As Jason and I have spoken about repeatedly, the story of Abu Zubaydah is one of the most crucial in the “War on Terror.” Zubaydah was seized in Pakistan in March 2002, and flown to a secret prison in Thailand, where he was the first victim of the Bush administration’s “high-value detainee” torture program. Subsequently held in other locations, including Poland, he was finally sent to Guantánamo in September 2006, along with 13 other “high-value detainees,” including Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks.

In the five years since the transfer of the “high-value detainees,” almost every attempt to officially pierce the veil of secrecy surrounding these 14 men — and two others transferred to Guantánamo in 2007 and 2008 — has been resisted, first by the Bush administration, and, since January 2009, by President Obama.

With all the Guantánamo prisoners, every discussion between the prisoners and their lawyers is presumptively classified, but many have been at least partly unclassified after undergoing a review process. With the “high-value detainees,” however, everything remains presumptively classified, and the only reason we know anything specific about what happened to them is because representatives of the International Committee of the Red Cross were allowed to interview them after their arrival at Guantánamo, and a highly critical report (PDF) that they then submitted to the Bush administration, containing excerpts from the interviews and detailed analysis of the prisoners’ statements, was leaked to the New York Review of Books in 2009.

In his latest article about Abu Zubaydah for Truthout, Jason Leopold has focused on the self-serving absurdity of the government’s classification system when it comes to the “high-value detainees,” explaining how ten drawings that Abu Zubaydah made, showing his torture, are also subjected to this system of over-classification. I’m cross-posting it below, in the hope that it will attract additional readers, as it explains clearly how the purpose is to shield the Bush administration’s torturers from scrutiny, which, of course, is shameful and illegal.

For the article, Leopold spoke to Alex Abdo, a staff attorney with the ACLU, who pointed out that it was “deeply troubling that the government continues to censor the best evidence of detainee abuse,” and also provided the following succinct analysis of why the censorship of the “high-value detainees” is so unjust:

[The government] has destroyed 92 videotapes of CIA interrogations, suppressed 2,000 photographs of abuse throughout Afghanistan and Iraq, and even classified the detainees’ own accounts of their mistreatment at proceedings in Guantánamo. This selective suppression of evidence has allowed the government to perpetuate the myth that the abuse of detainees was aberrational, when it was, in fact, the result of policy decisions made at the highest levels of our government.  And it allows advocates of torture and mistreatment to obscure the truly horrific nature of the mistreatment authorized by the Bush administration.

However, the most important part of the article, to my mind, is what Brent Mickum, Abu Zubaydah’s attorney, had to say about the gagging of his client, which is so sweeping that it includes any reference to publicly available information, such as his statements to the International Committee of the Red Cross. Leopold writes:

Mickum said Roberts’ order and the secrecy surrounding Zubaydah’s drawings deprives his client of a “voice” and allows former Bush officials, including former Vice President Dick Cheney, to control the narrative about Zubaydah’s treatment and the efficacy of his torture.

“One of the great frustrations that we as Zubaydah’s defense counsel have faced is the inability to tell his story,” Mickum said in an interview. “That inability is brought about by two things: one, the government’s misuse and improper use of the classification system to essentially muzzle our client and his attorneys to prevent  telling his side of the story. And the other is the unwillingness of the district court to make decisions on motions that have been fully briefed, in some cases, for almost three years. These include motions to declassify his diaries. In the final analysis, nothing that my client says, draws, or writes is classified. The government is using this as a ruse because they are embarrassed and don’t want this information to be revealed.”

Jason’s article is below. I hope you have time to read it, and will share it if it reveals to you — or confirms to you — how muzzling torture victims is being used by the government to protect the Bush administration from accountability for its actions.

CIA: Zubaydah’s Torture Drawings, Writings, “Should They Exist,” to Remain Top Secret
By Jason Leopold, Truthout, October 5, 2011

In 2002, not long after he was subjected to so-called “enhanced interrogation techniques” by Bruce Jessen and James Mitchell, psychologists under contract to the CIA, high-value detainee Abu Zubaydah made about ten drawings depicting the torture he endured while in custody of the agency.

One of the drawings Zubaydah had sketched captured in incredible detail the waterboarding sessions he underwent. Another drawing showed him being chained by his wrists to the ceiling of a CIA black site prison where he was held and another showed him strapped to a chair and being doused with water as part of a sleep deprivation program, according to two counterterrorism officials who have seen Zubaydah’s drawings.

Zubaydah drew the pictures of the torture techniques he was subjected to on a sheet of paper measuring about 8 x 11 inches and on pieces of paper about the size of an index card. In some instances, Zubaydah drew several of the torture techniques on a single piece of paper.

Zubaydah’s “artwork is very detailed right down to the straps that were used when he was on the waterboard and almost looks like a photograph,” said one of the counterterrorism officials, who requested anonymity in order to discuss classified material.

Brent Mickum, Zubaydah’s attorney, previously told Truthout that in the absence of the 92 interrogation videotapes, which the agency destroyed, the drawings Zubaydah made contain the best description of the torture techniques used against him while he was being held at the agency’s black site prison facilities.

“These are a good group of drawings and he is a pretty good artist,” Mickum told Truthout last year. Mickum said he is prohibited from discussing the contents of Zubaydah’s drawings because it remains classified. However, he said,  “the depictions would be of interest” and agreed that Zubaydah “can draw and with great detail.”

Additionally, Zubaydah wrote poetry, short stories, and articles while in CIA custody. The content of his writing, however, is not known.

But the CIA, which maintains the “enhanced interrogation techniques” interrogators used on Zubaydah were “safe” and “legal,” refuses to release any of his drawings or writings and won’t even acknowledge that those materials  actually exist. If Zubaydah’s drawings and writings do exist, the CIA said, it would be part of the agency’s “operational files,” which means “records and files detailing the actual conduct of [CIA's] intelligence activities.”

The CIA made that disclosure in two separate responses to requests Truthout filed with the agency seeking a Mandatory Declassification Review (MDR) of Zubaydah’s drawings and writings. An MDR is a procedure under a section of an executive order signed by President Obama (which replaced a similar executive order signed by former President Bush) that allows the public to seek the declassification review of specific classified material.

“We have conducted a thorough review of your request and have determined that responsive records, should they exist, would be contained in operational files,” states a September 21 letter Susan Viscuso, the CIA’s information and privacy coordinator, sent to Truthout in response to an MDR request related to Zubaydah’s drawings.

In response to Truthout’s MDR request related to Zubaydah’s writings, Viscuso said in a letter dated September 28 that those materials, “should they exist,” would be “contained in properly designated CIA operational files” and are also exempt from FOIA searches, reviews, and “disclosure requirements.”

A section of “the CIA Information Act, as amended,” Viscuso said, “exempts operational files from the search, review, publication, and disclosure requirements of the Freedom of Information Act (FOIA).”

The revised regulations still says “declassification review requests will not be accepted … for any document or material containing information contained within an operational file …”

Alex Abdo, a staff attorney with the American Civil Liberties Union’s (ACLU) National Security Project, said, “it is deeply troubling that the government continues to censor the best evidence of detainee abuse.”

The government “has destroyed 92 videotapes of CIA interrogations, suppressed 2,000 photographs of abuse throughout Afghanistan and Iraq, and even classified the detainees’ own accounts of their mistreatment at proceedings in Guantánamo,” Abdo said. “This selective suppression of evidence has allowed the government to perpetuate the myth that the abuse of detainees was aberrational, when it was, in fact, the result of policy decisions made at the highest levels of our government.  And it allows advocates of torture and mistreatment to obscure the truly horrific nature of the mistreatment authorized by the Bush administration.”

The ACLU’s FOIA lawsuits against the Bush and Obama administrations related to the treatment of detainees at Guantánamo Bay and in Iraq and Afghanistan prisons has resulted in the release more than 100,000 pages of secret government documents.

Last month, the CIA revised its MDR regulations “to more clearly reflect the current CIA organizational structure and policies and  practices, and to eliminate ambiguous, redundant and obsolete regulatory provisions.”

Judge Silences Zubaydah

However, it’s not just Zubaydah’s drawings that the government wants to keep secret. In a four-page order issued earlier this year, US District Court Judge Richard Roberts, who presides over Zubaydah’s habeas corpus case, issued an order that said that any statements Zubaydah has made to his attorneys describing the torture he endured must remain classified and cannot be revealed publicly in court filings. Zubaydah has given his attorneys a signed declaration totaling about 15 pages detailing the torture he was subjected to during his imprisonment at CIA-run prisons.

Roberts’ order was issued in March, in response to a motion Zubaydah’s legal team filed nearly two years earlier that accused the government of “improper classification” of documents that included statements Zubaydah made describing “the interrogation techniques inflicted upon him while in CIA custody … other personal knowledge of his experience within the CIA Torture and Rendition Program and … statements made by [Zubaydah's] counsel based upon information that is found within the public domain.”

Roberts said Zubaydah’s legal team, in seeking to have Zubaydah’s statements related to his treatment declassified, was essentially trying to bring “a FOIA challenge in the midst of a habeas petition.”

“The government must provide petitioner’s counsel, not the public at large, with classified information unless the government moves for an exception to disclosure,” Roberts wrote.

In 2007, during an interview with the International Committee of the Red Cross (ICRC), Zubaydah described in detail how CIA interrogators tortured him, which included placing him in a “confinement box” and repeatedly slamming his head against a wall. The interview with the ICRC was part of a confidential report on the treatment of 14 high-value detainees in custody of the agency. Journalist Mark Danner obtained the ICRC report and published a lengthy story in the New York Review of Books detailing the detainees’ statements about their torture.

Still, Roberts’ order means that anything Zubaydah says or writes or has said or written that has not been officially approved for disclosure by the government is classified and that applies to his interview with the ICRC.

Mickum said Roberts’ order and the secrecy surrounding Zubaydah’s drawings deprives his client of a “voice” and allows former Bush officials, including former Vice President Dick Cheney, to control the narrative about Zubaydah’s treatment and the efficacy of his torture.

“One of the great frustrations that we as Zubaydah’s defense counsel have faced is the inability to tell his story,” Mickum said in an interview. “That inability is brought about by two things: one, the government’s misuse and improper use of the classification system to essentially muzzle our client and his attorneys to prevent  telling his side of the story. And the other is the unwillingness of the district court to make decisions on motions that have been fully briefed, in some cases, for almost three years. These include motions to declassify his diaries. In the final analysis, nothing that my client says, draws, or writes is classified. The government is using this as a ruse because they are embarrassed and don’t want this information to be revealed.”

Meanwhile, former CIA general counsel John Rizzo confirmed long held suspicions that some of the interrogation videotapes the agency destroyed in 2005 showed Zubaydah being subjected to waterboarding, an admission that fuels speculation the tapes were destroyed to cover up illegal acts, not because the tapes were no longer of any intelligence value, as current and former agency officials have claimed.

“We had a representative in my office early on to review all of the tapes, and he came back, did a report,” Rizzo said during an interview with the PBS news program Frontline. “I also spoke to him in some depth about it, and he made it clear that there were portions of the tapes that clearly showed Zubaydah being waterboarded.”

John Durham, a federal prosecutor from Connecticut who was appointed special counsel by former Attorney General Michael Mukasey to investigate the tape purge, concluded his probe last year without bringing any charges against former CIA officials involved in the destruction. Durham had obtained Zubaydah’s drawings from the government during the course of his investigation, but it’s unclear if Durham used [them] to assist his probe.

Last year, as Truthout first reported, the government, in a federal court filing in Zubaydah’s habeas case, backed off of every major claim the Bush administration had made about him after he was captured in Pakistan in March 2002, stating that their “understanding of [Zubaydah's] role in terrorist activities has … evolved with further investigation.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

Guantánamo has become largely forgotten by those who should be alarmed at what its continued existence reveals about America’s humanity and sense of justice, but who, in all too many cases, are misled by their media and by the senior Bush administration officials who are still allowed to continue defending their dreadful policies and criminal activities in public, even though they should be held accountable for their part in implementing torture.

For Esquire this month, Tyler Cabot, an editor at the magazine, has profiled Noor Uthman Muhammed, otherwise known as Prisoner 707, a Sudanese prisoner who was subjected to a trial by Military Commission at Guantánamo in February this year, as I explained in my article, “Hiding Horrific Tales of Torture: Why The US Government Reached A Plea Deal with Guantánamo Prisoner Noor Uthman Muhammed.” The military jury in Muhammed’s case gave him a 14-year sentence, although he is only supposed to serve 34 months as the result of a plea deal, but such is the injustice at Guantánamo that it is by no means certain that he will actually be released.

Cabot’s connection to the case is through his father, Howard Cabot, a corporate lawyer who, to his son’s immense surprise, ended up working on Muhammed’s case. With the assistance of the Pulitzer Center on Crisis Reporting, an organization that supports journalism on underreported topics, Cabot wrote “Stories My Father Told Me,” a feature on his father, and his involvement in Noor Uthman Muhammed’s case, for the June 2009 edition of Esquire, and he also reported on Muhammed’s trial in February this year, in two blog posts for Esquire (here and here).

I recommend all of the above, but with his latest article, “The Prisoners of Guantánamo,” Tyler Cabot has issued an accomplished, important and timely reminder about the ongoing injustice of Guantánamo through a thorough analysis of Muhammed’s story and of the terrible and unjustifiable position that America has found itself in ten years after the 9/11 attacks, and nearly ten years after Guantánamo opened.

Cabot not only tells, with some sensitivity, Muhammed’s own back story, but also the story of the Khalden training camp, where he was a trainer and then a quartermaster under Ibn al-Shaykh al-Libi [described as Ibn Sheikh al-Libi], later a notorious CIA “ghost prisoner,” how the camp was closed when al-Libi refused to bow to pressure from Osama bin Laden to bring all the camps in Afghanistan under al-Qaeda control, and Muhammed’s capture in Faisalabad in March 2002 with Abu Zubaydah, the supposed “high-value detainee,” who was in fact Khalden’s mentally damaged gatekeeper.

Cabot does an excellent job of creating sympathy for Muhammed, explaining how, at Khalden, where he disliked being a trainer and preferred instead to look after the supplies, and to cook, he was nothing but a minor player in a camp that was primarily associated with defensive jihad — or, as he stated at Guantánamo during is Combatant Status review tribunal in 2004, Khalden was “a place to get training” that had nothing to do with either al-Qaeda or the Taliban. “People come over to that camp, train for about a month to a month and a half, then they go back to their hometown,” he said, adding that what the people did with the training they received was their own business.

Moreover, at the end of the account of Muhammed’s journey from Sudan to a trial by Military Commission, Cabot sums up the baleful legacy of Guantánamo in a handful of powerful passages, which I include below, and which I hope will reverberate powerfully with any Esquire reader who is not knowledgeable about Guantánamo:

There was a time, early in the “war on terror,” when word came from the highest levels in Washington that Guantánamo was to be the preserve of the “worst of the worst.” This was obviously never true, but it’s not until now that we know it. And not before surrendering to fear and abandoning the rules of evidence and the value of due process and eroding the foundation of the rule of law itself. The truth is that most of the 779 men who wound up at Guantánamo were like Noor — low-level, rather inconsequential, possessed of nothing useful to the United States nor posing any particular danger. In fact, people close to the team that prosecuted Noor quietly even voiced sympathy for him, describing him as “one of life’s losers.”

It is a strange population, the 171 men still left at Guantánamo. There is Khalid Sheikh Mohammed and another two dozen hardened militants, who will never be released. This class of prisoner represents a small minority of the population. Then there are the others — about a hundred men, mostly Yemeni, who have been cleared to leave but have no place to go, as no country will take them. And there are another thirty-five or so like Noor. They are nameless, low-level operatives, or hapless men who were in the wrong place at the wrong time. They are the detritus of a decade-long war. They can’t simply be released. That would be admitting that they aren’t as bad as the government once said they were. And most can’t be tried, either, because much of the evidence against them — if there is any — is too fraught, as it was gotten by torture, and would never have even been considered to be evidence in any American judicial proceeding before September 11, 2001.

The Prisoners of Guantánamo
By Tyler Cabot, Esquire, September 2011

After a decade, it’s hard to tell who the captives are — us or them. Here, we follow Prisoner 707 to find out how the unlucky men got to the island prison, and whether it’ll ever be possible for us all to leave.

A man is born in the 1960s, but in the wrong place. His life is untouched by modernity, and in fact the people who live where he lives — mostly nomads or goatherds or subsistence farmers — carry on as they have for a thousand years. Compared even with the people in this arid Sudanese borderland west of the Red Sea he is poor. He is illiterate, can’t even tell you when he was born, and after his parents die when he is a child, he doesn’t think to ask why. It’s simple: People don’t live long, and then they die. The movements of his life are dictated by elemental concerns — what to eat, where to sleep. He collects what he finds and trades what he can — sticks, cardboard, tattered robes, tires. And when your abiding interests are so basic, you likely don’t have time for something so luxurious as a personal history or self-regard. He makes no claims for himself, possesses nothing resembling the Western notion of ambition. He has no conception of the outside world — knows little of Europe, has barely heard of America, doesn’t have the frame of reference even to conceive of a signal bouncing off a star and sending a picture or someone’s voice around the world. By the standards of the late twentieth century, or of any century, really, he is one of the unlucky men. Maybe God will provide something a little better in heaven, inshallah.

And then something most unexpected happens. Improbably, the unlucky man encounters the United States of America and becomes subject to the full might of the mightiest, most consequential power the world has ever known. His life will be changed forever, to be sure. But what one could never have imagined is that the man — not much more than a peasant in rags, after all — would become the very essence of what our mighty country fears the most. What one could never have imagined is that the peasant in rags would change the United States as much as the United States changed him.

*****

Today, nine years after he arrived on the island, Noor Uthman Muhammed is a whiff of a man. His orange prison jumpsuit hangs on his slight body. His cell is new. Until recently, he had been charged with no crime, and he’d lived for the past few years communally. He had a cell where he was locked up at night, but by day he could wander through the block, talk with the other brothers, watch one of the large TVs bolted to the wall, wash his white robe himself, and hang it on the railing to dry. Today, as a convicted war criminal, he lives on a cell block with three other men. They are the men whose cases have gone before military commissions at Guantánamo. Enter his cell and to the right there are a stainless-steel toilet and sink bolted to the wall. The toilet has no seat, the sink no knobs. Across the tiny concrete room, almost close enough to touch from the toilet, is a platform that extends up from the floor and out from the wall. It is topped by a thin blue foam mattress where at night he closes his eyes and dreams.

After his parents died, Noor didn’t have a place to sleep. He was passed from aunt to brother to uncle, hut to hut to hut. He slept where he could, ate what he could find or trade for. This didn’t change when, after one drought or famine too many, the family moved far from the town where he was born, Kassala, eventually landing in the city of Port Sudan. From above, the port looks like the lucky half of a broken wishbone, narrow and straight where the Red Sea first breaches land, then curving up and around the asphalt roads, tan government buildings, and colonial settlements of Main Town, built by the British in 1909. Yet as the channel curves farther west toward the Nile and the desert beyond, signs of civilization ebb. Roads turn to dirt, electricity lines vanish, running water is replaced by mule-drawn water tanks. Here in Deim al-Nur and the slums of Tata and Al Qadsiya, the low jerry-rigged dwellings are similar to the huts Noor lived in as a young boy, except instead of branches and twigs, some are made of empty food-aid sacks, tin, salvaged cloth, plastic bags. Many of the residents are former shepherds and nomads. Now they are dockworkers, carpenters, junk collectors, prostitutes.

Noor had no skills and no education, so he did what he could do best. He scavenged. Wood, old sandals, broken wheels, anything he could find that might be of some value to somebody he brought to the market to trade. There were dozens of corrugated-metal-and-plastic booths selling bags of spices and piles of bananas, meat, and fish. At night he looked for a corner of a hut or lay down in the dirt outside. He had a small cupboard, his one solid possession, where he kept his clothes and Koran. He was alone. Even around family, he didn’t talk or socialize. He had a mind full of fears and ideas he wouldn’t share.

It’s the same in Guantánamo. He doesn’t like talking about his past, refuses even to look at the recent pictures from his brother or write letters to his family. There was one letter conveyed by the Red Cross, and that was all. Noor had been engaged to marry his cousin, and he wanted to release her to marry someone else, as he wasn’t sure he’d ever be going home. For a boy from Kassala, Noor traveled a long way, and then he just vanished from the face of the earth. Now at least they know where he is, but he doesn’t want to worry them, doesn’t want to raise their hopes, and for years didn’t want to burden them with a singular hell — the prospect of being imprisoned for life but charged with no crime. “Please pray for me,” he wrote in his only letter home. “I am being held by the Americans.”

Also, he wants to remember all of them as he knew them when he was a boy, before he knew anything about America, before his name was spoken at the White House. When people ask about his childhood, whether it be interrogators, lawyers, or investigators, his face goes dark. He sits way back in his white plastic chair under the fluorescent lights, so far that he looks as though he’ll fall over, his lips tightened and wide, his eyes dead.

*****

In 1992, Noor was about twenty-five. He had never been very religious, but he started talking to some of the men in the market about Islam. Port Sudan is almost directly across the Red Sea from Jeddah, Saudi Arabia, so most African Muslim pilgrims pass through here on their way to Mecca. Because Noor couldn’t read, the men gave him audiotapes of sermons, and later they showed him films. There were murdered Muslim women and children in the films, bloody and broken. They need help, Noor was told. The men told him about the mujahideen, the heroic brothers who were protecting these Muslims. They were doing Allah’s work. They were fulfilling their obligation to wage defensive jihad. And they told him that he, too — even Noor — could be a hero and make something of his life.

Decisions and choices and circumstances can push and pull a life in unexpected directions. You can wake up in a cell and not quite understand how the door got locked behind you.

Noor wanted a way out of the bleakness of his life. Having a larger purpose sounded good to him. Having a job sounded better. He took a $700 loan from a local cattle trader and left.

*****

Three black office chairs behind three microphones in a double-wide trailer. The chair in the middle is taller, wider, made of padded leather. This is where the tribunal president sits. Behind him there is a two-way mirror, about four by six feet. Behind that? Impossible to know. A translator? An intelligence analyst? Guards wearing desert camouflage? There is a small American flag hung flat above the mirror, an AC unit poking through the wall on the right.

Perpendicular to where the tribunal sits is a small off-white table with two cheap vinyl chairs that look like they belong around a kitchen table. This is where the recorder sits. Directly across, against the back wall, is another chair. It is made of white molded plastic. No cushion, nothing detachable, no materials that could be used for other means. This is where the detainee sits. Detainee, the word itself, it must be noted, is one of the great Orwellian inventions of the past decade. A word that would have had great meaning to Solzhenitsyn, meant to describe a prisoner for whom, for a variety of good and terrible reasons, a suitable judicial system cannot be found. A “prisoner” knows his fate. A “detainee” just lingers.

And so the detainees pass through like ghosts, their stories flickering for minutes, before they are shuttled back to the cells. The Algerian accused of planning an explosives attack against the U. S.: “I just want to defend my case. It is a false accusation against me and I just want to clarify it.” The Brit who demands rights under international law: “So the government evidence has been classified?” The Tunisian who offers his hands as literal proof that he is innocent: “How could I have trained? If you look at my hands, I am injured. My hand is only 35 percent functional.”

It is July 2004 and there are roughly six hundred men at Guantánamo but no legal system for distinguishing between the relative few true militants and the misbegotten. The government is still gathering evidence, all questions of justice and due process put on hold by the imperatives of war. The purpose of these primitive tribunals is not adjudication but rather compliance with the Supreme Court’s order that the detainees have at least some means of challenging their imprisonment.

Noor is led up the trailer stairs and through the door. He slowly lowers himself into the white plastic chair. He is weak and moves far more slowly and with more caution than a man his age should. He arrived two years earlier, in August 2002. His body has begun to slip away, weakening, aching.

“Do you understand why we are here?” asks the tribunal president, an Air Force colonel. He is pleasant and very concerned with procedure.

“Yes, I understand why we are here.” Noor’s answer is translated from Arabic into English, then played back to the military officers in the room. They wear no name badges, their identities concealed to protect them from the shackled man before them.

“Do you understand that you do not have to provide us any statement, but you may if you wish?”

Yes, Noor understands. Directly in front of his chair a steel eyelet and lock protrude from the green-gray office carpeting. Across the room, on the back wall, is a red panic button.

The unclassified evidence is read for the record. If Noor wants to go home to Sudan, his chance is now. He must convince the people before him that he is not who they think he is. He is not dangerous, he is just a man who was lost for a while but does not want any trouble. There are no lawyers present — as no lawyer has yet been assigned to the case or allowed to meet him. Noor must make the case himself.

The detainee delivered an electronic communication machine, possibly a facsimile machine, to Osama bin Laden.

“I did not see bin Laden, nor did I meet him,” Noor says. “As far as the facsimile, I wanted to buy that facsimile for myself.”

The detainee corresponded with a senior Al Qaeda lieutenant concerning the potential closing of Khalden camp.

“What happened was this,” he begins. He is trying to explain that he didn’t know anything. The camp was run by the sheik’s son and Abu Zubaydah, he says. “The rest of the trainers … we just simply follow what they have to say.”

The detainee was the “70th Taliban Commander.”

“Again, I don’t know anything about the Taliban,” he says. “I never carried arms with them. I don’t know anything about the Taliban. I am not even convinced of the Taliban, so how do you associate me with the Taliban?”

How do you reason with captors who don’t understand where you’ve been, what you’ve seen? How do you tell a captor you’re innocent when everything in your file says that you’re a terrorist?

The detainee worked as a weapons instructor on the use of the AK-47, PK, and RPG at the Khalden camp.

“All I trained on was the Kalashnikov, the light weapons. I trained for a period of three months only … That’s all I did.”

The detainee provided logistics support at the Khalden training camp.

“I want to tell you something,” says Noor. Here it is. The point that will finally make them understand, his chance to finally get through.

“I used to bring the rice, and all the required food, vegetables,” he says. “That’s all I was doing. Sugar and other things, I would get for cost, take it to the camp or somewhere else.”

The faces stare back at him, his words met with silence.

One tribunal member leans toward his mic: “Just had one clarifying question. At one point you said you don’t know anything about the Taliban, and you’re not even convinced of the Taliban. What do you mean by that?”

It is not a complicated question. “I am not convinced with their cause or with the Taliban,” answers Noor.

The tribunal member is incredulous. “You’re not convinced they even exist, or what?”

Noor stares back. “Everything that you want to do in life, you want to be convinced of what you’re doing. When it comes to the Taliban, even scientists go against each other. Everybody sees it a different way.”

The guards close their fingers over his frail wrists and help him down the trailer stairs and back through the tropical humidity to his cell. Noor doesn’t understand much from the proceedings, but he understands enough to know that he will never leave Guantánamo.

*****

He didn’t tell his brother or sister or uncle what he intended to do. He simply told them he was going to Khartoum to study. Once there he boarded a Kenya Airways jet — likely the first plane he’d ever seen up close, let alone flown in — and hopscotched southeast to Nairobi, then on to New Delhi. In that swarming city of foreign faces, he switched to the train, 250 miles to Lahore, Pakistan, then another 250 miles to Peshawar. The journey took him two years. What Noor did in those two years — did he travel by train or truck, foot or mule? Did he stop to work or study, to rest and pray? — is hard to know. But as the Soviets had been routed from Afghanistan just a few years before, the CIA still thought of the mujahideen fondly, and global jihad was as yet only notional — nothing he did would have put him in conflict with the United States.

On an unremarkable day in 1994, in a border town in Pakistan, Noor arrives at a safe house. There is a clear system for entering a jihadi training camp. Noor offers the proprietor of the safe house a letter of introduction, likely from one of the men in the market in Sudan. The proprietor asks Noor a series of questions. Who do you know in Port Sudan? Why did you come here? How did you travel? Nervous and scared, Noor answers all the questions. He passes the test; his future ticks forward further. He enters the house and another exchange takes place. He is given a traditional salwar kameez, the dress worn by both women and men, and a letter. In return he offers his Sudanese passport and his name. From here forward he will be known as Farouk and Akrima and Zamir. A new kunya every few years, but never Noor. Noor is the past. The past is gone.

A guide takes Noor to the Afghan border. Early in the morning the guide walks him through, past the Pakistanis standing guard — straight, don’t stop or ask questions — and into the mountains of Khost. They rise tall and black, then settle into brown hills, then eventually into beautiful green valleys. In just such a valley sits the camp. It is called Khalden and has been here since at least 1988, when Arab mujahideen built it to train for their fight against the Soviet empire. The Soviets eventually left Afghanistan, but Khalden and the mujahideen stayed. They still had weapons, they still had American tactical manuals, and they still had Muslims to protect — from the communist Najibullah in Afghanistan, from madmen in Bosnia, and from the Russians again, this time in Chechnya.

Khalden is the size of one and a half football fields. There is a brick mosque with a metal roof and a small shack made of stones and topped with leaves and plastic sheeting, where food is cooked. The barracks have earthen floors. On the far side is a classroom with a blackboard, the surrounding mountain walls used for target practice, the caves used for storing munitions and baking bread. There is one water source, the river. Candles, gas lamps, and fire the only means of light and warmth. Noor is given a filthy sleeping bag that previously was used for transporting the bodies of brothers killed in battle. But he is filled with great pride. He has made it, he is now a brother.

His first day begins with formation. There are many men here. Yemenis and Algerians and Chechens and Saudis. At any time there can be anywhere from fifty to seventy men. They come for different reasons. Some to return home to fight, others hoping to move up to another camp where they can learn more advanced skills, and still others like Noor who are just looking for something to do. They come not to fight but to escape. (Every so often a group of rich Saudis roll through for a week or two, not to train but rather so they can tell everyone back home they shot guns at a mujahideen camp.) In the morning these men stand together united as brothers as the camp’s emir, Ibn Sheikh al-Libi, leads formation. Then they divide into groups, the Chechens with other Chechens, the Jordanians with other Jordanians, and so forth.

The men train physically, they run for hours through the mountains, they learn how to crawl and surveil and bury their secrets. Their muscles grow and their heels and palms become callused. In the classroom they are quizzed on tactics, how to spot a target, how to evade an attack. There is small-arms training, handguns, assault rifles, machine guns. They shoot at the mountainside, learning how to peer through a scope, how to exhale as they squeeze the trigger. The more advanced students are broken down into smaller groups and given explosives training — how to lay dynamite, how to install a trigger in a ball of C-4, how to plant a bomb. At night there is Islamic study. Someone might give a sermon or teach a lesson or urge the brothers to help push the Israelis out of Palestine.

There are many different philosophies on jihad. The men who run this camp subscribe to defensive jihad, the idea that all Muslims have an obligation to protect themselves and other Muslims from attacks. Their camp is not a Taliban camp or an Al Qaeda camp. It is independent. The men come here to learn basic skills. What they decide to do with them when they leave is their concern.

Most of the men stay for weeks, three to four months at most, then they head back to their home countries with the vague notion of protecting themselves or their families, or they head off to fight the Russians in Chechnya. Those who are more fervent are sent to more advanced camps, Derunta if they want to learn explosives. A Palestinian named Abu Zubaydah is responsible for transferring them. He’s emir of the main guesthouse into Khalden. When recruits arrive in Pakistan, he takes their passports and funnels them to Khalden, and when their training is over, he funnels them back out.

Noor is not funneled anywhere. He never graduates to another camp or goes home. He stays at Khalden, where he feels he belongs.

At first he works as a small-arms instructor. He teaches the recruits to treat their weapons as if they were their own limbs. He shows them how to take them apart and clean the barrels, wiping the dirt away, oiling them, then reassembling them. And he teaches them to shoot. There are hand pistols and single-shot rifles and Kalashnikovs, passed down from fighter to fighter. For a few months, Noor’s job is to teach the trainees how to use these weapons. But he does not enjoy the work. Eventually he works up the courage to ask Ibn Sheikh for a transfer. In Noor, Ibn Sheikh sees a man he can trust. He offers him a new job, one better suited to his skills and disposition. Noor becomes the camp’s quartermaster, responsible for making sure there is enough rice and beans and water and wood. He collects what the camp needs, and at the end of the day he goes to sleep in his corner.

There is a profound sense of isolation, of remoteness, to Khalden. And for six years the men come and go, hundreds, perhaps thousands as the years pass. The barracks stay the same, the biting cold comes each winter, and each winter Noor knows what the camp needs to make it through — how much firewood to gather for warmth, how much food. He has a job and a purpose. He doesn’t ask questions. In 1995, Osama bin Laden moves his operations to Afghanistan and begins setting up his own camps. Noor gets up and does his job. In 1998, fatwas are heard over the radios, men blow up the U. S. embassies in Kenya and Tanzania. Noor helps out when Ibn Sheikh is out of town, leads formation. Cruise missiles rain down on Al Qaeda training camps, and still Noor checks the food supply. Until one day in late 1999, the outside finally pushes through.

First comes word that Khalden must be moved. Ammunition, weapons, food stores, everything loaded up and caravanned ninety miles over dirt roads to Kabul. Soon after, a meeting is called. The men meet in Wazir Akbar Khan, an upscale district of Kabul lined by embassies and government buildings. Ibn Sheikh is there. Abu Zubaydah comes from the safe house in Pakistan. Noor and the other trainers, most of whom are part of the camp’s advisory council, attend. The problem is laid out. Bin Laden is consolidating power in Afghanistan. He does not like the idea of independent camps. He wants all the camps to be Al Qaeda camps, and he wants to be the emir of them all. They can allow bin Laden to run the camp as an Al Qaeda facility and train the men for offensive jihad, or they can shut it down.

The men in the room voice their opinions. And at last Ibn Sheikh makes a decision. Khalden will close. The trainees go to other camps. The trainers look for other jobs. Noor begins wandering again, this time toward home.

He doesn’t know what is coming — the hijackers and airplanes and falling bodies and crumbling towers. He doesn’t know that he will soon collide with the greatest power in the history of the world. For a few months more, he is simply a peasant without a passport.

*****

He sleeps on a mat cramped on the floor with a dozen others. They come from different places: Libya, Algeria, Saudi Arabia. Some have traveled here in small groups, wearing hijabs over their beards, long salwar kameez to their toes. Others rose from their caves in Tora Bora after bin Laden escaped and the Americans left. They journeyed by white pickup truck and donkey and on foot from Kandahar up to Khost and across the border. They were alerted where to cross the border by contacts on the Pakistani side, then they began moving from safe house to safe house until they came to this floor in Faisalabad, Pakistan. Most were driven by fear, others like Noor simply followed. Noor has never led in his life. It is hard to believe that he would lead now.

The home is two stories of stucco topped by rectangular balconies that double as a watchtower. The only color is a blue gate that keeps cars out and the people in. Some of the men have been here for two or three weeks. Others for just a few days. In the kitchen there are vegetables, some chicken and rice, wildly mismatched silverware and plates. There’s a chore list taped to one wall, and little furniture. The men eat on the floor. It is also where they pray. Where they wait. One of the men, Ghassan al Sharbi, a Saudi who attended an aeronautics college in Arizona and knows English, teaches some of the others. Noor works on his English vocabulary and assumes a role similar to the one he had at Khalden — he gets the food, cooks, makes sure the safe house has the supplies it needs. It is boring here. They are safe, there is food and a place to sleep, but little more to do than pray and wait.

It is extremely hard to get a good fake passport in Faisalabad. Sometimes you can get documents in Afghanistan, but only pictures in Pakistan. Once you have both, you need an expert who can seamlessly bind them together. They must be near perfect, or else they are useless. A former jihadi might make it home, but then what? He can never leave again. Getting married, having children is not an option, because the man cannot travel with his family. Inside the house there are dozens of passport photos. The same man is in many of them, in front of the same red background that is often used in passports in the Middle East. In each he looks slightly different. Here he has a beard, there a mustache. Here a suit, there a robe. There are also multiple blank passports with no pictures or names. This is downstairs where the men waiting for documents are staying. There is also an upstairs. But Noor is not allowed upstairs. To get upstairs you need to go through the steel door at the top of the stairway. To go through the steel door you need a battering ram.

On March 28, 2002, at two in the morning, the battering ram comes.

The Pakistanis go in first, over the blue gate and through the front door. This is one of a dozen simultaneous raids tonight — a dozen houses, each handpicked by the CIA after weeks of surveillance, in search of Abu Zubaydah. He’s the man Noor first met two years earlier when Khalden was closed, the one whose responsibility was getting passports and paperwork for the men leaving the camp and moving onward to other training or perhaps home. Since 9/11 he’d become one of the most wanted men in the world, third after bin Laden and Ayman al-Zawahiri.

The commandos lead with 9mm handguns, the same handguns stenciled on their black Punjab Elite Police uniforms. Most of their equipment for the raid — a battering ram from Galls police supply in Kentucky, night-vision goggles, body armor — was shipped in by the CIA on a charter plane just days earlier. The commandos are well trained and brutally efficient. The safe-house front door bursts open, pistols punch into the darkness, and the men on the thin mats awaken from the last good sleep they will have for years. There is no resistance. Hands up, Noor and the rest simply surrender.

They cannot see what is happening elsewhere in the house, but they can hear. Shouting on the stairwell, huge bangs as the metal of the battering ram pounds the reinforced upper door. Then the sound of hinges breaking, metal giving, and the sounds of a man gasping as a knife is thrust into his neck. Now commotion, shouts in Punjabi as the commandos storm through the door and up to the roof. Then the sound of 9mm’s firing. Gravity takes over from there. Two thumps on the ground, boots surrounding the bodies, one dead, the other — Zubaydah — wounded with shots to the leg, groin, and stomach, but still breathing. A voice in accented English: “He killed my man, he stabbed him in the neck, he killed my man! We will fuck him!” Now another voice, this one the CIA officer in charge: “We’re fucked if he dies. Let’s get him to a hospital.”

By now, Noor and the other men from the first floor are sitting outside the blue gate, hands cuffed behind their backs, faces staring forward. Around them, the Pakistani commandos laugh and smoke. Upstairs the CIA and FBI begin collecting evidence. There is a magnifying glass and a couple card-sized screwdriver kits, dirty and smudged. A toothbrush, its head blackened by grease, red wire strippers, a yellow-and-blue box-cutting knife. Then the switches, dozens of bags of them, little matchbook-sized boxes in individual plastic bags, and the batteries, Duracell AAs. There are no beds and few personal items upstairs, but there is a folding table. On it lies a black timing device, two wires sticking out, a blue soldering iron, its metal tip still warm. Nearby is a map showing the British school in Lahore.

A paddy wagon arrives. Then the moving begins — the imagination starts a game that won’t end for years: Where are they taking me? What will happen? Noor is taken by the arm, pushed into the wagon. Then into a holding pen at a jail in Faisalabad. The next day a jail in Lahore, filthy cells, squalor. The not knowing, the inability to gain any mental traction, is worse than the conditions. Time slows, measured in breaths. Some of the men cry, others fervently shout and pray, others stay silent.

Another day, moved once again. This time to a house in Lahore bought by the CIA. Up out of the paddy wagon, Noor and the others are situated on the kitchen floor. On the ground they sit, hands cuffed behind their backs. Silence enforced by the gun. September 11 is still an open investigation, so the FBI is in charge here. The bedrooms are interrogation rooms. They are led to the interrogation rooms, one by one. The questions drilled at them in Arabic. Name? Birth date? Nationality? How did you get here? What were you doing in Afghanistan? Where were you on September 11? Have you ever met bin Laden? Where did you meet bin Laden? What did he say to you?

The men all have the same story. They are in Pakistan to study Arabic, that is the only reason. “There are no Arabic schools in Faisalabad,” the interrogators tell them. At this, the men pretend to grow tired, exhausted, some nodding off in their chairs, sliding forward off their seats. Others claim nausea, extreme distress. In America the politicians are already bragging. Abu Zubaydah is the biggest capture so far. In 2002 they don’t yet know that he actually knows very little, that he had nothing to do with the embassy bombings or 9/11, that any useful information Zubaydah may have given the Americans is hopelessly compromised by the fact that he was repeatedly tortured to get it.

No matter, in Lahore the prisoners are moved to the dining room for processing. Fingerprints, cataloging of items found with the men, mug shots. In one a man stands stone-faced and dirty. He has not slept or showered in days. He has the look of a man lost in a current he can’t control or understand, his eyes wide in shock. He holds a handwritten sign across his chest with his name. The flash pops, and he is led back through the kitchen, out of the house, and into the unknown.

*****

In the cage in Lahore where he and the others live and sleep for two months, he’s interrogated for days at a time without being fed. When not being questioned, Noor and the others beg the Pakistani guards to pull weeds or brown grass from the ground outside so that they might have something to eat. The hunger is crippling and all consuming. But there are other worries, other dark fantasies. Growing up in Sudan, Noor had heard about the security forces in Egypt and about how they would take people from the streets and make them disappear. In his cage in Lahore, Noor thinks about what it would be like to disappear and never be heard from again.

At Bagram Air Base, where the prisoners are transferred, Noor has a bag placed over his head, his arms suspended from the ceiling by chains, or else the opposite, feet and hands bolted to the floor, knees bent, a man stuck to the earth. At times the air-conditioning is turned to freezing, his clothes stripped away. These are the good days, because as uncomfortable as he is, he knows what is happening. He has begun conditioning himself to routine. The worst is when the guards rush in at night and push him against the wall and tell him that his time has come — he’s going off to Egypt with the others. He will disappear.

The flight to Guantánamo is more than twenty hours. He is hooded and handcuffed to the other men, unable to move, unable to urinate. When he arrives, he is taken to Camp 5. Here he is locked up in solitary and interrogated daily. He has no idea what will happen to him, what his future could be, whether anyone even knows he’s here. He only knows what to fear — the interrogation room, where the music is so loud he feels like his head is being beaten. And Romeo, an even smaller room, with no mattress or blanket or clothes. You could be left in Romeo for days, forgotten.

Noor is moved to Camp 6. He is still kept in solitary, but some of the worst treatment ends, the routine becomes more routine, and the days pile up. The mind adjusts. But he has begun changing physically. There are nightmares. He replays the raid, the worst hours of interrogation. But other things, too. He feels achy all the time. Also he has become bloated and nauseous, his digestive system never quite right, always on the verge.

The body has ways of coping with stress. A mugger pulls a pistol or your car is sideswiped and adrenaline and cortisol immediately flood your system. Your heart rate rises and your breath quickens so oxygen can reach your muscles faster. Glucose is released into your bloodstream, a boost of energy to aid in escape. And your brain’s levels of the memory-stamping hormones called glucocorticoids and catecholamines increase so that you remember the situation and avoid it in the future.

Allostasis is the process by which the body constantly adjusts its hormone levels to remain stable. Allostatic load occurs when the stress switch that controls the flow of cortisol and adrenaline gets stuck in the on position. Doctors who have spent time treating Guantánamo detainees call this “Guantánamo syndrome.”

In May 2008, six years after he arrived, Noor is at last charged with conspiracy and supporting terrorism. The penalty is life imprisonment. He does not trust his lawyers; he does not trust anyone. But by now he is in Camp 4. Here the brothers live communally, up to ten men to a room. Life gets considerably better. Noor takes classes, reads and studies. There is open sky and a yard and a soccer field. And yet one thing doesn’t change — the not knowing. He is trapped in a legal system that seems to change by the day. There is no end to his confinement in sight. Five months later, in October, the charges are abruptly dropped after a lead prosecutor resigns, citing a crisis of conscience, claiming that the military has been withholding exculpatory evidence in the case against a child soldier from Afghanistan. Two months later, a month before President Obama will take office, the charges against Noor are reinstated.

At Noor’s military-commission trial in February 2011, many observers will comment how odd it is that he doesn’t stand when his lawyers stand. What they don’t know is that he is not able.

*****

Thursday night is the night of enlightenment. And on Thursday, the brothers are together and Noor is laughing and smiling and at ease. He is usually quiet, spends his time alone reading and memorizing the Koran. But on Thursday nights he joins his brothers in singing nasheeds. They come together out of their cells and sway slightly. Noor sings loud, his dark face turned to the sky, facing his home, his voice rising into the Caribbean night.

Between nasheeds the brothers recite poems or tell jokes. Noor has a favorite. It is about Adarob, the local name for his extended tribe in Sudan. The Adarob are known for their smarts, and extreme patience. They can wait and wait and wait; their forbearance is bottomless. The joke is about an Adarob thief who tries to mug a schoolteacher.

Adarob says, “Give me what’s in your pocket!”

The teacher says, “I don’t have anything in my pocket.”

“Then give me your watch!”

“I am not wearing a watch.”

“Then give me a cigarette!”

“I don’t smoke.”

“What do you do for work?”

“I am a schoolteacher.”

Adarob then sits on the ground and says, “Give me a lesson! I swear I will get something out of you!”

Noor breaks out in laughter, his face beaming. It is the one evening a week he allows himself the pleasure of small things.

“You must be patient,” he tells the brothers. “Being here is divine destiny. God tests humans in their lives to know their faith and patience.” The brothers hear this and they see how he perseveres with calm and patience, and they are inspired. He is serving the time for all of them.

They come to him for counseling on other matters, too. He is an elder the other men depend upon, his advice always honest but never disrespectful. When some of the brothers go on a food strike, he tells them that he does not believe not eating will solve their problems. But he also skips some meals himself out of solidarity and respect. “I cannot eat if they are going on a food strike,” he says. Some of the brothers spit on the guards as they walk by; they throw urine and feces on them. He tells the brothers, “Even if I hated a guard, I am not convinced that this is a good thing to do.” He tells them, “I respect your convictions, but it’s not something I want to do.”

Some days after morning recitation Noor spends an hour with his Sudanese brothers on a prayer rug in the yard, the high barbed-wire fences stretching to the sky, the smell of the ocean strong. They talk about home and soccer, Noor recounting games he played as a young boy and trips to the social club, watching his favorite team, Al-Hilal. They reminisce about Flamingo and Kilo 8, where the teenage kids would gather and camp, and evening Ramadan meals of assida, millet pudding, and hulu-mur, the spicy drink that is on every table in Sudan.

“You should not be in jail,” he tells brother Adel, from Port Sudan [Adel Hassan Hamad, released in December 2007]. “You did not do anything, you are a respected person, like an older brother. It saddens me that someone your age would be here.” To brother Mustafa from Khartoum [Mustafa al-Hassan, released in September 2008], he makes a request: “If you ever get out and meet my niece and nephew, remind them to be of good morals.”

He does not like to waste his time on television. He is often silent. He reads and studies and thinks and prays to Allah. Because this he knows: Whether he will get out of here or not is Allah’s will.

*****

The courtroom looks like a prefabricated barn, a light-yellow box made of metal siding surrounded on every side by barbed wire. Around it sit other metal boxes, trailers for the defense and prosecution teams, five trailers for five defendants. The courthouse was specially built to try the 9/11 plotters concurrently and broadcast the proceedings to the world. Inside, it is outfitted with a media box and large-screen monitors and a sound system that can be delayed so that sensors can muffle classified information before it reaches the journalists who sit behind triple-paned, soundproof hurricane glass.

Noor sits in the front row with his defense team. His robe is white, as is his cap. He has a blue jacket that he wears when he gets cold. In his mid-forties, he is old and weak. He speaks the most the first day, but says only one thing. Na’am. Yes. Yes. Yes he understands the charges, yes he pleads guilty, yes he knows what that means, yes he has seen the translation, yes he has made the decision to plead guilty on his own, yes, yes, yes, yes. Over and over again he is prompted to tell the judge that he is guilty, that nobody has made him plead guilty. Yes, yes, I did it. And then he sits, his gaze often to the left, away from his own trial and the judge and his legal team, a phantom in a custom-built $12 million courtroom. It is not that he’s uninterested in his fate. It is that his fate has already been decided. Everyone knows this. Despite what has been agreed upon and signed behind closed doors, he must still stand trial, he must still be publicly sentenced. He must be patient, let the lawyers and government do what they need to do.

Virtually overnight the prosecution team has doubled, tripled in size. Whereas two young JAG lawyers spent months shepherding the case, the big brass has shown up for court, seven men huddled around the prosecution tables. Nobody wants to miss the trial, nobody wants to be left out of history and the photo ops after.

Arthur Gaston steps before the jury. He is tall, brown hair, small head, wire-rimmed glasses, a southern Navy commander, a second-generation Eagle Scout. He walks with the swagger and confidence of a man used to being right. His grin shows that he knows it.

“Terrorists are not born, they are made,” he tells the jury. “And Noor has made hundreds of them.” Noor does not move, does not flinch, he simply sits and waits.

Over three days, the government makes its case: Khalden is where terrorists are made. By working there, Noor was cultivating terrorists. There are photos of bomb switches projected onto the large screens and pictures of cards rigged to explode when opened, all items found in the safe house. The stories of three terrorists are explained in detail over hours during each day: Mohamed al-Owhali, who helped blow up the U. S. embassy in Nairobi; Ahmed Ressam, who plotted to bring down LAX during the millennium celebration; Zacarias Moussaoui, who the government at one point posited was the twentieth 9/11 hijacker. Noor did not know what would become of these men, but he did cook rice for them.

The defense counters. Noor has owned up to working at Khalden but shouldn’t be charged for the crimes of others. He should not be forced to be made culpable for 9/11. Noor’s posture does not change; the figure in perfect white robes simply sits. Whether the arguments are for or against him does not matter. Noor knew nothing of the terror plots carried out by men years after they left Khalden, the defense continues. He should not be held responsible for them, nor for the actions of Abu Zubaydah in the safe house. Of the 1,050 fingerprints taken from the second story, where the bombs were being made, not one belongs to Noor. He was not there to build bombs and has never been accused of such. He needed a passport. He wanted to go home.

Still. Noor wants to go home, which is why he says nothing. Let the lawyers argue, let the government preen and justify his incarceration, let 9/11 survivors and military families take solace in his guilty plea, let the journalists and human-rights observers denounce the commission system. It does not matter to him. The politics of this bizarre ritual are not his concern.

After three days, the jury comes back with its sentence. Noor rises, puts his blue jacket on. “Fourteen years.” He is emotionless. The jury is led from the room, and his plea deal is unsealed, the real sentence read. Thirty-four months. In exchange for pleading guilty and agreeing to be interviewed by the FBI under oath, Noor will be released in less than three years.

He is led out of the courtroom and into a transport van. Outside, in competing press conferences, the government celebrates its victory and extols the virtues of the commission system while the human-rights observers denounce the outcome as a sham. They would have had Noor fight the charges, even if it meant another six, seven, or eight years waiting for a trial.

Meanwhile, back at his cell in Camp 6, Noor thinks about none of this. He is carefully packing his belongings, his Koran, his prayer items. For the first time in nearly ten years, there is a sentence and an end point. He knows how much longer he must be patient. One thousand and twenty days. Twenty-four thousand four hundred eighty hours.

He is happy.

*****

His family waits in the same two-room home that Noor left nearly twenty years ago. The yard he slept in remains, as does the dirt alley where he would play soccer. His older brother Osman supports the family now, and he waits. Any time Noor’s nephew Mus’ab, who was born around the time Noor was captured, sees something on the television about Guantánamo, he shouts and tells the family to come watch. “They’re talking about Noor!” he says. He dreams of Noor coming home, wishes he could be transformed into a superhero for one day so he could rescue him. His sister Muna waits, too. But she has the most trouble. Ask her a simple question and she cries, goes sick. The memories hurt. But they all also have faith. This is all God’s predestined plan. If Allah wants Noor to be released, Noor will be released. “When he comes back, we will find him a wife, celebrate his return, build him a home, inshallah,” says Osman. “We will greet him with a parade like that of the president of the republic. After that we will do anything he wants,” says his cousin Sa’id.

To the family, he is a lost son they want back. In Guantánamo he is prisoner 707. And throughout, he has become what we needed him to be. When he was captured, he was what we most feared — an Arabic-speaking man found in a house with bombs. Then, because we feared fair trials in courts of law, he became a judicial problem, a man to be processed and moved. Nine years later, the government has now made him proof that our commission system works.

There was a time, early in the “war on terror,” when word came from the highest levels in Washington that Guantánamo was to be the preserve of the “worst of the worst.” This was obviously never true, but it’s not until now that we know it. And not before surrendering to fear and abandoning the rules of evidence and the value of due process and eroding the foundation of the rule of law itself. The truth is that most of the 779 men who wound up at Guantánamo were like Noor — low-level, rather inconsequential, possessed of nothing useful to the United States nor posing any particular danger. In fact, people close to the team that prosecuted Noor quietly even voiced sympathy for him, describing him as “one of life’s losers.”

It is a strange population, the 171 men still left at Guantánamo. There is Khalid Sheikh Mohammed and another two dozen hardened militants, who will never be released. This class of prisoner represents a small minority of the population. Then there are the others — about a hundred men, mostly Yemeni, who have been cleared to leave but have no place to go, as no country will take them. And there are another thirty-five or so like Noor. They are nameless, low-level operatives, or hapless men who were in the wrong place at the wrong time. They are the detritus of a decade-long war. They can’t simply be released. That would be admitting that they aren’t as bad as the government once said they were. And most can’t be tried, either, because much of the evidence against them — if there is any — is too fraught, as it was gotten by torture, and would never have even been considered to be evidence in any American judicial proceeding before September 11, 2001. And no serious person would have ever argued for it as such.

This condition — this stateless and inconsequential group of ghost detainees — might well be described as another form of Guantánamo syndrome. Except this syndrome is a debilitation of the American legal system, whereby it becomes possible for a prisoner to be held forever, without charge. With a court system, the envy of the world, simply too afraid to present evidence and hold trials. As one lawyer for a high-profile detainee put it, the best thing that happened to Noor is that he was at last charged with a crime. It forced the government to act and make a deal. They could no longer simply let him linger indefinitely. His charges were his way out. A military lawyer puts it another way: “One of the running jokes of Guantánamo is that you have to lose to win.”

Noor wouldn’t speak to me for this story, nor would my father, who is a member of his legal team (See “Stories My Father Told Me,” July 2009), nor would anyone else involved in Noor’s defense. They are all extremely cautious, because even still, there are no guarantees that Noor will actually leave when his sentence is up. The convening authority could decide in the end that he is too dangerous to release. Or he could be the victim of fractious American politics. In February 2011, the day after his sentencing, the House passed a bill stipulating that no Guantánamo detainees can be transferred to countries that are state sponsors of terror. Sudan, whose president is wanted for war crimes committed in Darfur, is on that list. It does not matter that nine other detainees have returned to Sudan and none have returned to militancy. It does not matter that the Sudanese government tracks their every move. If Sudan is on that list in 2013 when Noor’s sentence is up and the House bill becomes law, the secretary of defense would have to make an explicit exception.

Noor can’t worry about these things. It is all up to Allah, he tells his lawyers. “I put this in God’s hands. If He wants me to leave from here, I will go.”

Recently, Noor has begun to allow himself to think of the future. The camp doctors told him that his cholesterol is high, so he has begun eating better. He doesn’t touch the cheese or the carbs. Every week his lawyers send a packet of news articles to read. Lately he has asked for stories on omega-3′s. During recreation time he uses the elliptical machine or treadmill, and the pain in his joints and in his back is giving way to muscle. The belly beneath his robe is flat again. In his forties, he is already an old man. But with exercise now, he will be able to carry the child he’ll have when at last he makes it home.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As the supposed “high-value detainee” for whom the CIA’s torture program was specifically developed, and who, after John Yoo and Jay S. Bybee wrote and approved the notorious torture memos of August 1, 2002, was waterboarded 83 times, Zubaydah is pivotal to any assessment of the CIA’s torture program, and what makes his story particularly poignant — while reflecting awfully on the Bush administration’s supposed intelligence — is the fact that it should have been clear from the very beginning to the CIA, and to senior Bush administration officials, up to and including the President, that Zubaydah was not , as touted, the number three in al-Qaeda, but was instead the mentally damaged gatekeeper of a military training camp — Khaldan — that was only tangentially associated with al-Qaeda, and was, in fact, closed down by the Taliban, after its emir, another notorious “ghost prisoner” named Ibn al-Shaykh al-Libi, refused to bring it under the command of Osama bin Laden.

In the wake of WikiLeaks’ recent release of classified military documents relating to the Guantánamo prisoners (the Detainee Assessment Briefs, or DABs), my friend and colleague Jason Leopold had an excellent story out yesterday on Truthout, which, in essence, analysed why, in the photo of Abu Zubaydah available in the documents, he is wearing an eye patch, when, in the few photos available from before his capture, he clearly had both his eyes.

The results of this investigation, which involved limited statements made by one of Zubaydah’s attorneys, Brent Mickum, who is prohibited through draconian classification procedures from discussing almost anything about his client, are cross-posted below, and they provide, I believe, another chilling example of the manner in which physical mutilation — as found, for example, in the unnecessary amputations of various Guantánamo prisoners’ limbs — as well as physical experimentation in general (which has been admirably chronicled by Jason and the psychologist and blogger Jeff Kaye — see here and here), played a major part in the Bush administration’s “War on Terror,” and must, one day, be regarded as part of the process whereby the Bush administration was knowingly involved in crimes against humanity.

Why Did US Medical Personnel Remove High-Value Detainee Abu Zubaydah’s Eye?
By Jason Leopold, Truthout, May 18, 2011

Shortly after he was captured in March 2002 at a safe house in Faisalabad, Pakistan, following an early morning raid jointly conducted by the CIA, FBI, Pakistani police and Inter-Services Intelligence (ISI), Abu Zubaydah woke up at a black site prison in Thailand and discovered that his left eye had been surgically removed.

Zubaydah, who is wearing an eye patch in a photograph included in his Guantánamo threat assessment file released by WikiLeaks last month, apparently never consented to the medical procedure and to this day has no idea why it was done, according to one of Zubaydah’s attorneys.

“I can tell you that Abu Zubaydah has no explanation for the loss of his eye,” said Brent Mickum, who has represented Zubaydah since 2007. “He continually wants me to make inquiries to try and determine the circumstances for which he lost his eye, but no one has been forthcoming.”

Zubaydah, the first high-value detainee captured in the “war on terror” whom the Bush administration had falsely claimed helped plan the 9/11 attacks and was the “No. 3″ person in al-Qaeda, was shot in the leg, groin and stomach with an AK-47 during the March 28, 2002, raid. He allegedly attempted to evade capture by trying to jump from the rooftop of his safe house to the roof of a neighboring house. But the wounds he sustained did not include injuries to his eyes, face or head, according to intelligence officials and photographs of Zubaydah taken as he lay unconscious in a pool of blood, teetering on the brink of death, following the raid.

Retired CIA officer John Kiriakou, who was the head of counterterrorism operations in Pakistan and led the team involved in Zubaydah’s capture, told Truthout recently that Zubaydah “had both eyes” when the suspected terrorist was escorted from a Pakistani hospital to a Gulf Stream jet a day or so after the raid where a trauma surgeon from Johns Hopkins University the CIA tapped to perform surgery on the suspected terrorist was waiting.

So, what happened?

A US counterterrorism official, responding to a query from Truthout, said, “Zubaydah had a preexisting eye condition when he was captured” and “American medical personnel treated the condition, [but] he ultimately lost the eye.”

The revelation stands as the first piece of new medical information related to Zubaydah’s case to surface in years.

But Mickum doesn’t believe the government is being truthful.

“It is patently false to state Zubaydah lost his eye due to a preexisting condition and that is belied by the evidence that I have from [Zubaydah], which I can’t discuss due to the government’s protective order,” said Mickum. “My client had two good eyes before he was seized. I’m aware of no information from my client, the government or any other source that he had a ‘preexisting eye condition.’”

The counterterrorism official did not respond to follow-up questions about what Zubaydah’s pre-existing condition was, when the surgery to remove his eye took place, who performed it and where it was done, whether officials at the CIA signed off on the procedure, whether measures were taken to try and save Zubaydah’s eye and whether the CIA or any other intelligence official told Zubaydah why his eye was being removed.

Evisceration or Enucleation?

Dr. Jonathan Macy, who runs the Macy Eye Center in Los Angeles and is an associate clinical professor of ophthalmology at UCLA and the University of Southern California, said the “indications for removal of an eye include trauma, infection, pain, tumor and sympathetic ophthalmia,” where a piercing injury to one eye results in inflammation of the uninjured eye.

“If the eye is removed primarily at the time of trauma, the indication is a blind eye that cannot be put back together,” Macy said. “An alternative scenario would involve primary repair of the ruptured globe and the subsequent development of infection or pain in a blind eye.”

Macy added that “removal of eyes is done with either evisceration or enucleation.”

“Evisceration is usually the preferred procedure,” Macy said. “With evisceration, the contents of the globe are removed, but the outer wall, or sclera of the eye in retained. A silicone ball implant is inserted within the sclera to create volume. The volume within the orbit allows proper fitting of a prosthesis. When the whole globe must be removed, that is an enucleation.”

But Macy said it is unknown which procedure Zubaydah underwent because the counterterrorism official would only say that “he ultimately lost the eye.”

A 1998 passport picture of Zubaydah, which for years was the only photograph available, shows him wearing a pair of glasses and what appears to be a shadow or scar over his left eye, possibly the result of a shrapnel wound he suffered a decade prior to his capture.

Macy said in that photograph Zubaydah’s “left orbit may have already contained a prosthesis,” but Macy did not take a position as to whether that was the case.

“When one eye is normal and the other eye has a prosthesis, they rarely appear symmetrical,” he said. Zubaydah’s “eyes look slightly different from one another, but not to any marked degree.”

Macy also viewed the photograph of Zubaydah lying unconscious that was taken immediately following the raid and said Zubaydah’s eyes appears to be “fine.”

“I do not see any see any cuts or big lacerations and no cuts around the face or nose,” Macy said.

Regarding the counterterrorism official’s account about Zubaydah’s pre-existing eye condition and the circumstances that led to his left eye being removed, Macy said the scenario is conceivable.

“If the eye had suffered significant direct trauma, there are usually signs of injury to the surrounding skin,” Macy said. “The photos don’t show collateral damage. Therefore, the official explanation is very plausible.”

“Rather than perforation causing infection, an infection of the cornea may lead to perforation of the globe,” Macy added. “In this case, as there is a claim of a preexisting condition, [Zubaydah] may have suffered a previous corneal ulcer that thinned and weakened the globe. He may have had a bacterial infection or herpes of the cornea. This is almost always a unilateral process. Such infections may be severe enough to perforate the eye, rendering it blind. The offending agent must be removed, leading to evisceration or enucleation.”

Zubaydah’s medical records would likely explain the pre-existing eye condition, but those files are classified. The government has refused to share Zubaydah’s medical files with his legal team, all of whom have top secret clearance, because it contends that doing so would amount to a violation of the detainee’s privacy rights, an assertion that Mickum said is “so ludicrous that it is not even laughable at this stage.”

Mickum said Zubaydah now wears a prosthetic eye, but it sometimes irritates him so he takes it out and instead wears the eye patch.

Shrapnel Wound

The only known pre-existing condition that may have affected Zubaydah’s eye was the shrapnel wound to his head he suffered from a mortar attack while “on the front lines” in Afghanistan fighting Soviet forces a decade prior to his capture, according to the government’s classified Detainee Assessment Brief released by WikiLeaks.

That file says Zubaydah “stated he had to relearn fundamentals such as walking, talking and writing; as such, he was therefore considered worthless to al-Qaida.”

Last year, the government finally admitted in court documents [PDF] that Zubaydah’s diaries seized during the raid of the safe house “indicate that he suffered cognitive impairment from a shrapnel injury for a number of years.”

But when former Justice Department attorney John Yoo prepared one of the August 2002 torture memos, authorizing the CIA to subject Zubaydah to ten brutal torture techniques, which included waterboarding and repeatedly slamming him into a wall, Yoo wrote: “Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from your proposed interrogation methods.”

“Through reading his diaries and interviewing him, you [CIA] have found no history of mood disturbance or other psychiatric pathology … ‘thought disorder’ … enduring mood or mental health problems,” Yoo wrote.

One of the interrogation memos Yoo drafted for the Department of Defense (DoD) that was used by military personnel and contractors conducting interrogations at Guantánamo and other prison facilities operated by the DoD stated that “gouging” a prisoner’s eyes out was arguably legal under the president’s executive powers unless “specific intent” to harm the prisoner could be proven [See Part One (PDF) and Part Two (PDF) of that memo].

“Infected Eye”

Details about Zubaydah’s eye appear to have first surfaced in a 2008 FBI Inspector General’s Report [PDF] that contained details of his interrogation conducted by CIA contractors, which former FBI special agent Ali Soufan, identified in the report by the pseudonym “Thomas,” said amounted to “borderline torture.”

In the report, the then-FBI Inspector General Glenn Fine said Soufan’s colleague, FBI special agent Steve Gaudin, identified by the pseudonym “Gibson,” disclosed to his fiancé in 2002 or 2003 that he accompanied Soufan to the black site prison in Thailand to “interview a notorious terrorist.”

Soufan had interrogated Zubaydah at the CIA’s black site prison in Thailand in April 2002, before CIA contractors took over, and had tended to his wounds.

Gaudin’s fiancé at the time, identified in the report as “Morehead,” “stated the terrorist was missing an eye. [Gaudin] told [the FBI during an interview into the matter] that Zubaydah had an infected eye, sometimes wore an eye patch and eventually got a glass eye,” which seems to indicate that Zubaydah’s eye may have already been removed by the time both agents arrived at the black site in April 2002.

Truthout tried to reach Gaudin’s ex-fiancée to determine if Gaudin disclosed additional information to her about Zubaydah’s eye and his medical condition in general, but she did not return emails or voice mail messages left on her cell phone.

Daniel Freedman, who works as director of strategy for policy and analysis at Soufan’s consulting firm, The Soufan Group, said Soufan confirmed that Zubaydah had a “preexisting eye condition.”

“I checked with [Soufan] and the [counterterrorism official's] account is correct,” Freedman told Truthout in an email.

Neither Freedman nor Soufan elaborated.

Kiriakou, who wrote a book about his tenure at the CIA and the capture of Zubaydah, said, “I now recall that when [Zubaydah] first opened his eyes, his left eye was cloudy, like it had a significant cataracts film over it.”

“Zubaydah spent most of the time with his eyes closed and I just forgot about it,” said Kiriakou, who was surprised to learn Zubaydah’s eye had been removed. “It looked like a really bad cataract. I was with him about 48 hours when the plane came. I do not recall the Pakistani doctors paying any attention at all to his eye. They were so focused on his wounds that they didn’t pay any attention to anything else.”

Zubaydah Blames Interrogators

Zubaydah seems to be under the impression that he lost his eye as a result of abusive treatment.

During his Combatant Status Review Tribunal hearing, Zubaydah said the interrogators subjected him to “months of suffering and torture, physically and mentally, they did not care about my injuries that they inflicted to my eye, to my stomach, to my bladder and my left thigh and my reproductive organs.”

The counterterrorism official also said that any suggestion that Zubaydah “lost the eye while being captured or as a result of interrogation would be flat wrong.”

But other detainees’ claimed there were attempts to gouge out their eyes.

In a recent interview with the Guardian, Omar Deghayes said a Guantánamo guard “pushed his fingers inside my eyes” and blinded him in his right eye.

“I didn’t realise what was going on until the guy had pushed his fingers inside my eyes and I could feel the coldness of his fingers,” Deghayes told the Guardian, explaining that the incident took place when he protested a policy that called for detainees to walk around without pants. “Then I realised he was trying to gouge out my eyes.”

Shaker Aamer, the last British detainee who remains imprisoned at Guantánamo, told his attorney he also experienced similar treatment. Aamer said naval military police brutally tortured him for two and a half hours on June 9, 2006, “gouged his eyes” and “held his eyes open and shined a Maglite in them for minutes on end, generating intense heat,” during a brutal two-and-a-half hour beating on June 9, 2006, after he refused to provide his captors with a retina scan and fingerprints [Note: This was the same night that three other prisoners reportedly died by committing suicide, a questionable event that was analyzed by Scott Horton, based on new information from former soldiers, in an award-winning article for Harper's Magazine last year].

Mickum said the loss of Zubaydah’s eye and the government’s rationale that it was the result of a “preexisting eye condition” only raises additional questions about Zubaydah’s treatment.

“The only way to rule out that anything nefarious took place is to look at Zubaydah’s medical records,” Mickum said. “Until that occurs, the jury is way out and the government is not entitled to any credibility. They’ve lied consistently starting with the fact that they said Zubaydah was never tortured. The only inference one can draw is that he lost his eye as a result of mistreatment by the government and that he received poor medical treatment in the aftermath of his injury.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

Some of these (with the BBC and Antiwar.com) have already been mentioned, but over this weekend I’ll also be making available links to other shows that I’ve taken part in during the last few days. In a busy evening, in which I spoke on shows run by FAIR and the Nation (coming soon!), I also spoke to Alexa O’Brien, in a 13-minute interview for a WikiLeaks-themed site, WL Central, which is available here. I’m also delighted to reproduce below a transcript of the interview, which Alexa produced in an amazingly short amount of time (please note, however, that I’ve added new links, and replaced others).

An interview with Guantánamo expert Andy Worthington

Alexa O’Brien: I wanted to talk to you a little bit about a couple things that you had mentioned when you were talking with Amy Goodwin on Democracy Now! One of the things you talked about was that “guidelines” needed to be set up for filtering or discriminating the content that was found in the documents. Could you tell me a little bit about what that would be like in terms of application?

Andy Worthington: Well, you know, to be honest a certain amount of hard work is required and some of that has already been done by some of the journalists who’ve been writing about it already, who have worked out that a lot of this supposed “body of evidence” consists of allegations that have been made by a small number of prisoners, who have made repeated allegations against large numbers of their fellow prisoners, which have been called into doubt.

Now, you know, the doubts about this information are not necessarily mentioned — in fact, they are rarely mentioned in these military documents, but they have been mentioned elsewhere, and, so you know, a certain amount of cross-referencing is required. Some of these stories have emerged in media reports over the years, and some of them have emerged in court cases, where the prisoners have had their habeas corpus petitions examined by judges in a district court in Washington DC.

They [the allegations in the documents released by WikiLeaks] involve essentially a number of “high-value detainees” making allegations about a large number of the prisoners. These are people held for quite a long time, in secret CIA prisons, where they were subjected to torture. One of them is Abu Zubaydah and he turns up over and over again. He was the first “high-value detainee” that the Bush administration tortured, after lawyers specifically attempted to re-write the rules on torture so that they could torture him. He was waterboarded, subjected to a form of controlled drowning, 83 times in the month after his torture was approved by lawyers in the Justice Department.

On what basis they could possibly be regarded as credible, any of the claims that he made against his fellow prisoners, you know, is rather beyond me. And he is not the only one. There are other “high-value detainees” who appear in these documents.

Other problems are with informants within Guantánamo — people who have been regarded as useful within Guantánamo, because they have made allegations against a large number of prisoners. And, the easiest way to imagine this — the way that this happened — is that the authorities would show prisoners photographs of other prisoners and say, “Do you know this person? What do you know about this person?” And I think that helps to understand how easy it would be for somebody to say, “Oh yes. I know that person,” even if they didn’t, just to get somebody off their back, or, in the cases of some of the people in Guantánamo, to get favors. You know, there is an interrogator saying, “What would you like? Would you like a nice meal? Would you like a TV? What kind of stuff could we give you if you helped us out here?”

People — either because they are put under horrible pressure, or because they were enticed in this way — many people came up with these false stories about other prisoners.

As I say, these have been exposed in other contexts, but I would say even bigger than that is the problem with so many of the people held in Guantánamo and in the ‘War on Terror’ — people who have been released — who have said, “Look, in the end I cracked. I told them things that they wanted to hear that weren’t true.” It’s very understandable why people did that.

Very often when people think about the circumstances in which people are held, and they imagine themselves in it they say, “Well I am not sure how I would have taken it. I am sure I would have cracked within a short amount of time.” So that is what we are dealing with.

And it requires a certain amount of dedication on the part of people reading these stories to understand that it isn’t a coherent network of intelligence. Actually what it is, is a bunch of people rounded up largely indiscriminately, most bought by the US military, not screened adequately on capture, taken to Guantánamo, and when they didn’t really know who they had, they started to try and piece it together. And the only material that they had to do that with was the prisoners themselves.

Alexa O’Brien: Do you think that the American media is partly responsible for the manifestation of a system like Guantánamo?

Andy Worthington: Well, I don’t think that they complained thoroughly enough about it. It was a difficult issue, it is a difficult issue, in the sense of knowing exactly what to make of who is held there, but, you know, that is why it is important for people to understand how random it was, and how arrogant it was of the United States under President Bush to deny Geneva Convention rights to prisoners, and, to implement torture, all of these awful things.

I am not sure that everybody quite realizes how wrong the whole foundation of the ‘War on Terror’ is. Because, what we have at Guantánamo are people who are labeled “enemy combatants” by the Bush administration. Now, Obama, early on, his Justice Department dropped that terminology. They knew that it was pretty toxic, but they haven’t replaced it with anything. There is no name for these people now.

But what they are not is either criminal suspects allegedly responsible for terrorist activities, or enemy prisoners of war held according to the Geneva Conventions. Now those are the only two ways in which you are allowed to hold people prisoner and deprive them of their liberty.

So there is still this third category of human being, invented by the Bush administration, called “enemy combatants,” and intended to be held without any rights whatsoever. What has happened is that terrorist suspects have been confused with soldiers, so that, apart from all the innocent people held at Guantánamo, there were many foot soldiers for the Taliban, and the purpose of Guantánamo has been to dress these people to be more significant than they were.

Many of them were not anything more than soldiers fighting against other Muslims in Afghanistan, and that particular conflict morphed into a ‘War on Terror’, a war against the US, after the US-led invasion [in October 2001].

Alexa O’Brien: I am trying to understand Guantánamo from an institutional perspective, in the sense that institutions are suppose to underpin and support democratic principles, or the foundational principles of a society. So, you have mentioned that there was a third category of human being: I wonder if there is a fourth category of human being called the corporation. You mention “fear politics” or the “season of fear.” What is the source of that? Is it simply socio-political phenomena that happens when a country is attacked? Or is there more to the story then simply the sophistry, or the propaganda, or the agenda-setting of politicians with a view towards national security? Are there other forces at play?

Andy Worthington: Well, I think there are a few forces at play, and I think the starting point would be to say that the Bush administration was so severely rattled, and understandably so after the 9/11 attacks, that, instead of taking a measured response, they wanted to be strong, they wanted vengeance, and they threw out what they regarded as all these weak kind of laws restricting what they could do.

So that was their starting point. Now I think it would be too generous to them to say that that remained their agenda for very long, because what has become apparent about the Iraq War over the years, has been that, in early December 2001, people [within the Bush administration] were pushing for moving on to Iraq.

On the day that the 9/11attacks took place, British officials who were in Washington D.C., told Jane Mayer of the New Yorker how shocked they were that hours after the attacks, people were talking about, “When can we invade Iraq?”

Iraq had no connection to it, but there were people who wanted Iraq to have a connection to it, and who were pushing for that invasion which eventually took place in March 2003. And, you know, one particular prisoner — and he turns up a lot in these documents just released, as well — he is called Ibn al-Shaykh al-Libi. He was captured, he was sent to Egypt, where he was tortured on behalf of the CIA, and where he said that two al-Qaeda operatives had been meeting with Saddam Hussein to discuss obtaining chemical and biological weapons.

That was used by Colin Powell in his submission to the United Nations, a month before the invasion in February 2003, as a justification for war. Now al-Libi had recanted what he had said, what he had produced under torture in Egypt, but, you know, was that deliberately used to justify an invasion of Iraq? Or did Cheney and other people in the administration believe what al-Libi said?

It is one or the other. They either thought that torture was producing the information that they needed or, even more worryingly, they were cynically “exploiting” somebody like al-Libi to justify an illegal invasion of a sovereign country. Whichever one it is, it is bad. If it is the latter, then Cheney, who I believe was driving this, has committed the most enormous crime I think that a vice president of the Unites States could do.

Alexa O’Brien: This is my last question. Is there a historical parallel that comes to mind when you think about Guantánamo — either its model, or the crimes committed?

Andy Worthington: You know, in some ways, the United States has overreacted previously — in the Second World War, for example, with the internment of so many Japanese Americans — something that came to be looked at afterwards as a horrible overreaction.

There is a historical pattern, I suppose, of overreacting to things, then being able to look back at it afterwards and say, “Oh dear. That was a bit over the top. That was wrong. We undermined our fundamental values by doing that.”

Now, you know, we are nearly ten years on from the 9/11 attacks and from the opening of Guantánamo, and I think it is time for that point to be reached, but there are a number of forces within the United States — powerful forces, both in congress and in the media — who are dedicated to keeping this alive. They want more of this.

So you know, I think that actually the struggle that is still underway is a kind of struggle for the soul of America, and it doesn’t just involve arbitrarily detaining a bunch of Muslims in this little corner of Cuba, outside of all the norms. It is everything else that went with it. It was the deliberate attempt, at the highest level of the Bush government, to use torture as part of this process of holding people outside of the norms of domestic and international law.

And, that has been accepted. Obama has failed by not calling to account the people within the Bush administration who authorized this, who implemented it, who issued the legal advice, but there are too many people in the United States who believe that torture is justified. And it is not, of course. It is counterproductive, and it is illegal. The story has drifted, and it needs to be addressed, and that is why I think it is so crucial.

I think that all of this really involves two sides, with people who understand that there used to be right and wrong, and that something terrible has happened, and, on the other side, people who have got increasingly violent and hysterical in their approach to things — and, fear is part of that. I am sure that this is being manipulated in some ways.

Who has made money out of not just the ‘War on Terror’, but the wars of the last ten years? Well, it tends to be arms manufacturers and big companies like Halliburton. You know, very few people have actually benefitted financially. But the corporate interests that have are obviously tied in with the governments as well. So, all of that is worth looking at as well, really.

Alexa O’Brien: I thank you very much for your time. You have been very generous.

Andy Worthington: Okay. You are welcome.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

With the release date of the project brought forward unexpectedly, the files — profiles of nearly all of the 779 prisoners who have been held at Guantánamo, compiled by the Joint Task Force responsible for running the prison and known as Detainee Assessment Briefs (DABs) — have begun to be made available on WikiLeaks’ website, accompanied by an article that I wrote introducing them, and offering a first attempt to indicate their importance — both in what they hide and what they reveal — along with a guide to how to read them.

Needless to say, there will be much more analysis in the days and weeks to come, but for now I hope you enjoy my explanation, cross-posted below, which is borne of five years of research and writing about Guantánamo, filtered through a careful analysis of JTF-GTMO’s compromised and compromising cache of documents, which, as I explain, constitutes “the anatomy of a colossal crime perpetrated by the US government on 779 prisoners who, for the most part, are not and never have been the terrorists the government would like us to believe they are.”

WikiLeaks Reveals Secret Files on All Guantánamo Prisoners
By Andy Worthington, WikiLeaks, April 24, 2011

In its latest release of classified US documents, WikiLeaks is shining the light of truth on a notorious icon of the Bush administration’s “War on Terror” — the prison at Guantánamo Bay, Cuba, which opened on January 11, 2002, and remains open under President Obama, despite his promise to close the much-criticized facility within a year of taking office.

In thousands of pages of documents dating from 2002 to 2008 and never seen before by members of the public or the media, the cases of the majority of the prisoners held at Guantánamo — 765 out of 779 in total — are described in detail in memoranda from JTF-GTMO, the Joint Task Force at Guantánamo Bay, to US Southern Command in Miami, Florida, known as Detainee Assessment Briefs (DABs).

These memoranda, which contain JTF-GTMO’s recommendations about whether the prisoners in question should continue to be held, or should be released (transferred to their home governments, or to other governments) contain a wealth of important and previously undisclosed information, including health assessments, for example, and, in the cases of the majority of the 172 prisoners who are still held, photos (mostly for the first time ever).

They also include information on the first 201 prisoners released from the prison, between 2002 and 2004, which, unlike information on the rest of the prisoners (summaries of evidence and tribunal transcripts, released as the result of a lawsuit filed by media groups in 2006), has never been made public before. Most of these documents reveal accounts of incompetence familiar to those who have studied Guantánamo closely, with innocent men detained by mistake (or because the US was offering substantial bounties to its allies for al-Qaeda or Taliban suspects), and numerous insignificant Taliban conscripts from Afghanistan and Pakistan.

Beyond these previously unknown cases, the documents also reveal stories of the 399 other prisoners released from September 2004 to the present day, and of the seven men who have died at the prison.

The memos are signed by the commander of Guantánamo at the time, and describe whether the prisoners in question are regarded as low, medium or high risk. Although they were obviously not conclusive in and of themselves, as final decisions about the disposition of prisoners were taken at a higher level, they represent not only the opinions of JTF-GTMO, but also the Criminal Investigation Task Force, created by the Department of Defense to conduct interrogations in the “War on Terror,” and the BSCTs, the behavioral science teams consisting of psychologists who had a major say in the “exploitation” of prisoners in interrogation.

Crucially, the files also contain detailed explanations of the supposed intelligence used to justify the prisoners’ detention. For many readers, these will be the most fascinating sections of the documents, as they seem to offer an extraordinary insight into the workings of US intelligence, but although many of the documents appear to promise proof of prisoners’ association with al-Qaeda or other terrorist organizations, extreme caution is required.

The documents draw on the testimony of witnesses — in most cases, the prisoners’ fellow prisoners — whose words are unreliable, either because they were subjected to torture or other forms of coercion (sometimes not in Guantánamo, but in secret prisons run by the CIA), or because they provided false statements to secure better treatment in Guantánamo.

Regular appearances throughout these documents by witnesses whose words should be regarded as untrustworthy include the following “high-value detainees” or “ghost prisoners.” Please note that “ISN” and the numbers in brackets following the prisoners’ names refer to the short “Internment Serial Numbers” by which the prisoners are identified in US custody:

Abu Zubaydah (ISN 10016), the supposed “high-value detainee” seized in Pakistan in March 2002, who spent four and a half years in secret CIA prisons, including facilities in Thailand and Poland. Subjected to waterboarding, a form of controlled drowning, on 83 occasions in CIA custody in August 2002, Abu Zubaydah was moved to Guantánamo with 13 other “high-value detainees” in September 2006.

Ibn al-Shaykh al-Libi (ISN 212), the emir of a military training camp for which Abu Zubaydah was the gatekeeper, who, despite having his camp closed by the Taliban in 2000, because he refused to allow it to be taken over by al-Qaeda, is described in these documents as Osama bin Laden’s military commander in Tora Bora. Soon after his capture in December 2001, al-Libi was rendered by the CIA to Egypt, where, under torture, he falsely confessed that al-Qaeda operatives had been meeting with Saddam Hussein to discuss obtaining chemical and biological weapons. Al-Libi recanted this particular lie, but it was nevertheless used by the Bush administration to justify the invasion of Iraq in March 2003. Al-Libi was never sent to Guantánamo, although at some point, probably in 2006, the CIA sent him back to Libya, where he was imprisoned, and where he died, allegedly by committing suicide, in May 2009.

Sharqawi Abdu Ali al-Hajj (ISN 1457), a Yemeni, also known as Riyadh the Facilitator, who was seized in a house raid in Pakistan in February 2002, and is described as “an al-Qaeda facilitator.” After his capture, he was transferred to a torture prison in Jordan run on behalf of the CIA, where he was held for nearly two years, and was then held for six months in US facilities in Afghanistan. He was flown to Guantánamo in September 2004.

Sanad Yislam al-Kazimi (ISN 1453), a Yemeni, who was seized in the UAE in January 2003, and then held in three secret prisons, including the “Dark Prison” near Kabul and a secret facility within the US prison at Bagram airbase. In February 2010, in the District Court in Washington D.C., Judge Henry H. Kennedy Jr. granted the habeas corpus petition of a Yemeni prisoner, Uthman Abdul Rahim Mohammed Uthman, largely because he refused to accept testimony produced by either Sharqawi al-Hajj or Sanad al-Kazimi. As he stated, “The Court will not rely on the statements of Hajj or Kazimi becasue there is unrebutted evidence in the record that, at the time of the interrogations at which they made the statements, both men had recently been tortured.”

Others include Ahmed Khalfan Ghailani (ISN 10012) and Walid bin Attash (ISN 10014), two more of the “high-value detainees” transferred into Guantánamo in September 2006, after being held in secret CIA prisons.

Other unreliable witnesses, held at Guantánamo throughout their detention, include:

Yasim Basardah (ISN 252), a Yemeni known as a notorious liar. As the Washington Post reported in February 2009, he was given preferential treatment in Guantánamo after becoming what some officials regarded as a significant informant, although there were many reasons to be doubtful. As the Post noted, “military officials … expressed reservations about the credibility of their star witness since 2004,” and in 2006, in an article for the National Journal, Corine Hegland described how, after a Combatant Status Review Tribunal at which a prisoner had taken exception to information provided by Basardah, placing him at a training camp before he had even arrived in Afghanistan, his personal representative (a military official assigned instead of a lawyer) investigated Basardah’s file, and found that he had made similar claims against 60 other prisoners. In January 2009, in the District Court in Washington D.C., Judge Richard Leon (an appointee of George W. Bush) excluded Basardah’s statements while granting the habeas corpus petition of Mohammed El-Gharani, a Chadian national who was just 14 years old when he was seized in a raid on a mosque in Pakistan. Judge Leon noted that the government had “specifically cautioned against relying on his statements without independent corroboration,” and in other habeas cases that followed, other judges relied on this precedent, discrediting the “star witness” stlll further.

Mohammed al-Qahtani (ISN 063), a Saudi regarded as the planned 20th hijacker for the 9/11 attacks, was subjected to a specific torture program at Guantánamo, approved by defense secretary Donald Rumsfeld. This consisted of 20-hour interrogations every day, over a period of several months, and various other “enhanced interrogation techniques,” which severely endangered his health. Variations of these techniques then migrated to other prisoners in Guantánamo (and to Abu Ghraib), and in January 2009, just before George W. Bush left office, Susan Crawford, a retired judge and a close friend of Dick Cheney and David Addington, who was appointed to oversee the military commissions at Guantánamo as the convening authority, told Bob Woodward that she had refused to press charges against al-Qahtani, because, as she said, “We tortured Qahtani. His treatment met the legal definition of torture.” As a result, his numerous statements about other prisoners must be regarded as worthless.

Abd al-Hakim Bukhari (ISN 493), a Saudi imprisoned by al-Qaeda as a spy, who was liberated by US forces from a Taliban jail before being sent, inexplicably, to Guantánamo (along with four other men liberated from the jail) is regarded in the files as a member of al-Qaeda, and a trustworthy witness.

Abd al-Rahim Janko (ISN 489), a Syrian Kurd, tortured by al-Qaeda as a spy and then imprisoned by the Taliban along with Abd al-Hakim Bukhari, above, is also used as a witness, even though he was mentally unstable. As his assessment in June 2008 stated, “Detainee is on a list of high-risk detainees from a health perspective … He has several chronic medical problems. He has a psychiatric history of substance abuse, depression, borderline personality disorder, and prior suicide attempt for which he is followed by behavioral health for treatment.”

These are just some of the most obvious cases, but alert readers will notice that they are cited repeatedly in what purports to be the government’s evidence, and it should, as a result, be difficult not to conclude that the entire edifice constructed by the government is fundamentally unsound, and that what the Guantánamo Files reveal, primarily, is that only a few dozen prisoners are genuinely accused of involvement in terrorism.

The rest, these documents reveal on close inspection, were either innocent men and boys, seized by mistake, or Taliban foot soldiers, unconnected to terrorism. Moreover, many of these prisoners were actually sold to US forces, who were offering bounty payments for al-Qaeda and Taliban suspects, by their Afghan and Pakistani allies — a policy that led ex-President Musharraf to state, in his 2006 memoir, In the Line of Fire, that, in return for handing over 369 terror suspects to the US, the Pakistani government “earned bounty payments totaling millions of dollars.”

Uncomfortable facts like these are not revealed in the deliberations of the Joint Task Force, but they are crucial to understanding why what can appear to be a collection of documents confirming the government’s scaremongering rhetoric about Guantánamo — the same rhetoric that has paralyzed President Obama, and revived the politics of fear in Congress –  is actually the opposite: the anatomy of a colossal crime perpetrated by the US government on 779 prisoners who, for the most part, are not and never have been the terrorists the government would like us to believe they are.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As I explained in a recent article, George W. Bush, War Criminal, Is Not Welcome in Europe, Bush subsequently cancelled his visit. However, as Vince Warren of the Center for Constitutonal Rights explained in the Huffington Post:

Swiss law requires the presence of an alleged torturer on Swiss soil before a preliminary investigation can be open. Because Bush canceled, the complaints could not be filed as the basis for legal jurisdiction no longer existed. However, the fact that Bush authorized torture remains … In the long run, ducking a charge of torture is not as easy as ducking a shoe thrown at a press conference.

In my article, I stated that “the fact that the torturer-in-chief has been made unwelcome in Europe — and, in theory, anywhere outside the US –  is heartening news indeed,” and this remains the case. In the hope of keeping the story alive — and providing the Preliminary Bush Torture Indictment in an accessible form, I’ve divided the original PDF into two HTML documents, and am cross-posting the first part below. The second part will follow soon. Please note that CCR will amend the indictment as new information comes to light (as it undoubtedly will, given how much of the US torture story is still hidden), and please also note that the original contains detailed footnotes, which I have not attempted to replicate here, where I have, instead, inserted a number of important hyperlinks.

PRELIMINARY “INDICTMENT FOR TORTURE”: GEORGE W. BUSH
BROUGHT PURSUANT TO THE CONVENTION AGAINST TORTURE*

* The present document is a modified version of an individual criminal complaint prepared for submission against George W. BUSH in anticipation of his visit to Geneva, Switzerland on 12 February 2011. The individual criminal complaint brought on behalf of an individual plaintiff was not filed, as planned, on 7 February 2011 because of the announcement, on the eve of the filing, that BUSH cancelled his trip. Factual details regarding that visit, as a basis for establishing BUSH’s presence in Switzerland and the inclusion of analysis of Swiss law is reflective of the origins of this document. This document is not intended to serve as a comprehensive presentation of all evidence against BUSH for torture; rather, it presents the fundamental aspects of the case against him, and a preliminary legal analysis of liability for torture, and a response to certain anticipated defenses. This document will be updated and modified as developments warrant.

I. FACTUAL BACKGROUND

A. George W. BUSH

1. George W. BUSH was born on 6 July 1946, in New Haven, Connecticut, United States. From 20 January 2001- 20 January 2009, BUSH served as president of the United States of America and Commander in Chief of the United States Armed Forces. Pursuant to Article II of the United States Constitution, executive power was vested in BUSH, as president of the United States. Upon assuming office, BUSH took an oath to “preserve, protect and defend” the Constitution of the United States.

2. In his capacity as president of the United States of America and Commander in Chief, BUSH had authority over the agencies of the United States government involved in the torture program, including but not limited to, the Central Intelligence Agency (CIA), the Department of Defense (DOD), the Department of Justice (DOJ), the Department of Homeland Security (DHS), the Department of State (DOS), the Federal Bureau of Investigation (FBI) as well as over the White House and Office of the Vice President.

3. BUSH chaired the National Security Council (NSC), which advises and assists the president on national security and foreign policies, and serves as the president’s principal arm for coordinating these policies among various government agencies.

4. It has been publicly and widely reported that BUSH will be present in Geneva to take part as the guest of honor in a charity evening organized by the Keren Hayessod foundation, set to take place at the Hôtel President Wilson. His presence is announced for Saturday, 12 February 2011.

B. Overview of Detention Policies and Torture Program

5. On 14 September 2001, BUSH issued the “Declaration of National Emergency by reason of Certain Terrorist Attacks,” following the September 11th terrorist attacks.

6. On 17 September 2001, BUSH issued a 12-page directive (known as a “memorandum of notification”) that went to the Director of the CIA and members of the National Security Council, in which BUSH authorized the CIA to capture suspected terrorists and members of Al-Qaeda, and to create detention facilities outside the United States where suspects can be held and interrogated. BUSH‘s directive marked the official launching of the CIA program by vesting the agency with unprecedented power. The document was  “a means of granting the CIA important new competences relating to its covert actions: new choices it could make and new ways it could respond if confronted with Al-Qaeda targets in the field.”

7. According to Swiss Senator Dick Marty‘s 2007 Report to the Council of Europe [PDF], BUSH had been personally involved in the conception, discussion, and formulation of this new strategy. The 17 September 2001 directive, referred to by Marty as a “Presidential Finding,” is said to have “create[d] paramilitary teams to hunt, capture, detain, or kill designated terrorists almost anywhere in the world.” Marty‘s Report shed further light on what the directive was intended to achieve:

Our team has spoken with several American officials who have seen the text of the Presidential Finding and participated in the operations that put it into action. Two particularly striking observations have emerged from these discussions. First, by putting “a lot of stock in Special Activities” the Finding “redefined the role of the Agency,” even in the eyes of some of its own, more conservative senior officials. Second, the “really broad, not specific” scope of the covert actions authorised in the Finding meant that the CIA was instantly granted enough room for manoeuvre to design a secret detentions programme overseas.

8. The International Committee of the Red Cross (“ICRC”) was refused access to detainees held in the CIA program. As revealed through a 2007 ICRC report [PDF], the ICRC made repeated requests to the United States to grant it access to the detainees generally, including specific detainees whom the ICRC believed to be, and were in fact, held by the CIA in secret detention sites outside of the United States.

9. On 7 October 2001, BUSH announced that, on his orders, “the United States military has begun strikes against Al-Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan.”

10. On 13 November 2001, BUSH authorized the detention of alleged terrorists and subsequent trial by military commissions, which he ordered would not be subject to the principles of law and rules of evidence applicable to trials held in U.S. federal courts. In this order, BUSH vested himself with the power to detain and try by military commission a broad category of persons believed to be, or have been, linked to the acts of international terrorism. In this order, BUSH further vested his Secretary of Defense, Donald Rumsfeld, with certain powers related to the detention of such persons and the establishment of military commissions. BUSH emphasized that tasking his subordinate, Rumsfeld, with these responsibilities related to detention policies “shall not be construed to limit the authority of the President as Commander in Chief of the Armed Forces [...].” Finally, through this order, BUSH purported to strip detainees of the power to seek a remedy not only in U.S. federal courts but also in “any court of any foreign nation, or any international tribunal.”

11. By late 2001, BUSH was planning for the detention of individuals at the U.S. Naval Station at Guantánamo Bay, Cuba (Guantánamo) as evidenced by memoranda [PDF] addressing the question of whether the U.S. federal courts would have jurisdiction of individuals detained in Guantánamo — a prospect which BUSH sought to foreclose through his 13 November 2001 Order.

12. On 11 January 2002, the first detainees arrived in Guantánamo Bay, Cuba.

13. On 18 January 2002, BUSH decided that the Third Geneva Convention did not apply to the conflict with al Qaeda or members of the Taliban, and that they would not receive the protections afforded to prisoners of war. This decision was taken upon consideration of advice [PDF] from John Yoo and Robert Delahunty, both of the Department of Justice (“DOJ”) Office of Legal Counsel (“OLC”), and the additional oral advice of his Chief White House Counsel, Alberto Gonzales [PDF].

14. On 19 January 2002, Secretary of Defense Rumsfeld transmitted BUSH‘s determination regarding the status of the Taliban and al Qaeda to combatant commanders, along with the order that the commanders should treat such individuals in a manner “consistent” with the “principles” of the Geneva Conventions only “to the extent appropriate and consistent with military necessity” [PDF]. The combatant commanders were ordered to transmit the content of this memo to the subordinate commanders, including commander of Joint Task Force (JTF) 160 responsible for Guantánamo.

15. On 25 January 2002, the ICRC made its first visit to the detention facility in Guantánamo Bay, Cuba.

16. On 27 January 2002, BUSH‘s Secretary of Defense, Rumsfeld, visited the U.S. detention facility at Guantánamo.

17. On 7 February 2002, pursuant to his “authority as Commander-in-Chief and Chief Executive of the United States,” BUSH issued a memorandum stating that the Geneva Conventions do not apply to the conflict with Al-Qaeda, and that Common Article 3 of the Geneva Conventions did not apply to either Al-Qaeda or Taliban detainees [PDF]. BUSH called only for detainees to be treated humanely and “to the extent appropriate and consistent with military necessity, in a manner consistent with principles of Geneva,” as a matter of policy — not law. In so doing, BUSH rejected Secretary of State Colin Powell‘s calls to reconsider and reverse his 18 January 2002 determination regarding the application of the Geneva Conventions, and disregarded the advice of the Legal Advisor to the State Department that the non-application of the Geneva Conventions to the conflict in Afghanistan was inconsistent with plain language of the Geneva Conventions and unvaried practice of the United States in the fifty years since becoming a party to the Conventions [PDF].

18. In March 2002, the first “high value detainee” Abu Zubaydah was detained and interrogated by the CIA. His detention “accelerated” the development of the CIA interrogation program [PDF]. In his memoir DECISION POINTS, BUSH explained that the decision was taken to transfer Abu Zubaydah to CIA custody and to “move him to a secure location in another country where the Agency would have total control over his environment.”

19. Through, among other means, discussions among members of the NSC, which BUSH chaired, BUSH was fully briefed on, and approved as a matter of policy, the indefinite detention of individuals held by the U.S. government, and specifically, the CIA.

20. The CIA interrogation program sanctioned by BUSH included interrogation techniques that were directly inspired by the “Survival Evasion Resistance Escape (SERE)” training program, in which U.S. military members were exposed to, and taught how to resist, interrogation techniques used by enemy forces that did not adhere to the Geneva Conventions. As detailed in the CIA IG Report, the U.S. employed these techniques, which included waterboarding; confining detainees in a dark box for up to 18 hours at a time and possibly with an insect placed in the confinement box; up to 11 days of sleep deprivation; facial hold or facial slap; “walling,” which consists of pulling a detainee forward and then pushing him back quickly against “a flexible false wall so that his shoulder blades hit the wall;” and use of stress positions, on CIA detainees.

21. As described by the ICRC, the CIA detention program “included transfers of detainees to multiple locations, maintenance of the detainees in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention, and the infliction of further ill-treatment through the use of various methods either individually or in combination, in addition to the deprivation of other basic material requirements.” The UN Joint Study on secret detentions [PDF, also see here and here] noted that detainees had been held in Afghanistan, Thailand, Poland and Romania, among other locations. The ICRC described the fourteen individuals previously held as part of the CIA detention program, whom BUSH transfered to detention at Guantánamo, and which BUSH announced in September 2006, as “missing persons.”

22. The ICRC Detainee CIA Report further explained that the program “was clearly designed to undermine human dignity and to create a sense of futility by inducing, in many cases, severe physical and mental pain and suffering, with the aim of obtaining compliance and extracting information, resulting in exhaustion, depersonalisation and dehumanisation.”

23. The interrogation methods used on detainees were euphemistically qualified by the U.S. government as “enhanced,” but the United Nations and the ICRC found that they rose to the level of torture and cruel, inhuman or degrading treatment. The ICRC unequivocally concluded that, upon the information gathered from interviews with the former CIA detainees, conducted after their transfer to Guantánamo:

The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill treatment, either singly or in combination, constituted cruel inhuman or degrading treatment.

24. The ICRC concluded that the CIA program‘s interrogation techniques consisted of: suffocation by water — or waterboarding; prolonged stress standing position while arms are shackled above the head; beatings by use of a collar held around the detainees neck and used to forcefully bang the head and body against the wall; beating and kicking; confinement in a box; forced nudity for periods ranging from several weeks to several months; sleep deprivation through use of forced stress positions (standing or sitting), cold water and use of repetitive loud noise or music; exposure to cold temperature; prolonged shackling; threats of ill-treatment to the detainee and/or his family, forced shaving; and deprivation or restricted provision of solid food.

25. The UN Joint Study found that the CIA had taken 94 detainees into custody and had employed “enhanced interrogation techniques to varying degrees in the interrogation of 28 of those detainees.”

26.The CIA interrogations of Abu Zubaydah were videotaped and those videotapes were sent to CIA headquarters. In total there were 92 videotapes, 12 of which included application of so-called “enhanced interrogation techniques.” The videotapes included evidence of torture, including the waterboarding of Abu Zubaydah 83 times. Those videotapes were destroyed by the CIA in November 2005. Abu Zubaydah described to the ICRC his waterboarding:

I was put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds caused severe pain. I vomited. The bed was then again lowered to a horizontal position and the same torture carried out with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled without success to breathe. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress.

27. In November 2002, another CIA detainee held in a secret site, [Abd Al-Rahim] Al-Nashiri, was arrested. He was waterboarded twice in November 2002. Although the CIA IG Report is heavily redacted when discussing the interrogation of Al-Nashiri, it confirms that CIA HQ authorized the use of “enhanced interrogation techniques” against him. As discussed below, BUSH authorized and condoned the waterboarding of Al-Nashiri.

28. A third CIA “high value detainee,” Khalid Sheik Mohammed, was subjected to waterboarding 183 times. In his recent memoir, BUSH specifically acknowledged that, upon request by CIA Director George Tenet, he authorized the use of “enhanced interrogation techniques” on Khalid Sheik Mohammed, including waterboarding. In discussing “haul[ing] out their target,” following a raid on the apartment complex where Khalid Sheik Mohammed was, and the CIA interrogation that followed, BUSH writes in DECISION POINTS:

I was relieved to have one of Al-Qaeda‘s senior leaders off the battlefield. But my relief did not last long. [CIA] Agents searching Khalid Sheik Mohammed‘s compound discovered what one official later called a “mother lode” of valuable intelligence. Khalid Sheik Mohammed was obviously planning more attacks, It didn‘t sound like he was willing to give us any information about them. “I‘ll talk to you,” he said, “after I get to New York and see my lawyer.”

George Tenet asked if he had permission to use enhanced interrogation techniques, including waterboarding, on Khalid Sheik Mohammed. I thought about meeting Danny Pearl‘s widow, who was pregnant with his son when he was murdered. I thought about the 2,973 people stolen from their families by al Qaeda on 9/11. And I thought about my duty to protect the country from another act of terror.

“Damn right,” I said.

Other so-called “enhanced interrogation techniques” used upon Khalid Sheik Mohammed were threats to kill his children and the deprivation of sleep for 180 hours.

29. In a speech given on 6 September 2006, BUSH “officially acknowledged the existence of a CIA terrorist detention and interrogation program.” Defendant BUSH stated that “our government has changed its policies,” and admitted to authorizing an “alternative set of procedures” on persons detained “secretly” and “outside the United States” in a program operated by the CIA, while refusing to specify what techniques were authorized. BUSH also discussed another individual held in this program, Abu Zubaydah. As discussed above, Abu Zubaydah was subjected to acts of torture, including having been waterboarded at least 83 times. Notably, while BUSH stated that there were no detainees held in the CIA detention program as of 6 September 2006, he explicitly reserved the right to place, again, persons in CIA detention in secret sites beyond the reach of the law.

30. In his 6 September 2006 speech, BUSH also expressed fear that members of the U.S. military involved in torture might be prosecuted for war crimes: “some believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act — simply for doing their jobs in a thorough and professional way.” He emphasized that he would not allow this to happen and asked Congress to prevent detainees from pursuing civil claims against U.S. military personnel for violations of the Geneva Conventions. Through these measures, BUSH sought to provide complete immunity from justice for any member of the U.S. military who tortured a detainee.

31. Having met with the fourteen “high value detainees” held in the CIA program following their transfer from secret sites to Guantánamo in September 2006, the ICRC concluded that it “clearly considers that the allegations of the fourteen include descriptions of treatment and interrogation techniques – singly or in combination – that amounted to torture and/or cruel, inhuman or degrading treatment.”

32. On 11 June 2007, the Parliamentary Assembly of the Council of Europe, of which Switzerland is a member state, published an investigative report authored by Dick Marty on secret detentions and illegal transfers of “high value detainees” by the CIA involving Council of Europe member states. The report confirmed the existence of secret CIA sites in Poland and Romania and found that the interrogation techniques used on detainees were “tantamount to torture.” On 27 June 2007, the Parliamentary Assembly, adopted a resolution in which it unequivocally stated:

The detainees were subjected to inhuman and degrading treatment, which was sometimes protracted. Certain “enhanced” interrogation methods used fulfill the definition of torture and inhuman and degrading treatment in Article 3 of the European Convention on Human Rights (ETS No. 5) and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

33. In March 2008, BUSH vetoed legislation that would have banned the CIA from using “enhanced interrogation techniques,” including waterboarding, saying it “would take away one of the most valuable tools on the war on terror.”

34. In addition to detainees in the CIA detention program, these SERE-inspired “interrogation techniques” were also used against Mohammed al-Qahtani, a detainee at Guantánamo who was subjected to a prolonged, aggressive interrogation that violated international law, known as the “First Special Interrogation Plan” [PDF]. This interrogation plan, which began on 23 November 2002 and ended 16 January 2003, included 48 days of severe sleep deprivation and 20-hour interrogations, forced nudity, sexual humiliation, religious humiliation, dehumanizing treatment, the use of physical force against him, prolonged stress positions, prolonged sensory overstimulation, and threats with military dogs. These techniques were later widely acknowledged as torture. Indeed, the former convening office of the military commissions at Guantánamo, Susan Crawford, declared that she could not bring charges against Mr. al-Qahtani due to the torture inflicted on him: “we tortured al-Qahtani. … His treatment met the legal definition of torture. And that’s why I did not refer the case for prosecution.”

35. There have been a plethora of reports published that detail the draconian conditions, interrogation techniques and torture that took place at Guantánamo. Since as early as 2003, ICRC staff had expressed their deep concerns about the detention conditions in Guantánamo — indeed, published memoranda by U.S. officials from that period contain descriptions of meetings held between ICRC staff and Guantánamo commander Geoffrey Miller where concerns were raised [PDF]. In 2006, a group of five United Nations Special Rapporteurs published a joint Report on the situation of detainees at Guantánamo Bay. Crucially, this report came to the express conclusion that the interrogation techniques authorized and deployed by the Department of Defence, which operates under the command of BUSH, amounted to torture. Additionally, the UN experts also concluded inter alia that the force-feeding of detainees on hunger strike amounted to acts of torture [PDF]. A 2006 report by the United Nations Committee against Torture explicitly recommended that the U.S. “rescind any interrogation technique, including methods involving sexual humiliation, ‘water boarding‘, ‘short shackling‘ and using dogs to induce fear, that constitute torture or cruel, inhuman or degrading treatment or punishment” [PDF]. A 2008 study by Physicians for Human Rights came to the conclusion that many techniques used in Guantánamo, especially those exercised over a longer period or in combination with other techniques, amounted to torture. Other studies have detailed how the BUSH administration, for example, forcibly deployed the drug mefloquine against detainees at Guantánamo in order to break their resistance to interrogation, despite the fact that it is well-known to have severe side effects and cause health problems [PDF]. In sum, there is widespread international acceptance — amongst intergovernmental bodies, international experts, academics and others — that the interrogation techniques applied in Guantánamo constitute torture under international law.

36. Finally, as is well-known, detainees in Iraq, including at the notorious Abu Ghraib prison, were also subjected to torture, cruel, inhuman and degrading treatment, and other serious violations of international law [Taguba PDF, Fay/Jones PDF, ICRC PDF, Schlesinger PDF].

C. Admissions and Findings that BUSH Authorized and Approved Torture

37. George W. BUSH has acknowledged on numerous occasions, and without any apparent remorse or consequence that he authorized and condoned the waterboarding of detainees held in U.S. custody, and that he was aware of and condoned the use of so-called “enhanced interrogation techniques.” BUSH‘s own admissions are consistent with, and confirm the findings of key reports, such as the CIA Inspector General‘s Report and the Marty Report.

38. The CIA IG Report confirms that BUSH was fully briefed on the specific “enhanced interrogation techniques” employed by the CIA, through consultations carried out in the summer of 2002 by the CIA with the NSC, which BUSH chaired, and with “senior Administration officials.” The CIA IG Report further confirms that in early 2003 the CIA continued to inform senior Administration officials, including the White House Counsel and others of the NSC, of the status of its Counterterrorism Program, because “[t]he Agency specifically wanted to ensure that these officials and the [Congressional] Committees continued to be aware of and approve CIA‘s actions.” Select members of the NSC were given a detailed briefing on the program by the CIA on 29 July 2003, and again on 16 September 2003: “none of those involved in these briefings expressed any reservations about the program.” BUSH met daily with, and was briefed by, his intelligence team.

39. In addition, BUSH played an active role in supporting the CIA secret detention program. Marty‘s Council of Europe investigation, for example, reported that BUSH welcomed to the Oval Office a high-level group of delegates from Bucharest to personally thank them to their contribution to the CIA program, as Romania hosted CIA black sites.

40. In an April 2008 interview with ABC News, BUSH acknowledged that he knew of the detailed discussions members of his national security team (the “Principals Committee” of the NSC) were having to define the interrogation techniques to be used by the CIA. When asked about the treatment of Khalid Sheik Mohammad, which included waterboarding, BUSH said: “I didn’t have any problem at all trying to find out what Khalid Sheikh Mohammed knew.”

41. BUSH released his memoir, DECISION POINTS, on 9 November 2010. In the book, BUSH states unequivocally that he authorized the torture, including waterboarding, of individuals held in U.S. custody. He further admits and acknowledges his role in selecting and approving the interrogation techniques used by the CIA: “I took a look at the list of techniques. There were two that I felt went too far, even if they were legal. I directed the CIA not to use them. Another technique was waterboarding, a process of simulated drowning. No doubt the procedure was tough [...] I would have preferred that we get the information another way. But the choice between security and values was real. Had I not authorized waterboarding on senior Al-Qaeda leaders, I would have had to accept a greater risk I was unwilling to take. [...] I approved the use of the interrogation techniques.”

42. BUSH details how at his direction, Department of Justice and Central Intelligence Agency lawyers conducted a legal review of the list of interrogation techniques proposed by the CIA. (Notably, the current U.S. Attorney General, Eric Holder, has unequivocally defined waterboarding as an act of torture.) Having received legal advice from government lawyers that it is permissible to waterboard detainees, BUSH admits that he responded “damn right” to the query of whether Khalid Sheik Mohammed could and should be waterboarded.

43. In an interview with Matt Lauer of NBC News on 8 November 2010, BUSH again admitted that he authorized acts of torture, including waterboarding:

BUSH: [...] one of the high value al Qaeda operatives was Khalid Sheik Mohammed, the chief operating officer of al Qaeda, ordered the attack on 9/11, and they say he’s got information. I said, “Find out what he knows.” And so I said to our team, “are the techniques legal?” And he says, “yes, they are,” and I said, “use ‘em.”
LAUER: Why is waterboarding legal, in your opinion?
BUSH: Because the lawyers said it was legal. He said it did not fall within the Anti-Torture Act. I’m not a lawyer, but you gotta trust the judgment of people around you and I do.
LAUER: You say it’s legal and “the lawyers told me.”
BUSH: Yeah.
LAUER: Critics say that you got the Justice Department to give you the legal guidance and the legal memos that you wanted.
BUSH: Well –
LAUER: Tom Kean, who was a former Republican co-chair of the 9/11 commission, said they got legal opinions they wanted from their own people.
BUSH: He obviously doesn’t know. I hope Mr. Kean reads the book. That’s why I’ve written the book. He can — they can draw whatever conclusion they want.

44. BUSH‘s admission of authorizing torture techniques was previously acknowledged by the second-highest ranking member of his administration, Vice President Dick Cheney. On 10 May 2009, former Vice President Cheney appeared on the CBS News television program Face the Nation. Asked what BUSH had known about torture methods, Cheney replied, “I certainly, yes, have every reason to believe he knew — he knew a great deal about the program. He basically authorized it. I mean, this was a presidential-level decision. And the decision went to the president. He signed off on it.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

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

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

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

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

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

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

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

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

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

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

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

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

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners.

The investigation is of enormous significance, as the Polish Prosecutor has granted “victim” status to two men held at the prison — the “high-value detainees” Abd al-Rahim al-Nashiri (in October) and Abu Zubaydah (just three weeks ago) — meaning that the Polish government possesses information identifying both men and their presence at the prison, almost certainly between December 2002, when they were flown to the prison from Thailand, and September 2003, when they were moved elsewhere — possibly to Guantánamo, where a secret prison-within-a-prison existed until March 2004, when the “high-value detainees” were moved again.

Despite this, progress in Poland, since the investigation opened in 2008, has been painfully slow, as those affected by it have refused to acknowledge the prison’s existence, and have ridiculed anyone who has attempted to expose its existence, or to suggest that senior officials had knowledge of it.

Although, personally, I believe that the granting of “victim” status to al-Nashiri and Zubaydah means that the Polish investigation cannot be effectively stifled — and made a point of telling this to audiences in Poland — I understand concerns that it will go the way of a similar investigation in Lithuania, where another secret CIA prison also existed, but where an investigation fizzled out just a month ago.

As Amnesty International reported, in a call for the investigation to be reopened, although a Lithuanian parliamentary inquiry “issued a report in December 2009 concluding that the secret prisons existed and that SSD [State Security Department] officials should be investigated for ‘abuse of power’ under Lithuanian law,” the Lithuanian Prosecutor General closed the investigation last month, feebly noting that SSD officials “had committed ‘disciplinary offenses’ by failing to notify top government officials of the operation,” but claiming that a statute of limitations on the investigation had run out.

While I was in Poland, however, I also had other reassuring news for the audiences at the screenings. The first was that, despite attempts by the Obama administration to suppress a judicial investigation in Spain into the conduct of six senior Bush administration lawyers responsible for providing the flawed legal advice that underpinned the torture program, the case, which started in March 2009, is still ongoing. The lawyers in question are David Addington, Jay S. Bybee, Douglas Feith, Alberto Gonzales, William J. Haynes II and John Yoo, and the Center for Constitutional Rights (along with the Berlin-based European Center for Constitutional and Human Rights) recently filed two briefs in Spain — not only in connection with the case against the lawyers, but also in another investigation into the torture program.

This second case was initiated by Judge Baltasar Garzón in April 2009, when he opened a preliminary investigation into what he termed “an authorized and systematic plan of torture and ill-treatment on persons deprived of their freedom without any charge and without the basic rights of any detainee, set out and required by applicable international conventions,” in US detention facilities, and CCR’s recent submission outlines the complicity in torture of Guantánamo’s former commander, Maj. Gen. Geoffrey Miller, who was in charge during the worst of the torture at the prison in 2002 and 2003, requesting that a subpoena be issued for Miller to testify before the judge who has taken over the case from Judge Garzón.

The second piece of good news was that, while I was in Poland, a court case began in Macedonia, in which Khaled El-Masri, a German citizen who was seized in Macedonia on New Year’s Eve 2003 and rendered to a secret CIA torture prison in Afghanistan for five months until the US government realized that he had been seized by mistake (because he had the same name as a man who allegedly provided support to the 9/11 hijackers), is suing the Macedonian government for 50,000 Euros ($70,000) in damages.

Although Clara Gutteridge, an investigator with Reprieve and the Open Society Justice Initiative, who testified on the first day of the hearings last week, complained that “the strategy of the Macedonian government in this case is not to address the evidence that has been presented to them, but [to] simply continue to deny, deny and deny,” the case is expected to last two years, and lawyers I have spoken to have suggested that it may meet with success, because the Macedonian government does not have an array of high-powered lawyers able to effectively block investigations.

It was, however, a third piece of news that particularly brightened up my last few days in Poland, when I was able to tell audiences that George W. Bush had just cancelled a proposed trip to Switzerland on February 12, because two former victims of his torture program — the al-Jazeera cameraman Sami El-Hajj (who was released from Guantánamo in May 2008) and Majid Khan, a “high-value detainee” who was moved to Guantánamo in September 2006, after years in secret CIA prisons — had filed criminal complaints against Bush for his involvement in their torture, prepared by the Center for Constitutional Rights and the European Center for Constitutional and Human Rights, with support from the International Federation for Human Rights (FIDH).

This was enormously significant, as Vince Warren, the Executive Director of CCR, explained in an article in the Huffington Post:

Swiss law requires the presence of an alleged torturer on Swiss soil before a preliminary investigation can be open. Because Bush canceled, the complaints could not be filed as the basis for legal jurisdiction no longer existed. However, the fact that Bush authorized torture remains … In the long run, ducking a charge of torture is not as easy as ducking a shoe thrown at a press conference.

Warren also announced that, on the day that the criminal charges were to be filed in Switzerland — which was also the 9th anniversary of the day in 2002 when the former President decided that “the Geneva Conventions did not apply to the conflict with al-Qaeda or to so-called ‘unlawful combatants’” — CCR publicly released the Preliminary Bush Torture Indictment, which “provides a strong factual and legal basis to hold Bush accountable — in any of the 147 countries which have ratified the [UN] Convention Against Torture (CAT) — for having authorized torture. In addition, the Indictment compiles more than 2,500 pages of publicly available supporting material, and has the support of two Nobel Peace Prize winners, more than 60 NGOs, and two former UN Special Rapporteurs on Torture and on the Independence of Judges and Lawyers.”

Warren concluded his article with a very pertinent question, asking why, when “the rest of the world gets much smaller for George W. Bush … is Eric Holder comfortable with allowing him safe haven here in the United States?”

The answer to that question is half-submerged in a miasma of fear, cowardice and political expediency on the part of the Obama administration, which is grim news for those, like myself, seeking the closure of Guantánamo and the thorough and necessary repudiation of the violent and arrogant face of America’s deluded sense of exceptionalism, which defined the Bush years. However, despite these profound disappointments, the fact that the torturer-in-chief has been made unwelcome in Europe — and, in theory, anywhere outside the US –  is heartening news indeed.

Note: For further information about European complicity in secret detention and torture, see Amnesty International’s recent report, “Open Secret: Mounting Evidence of Europe’s Complicity in Rendition and Secret Detention” (PDF).

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

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

In addition — and perhaps most crucially — Moazzam and I were looking forward to having the opportunity to discuss the existence, in the early years of the “War on Terror,” of a secret CIA torture prison at Stare Kiejkuty, near Szymany, where a number of “high-value detainees,” including Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, were held, as part of a network of secret prisons that also included facilities in Thailand, Romania, Lithuania and Morocco.

This aspect of the tour is of particular relevance right now because one of the men held in Stare Kiejkuty was Abu Zubaydah, a man who, it turned out, was not a significant terrorist at all, but was, instead, the mentally damaged gatekeeper for a training camp in Afghanistan that was closed down by the Taliban in 2000 because its leader, Ibn al-Shaykh al-Libi, refused to allow it to be taken over by Osama bin Laden. Just two weeks ago, Abu Zubaydah was granted “victim” status by the Polish Prosecutor in an ongoing investigation into the complicity of the Polish government — under former Prime Minister Leszek Miller and former President Aleksander Kwasniewski — in the establishment of the secret prison. This followed the granting of “victim” status to another “high-value detainee,” Abd al-Rahim al-Nashiri — allegedly the mastermind of the atack on the USS Cole in 2000 — last October.

Moazzam and I were met at the airport in Kraków by Anna Minkiewicz, a friend and supporter who, heroically and almost single-handedly, organized the tour and translated and sub-titled the film, which, in Polish, is “Poza Prawem: Echa z Guantánamo,” although she could not have done so without some heroic assistance on the subtitles, from Polly, here in the UK, and without the dedicated support in Poland of Przemysław Wielgosz, the chief editor of the Polish edition of Le Monde Diplomatique, who supplied all the contacts for the tour’s local media partners — a great group of people who not only made us welcome everywhere we went, but also arranged most of the publicity. Despite communicating by email for many years (since Anna first contacted me out of the blue with the kind of detailed and engaging email that is all too rare), we had never met, and I was looking forward to spending a week together, and also to spending a few days with Moazzam, who was only able to stay for the first two screenings in Warszawa and Łódź.

After settling in for the evening, in wonderful high-ceilinged rooms in a well-preserved building overlooking the Main Market Square (one of the largest in Europe), Anna took us, past some excellent architecture (including St. Mary’s Basilica and the Sukiennice — or Cloth Hall), to a charming little restaurant, where we happily spent a few hours in a free-wheeling discussion that touched on Guantánamo, Afghanistan and Africa, amongst other topics.

Day One: Kraków and Warszawa (Warsaw)

In the morning, we made our way across the square to a bar overlooking the Cloth Hall, for a live interview with TVN, one of the major independent TV channels in Poland, for the morning news, which was an excellent opportunity for Moazzam and I to publicize the tour, to explain why we were in Poland, and how the Polish people can help to close Guantánamo by offering new homes to cleared prisoners. I had been interviewed in London in December by another TVN reporter, Michal Sznajder, for a programme about the British government’s financial settlement with former Guantánamo prisoners (which has not yet been broadcast), so I was aware that TVN employs some fine journalists interested in covering important topics. The presenter, Marcin Sawicki, was well prepared, having watched the film the night before, and the interview is available here (in Polish), although in retrospect it was disappointing that, in the six minutes alloted to us, we didn’t have the opportunity to raise the topic of the secret CIA prison.

After the interview, while I returned to my room to catch up on emails, Moazzam and Anna visited the Jewish Quarter, where the echoes of the Holocaust obviously left a deep impression on Moazzam (who attended a Jewish school as a child), as it was something he referred to repeatedly during the rest of his visit — and in fact, as Moazzam and I both attempted to understand modern, post-Communist Poland, on our first ever visit, and the circumstances in which a government desperate for approval from the US agreed to host a secret torture prison on Polish soil, we were constantly prompted to draw analogies with the torture and brutality of the Nazis and the Soviet Union, which provide — or ought to provide — powerful resonances for the Polish people, and unassailable reasons why new atrocities should not have been allowed to happen in their country.

After a late breakfast, we then made our way to the station to catch a train to Warsaw. In Poland’s railway stations, the ghosts of the Soviet era were more tangible than they were in the streets of Kraków in particular, which was an almost miraculous survivor of the devastation of Poland by the Nazis, and is now a major tourist attraction, but the trains, although old and slow for the most part, were a delight, with the kind of six- or eight-person compartments that have now vanished from Britain, but which have a particular charm and intimacy not replicated in modern, open-plan carriages.

Our first stop in Warsaw was Kino Muranów, where we were met by the tall and enthusiastic figure of Bartek Kurzyca of the Globale political collective, which has connections in Berlin and Montevideo, and which was the media partner for our events in Warsaw.

The first of these was a press conference with Bartlomiej Jankowski, the lawyer for Abu Zubaydah, a smart and serious man who greeted us warmly, and added depth and resonance to our introduction to the Polish media. It was a great pleasure to meet him, and the press conference was a success, with Moazzam and I interviewed afterwards by Wojciech Cegielski of Polskie Radio and Adam Krzykowski of the State broadcaster TVP. At 6 pm, TVP broadcast a report on the press conference in its news programme “Panorama,” which was useful and important.

Moazzam and Anna and I actually watched the “Panorama” report in the office of Mikołaj Pietrzak, the lawyer for Abd al-Rahim al-Nashiri, where we had a meeting (after dropping our bags off at our hotel) that also included Irmina Pacho of the Helsinki Foundation for Human Rights, which played a crucial role last summer in obtaining the flight logs for the flights in and out of Stare Kiejkuty between December 2002 and September 2003, and I wrote about the flight logs last August, in an article entitled New Evidence About Prisoners Held in Secret CIA Prisons in Poland and Romania and followed up with Will Poland’s Former Leaders Face War Crimes Charges for Hosting Secret CIA Prison? This was when I first made contact with Adam Bodnar of the Helsinki Foundation — a contact that led me, on this trip, to make contact with Bartlomiej Jankowski, Mikołaj Pietrzak and Irmina Pacho.

The meeting with the lawyers was particularly useful, reassuring them that their cause has not been forgotten, that it is being watched with intense interest by lawyers, activists and other decent-minded people in countries around the world (including the US and the UK) and that, despite large-scale indifference in Poland, it was also possible to stir up interest through the film and the tour, and to establish important contacts across the country, and the building blocks for a network of interested parties who can move forward with their shared interests. The meeting was also extremely useful for providing Moazzam and I with strategies for the future, and I was delighted to receive English language translations of various important documents — as well as new and relevant information — that I’ll be writing about in another article in the very near future.

From Mikołaj Pietrzak’s office, we returned to Kino Muranów, where it was enormously satisfying to discover that the cinema was packed, and that at least 200 people had turned up to watch the film’s first public outing in Poland. After we had sneaked off, during the screening, for some food — which turned out to be a surreal meal in a Vietnamese vegan restaurant where we had to order our food based solely on rather lurid photos — we returned for the Q&A session, and were joined by  Draginja Nadażdin, the director of Amnesty International Poland (which provided some support for the tour), and had our first taste of the dedication with which Polish audiences pursue opportunities to ask questions.

Day Two: Warszawa (Warsaw) and Łódź

On Wednesday morning, after breakfast and a quick tour of the centre of Warsaw, painstakingly reconstructed after its complete destruction by the Nazis, we took a taxi to the outskirts of town, to a studio where Moazzam and I were interviewed for a documentary about the secret prison that is being made by Roman Kurkiewicz, a veteran of the Solidarity movement (Solidarnosc), and also a journalist, author and professor, and the kind of principled revolutionary pro-democracy figure that I admired while watching the rise of Solidarity from afar 30 years ago. The documentary promises to be excellent, and I made sure that Roman knew that I would be delighted to tour it and make it available in the UK and the US if he makes an English version.

From the studio, we rushed to the station to catch the train to Łódź, where we were met by Marek Jedliński of of Krytyka Polityczna, and, at the cinema, his wife and the two translators for the evening. With some time to spare, we had an opportunity to chat, to enjoy some home-cooked food on sale in the basement of the cinema (which is also a cinema museum, with some wonderful old projectors filling the corners of various rooms), and also to be photographed (see the photos here and here) prior to an interview, during the screening (when we again retired downstairs), with Moazzam and I, which was conducted by a reporter from the Polish news agency Polska Agencja Prasawa, and which formed the basis of an article (available here in Polish) in the newspaper Gazeta Wyborcza.

For the second night, the cinema was packed out, with around 100 people, and the screening was followed by another lively Q&A session (audio here, in Polish and English), in which Moazzam, Anna and I were also joined by Wojciech Makowski of Amnesty International Poland. With translators (not available in Warsaw), it was, I think, a more satisfying Q&A session, with all the major topics covered, and a true abhorence of torture vividly expressed in various quarters of the crowd.

Afterwards, when I had let Wojciech Makowski know that I was happy for Amnesty to use my list of the remaining prisoners to encourage Amnesty members to write to the prisoners in Guantánamo (and also see here), the organizers took us to Ganesh, an excellent Indian restaurant, where we chatted away merrily and devoured butter chicken, garlic naan, and, in my case, some rather fine mutton with spinach, before retiring to our hotel. With two days completed, it was obvious that the tour was proving to be a great success.

Day Three: Poznań

After a late night in our hotel, in a block with an evident Soviet history, where Moazzam and I, who were sharing a room, stayed up talking about the tour, about Shaker Aamer, about anti-terror legislation in the UK, and about the plight of the Yemenis in Guantánamo (and I then retired to the bathroom to write Guantánamo: A Tale of Two Tunisians, letting Moazzam sleep), I awoke to find that Moazzam had already left for the station, to catch a train to Warsaw and a flight home. After breakfast, Anna and I returned to the station for the next stage of our journey, to Poznań, where we met up again with Draginja Nadażdin, the director of Amnesty International Poland, for a screening in another arthouse cinema, Kino Rialto.

The publicity in Poznań had been very last-minute, so there was not a huge audience, but the 30 or so people who did attend were refreshingly committed, and, after Anna, Draginja and I had grabbed some food in the only nearby place that wasn’t McDonald’s (a little pasta place), we had an excellent Q&A session, honing our messages about dispelling the lies about Guantánamo, and pushing for the resettlement of cleared prisoners and greater visibility for the topic of the torture prison.

Day Four: Wrocław

On Friday morning, after filling up on coffee and breakfast at our well-appointed hotel — where, the day before, I had thought the recent smoking ban in Poland didn’t apply, because the owner was so brazenly smoking in his own dining room — Anna and I took the train to Wrocław (formerly known as Breslau, and handed over from German to Polish control after the Second World War), where we were met by Aneta Jerska of Falanster, a collective of young activists with a lovely bookshop, and fine food and coffee, where we got to relax for an hour or so after dropping our bags off at the no-frills, Soviet-era Hotel Polonia, complete with sullen staff.

From Falanster, we made our way to Kino Warszawa, a delightfully unreconstructed old cinema (in a country with its fair share of unreconstructed old cinemas) inside a splendid old building, where I was introduced to my translator for the evening, and also to Józef Pinior, our very special guest. A former member of the Solidarity movement, he was an MEP from 2004 to 2009, and, crucially, was first a member, and then the Vice-Chair of the Subcommittee of Human Rights, where he worked with other MEPs, including the UK’s Sarah Ludford, on a crucial investigation into renditions in Europe in the “War on Terror,” which was published in January 2007, and entitled, “Report on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners” (PDF, and see the resolution here).

As a result of his investigations, Józef Pinior came across information in Poland establishing that the Polish government not only sanctioned the establishment of a secret CIA prison in Poland, but was actively involved in it (as will be discussed in more detail in a forthcoming article). Despite this, he found himself ridiculed in Poland by those he sought to expose, although his presence on Friday — and the rare opportunity to discuss the secret prison in a public forum — drew the most spirited audience of the tour, anxious to debate ways to take the story forward, and, from feedback I received afterwards, grateful that Anna and I had brought the film to Wrocław, that I was bringing news of interest in the story of the prison from outside Poland, and that Józef Pinior had an opportunity to explain what he knew to a sympathetic audience, and was able to assert that the Prosecutor’s granting of “victim” status to Abu Zubaydah and Abd al-Rahim al-Nashiri establishes, beyond any doubt, that both men were held in the secret prison at Stare Kiejkuty.

After the screening and the Q&A session, a group of us — including Józef Pinior, Anna, Aneta and I — found a wonderful Armenian restaurant around the corner from the cinema, with great food (my beef and spinach was excellent), where we discussed the secret prison, Pinior’s investigations, and the state of politics in Poland, enabling to understand more about how he could have been so thoroughly sidelined by politicians and the media.

We also proceeded more generally to discuss the dangers of unchecked global capitalism , especially in the wake of the 2008 financial crisis, and the failure of governments to legislate against the banking sector, or to hold anyone accountable, and the need for new political responses. As throughout my visit, I was happy to point out that savage ideological cuts in the UK have provoked significant resistance by students and scholchildren, but also to concede that it does not yet constitute a new political movement, and broad coalitions (as with Solidarity) and further spurs to erode complacency and apathy will be needed before there is any real hope of a paradigm shift in the problems of the West.

Day Five: Kraków

For the last screening of the tour, Anna and I took a four and a half hour train ride back to Kraków, arriving with time to drop our cases off at Anna’s apartment, and to make our way to Kino Agrafka, another lovely arthouse cinema in a rambling old building, where another lively audience, of about 50 people, had forsworn the more recreational attractions of a Saturday night for an evening of arbitrary detention and torture. I was, by now, clinging to consciousness somewhat, but a Polish speciality for dinner — tasty meat and vegetable stew served inside a hollowed-out loaf of bread — and a few coffees brought me back to life a little for the final Q&A session of the tour, and afterwards Anna and I retired to a bar with one of the audience members.

Unwinding after an intense but rewarding week was a precursor to my final day in Kraków, which involved sleeping, eating, shopping and chatting before my flight back on Monday morning. It was not the easiest week I have ever had, as I received the sad news on Thursday evening that my father had passed away suddenly, which was difficult to deal with so far from home, but it was a very worthwhile trip, and I am deeply grateful to Anna for organizing it and funding it, and also for being there for me when I received the news about my father’s death.

In combatting the injustices of the “War on Terror,” and calling for accountability for America’s torturers (and their allies), those of us working in the US and the UK over the last nine years have realized that it is a long road, and not one for those seeking instant results. I hope that my presence, and that of Moazzam, helped to raise awareness of this amongst Poland’s anti-torture activists, as well as reassuring them that they are not alone, and I hope also that, with Anna, we helped to keep the story of the secret prison — and of cleared prisoners in Guantánamo who need new homes — alive in the media.

From my point of view, the trip was worth it alone for the audiences who saw the film and engaged in the Q&A sessions, for the media interest, and for the contacts I established with activists, lawyers and journalists, but I’m also pleased that it was more than just the sum of its parts — that Anna was such an engaging host, and that there are so many lovely people in Poland.

Note: In Poznań and Kraków, university lecturers who attended the screenings asked for (and received) copies of the film, to arrange screenings in their universities and to use in lecture topics for their students. I would like to encourage more people to do this, and also hope that there will be interest in making the sub-titled version of the film available on DVD. Please contact me (or Anna Minkiewicz if  writing in Polish) if this is of interest.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners.

In the last week, there have been two significant developments. In the first, former Guantánamo prisoner Abdallah Hajji (also identified as Abdullah bin Amor), who is 55 years old, was freed from prison in Tunisia “as part of a promise by the interim government to free all political prisoners.” A former member of the previously banned Islamist political party Ennahdha, whose leader, Rachid Ghanouchi, returned from exile in France just two days earlier, Hajji, who was seized in April 2002 in Pakistan, where he had been living with his wife and children since fleeing Tunisia in 1989, had, in 1995, been sentenced in absentia to ten years in prison, on terrorism-related charges that his lawyer was convinced had been extracted through the torture and abuse of other prisoners in Tunisian custody. When Hajji was forcibly returned to Tunisia in June 2007, he was abused and threatened in custody, and then subjected to a show trial in which he received a seven-year sentence. His release therefore overturns this sentence, and confirms that he was being held as a political prisoner.

In the press report announcing Hajji’s release, it was also noted that the other man repatriated from Guantánamo with him, who was not named but is Lotfi Lagha, is also a free man, having been freed last June, three years after his return and a show trial in October 2007, in which he was given a three-year sentence.

While the freeing of a political prisoner formerly held in Guantánamo vindicates Abdallah Hajji, and must provide hope for many other Tunisian political prisoners, both inside Tunisia and elsewhere, the news from Italy, which coincided with the announcement about Hajji, was rather less encouraging. Mohammed Tahir Riyadh Nasseri, who was transferred from Guantánamo in December 2009 with another Tunisian, Adel Ben Mabrouk bin Hamida Boughanmi, was convicted on Monday of “criminal association with the aim of terrorism and sentenced to six years in prison.” His lawyer, Roberto Novellino, said he would appeal the verdict.

Nasseri may well be guilty of the charges against him, but what concerns me is that, on his transfer to Italy, it was made clear that Italian prosecutors were relying on a key witness, Lazhar Ben Mohamed Tlil, a terrorist suspect turned informant, who was apparently having second thoughts about his co-operation.

What also concerns me is the weakness of the evidence against Nasseri from Guantánamo which, essentially, boiled down to a single claim that he was “the head of the Tunisians in Afghanistan.” As I explained at the time of his transfer to Italy:

[This] may, of course, be true, but what makes it suspicious in the context of the intelligence-gathering at Guantánamo is that it comes from an allegation that he was “identified by a senior al-Qaeda lieutenant as having trained at the Khaldan camp and that he eventually took over as the Emir of the Tunisian Group in Afghanistan.”

References to “a senior al-Qaeda lieutenant” in proceedings at Guantánamo invariably refer to “high-value detainees,” who, at the time, were held in secret CIA prisons where they were subjected to “enhanced interrogation techniques” approved by lawyers in the Justice Department’s Office of Legal Counsel; in other words, where they were tortured.

There is, of course, no indication as to who this particular “high-value detainee” was, but as the reference is to the Khaldan training camp, it seems likely that the allegation was made either by Abu Zubaydah (the gatekeeper of the camp, and the CIA’s most well-known torture victim, along with Khalid Sheikh Mohammed) or by Ibn al-Shaykh al-Libi, the CIA’s most famous “ghost prisoner.” Tortured in Egypt in 2002, al-Libi made a false confession about links between al-Qaeda and Saddam Hussein that was used to justify the invasion of Iraq. Rendered to various other prisons run by or on behalf of the CIA in the four years that followed, he was returned to Libya in 2006, where he died in May [2009], reportedly by committing suicide.

As for the other Tunisians held — or formerly held — in Guantánamo, the signs, as anticipated, are that the three men released in third countries (because of their legitimate fears that, if returned, they would be abused, subjected to show trials and imprisoned like Abdallah Hajji and Lotfi Lagha), would now like to return home, although, as yet, there is no sign that any formal application to do so has been made — or, indeed, if their host countries, or the US, would object. These men are Rafiq al-Hami, who was released in Slovakia last January with two other men (from Egypt and Azerbaijan), Saleh Sassi, who was released in Albania in February last year (with an Egyptian and a Libyan), and Hedi Hammamy, who was released in Georgia last March (with two Libyans).

Of the five men still held in Guantánamo, I noted two weeks ago the likelihood that only one, Lotfi bin Ali (also identified as Mohammed Abdul Rahman) has been cleared for release by the Obama administration’s Guantánamo Review Task Force, which reviewed the cases of all the Guantánamo prisoners throughout 2009, and recommended that, of the 173 men still held, 89 should be released, 33 should face trials and 48 should continue to be held indefinitely without charge or trial.

I also noted that, since a judge intervened to prevent his involuntary repatriation in October 2007, “no new home has been found for bin Ali in the last three years and four months, although now, presumably, there is no obstacle to his release, which should be demanded immediately,” and I maintain that there should be immediate calls for his repatriation, as it is, presumably, no longer unsafe for him to return. On this point, however, it may be that the Obama administration, or Congress — which has unconstitutionally asserted that it has a right to review prisoner releases before they occur — may conclude that, although a US judge ruled that Tunisia under Ben Ali was an unsafe destination for the return of Tunisian prisoners, post-dictatorship Tunisia may not yet be regarded as a safe option on the basis of “national security” concerns. I sincerely hope that this is not the case, as it will only demonstrate, as wth Egypt, how much America loves its dictators, but I have to concede that it is not beyond the realms of possibility.

The other four men, however, remain in limbo. One, Ridah al-Yazidi, was cleared for relase under the Bush administration, although it is unclear if Obama’s Task Force reached a similar conclusion, and the other three apparently face extradition to other countries to face trial. The Belgian govermment has expressed an interest in extraditing Adel Hakeemy (also cleared for release under President Bush) in connection with terrorist allegations in Belgium, as it has with Hisham Sliti, who, in addition, lost his habeas corpus petition in December 2008, and the Italian government has expressed an interest in extraditing Abdul Ourgy (who was also cleared for release under Bush).

Given that four of the five men remaining in Guantánamo were cleared under President Bush, there is clearly an argument to be made that the simplest solution would be to repatriate all four men, but, as mentioned in relation to Lotfi bin Ai, there is no guarantee that, given the current political climate in the US, President Obama has any interest in proposing that any of the men currently held in Guantánamo should be released, and it may well be that the Tunisians will remain imprisoned — victims not of anything resembling justice, but of a state of political expediency on Obama’s part, and of hysteria in Congress and the right-wing media, which is preventing any moves being made to bring the sordid history of Guantánamo to an end.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners.