippines, Cuba, Guam, Puerto Rico, Dominican Republic, during the Spanish-American War. During that war the USA had promised Cubans and Phillippino rebels independence. This was a bald-faced lie for the Phillippines, with the USA treating
it like a colony for almost four decades before MacArthur was to play this role in its eventual independence.
When Japan invaded MacArthur was able to escape. He was reappointed a General in the US Army — an unusual step. After the War MacArthur was appointed to administer Japan, a position that gave him considerable power. When South Korea was invaded he commanded US forces there.
Truman fired him. Truman’s firing MacArthur, a Theater Commander, would be very different than President Obama reaching down half a dozen levels of rank to fire a mere Colonel. Still, some Senators called for Truman to be impeached over the firing.
I forgot to say, in my previous message, that “Shahzada” is Farsi for “son of a king”, and it seems to me that it is a nickname applied to scions of rich men — so it would apply to Matin. The other Shahzada we know a lot about (ISN 952) was also a rich man, and maybe the son of a rich man.
Thanks, arcticredriver, for that fascinating account of the appalling treatment of Abdul Matin. I didn’t know all those details. I had read the publicly available documents, but in my book The Guantanamo Files and in my report on his repatriation with other men in December 2007 I had only written the following:
37-year old Abdul Matin, a science teacher, had been living in Pakistan during the Taliban years, but returned to Afghanistan in February 2002 when the Karzai government called for people to help rebuild the country. He said that he was betrayed by local enemies, who knew that his father was wealthy, when he refused to pay a $30,000 bribe.
From searching for information about him, I also see that he was one of many prisoners with a certain readily available model of Casio watch, which interrogators claimed to have been used as timers in bomb attacks. And I also found, on the UC Davis website, his statements about his medical neglect: http://humanrights.ucdavis.edu/projects/the-guantanamo-testimonials-project/testimonies/testimonies-of-the-defense-department/abdul-matin-allegations-of-abuse
As I say, though, your dedication to this man’s story is excellent. It is disturbing that the US authorities could not tell the difference between a teacher who had lived in Pakistan and a Taliban official – and that it took them until December 2007 to authorize his release – but we know of course that similar stories took place again and again. As for the confusion with “Shahzada,” I think you may well be correct to state that the authorities released the wrong man through their own incompetence, and then failed to respond by releasing Abdul Matin. I have to say that it made me reflect that, in general, the authorities care very little for any of the prisoners as individuals.
On his return to Pol-i-Charki, it may well be that he was held for some time before his eventual release. I know a lawyer, Kent Spriggs, who was involved in efforts to work out who was held and who was released, and how long it took, and, if I recall correctly, at some point Karzai stepped in the secure the release of some of the men.
As for being imprisoned with his torturer, I had forgotten that until you mentioned it. I suppose it wouldn’t be too difficult to find out who that was. How ironic, though, that he was in Camp 4 (the communal camp, at the time), while poor Abdul Matin was in lockdown elsewhere.
Like you I also wonder what happened to him after his release, and if he has been able to rebuild his life …
Thanks, arcticredriver, for finding that link. I had not seen it. I think you may well be right to state that Col. Bogdan “has allies, in Washington, who are more senior than the one-star Admirals and Generals he reports to at JTF-GTMO, and the extra brutality he is dishing out is endorsed at that level” – and also that Obama is not necessarily at the top of that particular chain of command. From what I can tell, however, Bogdan’s tenure has been disastrous, and he should be dismissed.
I am impressed by the bravery of the men who speak out at Guantanamo, because I am sure that they all face retaliation every time they are named in court filings. I hope Obama takes up President Mujica’s offer, and frees Abu Wa’el Dhiab as soon as possible.
[…] I explained last week, the Guantánamo prisoners secured a massive court victory on May 16, when a federal court judge […]
[…] May, in Washington D.C., District Judge Gladys Kessler delivered a powerful and unprecedented ruling in Mr. Dhiab’s case, ordering the government to stop force-feeding him, and also ordering the […]
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