All five men were cleared for release from Guantánamo on two or three separate occasions — through Bush-era military review boards, through the deliberations of an interagency Task Force established by President Obama, and, in some cases, through successfully having their habeas corpus petitions granted by a US court. However, difficulties arose when it came to freeing them because they feared torture or other ill-treatment if returned to their home countries, and the US government (first under George W. Bush, and now under Barack Obama) recognized its obligations, under international treaties, not to repatriate them, but to find other countries prepared to take them instead.

The fact that Georgia — the former Soviet satellite in the Caucasus — is the new home of three of these men, and not the US state, demonstrates another obstacle to the men’s release. Had President Obama acted decisively last April, two Uighurs (Muslims from China’s Xinjiang province, seized by mistake in December 2001) would have been freed in the US, and others would undoubtedly have followed. However, when the President bowed to pressure from Republican critics, and turned down a plan, put forward by White House Counsel Greg Craig, and backed by defense secretary Robert Gates and Secretary of State Hillary Clinton, which involved bringing the two men to live in the US, the job of Obama’s Special Envoy, Daniel Fried, who was charged with finding new homes for dozens of cleared prisoners from countries including Algeria, China, Libya, Syria, Tunisia and Uzbekistan, was made considerably more difficult.

America’s allies had to overcome their obvious impulse — refusing to help unless the US also acknowledged its own mistakes by giving new homes to cleared prisoners — and it is a tribute to the governments of Switzerland and Georgia that they felt able to place humanitarian concerns above political pragmatism by accepting the men. Switzerland had already accepted an Uzbek ex-prisoner in January this year, and Georgia now joins Switzerland in a distinguished club that also includes Albania, Belgium, Bermuda, France, Hungary, Ireland, Palau, Portugal, Slovakia and Spain. These countries have all shown up the US (and other European countries, including the UK, Germany, the Netherlands, Norway, Sweden and Denmark), who have turned their backs on the dozens of cleared prisoners who will languish in Guantánamo until new homes can be found for them.

The Uighur brothers released in Switzerland

The two men given new homes in the Swiss canton of Jura are brothers, Arkin Mahmud, 45, and Bahtiyar Mahnut, 34, Two of the 22 Uighurs originally held at Guantánamo (five of whom were released by George W. Bush in Albania in 2006), the men had been living in a small, rundown settlement in Afghanistan’s Tora Bora mountains at the time of the US-led invasion of Afghanistan in October 2001, either because they had been thwarted in their attempts to travel to Turkey or Europe in search of work, or because they nurtured futile hopes of finding some way to rise up against the Chinese government. They were sold to US forces by Pakistani villagers when their temporary home was destroyed in a US bombing raid and they had crossed the border into Pakistan.

The US government understood almost immediately that they had been seized by mistake, but that did not prevent senior officials from allowing Chinese interrogators to visit them at Guantánamo, and, it seems, securing a guarantee in UN negotiations that China would not oppose the invasion of Iraq by designating a Uighur separatist group as a global terrorist organization.

Attempts to conveniently tie the Guantanamo Uighurs to this group came unstuck in June 2008, when a US court derided the government’s supposed evidence as being akin to a nonsense poem by Lewis Carroll, author of Alice’s Adventures in Wonderland, but it was not until October 2008 that the government finally abandoned all claims that the men were “enemy combatants.” That month, their habeas corpus petition finally reached Judge Ricardo Urbina, in the District Court in Washington D.C., who ordered their release into the United States, pointing out that holding innocent men was unconstitutional.

The Bush administration appealed, and the appeal was approved in February 2009 by the notoriously right-wing Court of Appeals for the D.C. Circuit, who ruled (with the blessing, sadly, of President Obama’s Justice Department), that matters of immigration were to be decided by the Executive and not the courts, thereby gutting the men’s habeas victory of any practical meaning.

After Greg Craig’s honorable plan to rehouse two of the men in the US was scrapped, Daniel Fried was obliged to undertake numerous missions to persuade other countries to offer them new homes. Fried eventually persuaded Bermuda and the Pacific island of Palau to take ten of the men, but Arkin Mahmud and Bahtiyar Mahnut in particular remained a problem. Palau had refused to offer a new home to Mahmud, who had developed mental health problems in Guantanamo, and, in solidarity, his brother, who had been offered a new home, turned down the offer, preferring to stay with his brother in Guantánamo instead.

An appeal to the government by the Washington Post, asking that the men be allowed into the US, was subsequently ignored, but it seemed that Obama was on a collision course with the Supreme Court, which accepted the men’s case last October, until Switzerland obligingly offered the men a new home in January this year.

As Arkin Mahmud and Bahtiyar Mahnut begin their new lives in Switzerland, five Uighurs remain in Guantánamo, but their fate is unknown. The Supreme Court refused to proceed with their case at the start of this month (although they did vacate the terrible Court of Appeals ruling), essentially because the five remaining men had also been offered new homes in Palau, but had turned them down, and it remains to be seen if Palau will renew its offer, if another country will rescue them from their seemingly endless ordeal, or if the lower courts will, once more, attempt to order their release into the United States.

A Libyan refugee released in Georgia

Announcing the release of the other three men from Guantánamo, the Justice Department refused to reveal their identities, but Candace Gorman, the indefatigable attorney representing Abdul Hamid al-Ghizzawi, a Libyan, revealed that one of the three is her client, and it appears that the second man is also Libyan, and that the third is from an unidentified country in the Middle East (perhaps Libya, again, or Syria or Tunisia).

The release of Abdul Hamid al-Ghizzawi brings to an end another of Guantánamo’s many particularly bleak stories. A refugee from Libya, al-Ghizzawi had settled in Afghanistan in the 1990s, where he married an Afghan woman and had a child. Together, he and his wife ran a small bakery in Jalalabad, but after the US-led invasion, hearing that Arabs were being targeted, he decided to seek refuge with his in-laws in his wife’s home village. There, however, he was seized by bounty hunters and sold to US forces.

In Guantánamo, al-Ghizzawi suffered horribly. Afflicted with tuberculosis and hepatitis B, he nevertheless received little or no treatment, in common with the majority of those with medical problems, whose treatment was dependent on cooperation with their interrogators. In practical terms, what this meant for innocent men like al-Ghizzawi was that they would not be treated unless they provided false confessions to their interrogators, which could be used to justify their own detention, or the detention of others identified in these false confessions.

Al-Ghizzawi’s case is also notorious in terms of the warped review processes masquerading as justice at Guantánamo, as was revealed in 2007 by Lt. Col. Stephen Abraham, a veteran of US intelligence who had been involved in compiling the information used as evidence in the Combatant Status Review Tribunals at Guantánamo in 2004-05. In an affidavit filed in a case submitted to the Supreme Court, Lt. Col. Abraham explained how the tribunal system, designed to review the prisoners’ cases to ascertain whether they had been correctly designated as “enemy combatants,” who could be held indefinitely, was a sham, and that the information used consisted of intelligence “of a generalized nature — often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status.”

Lt. Col. Abraham also explained how he had taken part in one of the tribunals, and, with his fellow officers, had concluded that the government had failed to establish that the prisoner before them had any connection whatsoever to al-Qaeda or the Taliban for the very reasons described above. That prisoner was Abdul Hamid al-Ghizzawi, and, as Lt. Col. Abraham added, the authorities refused to accept the tribunal’s decision, dismissing all three officers, and conducting a second tribunal that reached the conclusion the government wanted; namely, that al-Ghizzawi was an “enemy combatant,” and that he could continue to be held indefinitely. This was not the only “do-over” tribunal, but the fact that it happened at all is a disgrace, and the fact that al-Ghizzawi continued to be held for another six years after Lt. Col. Abraham exposed the shortcomings in the government’s so-called evidence is a disturbingly clear example of the complete disregard for any notions of justice or decency in the running of Guantánamo.

It was not until June last year that al-Ghizzawi was finally cleared for release by the interagency Task Force established by President Obama to review all the Guantánamo cases, and even then the Justice Department behaved appallingly, neglecting to inform Candace Gorman of the decision and then gagging her when she tried to inform al-Ghizzawi’s family, and his wife, who, in despair after years of waiting, had decided to seek a divorce.

Unprincipled obstacles to the closure of Guantánamo

I have no idea if the identities of the other two men released in Georgia will be made available, but it is clear that they too have been deprived of their freedom for up to eight years not as a result of any coherent policy, but as a direct result of the Bush administration’s arrogance and incompetence in establishing Guantánamo as a prison outside the law filled largely with men who were seized and sold to US forces by their Afghan and Pakistani allies, and who had no connection whatsoever to al-Qaeda, the 9/11 attacks, or any other group involved in international terrorism.

With 183 prisoners still at Guantánamo, and 101 of these cleared for release by Obama’s Task Force, and, in some cases, by the US courts, the shrill rhetoric of those who still insist that the prison is full of terrorists should have been silenced, but as the cynical fearmongering of recent months has shown all too clearly, when it comes to Guantánamo, Republican lawmakers are more than happy to stir up unsubstantiated hysteria about the prison, playing the fear card as the mid-term elections approach, and encouraging Democrats to do the same.

I have my doubts that the other 82 men qualify as terrorists, but presume that the 35 proposed for trials (either in federal courts or in Military Commissions) will one day have their cases considered by a judge and jury, and that the other 47 men, who the Task Force recommended be held indefinitely without charge or trial, will be able to challenge this deeply distressing advice in a US court, before judges reviewing their habeas corpus petitions. As with 34 of the 46 cases so far decided, the judges will, no doubt, conclude that, in many of these cases, the government’s assertions that they are too dangerous to release, despite a lack of usable evidence, will be revealed as distortions based on the kind of false confessions that Abdul Hamid al-Ghizzawi resisted making in exchange for medical treatment.

For now, however, while readers should bear in mind that only between 5 and 10 percent of the total number of prisoners held at Guantánamo will, in the end, be judged to have had any connection to al-Qaeda or the Taliban, the release of these five prisoners to Switzerland and Georgia continues to demonstrate that innocent men are still held at Guantánamo, and that the fearmongering in the US is both unjustifiable and potentially damaging to these men’s prospects of being rehoused elsewhere.

Given these obstacles — and lawmakers’ refusal to accept any cleared prisoners into the US — Daniel Fried is to be congratulated for successfully concluding the complex negotiations leading to the release of these men, and, sometimes single-handedly, it seems, working towards the closure of Guantánamo, which remains a stain on America’s reputation, and a dark symbol of the Bush administration policies that Obama has found himself unwilling, or unable to thoroughly repudiate.

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). 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 January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout. Digg the original here.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 52 prisoners released from February 2009 to February 2010, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; ; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs to Bermuda, 1 Iraqi, 3 Saudis (here and here); August 2009 — 1 Afghan (Mohamed Jawad), 2 Syrians to Portugal; September 2009 — 1 Yemeni, 2 Uzbeks to Ireland (here and here); October 2009 — 1 Kuwaiti, 1 prisoner of undisclosed nationality to Belgium; October 2009 — 6 Uighurs to Palau; November 2009 — 1 Bosnian Algerian to France, 1 unidentified Palestinian to Hungary, 2 Tunisians to Italian custody; December 2009 — 1 Kuwaiti (Fouad al-Rabiah); December 2009 — 2 Somalis, 4 Afghans, 6 Yemenis; January 2010 — 2 Algerians, 3 prisoners of undisclosed nationality to Slovakia, 1 unidentified Uzbek to Switzerland; February 2010 — 1 Egyptian, 1 Libyan, 1 Tunisian to Albania, 1 Palestinian to Spain.

I also reproduce another article, published on today on EurasiaNet, written by Molly Corso, a freelance reporter based in Tbilisi. Molly interviewed me back in October last year, when it was first indicated that Georgia would accept prisoners from Guantánamo, and her latest article provides some updates, and also includes information I provided during a telephone interview on Monday.

Georgia Helps Close Guantánamo
By Ketevan Khachidze, Lizaveta Zhahanina, The Georgian Times, March 29, 2010

The transfer of three Guantánamo Bay prison inmates to Georgia has sparked controversy in Georgia. The Government has justified the move by saying it is part of the strategic relationship between Georgia and the US. Some opposition groups however have denounced the lack of clarity on the issue and voiced security concerns.

According to the Georgian Interior Ministry, the Guantánamo inmates arrived on Tuesday and will live in Georgia freely under the control of law enforcement bodies. They will not be allowed to leave the country.

The Obama Administration had pledged to close the Guantánamo prison by January 2010 but as the Western media noted missed the deadline due to a difficulty in finding countries which would host the prisoners.

In a statement released on Tuesday the Justice Department thanked Georgia for making its task easier: “The United States is grateful to Georgia for its willingness to support US efforts to close the Guantánamo Bay detention facility.”

The nationalities of the inmates have been kept secret for security reasons but the Georgian authorities said they come from the Middle East. An Interior Ministry spokesperson said that the transfer was made after the Ministry of Foreign Affairs exchanged notes with the US State Department.

Strategic allies

The August 2008 war created a big headache for the US, which had to stand by Tbilisi in its official rhetoric at least. Many analysts note that Georgia is now trying to prove it is still an asset for Washington rather than a liability. Georgia has become the highest per capita troop contributor to NATO’s operation in Afghanistan for the same reason and this is primarily why Georgia is accepting the Guantánamo inmates today.

Davit Darchiashvili, Chair of the Parliamentary Committee for European Integration, said that the decision carries serious political importance as “strategic partnership between countries is always a two-way process.”

“If a big part of [the Government’s message] is that we have a special relationship with the United States, you have to be able to demonstrate that. This is one way to do it,” Lincoln Mitchell, an Assistant Professor of International Politics at New York’s Columbia University, was quoted as saying by EurasiaNet.

Security risks?

Senior Interior Ministry official Shota Utiashvili said the presence of former terror suspects does not pose any threat to civilians. “We have carefully examined their profiles and are confident that they will not create any dangers. Many countries have received Guantánamo prisoners and there has not been a single case in which these prisoners have violated the laws of their host countries,” Utiashvili said.

Pro-Western opposition leader Irakli Alasania also brushed off concerns that the inmates pose security threats to the country but was not happy with the Government’s explanations. “I don’t think the transfer of the three former prisoners is dangerous for the country. However, the Government is obliged to give clear explanations regarding this, and take relevant security measures,” Alasania told journalists.

Other opposition figures were more critical. MP Gia Tsagareishvili says the explanations given by Government officials leave the public unable to assess the risks involved in the transfer. “If the risks were assessed by National Security Council Secretary Eka Tkeshelashvili, I do not believe they are reliable. She has held too many positions, and during the August war we all saw her skill at risk assessments,” Tsagareishvili said.

Andy Worthington is among those who believes that the transfer of former terror suspects would not jeopardize Georgia’s security. He is a British journalist and author of three books, including The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison.

“There is absolutely no reason to worry whatsoever. The men who have been released have been cleared on two or three occasions in the United States. The Obama administration has been very careful about making sure that it does not release anybody who may constitute any kind of a threat,” he said in a phone interview with GT on Saturday.

Moreover, Andy Worthington believes that Georgia should be commended for what he calls “a humanitarian gesture” and joining the club of all those countries who help close Guantánamo.

The Prisoner’s Story: from Libya to Guantánamo

Andy Worthington said he knows the story of one of the inmates who was transferred to Georgia from the prisoner’s lawyer. His name is Abdul Hamid al-Ghizzawi and he comes from Libya.

“He is a Libyan who had travelled to Afghanistan in the 1980 to fight against the Soviet Union. But after that he settled in Afghanistan, he married an Afghan woman and had a child. He and his wife were running a bakery in Jalalabad at the time of the US-led invasion of Afghanistan. He heard that Arabs were being targeted. So, he thought it was better to move to his wife’s family’s village where his wife’s mother and father lived. He thought he would be safer there. But he was captured by bounty hunters and he was sold to the United States and he ended up in Guantánamo.

“Now in 2004 in Guantánamo they held what were called Combatant Status Review Tribunals. They were tribunals of military officers who looked at what the government claimed was the evidence against the prisoners and decided whether they should still be held as enemy combatants, as men who could be held indefinitely. In that tribunal the three men who looked at Mr. al-Ghizzawi’s case said there is no case against this man. We know this because one of the men, Lieutenant Colonel Steven Abraham, said they did not use anything that rose to the level of evidence and should have let him go. He later submitted a document that went to the Supreme Court in which he explained essentially how the tribunals at Guantánamo were a sham process. Two other American officers [also] said there was no reason to continue holding this man [in custody].

“What happened was that the government dismissed them, set up another tribunal and told these officers to change the opinion. So, it convened another tribunal to get the right answer … So, essentially, there was never any reason to hold this man. He was somebody who was picked up and was sold to the Americans because the Americans were offering bounty payments averaging $5,000 a head for people who could be dressed up as al-Qaeda or the Taliban and Mr. Abdul Hamid al-Ghizzawi fitted this picture, he was an Arab living in Afghanistan. The fact is that he had not been involved in any fighting for over ten years, and when he had been, he had been fighting against the Soviet Union.”

Georgia Officials Say Guantánamo Prisoners Pose No Threat
By Molly Corso, Eurasianet, March 30, 2010

Eager to demonstrate its reliability as Washington’s strategic partner, the Georgian government is downplaying security concerns about three former prisoners dispatched from the United States’ Guantánamo Bay prison to Georgia.

US President Barack Obama’s administration has been under ongoing pressure to find new homes for prisoners housed at the US-run Guantánamo Bay prison in Cuba after pledging to close the facility by January 2010. Over 180 prisoners remain in limbo.

Georgian opposition groups have raised concerns about potential risks from Tbilisi’s willingness to help house former Guantánamo detainees, but ruling party politicians and government officials have brushed aside worries that the three men pose any security threat.

“The Georgian government made the decision to accept several detainees as part of our strategic partnership with the United States,” Deputy Parliamentary Speaker Gigi Tsereteli commented to EurasiaNet.org. “Three or four people is [sic] not any threat for the Georgian state.” One senior Ministry of Internal Affairs official underlined that the trio will live “normal lives” in their host country.

A special group of ministry representatives traveled to the Guantánamo prison in December 2009 to interview possible detainees for relocation, said Shota Utiashvili, head of the ministry’s analytical department. The Georgian government was satisfied that the men are not dangerous, although wanted to confirm that they were not “psychologically damaged,” he added. The men have already contacted their families, and are free to bring them to Georgia if they wish, Utiashvili continued.

The men are currently housed in Tbilisi and have been provided with language tutors to help them learn Georgian. Utiashvili said that the Georgian government is not paying for the men’s accommodations or needs, but would not elaborate about who is covering the cost of their care. He would not identify any of the ex-prisoners.

The US attorney for one of the men, however, maintains that he is far from being a terrorist. In March 23 comments posted on her blog, Chicago-based attorney H. Candace Gorman identified one of the transferred prisoners as Abdul Hamid al-Ghizzawi. In published interviews, Gorman has described al-Ghizzawi as a Libyan baker in his mid-40s with an Afghan wife and small daughter. He allegedly fled Libya for Afghanistan in the 1980s, and opened a spice shop and bakery.

His story appears to be well known among anti-Guantánamo activists like British journalist and filmmaker Andy Worthington, who has made a documentary about the prison. Worthington claims that al-Ghizzawi was among scores of Arab nationals scooped up by bounty hunters looking to trade alleged al-Qaeda sympathizers for cash. Al-Ghizzawi was declared innocent by a military tribunal in 2004, but was not released [because a second tribunal was convened, which reversed that opinion -- see above]. Attorney Gorman writes on her blog that he suffered health problems while in prison and was often in solitary confinement.

Utiashvili would not confirm or deny that al-Ghizzawi is one of the three former Guantánamo prisoners sent to Georgia.

Opposition figures like Irakli Alasania, Georgia’s former ambassador to the United Nations, have called for greater transparency about the transfer. Discussions about such a transfer were ongoing as of late autumn 2009, according to Georgian government statements made to EurasiaNet.org. But filmmaker Worthington noted that it is often in the men’s best interests not to be identified. Family members at home could face retribution, he said.

Another concern is the reaction in the host country. Detainees face “almost complete ignorance about any of the details of Guantánamo” in any host country, which can lead to misperceptions by the local population, Worthington claimed.

So far, however, ordinary Georgians, long used to riding the waves of larger powers’ foreign policies, appear to have responded to the trio’s arrival with equanimity. The three men have, in fact, already contributed to the country’s rich culture of self-deprecating jokes.

A cartoon published on March 29 by the weekly newspaper Kviris Palitra illustrated their reaction to being transferred to Georgia, a country still struggling to recover from the 2008 war with Russia and years of economic decline. Lament the men: “But we didn’t harm (America) that much!”

POSTSCRIPT/CORRECTION: Candace Gorman informs me that the US authorities never even attempted to back up its claim, mentioned many years ago in one of its “Summaries of Unclassified Evidence,” that Mr. al-Ghizzawi had been “encouraged to go to Afghanistan to fight with the Mujahideen,” and had “moved to Pakistan to take up the Afghan case.” In the fog of allegations masquerading as evidence, I’m sorry to report that I had given weight to this allegation, whereas it appears that Mr. al-Ghizzawi was, in fact, nothing more than a refugee from Libya who had settled in Afghanistan.

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). 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 January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

Al-Ghizzawi is clearly an innocent man. Back in 2004, when the Bush administration convened military review boards — the Combatant Status Review Tribunals — to review the prisoners’ cases, his panel of three military officers concluded that there was insufficient evidence to declare him an “enemy combatant,” and that he should therefore be released.

We know this because one of the members of this particular tribunal, Lt. Col. Stephen Abraham, a veteran of US intelligence who also compiled the information used in the tribunals, and who memorably declared in 2007 that they were severely flawed, relying on intelligence “of a generalized nature — often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status,” wrote about serving on al-Ghizzawi’s tribunal, explaining:

On one occasion, I was assigned to a CSRT panel with two other officers, an Air Force Colonel and an Air Force Major, the latter understood by me to be a judge advocate. We reviewed the evidence presented to us regarding the recommended status of [Mr. al-Ghizzawi]. All of us found the information presented to lack substance.

He added:

On the basis of the paucity and weakness of the information provided both during and after the CSRT hearing, we determined that there was no factual basis for concluding that the individual should be classified as an enemy combatant.

Lt. Col. Abraham also explained — as was backed up in October 2007 by a second whistleblower, an Army Major who had taken part in 49 tribunals — that unfavorable decisions were overruled by those in charge, who then convened a second tribunal to produce the desired result, and added that this is what had happened in the case of Mr. al-Ghizzawi. Lt. Col. Abraham and his fellow tribunal members were prohibited from taking part in any more tribunals, and a second, secret tribunal was held in Washington D.C., at which it was duly decided that Mr. al-Ghizzawi was an “enemy combatant” after all.

In the five years since this shocking demonstration of rigged justice, Abdul Hamid al-Ghizzawi has languished in Guantánamo, plagued with health problems, including, at one point, an apparently mistaken belief that he had been infected with AIDS, while his attorney, H. Candace Gorman, has waged a relentless campaign to try to secure justice for him, which she has chronicled on her website, The Guantánamo Blog, as well as for the Huffington Post and In These Times.

Last Tuesday, November 17, Candace finally had some good news about her client that she could announce to the world: he had finally been cleared for release, and she was at liberty to tell us, five months after first hearing about it, which she did in a blog post entitled, “The Muzzle Is Off.” This is reproduced below, as, for insane reasons described afterwards, the Justice Department has just ordered her to remove it from her blog (she has done so, but a cached copy is retained by Google here — the ironic italics in reference to the justice department are Candace’s):

The Muzzle Is Off
By Candace Gorman

In June of this year I received a call from a foreign reporter who asked if I could give her a profile of my client Al-Ghizzawi as he was on a list of men whom the US was looking for a new home and her country was considering accepting him. This was the first I had learned that Al-Ghizzawi had been “cleared” by the Obama review team for release. I gave her information about my client and for all I know a story was published about the plight of Al-Ghizzawi at Guantánamo, his status as “cleared” and why he needed a country in Europe to take him.

A few days later an attorney from the justice department called to tell me that Al-Ghizzawi was cleared for release and we laughed about the fact that I already knew the information. However the laughing stopped when the attorney told me that the justice department had designated the information as “protected” and I could not tell anyone except my client and those people who had signed on to the protective order (a court document that outlines the procedures for the Guantánamo cases) about his status as “cleared for release.” I told the attorney that he could not declare something “protected” that was already in the public domain. To make a long story short we were not in agreement and the attorney filed an emergency motion with the judge to muzzle me. Despite the fact that the information was in the public domain I was muzzled by the good judge who apparently doesn’t believe that the Constitution applies to me. I couldn’t even tell Mr. Al-Ghizzawi’s brother what I thought was good news (I didn’t know then that this was just another stall tactic by the justice department).

Not only was I muzzled but Mr. Al-Ghizzawi’s case was put on hold. The habeas hearing that we had been fighting to obtain literally for years was stayed by the judge despite the fact that the US Supreme Court held in June of 2008 that the men were entitled to swift hearings … So much for the Supreme Court! The president asked the judges to stop the hearings for those men who were “cleared” for release and the judges have fallen into lockstep, shamefully abandoning their duties as judges.

A few months later when I visited Al-Ghizzawi (at the end of August) he had just received word from his wife that she could no longer wait for his release and she asked him if she would sign papers for a divorce. Bad news is an everyday occurrence for Al-Ghizzawi and he was holding up well despite this latest blow.

When I returned from the base I asked the justice department to allow me to contact Al-Ghizzawi’s wife and tell her that he had been cleared for release. I hoped that if she knew he was to be released she would hang in there and not go through with the divorce. I was told they would get back to me. When they didn’t I asked again but they still would not give me the OK. In Court papers I pleaded with the judge to let me tell Al-Ghizzawi’s brother and wife, telling the judge about the wife’s request for a divorce, but the judge, the same judge who has apparently decided to ignore the Supreme Court’s directive for quick habeas hearings, ignored this plea as well.

I seriously thought about disobeying the order and trying to get word to Al-Ghizzawi’s wife and then taking whatever lumps were thrown my way … however, despite the fact that the judicial system has failed Al-Ghizzawi and most of the men at Guantánamo I could not bring myself to blatantly disobey a court order. For five months I have kept this information confidential despite the injustice to both my client, Mr. Al-Ghizzawi, and to what was our rule of law … until yesterday, when the muzzle was lifted.

*****

Four days later, and Candace has now reported that “The Muzzle Is Back On,” explaining:

On Tuesday I reported that the Government finally allowed me to discuss matters that had previously been “protected” in regards to my client Al-Ghizzawi. In fact the Government unclassified and allowed for public release a Petition for Original Habeas Corpus that I filed in the US Supreme Court. I released that Petition to the public in accordance with the Government’s designation of “unclassified.” On Friday the Department of Justice (DOJ) told me that it had made a mistake and that it had apparently violated the Protective Order (an Order that sets out the rules for the DOJ and Habeas counsel in regards to the Guantánamo cases) entered in the case when it “unclassified” and allowed for public release information in the Petition that it wanted to “protect” and that therefore I must remove my post of November 17 because of the DOJ’s mistake. I explained to the DOJ attorneys that the Petition and my Post of November 17 were widely distributed and are available at various sites on the web … they do not seem to care about that … they only care that I not report about what they are now trying to declare “protected information” … 5 days after they unclassified the material and made it available for public release.

This is of course outrageous conduct by the DOJ … in trying to declare something as “protected” after being clearly designated and distributed to the public, but what else is new? For those of you who either remember my November 17 post or have it available on your website, I originally learned of the so-called “protected” information from a public source and the judge in Al-Ghizzawi’s case still ruled that I could not discuss it. […]

This is not the end of this story. Under the Protective Order the Government must actually get the judge’s permission to retroactively keep me (and only me) from publishing and discussing the information that the Government now seeks to “protect.” The DOJ will have to file a document with the Court explaining why this now very public information should be “protected.” Ultimately it will be the judge’s decision. If you do not see my post back up that will mean that the judge agreed with the Government, that I alone cannot talk about those things that you are privy to discuss.

So there you have it. As I am not Candace, and am not prohibited from reproducing her words, I thought that this whole depressing saga was worth relating in full. I’d also like to include Candace’s parting words from the post that has been removed at the insistence of the Justice Department, as they shine a light on the Byzantine workings of the Guantánamo litigation. As Candace explained:

[I]f you hear from a habeas attorney that his or her case has been stayed you will know about the injustice that their client is continuing to suffer, you will know that the client has been cleared for release, that the attorney cannot discuss that fact and that the judge in that case has abandoned his or her duty to be a judge. You will also know that being cleared for release is just as meaningless as everything else that has been happening to these unfortunate men … because being cleared for release means nothing.

Or, as my good friend The Talking Dog explained just a few days ago:

For advocates of “hope and change” who foolishly think that with our young and handsome new President everything is somehow “better” now … I just want you to know that while the nomenclature has changed (Al-Ghizzawi is no longer an “enemy combatant” or “unlawful enemy combatant” … he is simply a poor schmuck we’re holding) … and he is “cleared for release” … the same great executive overreach with its very real and very tragic personal consequences just goes on … and on … and on …

Americans should look at Al-Ghizzawi’s story (he was simply a baker in Afghanistan, handed in to American forces for bounty money, and we just can’t bring ourselves to let him go, even as he suffers egregious medical problems) and ask ourselves, “What kind of people are we?” The fact that most of us are probably not capable of that level of introspection probably best answers the question, I’m afraid.

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). 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, published in March 2009, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

Cross-posted on The Public Record.

The most thoroughly discredited department in the Bush administration, the Justice Department is clearly in line for a major shake-up, as the new Attorney General, Eric Holder, explained in his acceptance speech on February 3, when he proclaimed his commitment to “remake the Department of Justice into what it was and what it must always be,” and explained, “This may be a break from the immediate past but it is consistent with the long history of the Department of Justice. I call on every employee of this Department — from this moment on — to return to the practices that are the foundation of this entity. It is time once again to base our actions on policies that are rooted in fairness and in a desire to ensure a more just America.”

Propaganda regarding the Guantánamo evidence

According to an article in the Los Angeles Times on Saturday, the Guantánamo review, led by Holder and the Justice Department, has now begun. “The review team is in the process of identifying all the information,” a senior official in the Obama administration said. As the article explained, the process would “not be simple,” as information on the prisoners is “scattered in multiple locations,” and the administration official admitted that “there is not, and may never be, a single file for each detainee.”

The Los Angeles Times article was clearly following up on an article published by the Washington Post on January 25, “Guantánamo Files in Disarray,” which first suggested that, when it came to reviewing the cases of the Guantánamo prisoners, “incoming legal and national security officials — barred until the inauguration from examining classified material on the detainees — discovered that there were no comprehensive case files on many of them.”

According to the Post’s article, “a senior administration official” stated that information on individual prisoners was “scattered throughout the executive branch.” The article’s authors, Karen DeYoung and Peter Finn, also spoke to several former Bush administration officials, who agreed with this analysis, explaining that the files were “incomplete and that no single government entity was charged with pulling together all the facts” regarding each prisoner,” pointing out that “the CIA and other intelligence agencies were reluctant to share information,” and adding that “the Bush administration’s focus on detention and interrogation made preparation of viable prosecutions a far lower priority.” As a result, the journalists speculated that the review board charged with reviewing the cases “will have to spend its initial weeks and perhaps months scouring the corners of the federal government in search of relevant material.”

Although the former Bush administration officials were correct to highlight major problems with the CIA’s reluctance to share information, and the administration’s general lack of interest in prosecutions — as opposed to the “arbitrary detention” identified by Barack Obama, with its focus on endless isolation and interrogation — it was not strictly accurate to describe the “disarray” as something for which the incoming administration was unprepared. The very word “disarray” had been used by Lt. Col. Darrel Vandeveld, a former prosecutor in the Military Commissions, who resigned last September, to describe the state of the prosecutors’ department in the Office of Military Commissions. In a detailed and highly critical declaration a month ago in the habeas corpus review of the Afghan prisoner Mohamed Jawad, Lt. Col Vandeveld not only condemned the entire system for its in-built bias in favor of prosecutions (which involved suppressing evidence vital to the defense), but also explained how

the evidence, such as it was, remained scattered throughout an incomprehensible labyrinth of databases … or strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely-labeled plastic containers, or even simply piled on the tops of desks vacated by prosecutors who had departed the Commissions for other assignments. I further discovered that most physical evidence that had been collected had either disappeared or had been stored in locations that no one with any tenure at, or institutional knowledge of, the Commissions could identify with any degree of specificity or certainty.

The damning evidence of Lt. Col. Stephen Abraham

Moreover, Lt. Col. Vandeveld’s opinions echo those of Lt. Col. Stephen Abraham, a veteran of US intelligence, who worked in 2004-05 on the tribunals at Guantánamo — the Combatant Status Review Tribunals — which were responsible for compiling the material that was used to establish that the prisoners were “enemy combatants.”

Lt. Col. Abraham’s experiences demonstrated two uncomfortable truths: firstly, he explained that, because the body responsible for compiling the material — the Office for the Administrative Review of the Detention of Enemy Combatants (OARDEC) — was not empowered to demand information from the intelligence agencies, “Most of the information collected … consisted … of information obtained during interrogations of other detainees” (and was often produced in circumstances that were not conducive to voluntary confessions). He also pointed out that other material consisted of intelligence “of a generalized nature — often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status,” and that “what purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence.”

This explanation alone was, of course, insufficient to establish that the whole of the evidence was worthless, as it did not necessarily include classified evidence that was also used to determine the prisoners’ status, but Lt. Col. Abraham was just as scathing about the quality of the classified evidence, explaining in July 2007 that there was, essentially, no difference between either types of evidence. “The classified evidence,” he told the New York Times, “was stripped down, watered down, removed of context, incomplete, and missing essential information.” He also reiterated his complaints about evidence obtained from other prisoners, stating, “Many detainees implicated other detainees, and there was often no way to test whether they had provided false information to win favor with interrogators.”

In addition, Lt. Col. Abraham had direct experience of the classified evidence, when he served on one of the tribunals — that of a Libyan, Abdul Hamid al-Ghizzawi, who had settled in Afghanistan, where he ran a shop and had a wife and child, but who was captured by bounty hunters and sold to US forces.

After reviewing all the evidence, Lt. Abraham and his colleagues “found the information presented to lack substance,” noting that supposedly specific factual statements “lacked even the most fundamental earmarks of objectively credible evidence,” that statements made by alleged witnesses “lacked detail,” and that generalized statements were presented “in indirect and passive forms without stating the source of the information or providing a basis for establishing the reliability or the credibility of the source.”

However, although they concluded that there was “no factual basis” for holding al-Ghizzawi as an “enemy combatant,” the Defense Department attempted to bully them into changing their mind, and, when they refused, prevented them for taking part in any more tribunals, and duly held another tribunal — in secret — which reversed their opinion and concluded that al-Ghizzawi was indeed an “enemy combatant.”

Al-Ghizzawi remains in Guantánamo to this day, and when I interviewed Lt. Col. Abraham recently, and asked him to talk about the quality of the evidence against him, he gave me an analogy which captured perfectly the problems with a system in which rumor, innuendo and false confessions masquerade as evidence. Speaking of an allegation that al-Ghizzawi was involved with the Libyan Islamic Fighting Group, an organization opposed to the dictatorship of Colonel Gaddafi, Lt. Col. Abraham explained, “There was absolutely nothing in the information to suggest that he had in any way been closely associated with, or had acted in any way that facilitated or contributed to terrorist activities. Nor was there any information that was linked to him directly, or that linked him to al-Qaeda, to the Taliban, or to anything else.” When I pressed him further, to confirm that there was no hint of a connection, he said, “Let me give you an extraordinary connection, the very nature of which I think is irrefutable. I was in Paris in 1975. So was Ayatollah Khomeini. Do I need to go any further?”

Dismissing the propaganda

The problem, therefore, is not so much that “the complexity and dangers of the issue” of reviewing the prisoners’ cases have emerged — as the Post described the opinion of several “former officials” — but rather, as the Conservative judge and George W. Bush appointee Richard Leon discovered in the habeas corpus reviews of five Bosnian Algerians (last November) and Chadian national Mohammed El-Gharani (last month), in many cases “the complexity and dangers” are nothing more than unsubstantiated rumors, and the evidence itself cannot be substantiated.

With this in mind, it was, frankly, negligent of the Washington Post to cite the opinion of a “former senior official,” who accused the Obama administration of “backpedaling and trying to buy time,” and who claimed, “All but about 60 who have been approved for release are either high-level al-Qaeda people responsible for 9/11 or bombings, or were high-level Taliban or al-Qaeda facilitators or money people.”

The problem with this official’s statement is that it is demonstrably false. Of the 182 other prisoners tarred as terrorists by the official, it has long been established that only between 35 and 50 are regarded by intelligence officials as connected in any meaningful way with al-Qaeda or other terrorist groups.

A startling example of a prisoner who does not correspond to the opinion of the “former senior official” was revealed just three days after the article was published in the Post, when Judge Leon ruled that a Yemeni prisoner, Ghaleb al-Bihani, could continue to be held as an “enemy combatant,” not because he was a high-level al-Qaeda operative responsible for 9/11 or bombings, or a high-level Taliban or al-Qaeda facilitator or money person, but because he had been an assistant cook for the Taliban and the Arab recruits serving alongside them in the Taliban’s long-running war with the Northern Alliance.

Judge Leon’s ruling raises some other uncomfortable questions, of course; primarily, if it is at all reasonable for men involved in a conflict that preceded the US-led invasion of Afghanistan in October 2001 to be held as “enemy combatants” because they were still there when that conflict morphed into a war against the United States, but what it proves beyond a shadow of a doubt is that you do not necessarily have to be a terrorist to be imprisoned as an “enemy combatant” in Guantánamo.

The Post, of course, did not know that Judge Leon would make this ruling when the article was published, but his previous rulings should have set off some alarms, as should another statement by the “former senior official,” who “acknowledged that he relied on Pentagon assurances that the files were comprehensive and in order rather than reading them himself.”

The cause of justice, which has been suspended in Guantánamo for seven long years, is not served by allowing unsubstantiated rumors by former Bush administration officials to disguise the fact that the main reason that the evidence against the prisoners is “in disarray” is not because it is scattered to the four winds, but because it either doesn’t exist at all, or because it was extracted from other prisoners under duress, or because it serves only to prove that the prisoners in question had traveled to Afghanistan to help the Taliban fight the Northern Alliance in a long-running civil war that, in most cases, had nothing whatsoever to do with al-Qaeda, the 9/11 attacks, or any other form of terrorist activity.

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). To receive new articles in your inbox, please subscribe to my RSS feed.

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

See the following for a sequence of articles dealing with the crucial testimony of Lt. Col. Stephen Abraham and other Guantánamo whistleblowers: Guantánamo whistleblowers: Lt. Col. Stephen Abraham is not the first insider to condemn the kangaroo courts (July 2007), The Guantánamo whistleblower, a Libyan shopkeeper, some Chinese Muslims and a desperate government (July 2007), Guantánamo: more whistleblowers condemn the tribunals (August 2007), A New Guantánamo Whistleblower Steps Forward to Criticize the Tribunal Process (October 2007), Guantánamo whistleblower launches new attack on rigged tribunals (November 2007), Guantánamo and the Supreme Court: the most important habeas corpus case in modern history (December 2007), Guantánamo and the Supreme Court: What Happened? (December 2007), Guantánamo whistleblower Stephen Abraham addresses European Parliament (March 2008), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), An interview with Guantánamo whistleblower Stephen Abraham (Part One) (December 2008), An interview with Guantánamo whistleblower Stephen Abraham (Part Two) (December 2008).

For a sequence of articles dealing with the Guantánamo habeas cases, see: 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), 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). Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009).

A veteran of US Army intelligence, Lt. Col. Abraham worked for OARDEC (the Office for the Administrative Review of the Detention of Enemy Combatants), which was responsible for conducting the Combatant Status Review Tribunals (CSRTs) at Guantánamo, from September 2004 to March 2005. The tribunals, which were tasked with determining whether the prisoners at Guantánamo had been correctly designated as “enemy combatants,” who could be held without charge or trial, have been widely criticized for preventing the prisoners from having legal representation and for relying on secret evidence that was withheld from the prisoners.

However, it was not until last June, when Lt. Col. Abraham filed a statement in connection with one of the Guantánamo cases, that a former insider confirmed that the gathering of materials for use in the tribunals was severely flawed, consisting of intelligence “of a generalized nature — often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status,” that “what purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence,” and that the whole system was geared towards rubber-stamping the detainees’ prior designation as “enemy combatants.”

As I mentioned in Part One, Lt. Col. Abraham’s analysis of the failures of the tribunal process has recently assumed renewed significance, as a number of commentators — including reporters at the Weekly Standard, and researchers at the Brookings Institution (PDF) — have made the mistake of taking the government’s allegations at face value, and have stepped forward to warn Barack Obama that his promise to close Guantánamo will be difficult to fulfill, because, according to the government’s allegations against the remaining 252 prisoners, a significant number of them are connected with al-Qaeda, or were otherwise involved in militant activity.

In the second part of the interview, Lt. Col. Abraham continues to demonstrate — on many different levels — why the government’s apologists are misguided.

Andy Worthington: Moving on the judicial decisions in the last six months, I wondered if you could talk a little about the Supreme Court’s ruling, in June, in Boumediene v. Bush, that the prisoners had constitutional habeas corpus rights, and another important ruling in the same month, when, in Parhat v. Gates, an appeals court ruled that the evidence against Huzaifa Parhat, one of 17 Uighurs at Guantánamo (Muslims who had traveled to Afghanistan to escape Chinese oppression in their home province, had been caught up in the chaos of the US-led invasion in October 2001, and had then been sold to US forces) was inadequate, and that the government had failed to establish that he was an “enemy combatant.”

Stephen Abraham: These two decisions represent a remarkable moment in our history, not merely for what they have to say about the rights of a few detainees, but, instead, because of what they say about us, individually and as a nation. In Boumediene, the Supreme Court upheld the habeas rights of the detainees. But what was implied in the opinion is the notion that such a right can be denied no one, if not a detainee. Importantly, from this emerges the principle that certain rights really are inalienable, that they are not created by governments, that they are not indulgences to be dispensed and easily withdrawn, and that they may be abridged only under the most extraordinary circumstances.

Parhat represents, perhaps, an even more extraordinary moment, because of the judges’ comment that the government was not to be taken at its word. That is, just because it was said does not make it so. This statement resonated strongly with me because of the presumptions that overshadowed everything done at OARDEC. The tribunals were conducted in the shadow of irrebuttable presumptions, rules of play that could not be challenged. We were to presume the information we were given to be complete, accurate, uncontestable, and applicable. With that as the starting ground for the tribunals — or, for that matter, any administrative or judicial hearing — how could you possibly have an outcome other than was dictated by the convening authority, in this case the very government intent on keeping the detainees indefinitely?

If you’re engaging in a criticism of the administration, the CSRTs are such a small thing that they’re barely noticeable, but if you talk about Parhat as the clearest demonstration of hubris, of indifference to the Constitution, of antagonism towards constant principles, it is perhaps, in the eight years of this administration, the best example you will ever find, and probably the best example in the history of our nation.

These two decisions, separately and together, represent an incredible moment in our history, a moment when our government was reminded of the fact that it was and is not an institution above the laws by which we all exist and not an institution beyond the limits that we as citizens granted.

Andy Worthington: As you and I know, Parhat was one of the hollowest stories of the lot, but in general I know that the whole saga of the “classified evidence” is also hollow in so many cases, and that the vast majority of the prisoners were either completely innocent men caught in the wrong place at the wrong time or a bunch of Taliban foot soldiers who knew nothing about al-Qaeda.

Stephen Abraham: OK, but if what you want to do is make the story of Guantánamo about people wrongfully held, then to my mind it is not only ultimately not a compelling story, it’s not a very significant story. By that I mean, this world has seen millions of injustices. Even now, we could limit it to a day and find a million injustices. What is so amazing about this story is that a President, an administration — with the complicity of every citizen — was allowed to absolutely shred the limitations on executive power, and in doing so show a flagrant disregard for fundamental human liberties. Not just rights, but the very essence of what entitles a human being to be respected as such.

Think of Guantánamo as the first experiment in a much larger experiment, in which the ultimate conclusion that the administration hoped to reach was that human beings are little more than vassals, that they exist, they stand on the earth, only as the result of a royal indulgence. I mean, that’s really the issue. And as Parhat demonstrated, the presumptions of the validity of the evidence melted away. Finally, here was a court that got it. Just because the government says it’s so doesn’t make it so.

Andy Worthington: Well, exactly, but also because it took so long to get to point where a court was enabled to review the evidence.

Stephen Abraham: What we ultimately need to get to, where you have an adversarial process, is a declaration by a court that there are, firstly, no irrebuttable presumptions, that irrebuttable presumptions are an anathema in a system that, at its core, relies on, and claims to give regard to due process. You can’t have due process and irrebuttable presumptions, which lead to the certainty of a conviction, or a designation [as an “enemy combatant”]. Secondly, with respect to rebuttable presumptions, there must be certain limitations: they cannot relate to the weight of the evidence, to the quality of the evidence. You can’t say, “I presume this evidence to be valid, I presume the source to be beyond reproach,” because in that regard all you’ve done is give another name to an irrebuttable presumption.

And this is what OARDEC did. You can say anything you want as a detainee, but you may not contradict any of our “facts.” Why participate? That was the truly offensive element of what was going on. It wasn’t that we were told to reach a decision; rather it was that we were told to reach a decision based on a one-sided presentation of evidence that we were not allowed to question. And our tribunal — the tribunal I served on — said no.

Andy Worthington: Could you explain just a little bit about the tribunal that you served on, in which you and your fellow tribunal members decided that the prisoner in question was not an “enemy combatant”? This is another extremely important aspect of the rigged nature of the tribunals, of course, because you were then asked to change your opinion, and when you refused, you were never asked to serve on a tribunal again, and a new tribunal was convened which reversed your decision.

Stephen Abraham: Deciding the fate — what we thought would be deciding the fate of a Libyan of no particular significance [Abdul Hamid al-Ghizzawi, still imprisoned at Guantánamo]. We were given information relating to, or what I presumed would be relating to the individual that was the subject of our tribunal. The information related in very few respects to his pre-detention history. It spoke in very general terms of the organization of which he was said to be a member [the Libyan Islamic Fighting Group]. The information on the organization was extremely generic. It related to an organization that was antithetical to the interests of the standing government of Libya, a rather curious situation, in that I always thought that the enemy of my enemy is my friend. And yet, for whatever reason, it had been listed as an organization associated with terrorist activities. There was absolutely nothing in the information to suggest that he had in any way been closely associated with, or had acted in any way that facilitated or contributed to terrorist activities. Nor was there any information that was linked to him directly, or that linked him to al-Qaeda, to the Taliban, or to anything else.

Andy Worthington: So there was not even any kind of thread drawn to any terrorist organization?

Stephen Abraham: No, it was absurd. Six Degrees of Separation.

Andy Worthington: But with Huzaifa Parhat, for example, the allegation was that the Uighur resistance group (the East Turkistan Independence Movement) was associated with al-Qaeda by two degrees of separation, even though there was no evidence linking Parhat or any of the other Uighurs to the group itself. Was it not the same with the LIFG?

Stephen Abraham: Let me give you an extraordinary connection, the very nature of which I think is irrefutable. I was in Paris in 1975. So was Ayatollah Khomeini. Do I need to go any further?

Andy Worthington: But this is interesting as well, Stephen. Just to digress for a moment, the study of the prisoners that the Seton Hall Law School undertook (PDF) — and I also covered this topic in The Guantánamo Files — established that prisoners were accused of associations with supposed terrorist groups that weren’t on any official terrorist exclusion lists.

Stephen Abraham: OK, but I have to say this: We need to be very careful, because, in having tallied the indicators of criteria that were set forth within the Unclassified Summaries of Evidence that were presumed to form part of the basis for the determination of whether somebody was or was not an “enemy combatant,” what people need to understand is that many of the criteria that were used came from a static checklist. So in terms of a more refined narrative, there in fact might have been no indicators that the criteria used were most appropriate. The problem was that they were the only criteria that were available, so they essentially were checked off. They were close enough.

So we have to be very careful not so much for the individuals for whom there was an absence of the criteria, but those for whom there is alleged to have been a presence of the criteria, because to say that somebody is associated with the Taliban is fine as a checklist response, but the problem is that, unless you know what the evidence is that led to that conclusion you really can’t even decide from the presence of the checkmark in that box that it is a valid assessment. And the problem is that for most of the detainees, even the criteria by which they were ultimately concluded to be “enemy combatants” are, I think, based on incomplete information — on information that doesn’t rise to the level of probative, competent, material evidence — and a lot of false syllogisms.

Andy Worthington: And you know, presumably, about the “low evidentiary hurdle” that was established as part of the tribunals.

Stephen Abraham: The evidence — you know, I wish that we would stop using the word “evidence” because we give to the material that presented the imprimatur of validity. Most of the information, most of the material didn’t rise — in terms of a lawyer’s perspective, a litigator’s perspective — to the level of evidence, either qualitatively or quantitatively.

I think if we want to describe what OARDEC did, first it’s OK to call it a tribunal, but I think there are other words that should not be used. I think “findings” should not be used. For example, you can reach a conclusion on fundamentally or inherently unreliable information, but I wouldn’t call it a finding of fact. I wouldn’t call what was done a legal process. I would avoid using words that really are terms of art within the legal community, because they give a false sense of comfort: “They received evidence, so it must have been OK.” No, they didn’t receive evidence; they received material, the quality of which was never competently vetted. Nobody could speak for any of the necessary elements of information before it would be admitted in any court, and it’s fine to say, “well, this isn’t a court of law,” but at the very least it was a body — presumably of sound reason and of judgment well exercised — and if that was going to be the case you would certainly not have expected that what would be accepted would be the word of anybody who could just walk off the street and say, “That man’s guilty.” What is this, the Queen of Hearts?

Andy Worthington: That’s a very good point. And given that this was not supposed to be a legal process, but was supposed to be an administrative process that would stand up to outside scrutiny and that would justify itself, the important thing that you did, as somebody who had taken part in the process, was to say, “this does not stand up to any outside scrutiny whatsoever, so how could this possibly be any substitute for a valid legal process?”

Stephen Abraham: And really, in your last comment, you make the point. Let’s get rid of the notion of an administrative board, because, you know, it’s terms of art again. It’s a board that’s going to reach a decision based upon the presentation of factual matters. At the end of the day it has to be only one thing: fair. It only has to be fair. The problem was, these hearings were never set up to be fair, and when there is the risk that a hearing will not be fair, it is important that it be transparent, it is important that it be capable of review, it is important that the processes can be evaluated for the degree to which they comport with clearly defined procedures established before the hearings begin. You can’t take a person and say, “I will now give you the kind of proceeding to which you’re entitled based on what I’ve already decided about you.”

Andy Worthington: Moving on, I wanted to ask if you thought that your statement about the tribunals, which was included as a submission to the Supreme Court, made a difference to what the judges decided about the rights of the prisoners in Boumediene.

Stephen Abraham: I don’t know. Unfortunately, the Supreme Court didn’t decide that the tribunal proceedings — which were the subject of its review — were a sham. The judges didn’t argue the quality of the evidence. If they had, I would have said, “My God, I guess my submission made a difference, because I said the stuff was a joke.” All I can say is that the Supreme Court had denied the petition for review, had denied the petition for writ for certoriori, then there was the request to reconsider. Now these are always denied, but in this case it wasn’t.

My declaration was not on the first brief. It was on the last brief. It was after the government had responded. You know, you look to what is unique about this, that in some way affected the minds of two justices — or at least one — and you know the declaration was unique, but it spoke to facts, and I know, as somebody who’s practiced before the Supreme Court, that they rarely listen to the factual pleas. They want to know something broader, they want to know something that relates to legal issues, constitutional issues, and here’s this crazy brief that’s arguing facts. Certainly, it’s different, and I wonder how many petitioners are now going to submit declarations with their petitions for reconsideration, but the fact is that I don’t know if it had any influence. What I do think is that the justices looked at all of the briefs together, with all the materials that were submitted, and they said, “Enough is enough.”

Andy Worthington: Excellent. I really wanted to ask about that, because it was my understanding that you came from a slightly different field from the habeas lawyers, and you were somebody who had been there — inside the tribunal process — who said, “By the way, while you’re thinking about this, you might want to read my dozens of reasons that I’m going to put before you explaining why the whole tribunal process was a sham.”

I think we’re going to have to wind up soon, Stephen, so thank you very much indeed for your time. Before we finish, however, is there anything we haven’t touched upon that you wanted to mention?

Stephen Abraham: I was thinking about habeas corpus, and I was thinking that when we say habeas corpus, we understand it to be inseparable from notions of fundamental human rights, and when the Supreme Court was discussing this, a year ago, six months before they delivered their verdict in Boumediene, I couldn’t understand how they were having a debate for a half-hour about what I think was, by the nature of their discussion, a profound limitation of that right. To ask what the statutory basis is, or what the common law basis is, for the notion that a person is not born free, and does not have an immutable right to dignity and liberty (absent the legitimate exercise of the powers of state) was, I thought, a confession of the absence of the appreciation of that right.

Andy Worthington: Do you not think that Justice Scalia was playing into the hands of Dick Cheney and David Addington, and their desire to institute unfettered executive power? What struck me most about some of the exchanges in the oral hearing last December was that to varying degrees some of the justices were perturbed or outraged about the fact that they understood that that’s what the executive was trying to do, that the executive branch was trying to eliminate their part in the balance of powers in the United States.

Stephen Abraham: And that was really the funniest thing. If you look at what the Supreme Court did, 50 years from now people are going to wonder how this case should be characterized. And it will not be a fundamental liberties case; it will be a separation of powers case. And that’s the problem with it, because what gave rise to Boumediene was an administration that was turning an immutable right into a conferred right. That is the danger of the exercise of power, manifested by Guantánamo. Guantánamo’s merely an example of it, but the fact is that the moment you make liberty a conferred right you can eliminate it, you can suspend it, you can terminate it, but more importantly you can identify the moment of its creation.

That’s the worst part about it, because our government exists not by right but by consent, and it never had the power to create the right of liberty and of due process. Those are constraints on its exercise of power, and what the administration did was it reversed that, it said we have due process because we give it to you, because we created it and we can take it away. You have liberty, not because it is an immutable, fundamental right, but because we created it, and we gave it to you and we can take it away. And I hope that the five justices understood that to be the linchpin, the core, the thrust of the decision, and not a separation of powers issue.

The administration will change. Change is inevitable. But like a stream, the passage of water alone does nothing to change the nature of the water itself. If we make the issues of the last eight years the fault of particular men in a particular time and at a particular location, we will have missed an important lesson of what happened.

The rights of individuals were denied, the essence of those rights disparaged. This happened not because men made it happen, but because we let it happen. It happened not because we surrendered our rights but because we allowed others to redefine them in a way that foreclosed their exercise by others. It happened not because Guantánamo existed but because we allowed such institutions to be created. Closing Guantánamo is a symbolic act that will do nothing to eliminate the ground on which tyranny gains its foothold.

As we are reminded in the words of Martin Niemöller, each of us has the duty to speak for those for whom no one else has spoken. Where silence reigned, injustice found foothold. It is up to each of us to speak. It is up to us to ensure that institutions beyond the reach of laws exist nowhere on this earth. But more importantly than the bricks and mortar by which we build prisons, it is up to us to demand respect of law by all who govern and the dignity of all humans by all who are governed.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and also see my definitive Guantánamo prisoner list, published in March 2009.

This interview was published exclusively on the website of the Future of Freedom Foundation.

See the following for a sequence of articles dealing with the crucial testimony of Lt. Col. Stephen Abraham and other Guantánamo whistleblowers: Guantánamo whistleblowers: Lt. Col. Stephen Abraham is not the first insider to condemn the kangaroo courts (July 2007), The Guantánamo whistleblower, a Libyan shopkeeper, some Chinese Muslims and a desperate government (July 2007), Guantánamo: more whistleblowers condemn the tribunals (August 2007), A New Guantánamo Whistleblower Steps Forward to Criticize the Tribunal Process (October 2007), Guantánamo whistleblower launches new attack on rigged tribunals (November 2007), Guantánamo and the Supreme Court: the most important habeas corpus case in modern history (December 2007), Guantánamo and the Supreme Court: What Happened? (December 2007), Guantánamo whistleblower Stephen Abraham addresses European Parliament (March 2008), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo: Lies, Damned Lies and Statistics (February 2009).

Ever since Obama began meeting with his transition team, leaks, gossip and rumors concerning the new administration’s plans to close Guantánamo, and the hurdles they will have to surmount, have been filling the airwaves and the front pages of newspapers. In an attempt to separate fact from fiction and to provide useful information to the President-Elect, I’d like to offer my advice, based on the three years I have spent studying Guantánamo in unprecedented detail, as the author of The Guantánamo Files, the first book to tell the stories of all the prisoners, and as a commentator and analyst responsible for numerous articles on Guantánamo in the last 18 months.

As the President-Elect and his transition team are no doubt aware, there are three categories of prisoners at Guantánamo: around 50 prisoners cleared for release or approved for transfer after multiple military reviews; up to 80 prisoners regarded as eligible for trial by Military Commission (the system of “terror trials” conceived in the Office of the Vice President in November 2001); and another 125 prisoners who have long been regarded as “too dangerous to release but not guilty enough to prosecute.”

However, before looking in detail at what should be done with each of these groups of prisoners, it’s important to understand how the administration came to hold prisoners without charge or trial for nearly seven years, and how it came to put some of them forward for trial in a novel and untested system for “terror suspects,” and to examine the dangerously flawed manner in which the prisoners were seized, held, interrogated and appraised as a threat to the United States.

9/11: an excuse for unfettered executive power

In the wake of the 9/11 attacks, the nation’s response was mainly driven forward by Vice President Dick Cheney, former defense secretary Donald Rumsfeld, and their close advisors (including, in particular, Cheney’s legal counsel, David Addington). According to the “new paradigm” dreamt up by these men, prisoners seized in the “War on Terror” were regarded neither as criminals nor as Enemy Prisoners of War protected by the Geneva Conventions, but as “illegal enemy combatants,” who could be held indefinitely without charge or trial. The primary justification for this was a military order drafted by Cheney and Addington in November 2001, which also created the Military Commissions. Approved with virtually no oversight whatsoever, the military order was followed by a number of secret legal opinions, which attempted to redefine torture, and approved the use of “enhanced interrogation techniques” (the administration’s chosen euphemism for torture) by both the CIA and the military in general.

This was repugnant enough, but what was even more disturbing was the theory that underpinned these innovations. The military order and the secret memos — and the “signing statements” that the President attached to a record number of laws passed by Congress, as recommended by Addington — served as a baleful example of the administration’s quest for unfettered executive power, based on “unitary executive theory.”

Embraced by Cheney and Rumsfeld during their formative years in Richard Nixon’s White House, and also by Addington (left), who teamed up with Cheney to protect Ronald Reagan during the Iran-Contra scandal, the theory contends that, when he wishes, the President is entitled to act unilaterally, without interference from Congress or the judiciary. It is, of course, in direct contravention of the separation of powers on which the United States was founded, and critics have long insisted that it is nothing less than an attempt by the executive to seize the dictatorial powers that the Constitution was designed to prevent.

The “War on Terror” provided the supporters of “unitary executive theory” with an unprecedented opportunity to act without any oversight whatsoever, but what made it even more shocking in its execution was that it effectively allowed no questions to be asked about whether or not the administration’s policies were misguided, overzealous, or just plain wrong.

Buying prisoners for bounties and shredding the Geneva Conventions

Sticking to a mantra that whatever the President chose to do was a justifiable expression of his role as the Commander-in-Chief during wartime, the administration was unconcerned that, when it began collecting prisoners during the invasion of Afghanistan, many of those held as “enemy combatants” were seized not by US forces, but by their Afghan and Pakistani allies, who were encouraged by bounty payments, averaging $5000 a head, that were offered for “al-Qaeda and Taliban suspects.”

In his 2006 autobiography, In the Line of Fire, President Musharraf of Pakistan bragged that, in return for handing over 369 terror suspects (who were mostly transferred to Guantánamo), “We have earned bounty payments totaling millions of dollars.” When researchers at the Seton Hall Law School analyzed 517 Unclassified Summaries of Evidence for the prisoners (documents laying out the Pentagon’s case for holding them as “enemy combatants”), they discovered (PDF) that 86 percent were seized not by US forces but by their allies, which indicated that the probability of innocent men (or Taliban foot soldiers with no knowledge of al-Qaeda) being passed off as serious “terror suspects” was enormous.

Just as disturbing is the realization that, once they were in US custody in the prisons at Kandahar airport and Bagram airbase, the majority of the prisoners who ended up in Guantánamo were never even screened to determine whether they should have been held in the first place. A senior interrogator at Kandahar and Bagram, who wrote a book about his experiences (The Interrogators) under the pseudonym Chris Mackey, stated explicitly that, under orders handed down from senior figures in the US military and the intelligence agencies, who were sent the prisoner lists from Afghanistan, all “non-Afghan Taliban/foreign fighters” were to be sent to Guantánamo. As Mackey noted, “Strictly speaking, that meant every Arab we encountered was in for a long-term stay and an eventual trip to Cuba.”

The same was true of the majority of the 220 or so Afghans who were also transferred to Guantánamo. Although Mackey made it clear that only Afghans with “considerable intelligence value” were supposed to be sent to Guantánamo, it was not until June 2002, when around 600 prisoners in total had already been transferred, that those in charge on the ground in Afghanistan came up with a category of temporary prisoner, who could be held for 14 days without being assigned a number that entered the system overseen by the Pentagon and the intelligence agencies. It was, he explained, the only way that they could deal with at least some of the many innocent Afghans who ended up in their custody. Even this, however, failed to stem the flow of wrongly detained Afghans who continued to be sent to Guantánamo until the industrial-scale rendition of prisoners ended in August 2003.

This whole process was in marked contrast to the Article 5 battlefield tribunals, enshrined in the Geneva Conventions, which had taken place in all other US wars since the Second World War. Held close to the time and place of capture, these enabled the military to separate soldiers from civilians caught up in the chaos of war by allowing prisoners to present their case to a military review board, and to call witnesses. During the first Gulf War, for example, the military held 1,196 battlefield tribunals, and in nearly three-quarters of them the prisoners were found to be innocent and were subsequently released.

Guantánamo’s deliberately flawed tribunals

When tribunals were finally allowed, they occurred up to three years after the prisoners were seized, and took place at Guantánamo, half a world away from the place of capture. They were, moreover, introduced solely as a rebuke to the Supreme Court. In June 2004, alarmed that prisoners seized in wartime were being held without any possibility of review (even if they maintained, as many did, that they were innocent men seized by mistake), the Supreme Court delivered an unprecedented ruling, granting the prisoners habeas corpus rights — the right to challenge the basis of their detention before an impartial judge, based on an 800-year old English law that was one of the foundation stones of US law.

As a mockery of the battlefield tribunals (and of the Supreme Court’s intentions), the Combatant Status Review Tribunals (CSRTs) at Guantánamo prevented the prisoners from having access to lawyers, gave them no opportunity to present evidence in their defense, and prevented them from either seeing or hearing the classified evidence against them.

In addition, although they were empowered to call witnesses from outside Guantánamo, the authorities responded to every single request by claiming that they had been unable to contact them, even when, as Carlotta Gall and I reported for the New York Times in February, the witness requested by one particular prisoner (Abdul Razzaq Hekmati, an Afghan who died in Guantánamo of cancer on December 26, 2007) was Ismail Khan, a minister in Hamid Karzai’s government.

Moreover, doubts about the quality of the information that was presented as evidence by the government were spectacularly confirmed in June 2007, when Lt. Col. Stephen Abraham, a veteran of US intelligence who had worked on the tribunals, denounced them for being nothing more than a front to confirm the prisoners’ prior designation as “enemy combatants.” In detailed analyses of the tribunals’ failings (available here and here), Abraham explained, unambiguously, how the body set up to administer the tribunals, OARDEC (the Office for the Administrative Review of the Detention of Enemy Combatants), was staffed for the most part by people with no expertise of analyzing intelligence, was not empowered to seek evidence from the intelligence agencies, and was obliged, for the most part, to rely on information “of a generalized nature — often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status,” and on other information drawn from the interrogations of the prisoners themselves, in which their “confessions” about their own activities and those of other prisoners may have been — and frequently were — obtained through torture, coercion or bribery.

A hallmark of the Bush administration has been its refusal to concede that it has ever made any mistakes in the “War on Terror,” and this was also made clear during the CSRTs. Because of what one tribunal member called the “low evidentiary hurdle” for deciding that prisoners were “enemy combatants,” only 38 of the 558 prisoners held at the time were cleared for release, even though it has subsequently become apparent that many more innocent men were actually held. What makes this situation even more disturbing, however, is the knowledge that the administration insisted on reconvening tribunals on several occasions when it was not satisfied with the initial result.

This happened to Lt. Col. Abraham after he was asked to take part in a tribunal, when he and his fellow officers refused to conclude that Abdul Hamid al-Ghizzawi, a Libyan shopkeeper with an Afghan wife and a small child, was an “enemy combatant.” Abraham and his colleagues were dismissed, and a second, secret tribunal duly reversed their opinion. It also happened on other occasions, including the cases of two of Guantánamo’s 22 Uighurs (Muslims from the Xinjiang province of China, who had fled to Afghanistan to escape persecution by the Chinese government).

Forever tainted as “enemy combatants”

Moreover, as one of Lt. Col. Abraham’s colleagues noted last summer, the refusal to concede that any of the prisoners were innocent meant that, “after several detainees were found to be ‘not an enemy combatant,’ DoD took away that option and we had to start using the term ‘no longer an enemy combatant’ for those held for no apparent reason.”

By the time of the CSRT’s successors, the annual Administrative Review Boards (ARBs), whose stated aim was to determine whether the prisoners still constituted a threat to the United States, the authorities rapidly dispensed with the claim that prisoners were “no longer enemy combatants.” Of the 207 prisoners approved to leave Guantánamo after the first three rounds of the ARBs, only 14 were regarded as “no longer enemy combatants,” and the rest were still explicitly regarded as “enemy combatants,” who were only approved for transfer from Guantánamo — to the custody of their home country, or to a third country.

In a second article, I demonstrate the effects of this cynical semantic maneuvering on the 50 prisoners still held at Guantánamo who have been cleared for release or “approved for transfer,” but cannot be repatriated because of international treaties preventing the return of foreign nationals to countries where they face the risk of torture. I will suggest how Barack Obama can break this deadlock, and will also examine the gulf between rhetoric and reality concerning the Military Commissions, proposals to transfer prisoners to the US mainland, and what the new President should do with the prisoners considered “too dangerous to be released, but not guilty enough to prosecute.”

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). To receive new articles in your inbox, please subscribe to my RSS feed, and also see my definitive Guantánamo prisoner list, published in March 2009.

As published on the Huffington Post, Antiwar.com, CounterPunch, ZNet and AlterNet.

Candace Gorman, lawyer for Abdul Hamid al-Ghizzawi, a Libyan detainee at Guantánamo, reports that her client has been infected with AIDS. Mr. al-Ghizzawi explained to his lawyer in a letter that he was told about his infection by a doctor at Guantánamo, adding that he believes that the infection took place in 2004, when he was given a blood test, which “resulted in alarm amongst the hospital staff,” although he was not given any explanation for the alarm at the time.

The hospital at Guantánamo, where, Mr. al-Ghizzawi said, “the guards that would bring him to the clinic often sat and read his medical file and … would toss the file around for others to read while he sat there.”

On January 28, Candace Gorman filed an emergency motion with the US Supreme Court, asking for the US military to provide urgent medical treatment to Mr. al-Ghizzawi, and also asking for access to her client’s medical records. Yesterday morning, however, Chief Justice John Roberts denied the motion.

While this news is so alarming that it almost defies description, Mr. al-Ghizzawi’s plight is compounded by the fact that he already suffers from tuberculosis, which he also contracted in Guantánamo, and hepatitis B, which was dormant before his arrival at the prison.

In an affidavit filed with the US District Court in September 2006, Dr. Ronald Sollock, the Chief Medical Doctor at Guantánamo, confirmed that Mr. al-Ghizzawi “was subjected to complete medical tests by the military upon his arrival in Guantánamo in 2002,” and that he “entered [the prison] in good health,” although he admitted that “a history of hepatitis B was identified in tests performed in August 2002” (even though Mr. al-Ghizzawi was never informed of this fact), and that he “was exposed to tuberculosis while at the base.”

Dr. Sollock also claimed that Mr. al-Ghizzawi “does not want to be treated for his life threatening illness[es],” although this is strenuously denied by Mr. al-Ghizzawi himself, who insists that he has never been informed about his health problems, and has never been offered any kind of medical treatment whatsoever.

Despite the gravity of Mr. al-Ghizzawi’s condition, the authorities at Guantánamo have refused to either confirm or deny Mr. al-Ghizzawi’s claim that he has been infected with AIDS. When Candace Gorman approached Andrew Warden, the Department of Justice attorney assigned to the case, Warden also refused to be drawn, stating only, “We are not privy to the particulars of what your client may have been told by his doctor, if anything, but Guantánamo provides high-quality medical care to all detainees.”

Even before this latest awful revelation, Candace Gorman had documented the suffering of her client in painful detail, explaining, in a habeas corpus submission to the Supreme Court last August, that during her first visit with him, in July 2006, it was apparent that he was seriously ill. She described him as “very noticeably jaundiced,” adding that he was “constantly rubbing his back, his leg and his abdomen,” and that he appeared to be “in constant pain.”

Mr. al-Ghizzawi confirmed that his health had begun to deteriorate during his first year at Guantánamo, and had “progressively worsened” each year. He explained that he had lost 10-15 kilos since his arrest, that he had “severe pain in his abdomen, left side and back that travels down his legs,” that the pain was “constant when walking or standing,” that his stomach area was “bloated with two black lines appearing horizontal across his stomach,” and that he had “digestive problems including vomiting and diarrhea.” In this first meeting, Mr. al-Ghizzawi also explained that “the increased intensity of the pain in the previous months” had been “so severe that he had been unable to get up from a lying down position.”

During further visits, in September and November 2006, and in February, May and July 2007, Mr. al-Ghizzawi’s health evidently deteriorated further, prompted, in part, by the conditions in which he was held. On one occasion, he was dressed in orange (reserved, in recent years, for “non-compliant” detainees), and had been stripped of all “comfort items,” including a thermal shirt that provided a meager defense against the cold, because he inadvertently had some toilet paper in his pocket when he went for a shower, and in December 2006 he was moved to Camp 6, a new supermax facility designed to hold the “general population” at Guantánamo (including those who have been cleared for release).

Camp 6. After unrest following the apparent suicide of three detainees in June 2006, the communal areas have never been used. Photo © Brennan Linsley/AP.

The conditions in Camp 6 are, bluntly, barbaric. Held in severe isolation, the detainees, in contrast to convicted criminals on the US mainland, are only allowed one book a week, are prevented from reading newspapers, watching TV or listening to the radio, and are, of course, completely cut off from their families. Mr. al-Ghizzawi explained that he was “compelled to complain to get so much as clean clothes,” and his health problems are compounded by the fact that, despite Guantánamo’s tropical heat, the solid metal cells, which “admit no natural light,” are air-conditioned and freezing cold. In addition, “the men are not provided blankets but instead are given plastic sheets that are cold and smelly.”

Just as severe is the men’s physical and mental isolation. As Candace Gorman explains, they “cannot converse with anyone … unless they kneel on the floor and attempt to shout greetings through the tiny gap where the food is pushed in,” and, as a result, Mr. al-Ghizzawi, like all the other detainees, “passes his days in tedium and loneliness.” During the July 2007 visit, he told Gorman that, “in his total isolation … he had begun talking to himself.” He added that he “recognized that this was a sign of a fraying mental state” and was “very distraught” about it.

Even if Mr. al-Ghizzawi were one of the “worst of the worst” –- say, a committed terrorist with blood on his hands –- this state of affairs would be deplorable, but as it is, the “evidence” against Mr. al-Ghizzawi, who, like all the other Guantánamo detainees, has been held for years without charge or trial, is so weak that, in his Combatant Status Review Tribunal in 2004 — those pale substitutes for justice, in which the detainees were denied representation by lawyers, and prohibited from seeing or hearing the “classified evidence” against them — his military-appointed panel declared that there was insufficient evidence to declare him an “enemy combatant,” and that he should therefore be released.

We know this because one of the members of this particular tribunal, Lt. Col. Stephen Abraham, spoke out last year about the systematic failings of the tribunals, deriding them as severely flawed, relying on intelligence “of a generalized nature — often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status,” and concluding that they were designed merely to rubberstamp the detainees’ prior designation as “enemy combatants.”

Writing of Mr. al-Ghizzawi’s tribunal, Lt. Col. Abraham stated, “On one occasion, I was assigned to a CSRT panel with two other officers, an Air Force Colonel and an Air Force Major, the latter understood by me to be a judge advocate. We reviewed the evidence presented to us regarding the recommended status of [Mr. al-Ghizzawi]. All of us found the information presented to lack substance.” He added, “On the basis of the paucity and weakness of the information provided both during and after the CSRT hearing, we determined that there was no factual basis for concluding that the individual should be classified as an enemy combatant.”

Lt. Col. Abraham also explained — as was backed up in October by a second whistleblower, an Army Major who had taken part in 49 tribunals –- that unfavorable decisions were overruled by those in overall charge of the operation, who then convened a second tribunal to produce the desired result, and added that this is what had happened in the case of Mr. al-Ghizzawi.

Confirming that all he said was true, Lt. Col. Abraham and his fellow tribunal members were prohibited from taking part in any more tribunals, and a second, secret tribunal was held in Washington D.C., at which it was duly decided that Mr. al-Ghizzawi was an “enemy combatant” after all. As mentioned above, this was not the only case in which an unpopular decision was reversed by the authorities, but in Mr. al-Ghizzawi’s case the implications could be fatal, perhaps fulfilling a fear that Lt. Col. Abraham expressed to me in October, when he wrote, “I am saddened by the fact that more detainees, about whom there is no evidence of involvement in terrorism, will likely die before something is done.”

That Mr. al-Ghizzawi is one of these men “about whom there is no evidence of involvement with terrorism” seems abundantly clear from a comparison of his story with the allegations compiled by the administration.

A former meteorologist, Mr. al-Ghizzawi, who was born in 1962, had been living in Afghanistan since the collapse of the last remnants of the Soviet-backed Communist regime in the early 1990s. Married to an Afghan woman, and with a daughter who was only a few months old when he was captured, he and his wife ran a shop in the eastern Afghan city of Jalalabad, where they “sold honey and spices and later expanded to include a bakery.”

In October 2001, when US forces began bombing the Jalalabad area, the family fled to the countryside, where his wife’s family lived, thinking that they would be safer there. In December, however, as news that the US authorities were paying handsome bounties for suspected al-Qaeda and Taliban members, “armed men came to the home and told the family to turn over ‘the Arab.’” Fearing that his family would be harmed, Mr. al-Ghizzawi complied, and was then sold to soldiers of the anti-Taliban Northern Alliance, who sold him on to the US forces.

The notorious US PsyOps leaflet offering Afghan villagers money for life in exchange for handing over al-Qaeda and Taliban suspects. The text on the back reads: “You can receive millions of dollars for helping the anti-Taliban force catch al-Qaeda and Taliban murderers. This is enough money to take care of your family, your village, your tribe for the rest of your life – pay for livestock and doctors and school books and housing for all your people.”

Against Mr. al-Ghizzawi’s story, the administration has struggled to establish a coherent narrative. In his CSRT, in November 2004, all the authorities managed to come up with were claims that he was part of the Libyan Islamic Fighting Group, an organization opposed to the rule of Libyan dictator Colonel Gaddafi (the former terror-backing pariah, who now, of course, is a great friend of the West), and that he had received military training at camps in Pakistan and Afghanistan.

By the time of his review board in September 2006, this tissue-thin Summary of Evidence had been augmented with additional material, most of which was evidently made by other detainees, either in Guantánamo or in other secret prisons. It was alleged that he had met members of al-Qaeda in Pakistan, and had stayed at an LIFG house in Jalalabad in 1997. Additional allegations included a claim by a “noted jihadist” that he “was a security leader for Osama bin Laden during a trip to a guest house in Jalalabad,” that “an al-Qaeda operative stated he saw the detainee several times between 2000 and 2001 in Jalalabad,” and that he “believed the detainee was in charge of a guest house for the Libyans,” and that a member of the LIFG “stated the detainee took part in the fighting in Afghanistan.”

Mr. al-Ghizzawi countered all the allegations, insisting that he was not a member of either al-Qaeda or the LIFG, denying “receiving any terrorist training or being a fighter,” and explaining that he “had gone to Pakistan originally to find work, not to fight as a jihadist.” He added that “he did not fight at all in Afghanistan and that he did not have the will to fight,” stated that he “was pressured to train as a fighter, but he refused,” and also stated that “the only support he gave the jihad was to teach the children of the mujahideen.” The most glaring contradiction in the allegations against him, however, was provided by another “al-Qaeda operative,” who stated, unambiguously, “the detainee is not a member of al-Qaeda or of the Libyan Islamic Fighting Group.”

After a detailed study of the statements of Lt. Col. Abraham and the other Guantánamo whistleblowers, and armed with the copious evidence I uncovered, during my research for The Guantánamo Files, of false allegations made under duress, or through bribery, by detainees against their fellow detainees, I know whose story I am inclined to believe.

What matters more, however, is that the correct venue for these allegations and counter-allegations to be tested is in a recognized court of law, not in military tribunals whose integrity has been critically undermined by former officers who served on them. Given that Chris Mackey, a former interrogator at the US prisons in Afghanistan, stated in his book The Interrogators that there was, effectively, no screening process in Afghanistan, because every Arab who ended up in US custody was automatically transferred to Guantánamo, it’s clear that the allegations not only against Mr. al-Ghizzawi, but also against the majority of other detainees still held in Guantánamo, have never been tested in any meaningful way whatsoever.

As I noted at the start of this article, however, compounding six years of lawless brutality with this latest evidence of severe medical malpractice almost beggars belief. As the Supreme Court ponders whether or not to rule that the detainees have a constitutional right to habeas corpus (after their statutory right, granted by the Supreme Court in June 2004, was taken away in 2006’s Military Commissions Act), I can only hope that this analysis of the administration’s disdain for the law and for human suffering will help the justices to rule for the detainees, and that in the meantime Mr. al-Ghizzawi does not die in Guantánamo, scorned by a corrupt administration, and neglected and abandoned by the medical profession.

For further information on the CSRTs, and on evidence obtained through torture, coercion and bribery, see my book 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). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on CounterPunch, the Huffington Post and AlterNet.

Yasser al-Zahrani.

Speaking as the ridiculous saga of smuggled underwear continued to make waves in the media, McCarthy attempted to highlight the seriousness of the administration’s response to ludicrous claims that underwear had been surreptitiously delivered to two detainees, saying, “There was a Speedo in the camp and someone can hang himself with it. The Speedo also has a drawstring on it. The drawstring can be used to tie the Speedo, the noose apparatus up onto a vent.’”

Breaking with protocol, McCarthy also spoke about the deaths in Guantánamo, claiming that he had personally seen “all four men dead –- each one hanging –- and that the first three men had used sling-style nooses.” This is the first time that a representative of the US military has spoken openly about the death of al-Amri, who, McCarthy said, had fashioned “a string type of noose” to kill himself, although Carol Rosenberg of the Miami Herald, who reported the story, added that “he did not elaborate.”

The circumstances of the men’s deaths have long been contentious. After the 2006 suicides, many former detainees who had known the men spoke of their shock and incredulity at the news. Tarek Dergoul, a British detainee released in 2004, spent three weeks in a cell beside al-Utaybi. He recalled “his indefatigable spirit and defiance,” and pointed out that he was “always on the forefront of trying to get our rights.” He had similar recollections of al-Zahrani, describing him as ”always optimistic” and “defiant,” and adding that he “was always there to stand up for his brothers when he saw injustices being carried out.”

In a press release shortly after the deaths were announced, former detainees, including the nine released British nationals, “poured scorn” on allegations that the deaths were suicides, and claimed that they were “almost certainly accidental killings caused by excessive force” on the part of the guards. A note of caution, however, was provided by British resident Shaker Aamer, who was told by a guard in Camp Echo, an isolation block where they were held for some of the time (and where Aamer himself has now spent two years and two months without any meaningful human company), “They have lost hope in life. They have no hope in their eyes. They are ghosts, and they want to die. No food will keep them alive now. Even with four feeds a day, these men get diarrhea from any protein which goes right through them.”

As the NCIS has, inexplicably, yet to conclude its investigation, it’s impossible to know at this point what the official conclusion will be. Clearly, the military has stepped back from its initial response, when the prison’s commander, Rear Admiral Harry Harris, attracted worldwide condemnation for claiming that the men’s deaths were “an act of asymmetric warfare.” As was revealed in documents released by the Pentagon earlier this year, however, which described, in minute and numbing detail, the weights of all the detainees in Guantánamo throughout their detention, all three men had been long-term hunger strikers, and two had been strapped into restraint chairs and force-fed until days before their deaths. This deliberately painful process, designed to “break” the strikers, is, it should be noted, illegal according to internationally recognized rules regarding the rights of competent prisoners to undertake hunger strikes, but in this, as with almost everything else at Guantánamo, the administration regards itself as above the law.

Al-Zahrani was force-fed several times a week from the start of October 2005, and daily from November 14 to January 18, 2006, during which time his weight fluctuated between 87.5 lbs and 98.5 lbs. Al-Utaybi, who weighed just 89 lbs at various times in September and October 2005, was force-fed several times a week from July to September 2005, and daily from December 24 to February 7, 2006. Crucially, his force-feeding began again on May 30, 2006, and continued until the records ended on June 6, just three days before his death.

Even more disturbing is the chronicle of al-Salami’s hunger strike. Although his weight loss did not appear as dramatic –- he weighed a healthy 172 lbs on arrival in Guantánamo –- he lost nearly a third of his body weight at the most severe point of his hunger strike, when his weight dropped to 120 lbs. What was particularly disturbing about his weight report, however, was the revelation that he was force-fed daily from January 11, 2006 until, as with al-Utaybi, the records ended on June 6, just three days before his death.

Ali al-Salami.

Given this information, it’s unsurprising that those who are suspicious of the administration –- and of Capt. McCarthy’s supposed frontline recollections –- might conclude, as the former detainees suggested, that it would not have taken much on the part of the authorities to finish off three men who had persistently aroused the wrath of the administration through their lack of cooperation and their hunger strikes, and who were all critically weak at the time of their deaths.

As for al-Amri’s death, Carol Rosenberg noted that suspicions over the circumstances of his death have been exacerbated by the fact that he died in Camp Five, one of the prison’s maximum security blocks. She explained that “prison camp tours for media and distinguished visitors emphasize that Camp Five is designed with suicide proofing such as towel hooks that won’t bear the weight of a detainee, to prevent him from hanging himself,” and that, moreover, “the tours emphasize that each captive, housed in a single-occupancy cell, is under constant Military Police and electronic monitoring, which means a guard is supposed to look in on him at least every three minutes.”

An even more critical approach to al-Amri’s death was presented by lawyer Candace Gorman, who reported last week on a visit in July to one of her clients, Abdul Hamid al-Ghizzawi. A Libyan shopkeeper, who is married to an Afghan woman and has a child that he has not seen for six years, al-Ghizzawi was “visibly shaken” on meeting Gorman, and immediately told her of his “despair” over al-Amri’s death. As Gorman described it, “Al-Ghizzawi knew that Amri had been suffering from Hepatitis B and tuberculosis, the same two conditions from which he himself suffers. Like al-Ghizzawi, Amri had not been treated for his illnesses. Al-Ghizzawi, now so sick he can barely walk, told me that Amri, too, had been ill and then, suddenly, he was dead.” Al-Ghizzawi’s conclusion, as described on Gorman’s website, was that al-Amri had actually died of “medical neglect,” although she also noted that al-Ghizzawi “had mentioned that Amri had engaged in hunger strikes in the past but had stopped a long time ago because of his health.”

While this was correct, one can only wonder what the effect on al-Amri’s health had been of his participation in the mass hunger strike in the fall of 2005, when his weight, which had been 150 lbs when he arrived in Guantánamo in February 2002, dropped at one point to just 88.5 lbs, and he was force-fed, often several times a week, from October 2005 to January 2006. Like the three men who died in June 2006, al-Amri was a non-cooperative detainee, who had refused to take part in any of the sham tribunals and administrative reviews at Guantánamo, and it does not take much imagination to conclude that, with his severe and untreated illnesses, he, like the three men the year before, could actually have died not through medical neglect, but as another “accidental killing caused by excessive force” on the part of the guards.

I do not profess to know the truth of the matter one way or the other, but in revisiting the stories of these men’s deaths I hope to have demonstrated that, far from clearing the air, Capt. McCarthy’s comments have, ironically, served only to revive Guantánamo’s most tragic stories, which, presumably, the rest of the administration hoped had been forgotten. Sixteen months after the first deaths, and four months after the additional death that caused such distress to Abdul Hamid al-Ghizzawi, it is surely time for the investigators of the Naval Criminal Investigative Service to deliver their verdict.

For more on the deaths in 2006 at Guantánamo, including the feebleness of the allegations against the men, and more on the hunger strikes and other suicide attempts, see my newly published book 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). To receive new articles in your inbox, please subscribe to my RSS feed.

As published on CounterPunch and American Torture. An edited version also appeared on the Huffington Post.

Note: The Pentagon referred to Mani al-Utaybi as Mana al-Tabi, and to Ali al-Salami as Ali Abdullah Ahmed. Al-Utaybi’s name was also transliterated in some reports as Manei al-Oteibi, and al-Salami was also known as Salah al-Salami.

For a sequence of articles dealing with the hunger strikes at Guantánamo, see Shaker Aamer, A South London Man in Guantánamo: The Children Speak (July 2007), Guantánamo: al-Jazeera cameraman Sami al-Haj fears that he will die (September 2007), The long suffering of Mohammed al-Amin, a Mauritanian teenager sent home from Guantánamo (October 2007), Innocents and Foot Soldiers: The Stories of the 14 Saudis Just Released From Guantánamo (Yousef al-Shehri and Murtadha Makram) (November 2007), A letter from Guantánamo (by Al-Jazeera cameraman Sami al-Haj) (January 2008), A Chinese Muslim’s desperate plea from Guantánamo (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), The forgotten anniversary of a Guantánamo suicide (May 2008), Binyam Mohamed embarks on hunger strike to protest Guantánamo charges (June 2008), Second anniversary of triple suicide at Guantánamo (June 2008), Guantánamo Suicide Report: Truth or Travesty? (August 2008), Seven Years Of Guantánamo, And A Call For Justice At Bagram (January 2009), British torture victim Binyam Mohamed to be released from Guantánamo (January 2009), Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), Obama’s “Humane” Guantánamo Is A Bitter Joke (February 2009), Forgotten in Guantánamo: British resident Shaker Aamer (March 2009), Guantánamo’s Long-Term Hunger Striker Should Be Sent Home (March 2009). Also see the following online chapters of The Guantánamo Files: Website Extras 2 (Ahmed Kuman, Mohammed Haidel), Website Extras 3 (Abdullah al-Yafi, Abdul Rahman Shalabi), Website Extras 4 (Bakri al-Samiri, Murtadha Makram), Website Extras 5 (Ali Mohsen Salih, Ali Yahya al-Raimi, Abu Bakr Alahdal, Tarek Baada, Abdul al-Razzaq Salih).

In a declaration submitted in the case of a Kuwaiti detainee, Fawzi al-Odah, Abraham delivered a damning verdict on the tribunal process, which he described as severely flawed, relying on intelligence “of a generalized nature –- often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status.” Additionally, he averred that the process was designed to rubber-stamp the detainees’ prior designation as “enemy combatants.”

In the four weeks since Lt. Col. Abraham’s affidavit first attracted media attention, he has been subjected to a snide response from officials at the Department of Justice, and a malignant attempt at character assassination by Andrew McCarthy in National Review. In an “Opposition to Motion to File Declaration” in the Court of Appeals for the District Court of Columbia Circuit on July 6, the DoJ described Lt. Col. Abraham’s affidavit as “irrelevant,” claiming that his “criticisms of the intelligence agencies and the process of obtaining information from them reflects (sic) a fundamental misunderstanding of how the CSRT process is supposed to work,” and suggesting that, although his declaration “insinuates that the CSRT process was improperly slanted, there is absolutely nothing in the declaration to substantiate this innuendo.” For his part, McCarthy railed against Abraham’s “scant experience,” claiming that he had a “lack of direct knowledge about the vast majority of tribunals,” and attempted to deride him for being a civilian lawyer as well as an Army reservist.

Rising above mudslinging, Stephen Abraham kindly provided me with details of his response to McCarthy’s article, which also serves as a riposte to claims made both by the DoJ and by Navy Lt. Cmdr. Chito Peppler, a Pentagon spokesman, who chipped in recently, saying that, “In his capacity as database manager during his brief stint on active duty several years ago, Lt. Col. Abraham was not in a position to have a complete view of all the evidence used in the CSRTs, as well as the process as a whole.” On the contrary, the period that Abraham served as a part of the CSRT process –- from September 2004 to February 2005 –- was the period when almost all of the 558 cases were presented before tribunals (and was, therefore, not a “brief stint” at all), and his role was far more substantial than the DoJ’s mentions of “innuendo” would suggest.

“I was assigned to OARDEC from September 2004 to the end of February 2005,” Abraham explained. “During that time, I was personally involved in a wide range of activities relating to the CSRT process. This included serving as one of two intelligence officers tasked with validating the presence or absence of exculpatory evidence, working with research teams (“tiger teams”) compiling materials to be used in the CSRT hearing process, addressing matters raised involving the use of intelligence products, collecting and reporting data on the conduct of all CSRT hearings at all steps (from scheduling, assembling hearing packages, starting, conducting, and completing hearings, reporting the results, legal sufficiency review, and ultimate reporting of the results to Secretary of the Navy Gordon England).” He added, “Moreover, I was engaged in senior leadership meetings, included in a large volume of daily communications regarding the progress of the hearings, and participated in nearly daily discussions with the legal staff assigned to OARDEC relating to the conduct of the hearings in the context of federal court decisions as they were issued or applied to the proceedings.”

In interviews conducted over the last month for a New York Times front page article on Monday, Abraham reiterated his complaints, telling William Glaberson, “What disturbed me most was the willingness to use very small fragments of information,” and explaining how he grew “increasingly uneasy” over the six-month period that he worked with the tribunals. He explained that intelligence reports often “relied only on accusations that a detainee had been found in a suspect area or was associated with a suspect organization,” and that some reports described detainees as “jihadist” without providing any details. Expressing his profound dissatisfaction with this latter point, he told Glaberson, “As an intelligence agent, I would have written ‘junk statement’ across that.” He added that officials were “under intense pressure to show quick results,” and that he swiftly became concerned about the quality of the material used as evidence. “The classified evidence,” he said, “was stripped down, watered down, removed of context, incomplete, and missing essential information,” and, worryingly, “Many detainees implicated other detainees, and there was often no way to test whether they had provided false information to win favor with interrogators” (or, it should, be added, whether they had done so under duress).

Despite the DoJ’s criticism, it seems that Lt. Col. Abraham’s principled stand has already had a major impact on issues of pressing concern to the detainees in Guantánamo, whose last three years imprisoned without charge or trial have been based on decisions made during the CSRT process. Just three days after his affidavit was filed, the Supreme Court took the almost unprecedented decision to reverse a previous opinion regarding the Guantánamo detainees, agreeing to hear an appeal arguing that the tribunals were unjust and that detainees should have the right to challenge the basis of their detention in federal courts. Many lawyers contend that Abraham’s affidavit was a major factor in the Supreme Court’s decision.

What has also emerged in the last month is the identity of the detainee who was cleared by Abraham and his fellow tribunal members in the only CSRT for which he was chosen as a member, after which, having refused to rubber-stamp a deeply flawed process, he was never asked to take part in a tribunal again.

The detainee in question is Abdul Hamid al-Ghizzawi, a Libyan who was 39 years old when he was captured in Afghanistan towards the end of 2001. Al-Ghizzawi had been living in Afghanistan since the Russians left the country in 1989, and had settled comfortably in his new home. Married to an Afghan woman, he had a six-month-old daughter, and ran a shop that sold bread and honey. When the US-led invasion began, he took his wife and daughter to his wife’s parents’ home in the country, to escape the bombing raids, but was abducted by some locals, who were seduced by American offers of free money for life, publicized through leaflets dropped from planes which stated, “You can receive millions of dollars for helping the anti-Taliban force catch al-Qaeda and Taliban murderers. This is enough money to take care of your family, your village, your tribe for the rest of your life –- pay for livestock and doctors and school books and housing for all your people.” Sold to the Northern Alliance, he was, in turn, sold to the US military, and made his way to Guantánamo via US-run prisons in Afghanistan, where the orders handed down to the interrogators by the military decision-makers based in Camp Doha, Kuwait, were that every Arab should be sent to Guantánamo.

The notorious US PsyOps leaflet offering Afghan villagers money for life in exchange for handing over al-Qaeda and Taliban suspects.

The story of what subsequently happened to Abdul Hamid al-Ghizzawi adds unprecedented weight to Stephen Abraham’s concerns, particularly about the administration’s obsession with confirming detainees’ “enemy combatant” status at all costs. Reiterating complaints made in his affidavit, Abraham told Glaberson, “Anything that resulted in a ‘not enemy combatant’ [verdict] would just send ripples through the entire process. The interpretation [was], ‘You got the wrong result. Do it again.’” Once the interfering intelligence officer –- and, presumably, his obdurate colleagues –- had been sacked, the administration convened a second tribunal for al-Ghizzawi, which duly found that he was an “enemy combatant” after all. Over two years later, he remains in Guantánamo, suffering from hepatitis ‘B’ and, possibly, liver cancer, and reportedly the victim of malingering on the part of the medical staff, because he refuses to admit that he was a terrorist and not a shopkeeper.

Although al-Ghizzawi’s case demonstrates, succinctly, Stephen Abraham’s assertions about the authorities’ reliance on vague and unsubstantiated evidence and the ruthless pursuit of verdicts confirming the detainees’ status as “enemy combatants,” his is only one of several cases in which CSRTs were reconvened after dissenting tribunal members had made decisions that were unpalatable to the administration.

In the cases of 18 Uyghur detainees (Muslims from an oppressed outpost of the People’s Republic of China), who were captured on the Pakistani border after fleeing a run-down hamlet in the Tora Bora mountains, where they had been living for several months until it was destroyed in a US bombing raid, the CSRTs determined that –- although their stories were almost identical –- some were “enemy combatants” and others were not. Five of the men were released in May 2006 (and sent to a UN refugee camp in Albania, because the administration had fears for their safety if they returned to China), but the others remain in Guantánamo, and two of them, Anwar Hassan and Hammad Mohammed, went through a process remarkably similar to that of Abdul Hamid al-Ghizzawi.

Cleared by a CSRT, Hassan was subjected to a second tribunal, on the orders of Matthew Waxman, the Deputy Assistant Secretary of Defense for Detainee Affairs, when he too had his status indiscriminately revised. His lawyers, Angela Vigil and George Clarke, noted that, “[c]ontrary to the government’s suggestion,” the change of determination between the first and second CSRTs was not based on “additional classified information,” (of which there was none) but seemed, instead, to have been based solely on “communications” from Matthew Waxman “pressing for [a] reversal” of the first CSRT determination.

Ahmed Adil, Adil Abdul Hakim and Abu Bakr Qassim, three of the Uyghurs released from Guantánamo, speaking to the BBC from their new home in Tirana in January 2007.

Sabin Willett, a lawyer who represents six of the Uyghur detainees, recently told me that his interest –- and that of other lawyers –- in Abraham’s revelations was “no academic quibble on our part.” Citing just a few cases –- those of Haji Bismullah, an Afghan, and the Uyghurs he represents, whose cases were chosen for the DoJ’s response to Abraham’s affidavit –- Willett explained, “We now know there was a massive amount of exculpatory evidence. Senior Afghan officials provided detailed evidence to US generals showing that Bismullah, a US ally, had been the victim of intertribal grievances.” He added, “Military officials told our Uyghur clients they were innocent in 2003, before there were CSRTs. So getting the exculpatory evidence in front of the panels seems more than trivially important.”

Willett is undoubtedly correct. With the Court of Appeals for the District of Columbia Circuit ruling on Friday that the government must hand over “classified” information relating to the detainees, and the Supreme Court due to start reviewing their rights in the fall, there is certainly nothing trivial about the plight of Abdul Hamid al-Ghizzawi, the discrepancies in the status of the Uyghur detainees, or the exclusion of exculpatory evidence relating to an Afghan ally who was shopped to US forces by a rival who knew that they would fail to investigate the background to his story, and there are, moreover, many other cases in Guantánamo with eerie similarities to the stories mentioned above.

I leave the final word to Stephen Abraham, who first wrote to me three weeks ago, in response to my article in which I had also mentioned other insiders who had criticized the tribunal process (though not in public). “While I was and continue to be constrained in terms of what can be said,” he wrote, “your article very well pointed out issues that permeated the entirety of the process and, more fundamentally, highlighted the degree to which so many panels (or majorities) were unwilling or unable to peer below the veneer of the evidence.” He added, “There were few instances where the validity of the information was questioned; rather, the presumption was that information, whether detailed or summarized, no matter what the source, was valid, and in the face of which not even denials carried much weight.”

As the Guantánamo story rolls on to the Supreme Court once more, many dozens of detainees –- in addition to Abdul Hamid al-Ghizzawi, Haji Bismullah and the Uyghurs –- will be grateful that Stephen Abraham had the courage to step forward to highlight the “junk statements,” “generic” intelligence and bullying that characterized the tribunals in Guantánamo.

***

A footnote to Andrew McCarthy’s National Review article concerns his assertion that the 93% “conviction” rate in the CSRTs –- 520 out of the 558 cases considered –- compares favorably with the DoJ’s overall conviction rate on the US mainland in 2004: 90% out of 83,391 cases. If the Guantánamo results were fair, this statistical analysis could be applauded, but the truth is that, in addition to the 38 detainees released through the CSRTs, 201 detainees were released before the CSRTs began, 169 more have been released through the annual reviews that followed them (the Administrative Review Boards, or ARBs), and, according to figures divulged by J Alan Liotta, the director of the Office of Detainee Affairs in the Department of Defense, another 225 are eligible for release. That’s a rather less respectable 19% “conviction rate”, which becomes even less acceptable with the realization that, of the remaining 144 detainees, only 80 are scheduled to be tried by Military Commissions and the remaining men are in an extra-legal limbo, considered too dangerous to be released, but not dangerous enough to be tried (another arrant novelty conjured up by an administration bent on replacing laws with half-baked and indefensible propaganda).

For more on Guantánamo, the stories of the Uyghurs and the tribunal process, see my book 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). To receive new articles in your inbox, please subscribe to my RSS feed.

As published on the Huffington Post.

See the following for a sequence of articles dealing with the crucial testimony of Lt. Col. Stephen Abraham and other Guantánamo whistleblowers: Guantánamo whistleblowers: Lt. Col. Stephen Abraham is not the first insider to condemn the kangaroo courts (July 2007), Guantánamo: more whistleblowers condemn the tribunals (August 2007), A New Guantánamo Whistleblower Steps Forward to Criticize the Tribunal Process (October 2007), Guantánamo whistleblower launches new attack on rigged tribunals (November 2007), Guantánamo and the Supreme Court: the most important habeas corpus case in modern history (December 2007), Guantánamo and the Supreme Court: What Happened? (December 2007), Guantánamo whistleblower Stephen Abraham addresses European Parliament (March 2008), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), An interview with Guantánamo whistleblower Stephen Abraham (Part One) (December 2008), An interview with Guantánamo whistleblower Stephen Abraham (Part Two) (December 2008), Guantánamo: Lies, Damned Lies and Statistics (February 2009).

For a sequence of articles dealing with the Uighurs in Guantánamo, see: Guantánamo’s Uyghurs: Stranded in Albania (October 2007), Former Guantánamo detainee seeks asylum in Sweden (November 2007), A transcript of Sabin Willett’s speech in Stockholm (November 2007), Support for ex-Guantánamo detainee’s Swedish asylum claim (January 2008), A Chinese Muslim’s desperate plea from Guantánamo (March 2008), Former Guantánamo prisoner denied asylum in Sweden (June 2008), Six Years Late, Court Throws Out Guantánamo Case (June 2008), Guantánamo as Alice in Wonderland (July 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), A Pastor’s Plea for the Guantánamo Uyghurs (October 2008), Guantánamo: Justice Delayed or Justice Denied? (October 2008), Sabin Willett’s letter to the Justice Department (November 2008), Will Europe Take The Cleared Guantánamo Prisoners? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), Guantanamo’s refugees (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), and the stories in the additional chapters of The Guantánamo Files: Website Extras 1, Website Extras 6 and Website Extras 9.