Bin Mohammed won his habeas corpus petition last November, but was so scared of returning to Algeria that the judge in his case, Judge Gladys Kessler of the District Court in Washington D.C., tried to prevent his enforced return, eventually losing that appeal in the Conservative-dominated D.C. Circuit Court, and then losing again on July 16, when the Supreme Court also refused to act on his behalf. When Abdul Aziz Naji’s appeal was denied by the Supreme Court the following day, the last obstacle to the enforced repatriation not only of bin Mohammed, but also of Nabil Hadjarab, Motai Saib, Djamel Ameziane and Ahmed Belbacha was also removed.

As the legal action charity Reprieve reports today, “the Algerian prosecutor’s office reported on Monday that Abdul Aziz Naji was charged with an unspecified offence and is now under ‘judicial supervision.’” This may well mean that he will now undergo long months of horrible uncertainty as the government prepares to try him, even though, in the cases of other Algerians who returned voluntarily between July 2008 and January 2010, no trial has resulted in a conviction.

However, as Human Rights Watch noted after Naji’s repatriation:

Although the Algerian detainees who were returned voluntarily to Algeria have not reported serious abuse, this should not be the basis for determining how future returnees will be treated. Some of the men who returned voluntarily were elderly, in ill health, or had wound up at Guantánamo as cases of mistaken identity. Some of the remaining detainees, though never accused of any crime, might be perceived by the Algerian government as more dangerous than those who previously returned.

Senior counterterrorism counsel Andrea Prasow added, “The US needs to consider the individual circumstances of each detainee before repatriation. Someone who would rather remain at Guantánamo than go home should at least be given the chance to explain why in a proper legal setting.”

While there are valid concerns for all the men’s safety and well-being if returned to Algeria, Ahmed Belbacha is particularly vulnerable, as he was tried in absentia in November 2009 and sentenced to 20 years in prison, for what his lawyers can only conclude was the crime of speaking out about his fears of being repatriated. As Reprieve explained, “In a disgraceful show trial, the court sentenced Ahmed to 20 years in prison for belonging to an ‘overseas terrorist group.’ Despite repeated requests and extensive investigation, Reprieve’s lawyers have been unable to discover what exactly Ahmed is supposed to have done. No evidence has been produced to support his ‘conviction,’ which appears to be retaliation against Ahmed for speaking out about human rights abuses in Algeria.”

Human Rights Watch has stated that “Under Algerian law, Belbacha has the right to a new trial upon his return to Algeria,” but after his conviction in November it is unsurprising that Belbacha does not trust the Algerian government to treat him fairly if he is returned. As Reprieve noted, “He faces a lengthy illegal prison term, torture, and persecution if returned to Algeria.”

In an urgent appeal, Reprieve has called on the governments of Britain, Ireland and Luxembourg to offer Belbacha a new home. His lawyer, Tara Murray, stated:

We know from bitter experience that Guantánamo prisoners cannot trust “diplomatic assurances” from rights-abusing countries like Algeria, and the Obama Administration should have known better. The US has betrayed Abdul Aziz Naji and we are fighting to ensure that our client Ahmed Belbacha does not suffer the same fate. Algeria’s government has a clear grudge against Ahmed and cannot be trusted. Ahmed has repeatedly pleaded for help and we are running out of time. Will the governments of Luxembourg, Ireland and the UK hear his pleas?

Ahmed Belbacha’s appeal for the British government to offer him a new home is long-standing, as he lived and worked here for nearly two years from 1999 to 2001, when, with his asylum claim ongoing, he decided to take an ill-advised holiday in Pakistan. A resident in Bournemouth, where he lived, has offered him a room, but the British government has been so indifferent to his fate that Reprieve and other organizations, including Amnesty International and Cageprisoners, sought help from Ireland and Luxembourg as well. He has also been offered a home in Amherst, Massachusetts, although a law passed by Congress, banning any Guantánamo prisoners from being brought to the US mainland except to face a trial, has prevented him from taking up this offer.

Last week, the London Guantánamo Campaign prepared a letter to foreign secretary William Hague asking him to secure Mr. Belbacha’s return to the UK. A slightly amended version of this letter is posted below (which readers can cut and paste), but please feel free to change it as you see fit. The letter can be emailed to the foreign secretary (email address here), or sent to: William Hague MP, Secretary of State for Foreign and Commonwealth Affairs, Foreign and Commonwealth Office, King Charles Street, London, SW1A 2AH.

Dear Foreign Secretary,

I am writing to you as a matter of urgency, concerning the case of Ahmed Belbacha, a British resident who has been held at Guantánamo Bay for over eight years.

Mr. Belbacha is a 40-year old Algerian who lived in the UK for nearly two years, from 1999 to 2001, having fled Algeria where his life was at risk. While travelling in Pakistan, he was captured and taken to Guantánamo Bay. Cleared for release in 2007, he has chosen to remain at Guantánamo Bay, rather than face the risk to his life in Algeria. This risk was compounded in November 2009 when he was sentenced in absentia to 20 years in prison for “membership of a terrorist organisation overseas”. No evidence was produced to back this up.

On 17 July, a US Supreme Court ruling resulted in an Algerian national, Abdul Aziz Naji, being forcibly repatriated to Algeria, where he has been indicted on unspecified charges, and is subject to “judicial supervision”. His return, the first forced repatriation under the Obama administration, was strongly condemned by Human Rights Watch and the United Nations. There is a strong likelihood that in sending Mr. Naji back to Algeria, the US government has breached the principle of “non-refoulement” in the UN Convention Against Torture.

This ruling paves the way for the forced return of Ahmed Belbacha.

Mr. Belbacha’s return to the UK was not sought by the previous government. However, we maintain that, given his ties to this country, he should be allowed to return here on humanitarian grounds. Such a move would provide him with a safe haven, and act as a gesture of cooperation with the US in its efforts to find countries for prisoners who cannot be safely repatriated, thereby helping President Obama to close the prison. Several other European countries have taken this action, providing residence to non-nationals as a means of assisting the US.

I urge you to take urgent action for Ahmed Belbacha to ensure a safe end to his wholly illegal ordeal over the past eight years.

I look forward to your response,

Yours sincerely,

The London Guantánamo Campaign also recommended that supporters send the letter to their MP (find your local MP via TheyWorkForYou), and also to write to the Algerian Embassy and the Permanent Mission of Algeria at the United Nations, asking them not to accept the forced repatriation of prisoners who do not wish to return to Algeria, and to ensure that prisoners who are returned are treated fairly.

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, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As a result, although this interview is good PR for both the Algerian government and the Obama administration, it should in no way be construed as a green light for the forcible repatriation of five other Algerians in Guantánamo who are unwilling to return home, as I explained in an accompanying article, “Guantánamo Algerian Returns Home; Will Obama Suspend Further Transfers?” and should also not be taken as proof that Abdul Aziz Naji will not, in future, be put on trial, as has happened to other prisoners who returned voluntarily from Guantánamo.

The interview began by explaining that Naji “[a]rrived on Monday to his neighbourhood in Batna province” (overlooking the fact that he spent a week in Algerian custody prior to being released), and that he “tells the suffering he endured there under the pretext of alleged[] international terrorism charges,” and “says the world has to know the truth about abuses against humanity committed by US soldiers in the Guantánamo detention camp.”

“They force detainees to take some medicines for three months to drive them crazy, losing [their] memory and committing suicide,” Naji told El Khabar, adding, “I still remember how a Yemeni prisoner killed himself [because] he couldn’t resist the torture and sexual abuse practiced by the prison caretakers.” That man is not identified, but it may have been Abdul Rahman al-Amri, who died on May 30, 2007, reportedly by committing suicide. As I explained in an article on the third anniversary of his death, former prisoner Omar Deghayes “recalled a devout man who was deeply troubled by the kinds of humiliation that were used on him at Guantánamo.”

The interview also explained that Naji said that in Guantánamo “prisoners suffered different kind[s] of torture to force them [to] confess [to] terror charges” that were falsely leveled against them, and that he criticized the International Committee of the Red Cross because they reportedly “avoided evoking the bad treatment of the soldiers against the prisoners,” and “the majority of detainees accused the Red Cross of collusion with the US soldiers.” This is a common complaint, but it seems to me that it may be based on a misunderstanding of the basis on which Red Cross representatives are allowed access to prisoners — on the understanding that they are prohibited from publicly reporting on the conditions they encounter — and it certainly fails to acknowledge the uproar caused in October 2003, when Christophe Girod of the International Committee of the Red Cross broke with protocol, telling the New York Times, “The open-endedness of the situation [at Guantánamo] and its impact on the mental health of the population has become a major problem.”

Perhaps the most revealing section of Naji’s interview was his discussion of “how some detainees had been promised to be granted [a] political asylum opportunity in exchange [for] a ‘spying role’ within the detention camp,” and how, after their release, they were “maintained as spies serving for the US, under the cover of political refugees.” He specifically mentioned one Algerian, known as “Bavardad,” who “was forced to become a spy within a mosque in a European country, because he was told [that if] he return[ed] to Algeria, [the] intelligence services would consider him a traitor and would kill him. He concluded, however, that once he returned to the country, he had been well treated by [the] Algerian security services.”

Clarifying the circumstances of Naji’s capture, El Khabar also reported that he was “arrested in Pakistan with another Algerian, Mustapha Hamlili, who had lived there for 15 years with his Afghan wife,” and that he was “taken to Bagram military base in Afghanistan, for cross-examinations and torture, before flying to Guantánamo.” The interview neglected to mention that Hamlili’s voluntary repatriation from Guantánamo in July 2008 — along with seven other Algerians between July 2008 and January 2009 — received little international criticism, and that, along with other released men, he was subsequently charged with “membership in a terrorist organization abroad and using forged travel documents.” The interview also neglected to mention that it took another 19 months until he was finally cleared, after a trial that concluded in February this year, or that, in the cases of two other men who were cleared after trials that took place 15 months after their repatriation, the prosecutor had called for prison sentences of 20 years.

Welcome though it is to see Abdul Aziz Naji safely at home, and interviewed by an Algerian newspaper, it is the fate of Mustapha Hamlili and the other returned Algerians that is more generally indicative of what awaits former Guantánamo prisoners in Algeria, and that should give pause to the Obama administration as it contemplates forcibly repatriating five other prisoners from Guantánamo.

Personally, I hope that Abdul Aziz Naji is able to stay in contact with his lawyers, and that he can establish contact with representatives of human rights groups, to ensure that his appearance in the Algerian media is indicative of a new openness on the part of the Algerian government, as is not just a PR stunt, and also, hopefully, to avoid the farcical charges and long-winded trials to which all the other returned Algerians have been subjected.

Note: The El Khabar interview no longer appears to be available online, but I suspect that this is a problem with the website archive, rather than anything more sinister. If readers are interested, the original is mirrored here.

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, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 60 prisoners released from February 2009 to mid-July 2010, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; ; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs to Bermuda, 1 Iraqi, 3 Saudis (here and here); August 2009 — 1 Afghan (Mohamed Jawad), 2 Syrians to Portugal; September 2009 — 1 Yemeni, 2 Uzbeks to Ireland (here and here); October 2009 — 1 Kuwaiti, 1 prisoner of undisclosed nationality to Belgium; October 2009 — 6 Uighurs to Palau; November 2009 — 1 Bosnian Algerian to France, 1 unidentified Palestinian to Hungary, 2 Tunisians to Italian custody; December 2009 — 1 Kuwaiti (Fouad al-Rabiah); December 2009 — 2 Somalis, 4 Afghans, 6 Yemenis; January 2010 — 2 Algerians, 1 Uzbek to Switzerland, 1 Egyptian, 1 Azerbaijani and 1 Tunisian to Slovakia; February 2010 — 1 Egyptian, 1 Libyan, 1 Tunisian to Albania, 1 Palestinian to Spain; March 2010 — 1 Libyan, 2 unidentified prisoners to Georgia, 2 Uighurs to Switzerland; May 2010 — 1 Syrian to Bulgaria, 1 Yemeni to Spain; July 2010 — 1 Yemeni (Mohammed Hassan Odaini).

Given that, in its 2009 report on human rights in Algeria, the US State Department noted, “Local human rights lawyers maintained that torture continued to occur in detention facilities, most often against those arrested on ‘security grounds’” it was not entirely reassuring that an Obama administration official told the Washington Post that the Algerian government had “provided diplomatic assurances” that prisoners returned from Guantánamo “would not be mistreated,” and added, “We take some care in evaluating countries for repatriation. In the case of Algeria, there is an established track record and we have given that a lot of weight. The Algerians have handled this pretty well: You don’t have recidivism and you don’t have torture.”

Following Naji’s transfer, Human Rights Watch and the Center for Constitutional Rights issued immediate press releases urging the Obama administration to recognize its international obligations, and warning that Naji had legitimate fears of both the Algerian government and of extremists who might prey on him, and on Wednesday Manfred Nowak, the UN Special Rapporteur on Torture, and Martin Scheinin, the UN Special Rapporteur on the Protection of Human Rights while Countering Terrorism, issued a statement drawing attention to the Supreme Court rulings that paved the way for the enforced transfer of Naji and another Algerian, Farhi Saeed bin Mohammed, who won his habeas corpus petition last November, but is still held.

Criticism of Obama and the Supreme Court by the UN and the New York Times

The UN experts stated, “We are extremely worried that the lives of two Algerian detainees could be put in danger without a proper assessment of the risks they could face if returned against their will to their country of origin. While we appreciate the efforts of the authorities to close the Guantánamo detention facility, the risk assessment should be a meaningful and fair process, and the courts should be part of it.” The experts also called into question the Obama administration’s reliance on diplomatic assurances that Naji — and bin Mohammed — would be treated humanely, stating, “Diplomatic assurances are unreliable or difficult to monitor,” and reiterating that they “cannot substitute the sending country’s obligation to assess the real risk facing the individual.”

Over the weekend, the New York Times became involved, noting, in a sternly worded editorial, that “A prisoner who begs to stay indefinitely at the Guantánamo Bay detention center rather than be sent back to Algeria probably has a strong reason to fear the welcoming reception at home,” reminding the Obama administration of Naji’s belief that “he would be tortured if he was transferred to Algeria, by either the Algerian government or fundamentalist groups there,” and criticizing the decision to forcibly repatriate him as “an act of cruelty that seems to defy explanation.”

The Times also noted that Naji had asked for political asylum in Switzerland, which Ellen Lubell, one of his lawyers, elaborated on at the weekend, telling supporters, “We had applied for asylum in Switzerland for Aziz and his application was proceeding through the Swiss courts with support from many in that country.” The Times also ran through the outline of Naji’s story, noting that he was “picked up by the police in Pakistan in May 2002 and turned over to the Americans on suspicion of being a terrorist,” and adding that, although he “admitted working for the humanitarian wing of Lashkar-e-Taiba, the Pakistani terrorist organization,” the Bush administration “never charged him with a crime, explained why he was being held, or demonstrated any connection to terrorist acts.”

Abdul Aziz Naji’s story

This was a fair précis of Naji’s case, although it is worth elaborating on in more detail. As the Center for Constitutional Rights explained (PDF), he was born in 1975 in Batna (about 300 miles east of Algiers), and, after completing his schooling, worked in his father’s blacksmith shop and then undertook his obligatory military service in the Algerian army. In early 2001, he traveled to Pakistan to provide humanitarian aid to Muslims and Christians in Kashmir, but one night, while carrying food and clothing to poor villagers with a group of other volunteers, he stepped on a landmine and sustained a serious injury, which led to the loss of his lower right leg.

After being treated in a hospital in Lahore, where he was fitted with a prosthetic leg, he was taken in by a few generous families while he recuperated, and was then recommended to visit an Algerian in Peshawar, near the Afghan border, who would be able to help him find a wife. While visiting this man in May 2002, he was seized in a raid by Pakistani police — one of many raids at the time that helped to fill Guantánamo — even though he was never told why he had been seized, and, in fact, was told by the Pakistanis who seized him that he would be released.

In Guantánamo, Naji told his interrogators that he was unaware that Lashkar-e-Taiba was affiliated with al-Qaeda, as the Americans alleged (which was understandable, as LeT’s humanitarian work was separate from its military operations), and was also obliged to counter an allegation that he had received de-mining training at an LeT camp, pointing out that the fact that he lost his leg after stepping on a mine made a mockery of the allegation, and explaining that it was something he had been forced to admit when he was tortured in the US prison at Bagram airbase after his capture. He also explained the meaning of jihad to a military review board that reviewed his case, telling the panel of three officers, “The jihad does not have to be a jihad where you fight. Jihad can be carrying food or helping others. It does not have to be fighting.”

The latest news from Algeria

After Naji’s return, there were alarming indications that the worst fears about the Algerian authorities had been confirmed, when the Associated Press reported that the state prosecutor’s office in Algiers had stated on Monday that Naji had been “indicted,” on unspecified grounds. It later transpired that this was not the case, and that, as Reuters explained, Naji had been reunited with his family after approximately a week in lawful detention (according to Algerian law, terror suspects can be held for up to 12 days before appearing in court). A judicial source “who did not want to be identified” told Reuters, “He is at home in Batna. He just needs to go every week to the local police station to sign a form.”

In a statement, the prosecutor’s office said Naji “was released after appearing before a judge on Sunday who placed him under judicial control — which means he has to report regularly to police pending a further decision on his case,” as Reuters described it. The statement also explained, “Contrary to what has been falsely reported, this person’s case has been dealt with in the most complete transparency and in respect for the law, whether in terms of procedure or the length of his detention.”

The Algerian government could still spring a surprise on Naji, by deciding to put him forward for a trial, but even if the authorities leave him unmolested, there is no guarantee that the extremists that Naji fears will do the same — and it remains deeply troubling that the Obama administration may still seek to forcibly repatriate four other Algerians, also cleared for release after the deliberations of the President’s interagency Guantánamo Review Task Force, who are also terrified of returning home, as the Washington Post explained three weeks ago in an article entitled, “Six detainees would rather stay at Guantánamo Bay than be returned to Algeria.”

Although administration officials conceded last week that they would “continue to examine each case individually before any repatriation,” noting that some officials “have expressed some concern about returning one of the Algerians [Ahmed Belbacha] who was sentenced to 20 years in prison in absentia” last year (for speaking out about his fears of repatriation), it now appears, as I explained last week, that there is “no obstacle to prevent the Obama administration from sending the other four Algerians home whenever it feels like it.”

The other Algerians who fear enforced repatriation from Guantánamo

From what I can ascertain, given that the Obama administration has not released details about the men cleared for release by the Guantánamo Review Task Force, these men are, in addition to Farhi Saeed bin Mohammed, Nabil Hadjarab (PDF), Motai Saib and Djamel Ameziane (PDF), who were all cleared for release by military review boards under the Bush administration, and who all have legitimate fears about returning to Algeria.

Last February, in an article entitled, “Guantánamo’s refugees,” I described Nabil Hadjarab, who was 22 years old when he was seized, as “a young Algerian from a broken home, with relatives in Lyon, who was only persuaded to travel to Afghanistan because he was caught in limbo between Algeria and France as his family disintegrated around him.” As Afghanistan descended into chaos following the US-led invasion in October 2001, Hadjarab, who had been living in Kabul and had then moved to the eastern city of Jalalabad, tried to flee across the mountains to Pakistan, but was wounded by a bomb and taken to a hospital in Jalalabad, where he was sold to US forces.

Returning Nabil Hadjarab to Algeria would be, to extend the New York Times’ comment about Abdul Aziz Naji, “an act of cruelty that seems to defy explanation,” because his extended family is in France, and is willing to take him in, and because he has almost no family connections in Algeria, making him particularly vulnerable to both the government and to extremists who might wish to prey on him. Given that a guard in Guantánamo described him as “a brilliant artist, a keen footballer, and a sweet kid,” it is apparent that the French government should offer him a home, as his lawyers at the legal action charity Reprieve have requested.

Motai Saib, who was 25 years old when he was seized crossing the Pakistani border, had also been living in Jalalabad, and had traveled to Afghanistan via France and London. As his lawyers noted in a court filing in July 2008 (PDF), in February 2008 the Department of Defense notified them that Saib “’has been approved to leave Guantánamo,’ but stated obliquely that ‘such a decision does not equate [to] a determination that your client is not an enemy combatant, nor does is it a determination that he does not pose a threat to the United States or its allies. I cannot provide you any information regarding when your client may be leaving Guantánamo as his departure is subject to ongoing discussions.” As Saib’s lawyers noted, “Saib has serious concerns that this ambiguous and damaging language will prevent his safe release from Guantánamo.”

Djamel Ameziane, who was 34 years old when he was seized crossing the Pakistani border, had also been living in Jalalabad. A Berber, he left Algeria in 1992 “in order to escape persecution and make a better life for himself,” and unsuccessfully sought asylum in Austria, where he worked legally for three years, becoming the top chef at an Italian restaurant in Vienna, until a new government clamped down on immigrants, and his work permit was denied without explanation. From there, he moved to Canada, where he obtained a temporary work permit and worked for an office supply company and for various restaurants in Montreal. In 2000, after five years in Canada, his asylum claim was denied, and, as his lawyers explained, “Fearful of being forcibly returned to Algeria, and with few options, [he] went to Afghanistan, where he could live freely without discrimination as a Muslim man, and where he would not fear deportation to Algeria.”

Ameziane fears returning to Algeria because of the stigma of Guantánamo and the instability in his hometown of Kabylie, where, as his lawyers explained, practicing Muslims are “targeted for arrests and detention by the government based solely on their religious practices” and “The stigma of having spent time at Guantánamo would alone be enough to put him at risk of being imprisoned if he is returned.”

Advice for President Obama

With the uproar over the return of Abdul Aziz Naji, the Obama administration must surely be having second thoughts about proceeding with further enforced repatriations to Algeria, and if any further encouragement is needed, senior officials should recall that, although there were periodic threats to stealthily repatriate Algerians against their will under the Bush administration (as I reported here), the Bush administration was aware of Algeria’s dubious human rights record, and refused to repatriate Algerians who believed that they faced the risk of torture.

I leave the final word of advice to the editors of the New York Times, who concluded their editorial on Sunday with the following words:

We support the administration’s efforts to close Guantánamo, and understand the concern that if there is a more heavily Republican Congress next year, doing so may become harder. That is no reason to deliver prisoners to governments that the United States considers hostile and that have a record of torture and lawlessness.

The government refuses to deport prisoners to Libya, Syria and other countries known for abuse. It could find a new home for the Algerians.

I doubt that we will hear anything about discussions taking place behind the scenes, but for the sake of President Obama’s credibility (and, sadly, that of the Supreme Court), I hope that discussions are ongoing regarding the return of Nabil Hadjarab to France, of Ahmed Belbacha to the UK (where he lived without incident for nearly two years), of Djamel Ameziane to either Austria or Canada, and of Farhi Saeed bin Mohammed and Motai Saib to countries where dubious “diplomatic assurances” are not required to ensure their welfare as refugees who have already lost over eight years of their lives for being in the wrong place at the wrong time.

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, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 60 prisoners released from February 2009 to mid-July 2010, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; ; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs to Bermuda, 1 Iraqi, 3 Saudis (here and here); August 2009 — 1 Afghan (Mohamed Jawad), 2 Syrians to Portugal; September 2009 — 1 Yemeni, 2 Uzbeks to Ireland (here and here); October 2009 — 1 Kuwaiti, 1 prisoner of undisclosed nationality to Belgium; October 2009 — 6 Uighurs to Palau; November 2009 — 1 Bosnian Algerian to France, 1 unidentified Palestinian to Hungary, 2 Tunisians to Italian custody; December 2009 — 1 Kuwaiti (Fouad al-Rabiah); December 2009 — 2 Somalis, 4 Afghans, 6 Yemenis; January 2010 — 2 Algerians, 1 Uzbek to Switzerland, 1 Egyptian, 1 Azerbaijani and 1 Tunisian to Slovakia; February 2010 — 1 Egyptian, 1 Libyan, 1 Tunisian to Albania, 1 Palestinian to Spain; March 2010 — 1 Libyan, 2 unidentified prisoners to Georgia, 2 Uighurs to Switzerland; May 2010 — 1 Syrian to Bulgaria, 1 Yemeni to Spain; July 2010 — 1 Yemeni (Mohammed Hassan Odaini).

In January this year, the Court attempted (against the government’s wishes) to argue that the international laws of war were irrelevant to the detention of men at Guantánamo and the legislation underpinning it (the Authorization for Use of Military Force, passed the week after the 9/11 attacks), and in two cases in June, the Court took exception to the prevailing requirement for detention accepted in the District Court — that the men be part of the “command structure” of al-Qaeda or the Taliban — arguing that merely being “part of” either organization was enough.

As I have maintained for the last year and half, the problems with the AUMF — which the District Court judges are not empowered to discuss, even if they wanted — is that it fails to distinguish between al-Qaeda (a terrorist organization) and the Taliban (the government of Afghanistan at the time of the US-led invasion in October 2001). The result of this confusion is that the majority of the men who have lost their habeas petitions (and whose detention is being robustly upheld by the Circuit Court) were, at best, minor players in a military conflict that had nothing to do with al-Qaeda’s international terrorist operations, and therefore the Circuit Court, with its enthusiasm for endorsing detention, is taking us further away from the kind of discussion we should be having about the purpose of Guantánamo and the ongoing detention of the men held there.

A rare victory: Circuit Court orders lower court to reconsider the case of Belkacem Bensayah, an Algerian kidnapped in Bosnia

Despite the Circuit Court’s prevailing enthusiasm for endorsing ongoing detention, there was a surprise on June 28, when a panel led by Judge Douglas Ginsburg actually ruled in favor of a prisoner, ordering the lower court to reconsider whether Belkacem Bensayah, an Algerian, and one of six men kidnapped in Bosnia-Herzegovina in January 2002 and rendered to Guantánamo, was involved in any way with al-Qaeda.

In November 2008, Judge Richard Leon had granted the habeas petitions of five men seized with Bensayah, but had ruled that the government had provided “credible and reliable evidence,” from a number of sources, “linking Mr. Bensayah to al-Qaeda and, more specifically, to a senior al-Qaeda facilitator,” and had denied his petition.

In dismissing Judge Leon’s conclusion on June 28 (PDF), Judge Ginsburg said “the evidence upon which the district court relied in concluding Bensayah ‘supported’ al-Qaeda is insufficient … to show he was part of that organization.” He added, “The government presented no direct evidence of actual communication between Bensayah and any al-Qaeda member,” and also noted that, after Judge Leon had delivered his ruling, the Obama administration stepped back from a claim that a “senior al-Qaeda operative and facilitator” was a witness against Bensayah.

That man, it is clear from analyses of the case over many years, was Abu Zubaydah, the supposed “high-value detainee,” for whom the CIA’s torture program was initially introduced, and who, it turned out, was not a member of al-Qaeda at all, and had no knowledge of any international terrorist plots, including 9/11. In a case appealed in the Circuit Court the week before Bensayah’s — that of Sufyian Barhoumi, an Algerian seized with Zubaydah — the judges failed to recognize that the government had backed down from most of its claims about Zubaydah, and, shamefully, relied on long-discredited statements made by Ahmed Ressam, the failed “Millennium Bomber,” who is now serving a 22-year sentence in a US prison, as part of its justification for upholding Barhoumi’s detention.

The collapse of the case against Zubaydah — primarily because torture encourages its victims to make up a pack of lies to get it to stop — has been so significant that allegations made by him or about him have stealthily disappeared from the charge sheets in numerous cases — not only at Guantánamo, but also in other countries. In Bensayah’s case, however, the discussions regarding his significance — or lack of it — have surfaced over the years, and in an article in the New York Times in March this year, Charlie Savage explained how Bensayah’s case had also provided a test for the Obama administration regarding the perceived scope of its detention powers.

The article was fascinating for the revelations that, last spring, career lawyers at the Justice Department resisted narrowing the definition of who could legally be held at Guantánamo, after Judge John D. Bates asked for a current definition, fearing that “rolling back the Bush position might make it harder to win,” but that White House Counsel Greg Craig shepherded President Obama to a position in which “only people who were part of al-Qaeda or its affiliates, or their ‘substantial’ supporters” could be detained — the definition that Judge Bates later refined by proposing that the “key inquiry” for determining whether an individual has become “part of” one or more of these organizations is “whether the individual functions or participates within or under the command structure of the organization — i.e., whether he receives and executes orders or directions.”

Last summer, after Craig had already been sidelined for his fearless approach to dismantling the Bush administration’s policies, the case of Belkacem Bensayah arose as a test for the administration, given that he had been seized “far from the active combat zone” and had, essentially, only been accused of “facilitating the travel of people who wanted to go to Afghanistan to join al-Qaeda.”

Savage reported that Harold Koh, who became the State Department’s senior lawyer in June, “produced a lengthy, secret memo contending that there was no support in the laws of war for the United States’ position in the Bensayah case.” Koh was up against Jeh Johnson at the Pentagon, who also produced a secret memo arguing for “a more flexible interpretation of who could be detained under the laws of war.”

In September, according to Savage, Koh and Johnson debated the issues in a packed room in the Justice Department’s Office of Legal Counsel (which advices the Executive branch on what is legally permissible), with David Barron, the OLC’s acting head, called upon to “decide who was right.” Instead, however, Barron refused to decide, circulating a memo in which he stated that the OLC “had found no precedents justifying the detention of mere supporters of al-Qaeda who were picked up far from enemy forces” and “was not prepared to state any definite conclusion.”

As Savage explained, the upshot was a mess, a “tactical approach” that involved lawyers trying to avoid the question “as long as possible.” He added, “They changed the subject by instead asking courts to agree that people like Mr. Bensayah, looked at from another angle, had performed functions that made them effectively part of the terrorist organization — and so were clearly detainable.”

In the end, however, the Circuit Court concluded that there was no evidence that Bensayah had “performed” any “functions” for al-Qaeda at all. The key allegation, which apparently involved phone calls that Bensayah had supposedly made to Abu Zubaydah, disappeared like a will o’ the wisp, and perhaps hinged on a solitary document marked, “INFORMATION REPORT, NOT FINALLY EVALUATED INTELLIGENCE.” In its place, as Judge Ginsburg noted, there was little more than a claim that Bensayah had “experience in obtaining and traveling in and out of numerous countries on fraudulent passports,” and, as Bensayah himself admitted, he had “used multiple travel documents, ‘some of which were in an assumed name,’ but [only] in order to avoid being sent back to Algeria, “where he reasonably feared prosecution.” As Judge Ginsburg added:

He presented “unrebutted declarations” that “mere possession and use of false travel documents is neither proof of involvement with terrorism nor evidence of facilitation of travel by others.” We agree.

While Bensayah waits to see if his case will indeed by reconsidered by Judge Leon, or whether, as his Bosnian wife told a Balkan website, he “will be released soon,” he is probably fortunate that, even with no evidence against him, his appeal came up before a panel led by Judge Ginsburg, rather than, for example, Judge A. Raymond Randolph, whose record on Guantánamo is notoriously inflexible, and is discussed below.

Fawzi al-Odah, who attended a training camp for one day, has his appeal denied

Two days after the Bensayah ruling, on June 30, a different Circuit Court panel dismissed the appeal of Fawzi al-Odah, a Kuwaiti who lost his habeas petition last August, when, as I explained at the time:

[T]he government secured another shallow victory when Judge Colleen Kollar-Kotelly denied the habeas petition of Fawzi al-Odah, a Kuwaiti prisoner, agreeing with the government that it was “more likely than not” that he “became part of Taliban and al-Qaeda forces in Afghanistan.” Judge Kollar-Kotelly’s ruling was based on a dubious assemblage of information that relied more on inconsistencies in al-Odah’s account of his activities than it did on anything resembling concrete evidence, as she herself admitted, when she wrote that there were “significant reasons why the Government’s proffered evidence may not be accurate or authentic.”

Al-Odah has always claimed that he took a break from work and traveled to Afghanistan in August 2001 to teach the Koran and provide humanitarian aid (which he had done previously in other countries), and has also admitted that he established contact with the Taliban, as they were the government at the time, and spent one day at a Taliban-controlled training camp. He has also stated that, after the US-led invasion, he was sent by a Taliban representative to a safer location outside Kabul, and, from there, traveled to Jalalabad, where he stayed with another family, who gave him an AK-47 assault rifle to protect himself. He then joined other people crossing the mountains to Pakistan, where he handed himself in to the border guards, and was subsequently handed over — or sold — to US forces.

While Judge Kollar-Kotelly was undoubtedly justified in finding numerous holes in al-Odah’s account of his activities, including asking why he did not flee Afghanistan before traveling to Jalalabad, and why he allowed himself to travel with other armed men through the Tora Bora mountains, the result of her ruling, as I explained at the time, was that:

[N]early eight years after the 9/11 attacks, the United States is still asserting that it has the right to hold a young man who spent just one day at a training camp, who did not flee Afghanistan after the 9/11 attacks (perhaps because he feared reprisals if he was found escaping), who traveled with other men to Kabul, and then to Logar and then to Tora Bora and his eventual capture, with no evidence that he ever used the weapon he was given, and no evidence that his training involved anything more than firing a few rounds from an AK-47 in a practice session.

In al-Odah’s appeal, the Circuit Court panel, led by Chief Judge David B. Sentelle, dismissed challenges regarding the “preponderance of evidence” standard for detention, and the use of hearsay evidence, dismissing the first “under binding precedent in this circuit,” and the second because the Supreme Court in Hamdi [v. Rumsfeld, the 2004 case that approved the detention of prisoners under the AUMF] stated that “[h]earsay … may need to be accepted as the most reliable available evidence from the Government” in the prisoners’ habeas petitions, and because of the precedent established by the Circuit Court in the cases of Adham Ali Awad and Sufyian Barhoumi, discussed in the first part of this article.

When it came to examining the basis of the evidence against al-Odah, the court began by noting that he “has a heavy burden to meet to have this court reverse the district court’s factual findings that are the underpinnings of its determination,” and then, predictably, dismissed all of his challenges, leaving unanswered the question I asked last year — about whether it ought to be justifiable to hold indefinitely a young man who attended a training camp for one day, and does not appear to have ever raised arms against US forces.

The Circuit Court’s disdainful dismissal of Mohammed al-Adahi’s successful habeas petition

A final blow for the prisoners came on July 13, when the Circuit Court, for the first time, reversed a successful habeas petition (PDF). The prisoner in question is Mohammed al-Adahi, a Yemeni who had accompanied his sister to Afghanistan to marry a man who was undoubtedly connected to al-Qaeda. Nevertheless, last August, Judge Gladys Kessler ruled that, despite this, al-Adahi himself had no connection to al-Qaeda, and granted his habeas petition.

There was abundant evidence to suggest that she was correct — primarily that he had never previously left Yemen, where he had a respectable job, that he was obliged to accompany his sister, who was not allowed to travel alone, and that he was kicked out of a training camp during his stay because he broke the rules by smoking — but when the government’s appeal came before a panel including Judge Randolph (notorious for endorsing every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court), the Court reversed Judge Kessler’s ruling, with Judge Randolph describing it as “manifestly incorrect — indeed startling.”

In what I can only characterize as a vile assault on Judge Kessler’s integrity, Judge Randolph, as Law.com explained, wrote that Kessler’s “consideration of each piece of evidence on its own merits, instead of as part of a whole, was a ‘fundamental mistake that infected the court’s entire analysis.’” He then chastised Kessler for having “failed to consider ‘conditional probability analysis’ in weighing the government’s evidence, which he explain[ed] as a theory that the occurrence of one event makes another event either more or less likely.”

Judge Randolph also stated that the District Court “erred in its treatment of the evidence” and “reached [its] conclusion through a series of legal errors,” adding, “When the evidence is properly considered, it becomes clear that Al-Adahi was — at the very least — more likely than not a part of al-Qaeda. And that is all the government had to show in order to satisfy the preponderance standard.”

One of al-Adahi’s lawyers, John A. Chandler, said he was “utterly stunned” by the ruling, telling the New York Times, “Mr. al-Adahi is not and has never been a member of al-Qaeda or a terrorist.” Law.com reported that his team would either ask for an en banc rehearing or petition the Supreme Court to hear the case, and stated that Chandler “criticized the appeals court for reassessing the evidence being used to hold al-Adahi instead of assessing the trial court’s ruling for errors of law.” As Chandler explained, “The appellate court pretty clearly wanted to find he was al-Qaeda and substituted their judgment on the facts for the judgment of the trial court, when the trial court is supposed to make decisions of fact.”

However, what was more worrying than Judge Randolph’s dismissal of Judge Kessler’s reasoning was his additional assault on the “preponderance of the evidence” standard established by Senior District Judge Thomas F. Hogan in the Case Management Order governing the habeas petitions in November 2008, which, of course, is already considerably lower than what is required in federal court trials.

After a hearing in February in al-Adahi’s case, Judge Randolph had ordered the government and al-Adahi’s lawyers to file new briefs “suggesting what factual proof — ‘if any’ — the government needed to support continued detention,” as SCOTUSblog explained, and had found that the results “were not exactly illuminating.” Fudging — as was to be expected from the analysis of backroom maneuvering described above — the government defended the “preponderance” standard as “appropriate,” but added that “a different and more deferential standard” might be appropriate in other, unexplained situations.

Seemingly out of nowhere, Judge Randolph stated in the ruling on al-Adahi that “we doubt” that the Constitution “requires the use of the preponderance standard.” He added that the District Court judges “had not said why they were using that approach, but that Judge Hogan had indicated it was based on the Supreme Court’s Boumediene decision” in June 2008, which granted the prisoners habeas rights.

“But,” Judge Randolph wrote, “Boumediene held only that the ‘extent of the showing required of the Government in these cases is a matter to be determined,’” and then proposed that it “should equal the scope of habeas rights as they existed in 1789, when the Constitution was written” (as SCOTUSblog described it), and when, as Randolph obviously delighted in pointing out, there appeared to be “no precedent in which 18th Century English courts adopted a preponderance standard.”

To understand quite how depressing this proposal is, it should be noted that, the last time anyone argued in a court that “some evidence” should be sufficient to justify detentions in wartime — or, to be more accurate, in the “War on Terror” — was during the Bush administration, before the Supreme Court intervened to try to ensure that the men in Guantánamo were held for some reason other than the kind of inadequate evidence that Judge Randolph finds appropriate.

And yet, eight and a half years after Guantánamo opened, Judge Randolph has shifted the clock back to the intolerably poor detention standards of those years, which the District Court has been doing so much to challenge in the two years since Boumediene. The result, as SCOTUSblog explained, is that “even if the Justice Department did not now take the Circuit Court’s hint to propose a ‘some evidence’ standard for use in the remaining Guantánamo cases, the way the panel interpreted the preponderance standard would seem to ease the government’s burden of proof significantly.”

If al-Adahi’s case is anything to go by, that is nothing short of a disaster.

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, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation, as “Guantánamo and Habeas Corpus: Wins and Losses, Part 2.”

For an overview of all the habeas rulings, including links to all my articles, and to the judges’ unclassified opinions, see: Guantánamo Habeas Results: The Definitive List. For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (September 2009), 75 Guantánamo Prisoners Cleared For Release; 31 Could Leave Today (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Justice Department Pointlessly Gags Guantánamo Lawyer (November 2009), Judge Orders Release Of Algerian From Guantánamo (But He’s Not Going Anywhere) (November 2009), Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait (December 2009), What Does It Take To Get Out Of Obama’s Guantánamo? (December 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Judge Orders Release From Guantánamo Of Unwilling Yemeni Recruit (December 2009), Serious Problems With Obama’s Plan To Move Guantánamo To Illinois (December 2009), Appeals Court Extends President’s Wartime Powers, Limits Guantánamo Prisoners’ Rights (January 2010), Fear and Paranoia as Guantánamo Marks its Eighth Anniversary (January 2010), Rubbing Salt in Guantánamo’s Wounds: Task Force Announces Indefinite Detention (January 2010), The Black Hole of Guantánamo (March 2010), Guantánamo Uighurs Back in Legal Limbo (March 2010), Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit (April 2010), An Insignificant Yemeni at Guantánamo Loses His Habeas Petition (April 2010), With Regrets, Judge Allows Indefinite Detention at Guantánamo of a Medic (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), Why Judges Can’t Free Torture Victims from Guantánamo (April 2010), How Binyam Mohamed’s Torture Was Revealed in a US Court (May 2010), Guantánamo and Habeas Corpus: Consigning Soldiers to Oblivion (May 2010), Judge Denies Habeas Petition of an Ill and Abused Libyan in Guantánamo (May 2010), Judge Orders Release from Guantánamo of Russian Caught in Abu Zubaydah’s Web (May 2010), No Escape from Guantánamo: Uighurs Lose Again in US Court (June 2010), Does Obama Really Know or Care About Who Is at Guantánamo? (June 2010), Guantánamo and Habeas Corpus: 2 Years, 50 Cases, 36 Victories for the Prisoners (June 2010), Obama Thinks About Releasing Innocent Yemenis from Guantánamo (June 2010), Calling for US Accountability on the International Day in Support of Victims of Torture (June 2010), Judge Orders Release from Guantánamo of Yemeni Seized in Iran, Held in Secret CIA Prisons (July 2010), Innocent Student Finally Released from Guantánamo (July 2010).

With this in mind, it is distressing to note that, last month, in the case of Sufyian Barhoumi, an Algerian seized with Zubaydah, who lost his habeas corpus petition last September, the Court of Appeals in Washington D.C. drew on discredited information about Zubaydah to overstate his importance, and to justify Barhoumi’s ongoing detention. The Circuit Court also drew on the diary of a previously unknown associate of Zubaydah’s to present another view of Zubaydah — as the leader of a militia allied with al-Qaeda — to justify Barhoumi’s detention, and, by extension, that of Zubaydah himself, even though there are doubts about the government’s interpretation of the diary, and the whereabouts of the diary’s author are unknown.

On June 22, when a panel of judges led by Judge David S. Tatel upheld Barhoumi’s detention, the ruling was superficially unsurprising. Barhoumi was not only seized in the house raid in Faisalabad, Pakistan on March 28, 2002, that led to the capture Abu Zubaydah, along with other alleged terror suspects, but he had also conceded, in publicly available documents from Guantánamo, that he had attended military training camps in Afghanistan.

This, on its own, may not have been sufficient for Barhoumi’s detention to be upheld, but last September, when his habeas petition was denied, Judge Rosemary Collyer provided another reason. Although she noted that Barhoumi “said that he is not now and has never been a member of al-Qaeda,” and added, “I have no reason not to believe that,” she nevertheless concluded that “he was with an associated force that was engaged in hostilities against the United States or its coalition partners and therefore was properly detained.”

At the time, Judge Collyer’s unclassified opinion was not made publicly available (and has still not been made available), and the quotes above are from the court transcript that was eventually unearthed by researchers at ProPublica (PDF). It was not, therefore, until the Circuit Court upheld his detention last month (PDF) that the details of this “associated force” were revealed as a militia that was allegedly maintained by Abu Zubaydah, and it was also revealed that the Circuit Court was relying on a long-discredited opinion of Zubaydah as the leader of a training camp in Afghanistan and an associate of Osama bin Laden.

How the case against Abu Zubaydah collapsed

What is troubling about this is the fact that, since Zubaydah’s capture, when Donald Rumsfeld described it as “well established” that he was “a close associate” of Osama bin Laden, “and if not the number two, very close to the number two person in the organization”), the government has steadily backed away from these claims, as accounts have emerged that thoroughly discredit the allegations.

These include devastating statements by Dan Coleman, the FBI’s senior expert on al-Qaeda. Coleman and his FBI colleagues had access to Zubaydah’s diaries, in which they found entries in the voices of three people — a boy, a young man and a middle-aged alter ego — which recorded in numbing detail, over the course of ten years, “what people ate, or wore, or trifling things they said,” and Coleman’s conclusion, which he told his superiors, was, “This guy is insane, certifiable, split personality.”

That was reported in 2006, and in December 2007, Coleman followed up, describing Zubaydah as a “safehouse keeper” who “claimed to know more about al-Qaeda and its inner workings than he really did,” and explaining how he and others at the FBI had concluded not only that he had severe mental problems — particularly because of a head injury that he had suffered in 1992 — but also that this explained why he was regarded with suspicion by the al-Qaeda leadership. “They all knew he was crazy, and they knew he was always on the damn phone,” Coleman said. “You think they’re going to tell him anything?”

This analysis was, essentially, reinforced last March by a Justice Department official who spoke anonymously to the Washington Post. As I reported at the time:

[Abu Zubaydah] “was not even an official member of al-Qaeda,” and was, instead, “a “kind of travel agent” for would-be jihadists. A former Justice Department official, who knows his case, explained, “He was the above-ground support. He was the guy keeping the safe house, and that’s not someone who gets to know the details of the plans. To make him the mastermind of anything is ridiculous.” What happened, it transpired, was that “because his name often turned up in intelligence traffic linked to al-Qaeda transactions,” some within the intelligence community presumed that he was a significant figure, whereas the truth was that, although committed to the idea of jihad, he did not share Osama bin Laden’s aims, and “regarded the United States as an enemy principally because of its support of Israel.” The officials explained that he “had strained and limited relations with bin Laden and only vague knowledge before the Sept. 11 attacks that something was brewing.”

The Circuit Court’s reliance on discredited intelligence

Alarmingly, despite these concessions on the government’s part, both the District Court and the Circuit Court drew on another source in Barhoumi’s habeas petition in an attempt to demonstrate that Zubaydah was “the person in charge” of the Khaldan training camp, and that he was “an associate of [Osama bin Laden]” who “coordinates and cooperates with [bin Laden] in the conduct of training and trainee movements between [redacted] camps and al-Qaeda camps.”

As the judges explained, the source of this information, which also fooled the authors of the 9/11 Commission Report, who referred to “Abu Zubaydah’s Khaldan Camp” (PDF, p. 175), was Ahmed Ressam, the failed “Millennium Bomber” who is currently serving a 22-year sentence in the US. The problem with Ressam’s evidence is that, although he initially cooperated with the authorities in exchange for a reduced sentence, and provided information about dozens of alleged terrorist suspects, including Zubaydah, he then stopped cooperating and withdrew his statements. As a result, numerous cases involving Ressam’s statements have collapsed — including that of Ahcene Zemiri (aka Hassan Zemiri), falsely fingered by Ressam as an associate in the bomb plot, who was freed from Guantánamo in January this year — and the portrayal of Zubaydah accepted by the judges is fundamentally at odds with the one now accepted by the Obama administration.

The government concedes that Abu Zubaydah was not a member of al-Qaeda

As Jason Leopold explained in an article for Truthout in March this year, in a federal court filing the government officially endorsed the view put forward by the anonymous Justice Department official to the Washington Post in March 2009, “back[ing] away from the Bush administration’s statements that Zubaydah was the No. 2 or No. 3 official in al-Qaeda who had helped plan the 9/11 attacks, as well as even earlier claims from the Clinton administration that he was directly involved in planning the 1998 embassy bombings in East Africa,” and admitting for the first time that “Zubaydah did not have ‘any direct role in or advance knowledge of the terrorist attacks of September 11, 2001,’ and was neither a ‘member’ of al-Qaeda nor ‘formally’ identified with the terrorist organization.”

The government also appeared to have accepted that that “the military camp he was alleged to be affiliated with, Khaldan, was closed by the Afghan Taliban after refusing to let it go under the formal control of bin Laden and al-Qaeda,” conceding, in its court filing, that Khaldan was “organizationally and operationally independent” of al-Qaeda’s camps.

This corresponds with Zubaydah’s own revelation, during his Combatant Status Review Tribunal at Guantánamo in 2007 (in a passage that was only unclassified in June 2009, in response to a lawsuit filed by the ACLU), that, after his extensive torture, his interrogators told him, “sorry we discover that you are not number three [in al-Qaeda], not a partner, even not a fighter.” It also confirms other accounts about Khaldan, which was actually run by Ibn al-Shaykh al-Libi, a former CIA “ghost prisoner,” who died in mysterious circumstances in a Libyan jail last year. Al-Libi, notoriously, was tortured in Egypt, on behalf of the CIA, until he produced a false confession about links between al-Qaeda and Saddam Hussein that was used to justify the invasion of Iraq, and his death means that a key witness has been lost who might have been able to explain the strained relationship he had with bin Laden, and how Khaldan was closed in 2000 after he refused to allow it to come under bin Laden’s control.

Dubious allegations about Abu Zubaydah’s “militia”

While these revelations indicate that the Circuit Court is lamentably out-of-date in its consideration of Abu Zubaydah, it is also noticeable that the judges relied on another document, the diary of an alleged associate of Zubaydah, Abu Kamil al-Suri, to demonstrate that Zubaydah was in charge of a militia, which included Sufyian Barhoumi. Whether there is any truth in this is difficult to ascertain, as Abu Kamil al-Suri is not available to ask about his diary, His whereabouts are unknown, but he may have died in the raid that led to Zubaydah’s capture, or he may be one of a handful of men — and boys — seized with Zubaydah who were rendered to Syria, and have never been heard of since.

This is deeply troubling, of course, in the wider context of “disappearances” in the “War on Terror,” but its relevance to Sufyian Barhoumi’s case — and to that of Abu Zubaydah — is also significant. The diary purports to identify the movements of various men, including Barhoumi, to and from Tora Bora, where a showdown between al-Qaeda and the US took place in December 2001, and from Afghanistan to Pakistan, although it should be noted that, in Guantánamo, Barhoumi strenuously and repeatedly denied ever being in Tora Bora. Al-Suri’s diary also identifies 15 members of what is described as “Zubaydah’s militia,” although, in the translation of al-Suri’s own words, it is described, less spectacularly, as a “group,” and a fractious one, moreover, with al-Suri noting that several of the members were “trying to take over this group,” to “lead us to join Sheikh Osama bin Laden.”

The interpretation of the diary is clearly of importance not only to Sufyian Barhoumi, but also to Abu Zubaydah, as it seems to form part of the government’s revised claims about Zubaydah, mentioned in the court filing in March, in which the Justice Department maintained that Zubaydah should still be detained based on his “actions” as an “affiliate” of al-Qaeda, and alleged that he “supported enemy forces and participated in hostilities” and “facilitat[ed] the retreat and escape of enemy forces” after the US-led invasion of Afghanistan in October 2001.

His lawyers have countered this by stating that “the persons whom [Zubaydah] assisted in escaping Afghanistan in 2001 included ‘women, children, and/or other non-combatants’” and that the government has “evidence to support those assertions,” which contrasts starkly with the Circuit Court’s conclusions about both Sufyian Barhoumi and Abu Zubaydah. The scope of Zubaydah’s involvement with securing the escape of non-combatants from Afghanistan is unknown, because the government has not provided any information about this publicly, and Zubaydah’s lawyers are prevented from discussing almost anything about their client’s case because of sweeping classification rules relating to the “high-value detainees.”

However, it seems clear that one non-combatant whose escape from Afghanistan was facilitated by a network in which Zubaydah played a part is Ravil Mingazov, a Russian seized in a guest house in Faisalabad (with over a dozen other men, mostly students) on the night Zubaydah was seized. Mingazov recently won his habeas corpus petition, and he explained in Guantánamo that, after fleeing Afghanistan, where he had traveled in search of a new life free from religious persecution, he had spent three months at a religious center in Lahore run by the missionary organization Jamaat-al-Tablighi, until he and two other men accepted an offer of safe passage to a house in Faisalabad, where, they were told, it would be easier for them to leave the country.

This example of a civilian helped out of Afghanistan as part of some sort of loose transportation network, in which Zubaydah was involved, is starkly at odds with the Circuit Court’s assertion of Zubaydah’s role as the head of a militia, in which Barhoumi was implicated. In their ruling, the judges noted that Barhoumi does not “dispute that Zubaydah’s militia qualifies as an ‘associated force’ that engaged in hostilities against US or coalition forces. The only dispute, then, is whether Barhoumi was, as the district court found, ‘part of’ Zubaydah’s organization.”

Ulterior motives?

In light of the failed claims about Zubaydah’s status as a senior figure in al-Qaeda, and the government’s revised analysis of him as someone who “supported enemy forces and participated in hostilities” and “facilitat[ed] the retreat and escape of enemy forces,” it is obviously alarming that the Circuit Court clung to a discredited view of Zubaydah’s role in upholding Sufyian Barhoumi’s detention, and it is, moreover, no less alarming that the allegation about Zubaydah’s purported “militia” was allowed to pass unchallenged.

In contrast to this claim, all the evidence suggests that, in its desperation to find charges that will stick to Zubaydah, the government has every incentive to dress up a fractious group of men, nominally led by Zubaydah, as an organized “militia,” and to ignore counter-claims that he was not involved in fighting US forces, but was involved in facilitating the escape from Afghanistan of a variety of individuals, including “women, children, and/or other non-combatants.”

In establishing this picture of Zubaydah as the leader of a militia — based on a translation of a diary by a man who appears to have vanished off the face of the earth — the government, with the support of the Circuit Court, appears determined to use it in a last-ditch attempt to cover up the much more distressing fact that the US government brutally tortured someone who was never part of al-Qaeda at all.

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, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout. Cross-posted on Information Clearing House, Eurasia Review, Free Detainees, The World Can’t Wait, War Criminals Watch, Uruknet, Blog from Middle East and The 2012 Scenario.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison , Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010), Torture Whitewash: How “Professional Misconduct” Became “Poor Judgment” in the OPR Report (February 2010), Judges Restore Damning Passage on MI5 to the Binyam Mohamed Torture Ruling (February 2010), What Torture Is, and Why It’s Illegal and Not “Poor Judgment” (March 2010), Abu Zubaydah’s Torture Diary (March 2010), Seven Years of War in Iraq: Still Based on Cheney’s Torture and Lies (March 2010), Protests worldwide on Aafia Siddiqui Day, Sunday March 28, 2010 (March 2010), Abu Zubaydah: Tortured for Nothing (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), How Binyam Mohammed’s Torture Was Revealed in a US Court (May 2010), What is Obama Doing at Bagram? (Part One): Torture and the “Black Prison” (June 2010), New Report Reveals How Bush Torture Program Involved Human Experimentation (June 2010), UN Secret Detention Report (Part One): The CIA’s “High-Value Detainee” Program and Secret Prisons, UN Secret Detention Report (Part Two): CIA Prisons in Afghanistan and Iraq, UN Secret Detention Report (Part Three): Proxy Detention, Other Countries’ Complicity, and Obama’s Record (all June 2010), Abu Zubaydah and the Case Against Torture Architect James Mitchell (June 2010), The Torture of Abu Zubaydah: The Complaint Filed Against James Mitchell for Ethical Violations (June 2010), Calling for US Accountability on the International Day in Support of Victims of Torture (June 2010), How Jay Bybee Has Approved the Prosecution of CIA Operatives for Torture (July 2010). Also see the extensive archive of articles about the Military Commissions.

I’ll discuss the stories of Abd al-Nisr Mohammed Khantumani and Abdul Aziz Naji in a separate article, but for now the focus must be on the legal maneuvering that led to the repatriation of Abdul Aziz Naji, because, for the first time in Guantánamo’s history, a prisoner has been sent home against his will, even though Doris Tennant, one of his lawyers, told the Washington Post two weeks ago that he was “adamantly opposed to going back.” At the weekend, another of his lawyers, Ellen Lubell, told the Miami Herald that Naji “fears extremists will try to recruit him — associating him with Guantánamo — and will torture or kill him if he resists.” She added, “He has nothing against the Algerian government, but he fears that the government will be unable to protect him from Algerian extremists.” In a press release, the Center for Constitutional Rights explained that Naji “fled various forms of persecution in Algeria many years ago, including having been attacked by an extremist.” CCR also sounded a note of caution about how the Algerian government will receive Naji, stating, “we are deeply concerned that he will disappear into secret detention.”

These are valid concerns, as Algeria has a poor human rights record. Amnesty International, Human Rights Watch and the United Nations (PDF, pp. 108-9) regularly express concerns about the use of torture in Algeria, and in its 2009 report on human rights in Algeria, the US State Department noted, “Local human rights lawyers maintained that torture continued to occur in detention facilities, most often against those arrested on ‘security grounds.’”

In contrast, an Obama administration official, speaking anonymously, told the Washington Post two weeks ago, “We take some care in evaluating countries for repatriation. In the case of Algeria, there is an established track record and we have given that a lot of weight. The Algerians have handled this pretty well: You don’t have recidivism and you don’t have torture.” This was a bold statement to make, in light of the allegations made by NGOs and the UN, and concerns about torture or other ill-treatment were not diminished by a response to the news of Naji’s repatriation in Monday’s Washington Post, in which it was noted that “The government said that Algeria has provided diplomatic assurances that Naji would not be mistreated, assurances that administration officials say are credible because 10 other detainees have been returned to Algeria without incident.”

The problems with this statement concern the “diplomatic assurances,” and the claim that 10 men have been repatriated “without incident.” On the “diplomatic assurances,” Human Rights Watch explained in a press release that its own research “has shown that diplomatic assurances provided by receiving countries, which are legally unenforceable, do not provide an effective safeguard against torture and ill-treatment,” and, on the status of the 10 men returned, although there have been no allegations of torture, there has been very little information at all about the conditions in which they have been held, and what has emerged publicly is not reassuring, as it reveals both prolonged pre-trial detention, and calls for punitive sentences from the prosecutors. As I explained in January this year:

[F]rustratingly little is known about the eight Algerians repatriated from Guantánamo between July 2008 and January 2009, although one indication of how the Algerian justice system deals with returned Guantánamo prisoners was provided in November 2009, when the BBC reported that, 15 months after two of these men were repatriated, they had been acquitted after a trial in which the prosecutor had called for prison sentences of 20 years.

Alarmingly, despite Abdul Aziz Naji’s fear of being repatriated — and the fears of five other Algerians, as revealed by the Washington Post two weeks ago — his release was not only supported by the Obama administration, but also by the Supreme Court.

Judge Gladys Kessler takes on the D.C. Circuit Court – and the Supreme Court

The spur for a legal battle that has largely been taking place without the mainstream media paying much attention — and with an alarming reliance on secrecy — was a principled stand taken by Judge Gladys Kessler, of the District Court in Washington D.C., who, single-handedly, has been attempting to uphold the United States’ obligation, under the UN Convention Against Torture, not to “expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

In November, Judge Kessler granted the habeas corpus petition of Farhi Saeed bin Mohammed, a 49-year old Algerian, after concluding that the government’s supposed evidence relied almost entirely on unreliable confessions produced by Binyam Mohamed, a British resident who was subjected to torture in Pakistan, Morocco and at the CIA’s “Dark Prison” in Kabul from April 2002 to May 2004.

Six months after Judge Kessler delivered her ruling, with bin Mohammed still not released, his lawyers asked her “to order the government to carry out his release, but to bar his transfer to Algeria, where he fears persecution or even death from either the Algerian government or from armed terrorist groups there,” as SCOTUSblog described it. As a result of two depressing rulings in the Court of Appeals in Washington D.C. Circuit Court (the District Court), judges are not actually able to order the release of prisoners who have won their habeas petitions, and are not even supposed to interfere with the disposition of prisoners, whose fate, according to the Circuit Court, is entirely dependent on the whims of the Executive branch. Judge Kessler, however, was undeterred.

On June 3, she issued a temporary order barring bin Mohammed’s transfer to Algeria, and on June 10 mounted a stout defense of his right not to be forcibly repatriated, noting (PDF):

Petitioner has voiced great fear about being transferred to Algeria. He has not lived in Algeria for more than 20 years, and has no ties to that country. Because he has been designated an “enemy combatant,” he greatly fears retribution by the Algerian authorities and that he will be formally charged under the Algerian Penal Code, tortured, convicted, and very possibly executed by the Algerian Government. He has claimed that he will be caught between the Algerian Government, which will brand him as an international terrorist, and armed domestic terrorists, who oppose the existing government, often pressure individuals to join their ranks, and retaliate violently when such individuals refuse. Petitioner has made clear that he would rather suffer continued confinement in Guantánamo Bay than be placed in the control of the Algerian Government.

In response to a brief filed by the government, Judge Kessler complained that two declarations submitted, which purported to guarantee bin Mohammed’s humane treatment if returned to Algeria, “appear to be boilerplate statements which have been filed in a number of the Government’s Oppositions to Motions,” and that a third, written by Daniel Fried, President Obama’s Special Envoy on Guantánamo, “was submitted ex parte so that [bin Mohammed] has not had an opportunity to read it.” After noting that bin Mohammed’s fears “are of great concern,” and that it is “essential” that assurances received from the Algerian government, purporting to guarantee that bin Mohammed will receive “humane treatment,” are “tested,” Judge Kessler ordered Fried to appear in person in her court, explaining, “Given the centrality of those representations and assurances to the future of [bin Mohammed] and possibly to his very life, this Court has an obligation to ensure that there is real substance behind the conclusory phrases contained in Special Envoy Fried’s declarations.”

Fried never turned up, of course, because the Justice Department immediately filed an appeal with the Circuit Court, which then ordered Judge Kessler to “resolve all outstanding motions” in the case with reference to Munaf v. Geren and Kiyemba v. Obama (aka Kiyemba II), the cases that the Circuit Court had drawn on (Munaf) and issued (Kiyemba II) to demonstrate that only the Executive branch was entitled to make decisions about where to send Guantánamo prisoners. As SCOTUSblog noted, “While the order did not say that Kessler could not hold a hearing on Mohammed’s plea not to be sent to Algeria, it specified that the judge was to rule on that issue ‘without requiring testimony from Special Envoy Fried or any other United States government official,’” which, of course, “completely undercut the purpose that Kessler had” for calling the hearing in the first place.

The Circuit Court then issued an amended ruling, instructing Judge Kessler to decide the Mohammed plea “in an order from which a party can take an immediate appeal,” and as SCOTUSblog noted in response to this instruction:

The Circuit Court thus had taken over, in a significant way, the further proceedings in Kessler’s Court, and has sent her the strongest hint that she risked being overturned if she barred his transfer anew. Since it noted the binding nature of the precedents she was to observe, the Circuit Court clearly was signaling that, if it accepted the government’s view that Mohammed’s case was no different, Kessler would be found to be without authority to prevent his transfer to Algeria.

After this, the struggle between Judge Kessler and the Circuit Court was swamped in secrecy. At a hearing convened by Kessler on June 28, all the documentation was sealed, but SCOTUSblog was able to deduce, from a subsequent appeal filed by the government, that she had once more barred bin Mohammed’s transfer to Algeria. On July 8, however, in another secret hearing, the Circuit Court “summarily overturned” Judge Kessler’s ban, prompting SCOTUSblog to note that the court’s order “continues a seldom-interrupted string of rulings by the Circuit Court against detainees challenging their confinement or transfer,” which “contrasts with a majority of rulings by District Court judges upholding detainees’ challenges under federal habeas law.”

The final blow for bin Mohammed — and for those who, like Judge Kessler, had quaintly presumed that the “non-refoulement” requirement of the UN Convention Against Torture might actually mean something to the judiciary and the Executive branch — came last Friday, when, by 5 votes to 3, the Supreme Court sided with the Circuit Court. As SCOTUSblog noted, the ruling was “the first indication that the Supreme Court will not allow federal judges to interfere with government controls on who leaves or stays at Guantánamo Bay.”

Although three of the justices — Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor — dissented, noting that they “would grant the stay to afford the Court time to consider, in the ordinary course, important questions raised in this case and not resolved in Munaf v. Geren,” just a few hours later the Supreme Court unanimously approved the forced repatriation of Abdul Aziz Naji.

This was a bleak day for US justice, not only because it involved the Supreme Court blithely disregarding the UN Convention Against Torture’s “non-refoulement” obligation, joining in an unholy trinity with the D.C. Circuit Court and the Obama administration, but also because it brings to an abrupt, cruel, and — I believe — illegal conclusion a struggle to release prisoners without violating the UN Convention Against Torture, which, for the most part, was actually respected by the Bush administration.

The Bush administration’s record on not returning prisoners to torture

The long history of the authorities grappling with the “non-refoulement” obligation at Guantánamo began with the Uighurs, 22 Muslims from China’s oppressed Xinjiang province, who were mostly seized in Pakistan in December 2001 after crossing from Afghanistan, where they had been living in a run-down settlement in the Tora Bora mountains, thwarted in their attempts to travel to Turkey or Europe in search of work, or nursing futile hopes of rising up against their only enemy, the Chinese government.

With the Uighurs, the Bush administration recognized its “non-refoulement” obligation, refusing to return them to China, and finding new homes for five of the men in Albania in 2006. When the Obama administration inherited the problem of the remaining 17 men, who had, in the meantime, won their habeas corpus petitions, it found new homes for 12 of them in Bermuda, Palau and Switzerland, although five still remain at Guantánamo, and, last spring, the administration turned down a plan by White House Counsel Greg Craig to bring some of the men to live in the US, which would have done more in the long run to defuse scaremongering about Guantánamo than any other gesture.

Despite the Bush administration locating some principles when it came to the Uighurs, in other cases prisoners had to fight in the courts to prevent their forcible repatriation to countries where they faced the risk of torture. In 2007, a Libyan, Abdul Rauf al-Qassim, sought the intervention of the courts to prevent his return to Libya, and after two Tunisians were repatriated in June 2007 — and were subsequently mistreated and given jail sentences (of three and seven years) after show trials — a judge intervened to prevent the repatriation of a third, Mohammed Abdul Rahman (also known as Lotfi bin Ali), and, by extension, other Tunisians in Guantánamo.

In other cases, like that of Ahmed Belbacha, an Algerian who had lived in the UK, lawyers successfully sought injunctions preventing their return, and by the time Obama came to power, it was generally understood that prisoners were not be involuntarily returned to China, Egypt, Libya, Syria, Tunisia or Uzbekistan. As a result, in the last year, the Obama administration has resettled prisoners from Egypt, Libya, Syria, Tunisia and Uzbekistan in Albania, Belgium, Bulgaria, Georgia, Ireland, Portugal, Slovakia and Switzerland. Algeria was more problematical, as was demonstrated by the cases of the men who had returned voluntarily, even though there was, to be honest, no guarantee that they would be treated humanely, and my constant analogy was that return to Algeria was like Russian Roulette.

How the Circuit Court defended expansive executive power

However, all this came to an end with the Circuit Court’s intervention in the Uighurs’ case — firstly, in February 2009 (in Kiyemba v. Obama, aka Kiyemba I), when a panel of judges ruled that the courts could not order the resettlement in the US of prisoners who had won their habeas petitions but could not be repatriated, because only the Executive branch could decide matters relating to immigration. As I explained in a review of the ruling:

The judges were seemingly unmoved that this would leave the Uighurs (and, very possibly, others in Guantánamo) with no means of leaving the prison, and that it stripped the Supreme Court’s ruling in June 2008, granting the prisoners habeas corpus rights, of all practical meaning, if it was not possible for judges to order their release. In the judges’ words, however, “the political branches have the exclusive power … to decide which aliens may, and which aliens may not, enter the United States, and on what terms.”

The second blow came last September (in another Kiyemba v. Obama case, identified as Kiyemba II), after the Uighurs’ lawyers asked the Court of Appeals to reconsider its opinion en banc (in other words, with all the judges ruling, instead of just a panel of three), and also sought assurances that the courts would be able to act if the government proposed sending their clients to countries where they faced the risk of torture. However, as I explained at the time:

[N]ot only did the court refuse to reconsider its ruling, but the judges also refused the Uighurs’ request for the court’s assistance “to prevent their transfer to a country where they are likely to be subjected to further detention or to torture,”, drawing on Munaf v. Geren, a case from 2008 in which “two American citizens held in the custody of the United States military in Iraq petitioned for writs of habeas corpus, seeking to enjoin the Government from transferring them to Iraqi custody for criminal prosecution in the Iraqi courts.” In Munaf, although “The Court held the district court had jurisdiction over the petitions,” it also ruled that “it could not enjoin the Government from transferring the petitioners to Iraqi custody,” because “that concern is to be addressed by the political branches, not the judiciary.”

It is this narrow reading of Munaf that has particularly enraged those opposed to the Circuit Court’s resolute endorsement of executive power — and which at least caused some consternation last Friday to Justices Ginsburg, Breyer and Sotomayor. Essentially, though, the Circuit Court’s ruling in Kiyemba II dictates what happens to prisoners like Abdul Aziz Naji — and, presumably, Farhi Saeed bin Mohammed — when the administration tires of trying to find new homes for them, and decides to subject them involuntarily to the Russian Roulette repatriation package that Abdul Aziz Naji received this week.

Although government officials told the Washington Post on Monday that they “will nonetheless continue to examine each case individually before any repatriation,” noting that some officials “have expressed some concern about returning one of the Algerians [Ahmed Belbacha] who was sentenced to 20 years in prison in absentia” last year, for what his lawyers think was the crime of speaking out about his fears of repatriation, there now appears to be no obstacle to prevent the Obama administration from sending the other four Algerians home whenever it feels like it.

To discover that such shameless disregard for the UN Convention Against Torture has come not only from the Supreme Court, but also from the man who promised to close Guantánamo (but then failed to do so), and who also promised to uphold the absolute ban on torture (while refusing to prosecute anyone who authorized its use in the previous eight years), is depressing news indeed.

Note: With these releases, 178 prisoners remain at Guantánamo. One of these men, Ali Hamza al-Bahlul, is serving a life sentence in solitary confinement, after a one-sided trial by Military Commission in October 2008, in which he refused to mount a defense. Another prisoner, Ahmed Khalfan Ghailani, is in prison in New York, awaiting a federal court trial that was recently approved. 594 prisoners have been released (or, in some cases, transferred to the custody of their home governments, or of other governments), and six men died, five in mysterious circumstances.

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, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on The Smirking Chimp, The Public Record and New Left Project.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 60 prisoners released from February 2009 to mid-July 2010, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; ; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs to Bermuda, 1 Iraqi, 3 Saudis (here and here); August 2009 — 1 Afghan (Mohamed Jawad), 2 Syrians to Portugal; September 2009 — 1 Yemeni, 2 Uzbeks to Ireland (here and here); October 2009 — 1 Kuwaiti, 1 prisoner of undisclosed nationality to Belgium; October 2009 — 6 Uighurs to Palau; November 2009 — 1 Bosnian Algerian to France, 1 unidentified Palestinian to Hungary, 2 Tunisians to Italian custody; December 2009 — 1 Kuwaiti (Fouad al-Rabiah); December 2009 — 2 Somalis, 4 Afghans, 6 Yemenis; January 2010 — 2 Algerians, 1 Uzbek to Switzerland, 1 Egyptian, 1 Azerbaijani and 1 Tunisian to Slovakia; February 2010 — 1 Egyptian, 1 Libyan, 1 Tunisian to Albania, 1 Palestinian to Spain; March 2010 — 1 Libyan, 2 unidentified prisoners to Georgia, 2 Uighurs to Switzerland; May 2010 — 1 Syrian to Bulgaria, 1 Yemeni to Spain; July 2010 — 1 Yemeni (Mohammed Hassan Odaini).

These results constitute a comprehensive dismissal of the Bush administration’s claims — still touted today by supporters of Guantánamo — that the prison held “the worst of the worst,” and are all the more remarkable because the threshold for success on the government’s part is so low, requiring Justice Department lawyers merely to establish, by a preponderance of the evidence, that the men in question were involved with al-Qaeda and/or the Taliban.

Even with this success rate, problems remain, because the basis for detention for those prisoners who have lost their habeas petitions — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks — fails to distinguish between a terrorist group (al-Qaeda) and the government of Afghanistan at the time of the US-led invasion of Afghanistan in October 2001 (the Taliban).

This has led, in the cases of the majority of the 14 prisoners who have lost their petitions, to an unjust situation in which soldiers — who should have been held as prisoners of war, protected by the Geneva Conventions — are, instead, being consigned, on an apparently legal basis, to ongoing detention at Guantánamo, a prison designed not for soldiers, but, as mentioned above, for “the worst of the worst” terrorists, involved in the 9/11 attacks and other acts of international terrorism.

In challenging their habeas rulings, the prisoners who have lost their petitions have, in general, found the Court of Appeals in Washington D.C. to be so supportive of executive power that the judges have not only endorsed the denial of habeas, but have also gone further than the government in their interpretation of the scope of the detention powers in the AUMF.

A worrying start: No limit on the President’s war powers

The appeals process took a while to get underway, but, in the cases of the men who lost their petitions, the Circuit Court established a worrying position in January this year, ruling, in the case of Ghaleb al-Bihani, a Yemeni who lost his petition in January 2009, on the basis that he was a cook for Arab forces supporting the Taliban, that it was “mistaken” for al-Bihani’s lawyers to argue that “the war powers granted by the AUMF and other statutes are limited by the international laws of war.”

In the majority opinion, Judge Janice Rogers Brown, supported by Judge Brett M. Kavanaugh Brown, also described the international laws of war as not “a fixed code,” refused to “quibble over the intricate application of vague treaty provisions and amorphous customary principles,” and concluded that “their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers.”

Lawyers for Ghaleb al-Bihani responded to the ruling by calling for en banc review of the appeal (meaning that a full panel of judges must consider it), and took some comfort from the statements of Senior Circuit Judge Stephen F. Williams, the third judge, who concurred with the overall judgment and with part of the majority opinion, but took exception to his colleagues’ conclusion about the scope of the President’s war powers, noting that it was “hard to square with the approach that the Supreme Court took in Hamdi [v. Rumsfeld, a 2004 Supreme Court case regarding Guantánamo that established the government’s right to hold men detained under the AUMF].” Judge Williams quoted Justice Souter, who stated explicitly, “[W]e understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.”

Everyone in a position of authority appears to have ignored the significance of Justice Souter’s opinion about “the authority to detain for the duration of the relevant conflict.” To my mind, this echoes the overlooked fact that soldiers should be held as prisoners of war according to the Geneva Conventions, which authorize detention “for the duration of the relevant conflict,” and do not, therefore need replacing with the AUMF.

The government argues against the Circuit Court on Presidential power and the international laws of war

Reassuringly, however, the Circuit Court’s contentious argument about Presidential power and the international laws of war has not been ignored. No decision has yet been made about al-Bihani’s appeal for en banc review of the Circuit Court’s January ruling, but on May 13 the government submitted a brief (PDF), in which, although lawyers opposed en banc review and agreed with the Circuit Court on almost every point in its January opinion, they disagreed with the court’s opinion about Presidential power and the international laws of war.

As the lawyers explained in their brief:

Petitioner cites the panel majority’s statement that the “premise that the war powers granted by the [Authorization for Use of Military Force] and other statutes are limited by the international laws of war is mistaken.” The Government agrees that this broad statement does not properly reflect the state of the law. The Government interprets the detention authority permitted under the AUMF as informed by the laws of war.

The lawyers proceeded to explain that their interpretation was “consistent” with Hamdi, as cited above, “and with longstanding Supreme Court precedent that statutes should be construed as consistent with applicable international law.” The lawyers also pointed out that the government had accepted “its detention authority under the AUMF to be informed by the laws of war” in a court filing on March 13, 2009, in response to a request for clarification from Judge John D. Bates, which I discussed in an article entitled, “Guantánamo: The Nobodies Formerly Known As Enemy Combatants.”

In that filing, the government stated:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.

The key change implemented by the Obama administration was the requirement that “substantial support” rather than just “support” was necessary for detention, but as this also required judges to ascertain what constituted “substantial support,” there were further developments, in particular a ruling by Judge John D. Bates, in Hamlily v. Obama (PDF), in which he proposed that the “key inquiry” for determining whether an individual has become “part of” one or more of these organizations is “whether the individual functions or participates within or under the command structure of the organization — i.e., whether he receives and executes orders or directions.”

This was not the only definition proposed by individual judges, but it was used in a number of cases, and was unchallenged until, last month, largely unnoticed in the mainstream media, the Court of Appeals delivered four more rulings, and delivered a fifth on July 13. For the most part, the Circuit Court reinforced the District Court’s findings (largely because, in five of the six cases, they were challenges mounted by prisoners who had already lost their habeas petitions), although in one case the court overturned the lower court’s denial of habeas corpus, and in another reversed a prisoner’s successful petition. Behind these blunt figures, however, the court tore into Judge Bates’ definition of the requirements for detention, and, emboldened by this, delivered an even more critical opinion, further undermining the District Court’s authority, in the most recent case decided. Given the number of cases involved in this analysis, I will examine the first two of these rulings in this article, and I will examine the other three in an article next week.

The “gossamer thin” evidence against Adham Ali Awad is upheld

In the first of these appeals, decided on June 2, the Circuit Court upheld the ongoing detention of Adham Ali Awad (PDF), a Yemeni amputee who had been handed over to Afghan forces by al-Qaeda fighters besieged in a hospital in Afghanistan in December 2001. Last August, Judge James Robertson denied Ali Awad’s habeas petition, even though he conceded that the case against him was “gossamer thin,” and added, “The evidence is of a kind fit only for these unique proceedings and has very little weight.” He also described Ali Awad as a “marginally literate” young man, who “has spent more than seven of his twenty-six years — since he was a teenager — in American custody,” and stated, “It seems ludicrous to believe that he poses a security threat now,” adding, limply, “but that is not for me to decide.”

As I explained at the time, in the hands of another judge, the ruling may well have tipped the other way, as the case was not only “gossamer thin,” but also full of holes. As a result, the Court of Appeals could have given Ali Awad the benefit of the doubt, but this was always unlikely, as the Circuit Court is dominated by deeply Conservative judges. In Ali Awad’s appeal, two of the judges — Chief Judge David B. Sentelle and Judge Merrick B. Garland — had delivered a crucial ruling against the Bush administration in June 2008, in the case of Huzaifa Parhat, one of 17 Uighurs (Muslims from China’s oppressed Xinjiang province) who subsequently won their habeas petitions after the Circuit Court’s withering intervention, but this was something of an exception. Just two months ago, Judge Sentelle led the panel that denied habeas corpus rights to foreign prisoners seized in other countries and rendered to the US prison at Bagram airbase, Afghanistan, reversing a ruling in favor of the prisoners, delivered by Judge Bates last March, and consigning the foreigners in Bagram to a legal black hole that resembles Guantánamo in its early days.

In Ali Awad’s appeal, the judges thoroughly endorsed the “gossamer thin” evidence against the Yemeni, and although they did not indulge in the kind of assault on the international laws of war favored by the judges in Ghaleb al-Bihani’s appeal, they did make a point of wading into the debate regarding the extent to which prisoners must be involved in al-Qaeda or the Taliban for their detention to be justified, by refuting Judge Bates’ assertion that evidence of involvement in the organizations’ “command structure” is required, and asserting that it need only be demonstrated that they were “part of” al-Qaeda and/or the Taliban. As JURIST noted, in one of the few commentaries on the ruling, “This statement lowers the threshold for the amount of evidence needed for incarceration.”

The Circuit Court upholds the detention of Sufyian Barhoumi

On June 22, the Circuit Court upheld the detention of Sufyian Barhoumi (PDF), an Algerian who lost his habeas petition last September. Although the recently established precedent of being “part of” al-Qaeda surfaced in the Circuit Court’s ruling, it was debatable whether it was strictly necessary in Barhoumi’s case, because he had conceded, in publicly available documents from Guantánamo, that he had attended military training camps in Afghanistan. This, on its own, may not have been sufficient for his detention to be upheld, but the panel, led by Judge David S. Tatel (who had been on the panel that denied habeas rights to foreigners in Bagram) was also swayed by the fact that he was seized in a house raid in Faisalabad, Pakistan on March 28, 2002, that led to the capture of the supposed “high-value detainee” Abu Zubaydah, along with other alleged terror suspects.

Alarmingly, the judges were unconcerned by the copious amount of evidence that has emerged in recent years to demonstrate that Zubaydah — for whom the CIA’s torture program was first conceived — was not, as alleged, a high-ranking member of al-Qaeda involved in numerous international terrorist plots, but was, instead, the mentally damaged gatekeeper for a training camp that had little connection to al-Qaeda at all. As a result, the Circuit Court’s ruling not only shows a fundamental disdain for any kind of historical accuracy, but also demonstrates a general unwillingness on the part of the Circuit Court to challenge or probe prosecutorial positions regarding the Guantánamo prisoners.

In next week’s article, I will begin by examining an exception to this rule, but that was very much a one-off, because the Circuit Court’s most recent rulings have demonstrated a further commitment to eroding the District Court’s independence — and, for the most part, its fairness and impartiality — with increasingly aggressive assertions that have less to do with due process than with a kind of overreaching, authoritarian, right-wing ideology.

With the retirement of Justice John Paul Stevens from the Supreme Court, this is deeply troubling, as it means that, in all probability, the Supreme Court has lost its ability to challenge dubious decisions on Guantánamo, and the Circuit Court is left running the show. As a result, anyone concerned about justice for the Guantánamo prisoners, as the ninth anniversary of the 9/11 attacks approaches, should be very worried indeed.

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, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation, as, “Guantánamo and Habeas Corpus: Wins and Losses, Part 1.”

For an overview of all the habeas rulings, including links to all my articles, and to the judges’ unclassified opinions, see: Guantánamo Habeas Results: The Definitive List. For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (September 2009), 75 Guantánamo Prisoners Cleared For Release; 31 Could Leave Today (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Justice Department Pointlessly Gags Guantánamo Lawyer (November 2009), Judge Orders Release Of Algerian From Guantánamo (But He’s Not Going Anywhere) (November 2009), Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait (December 2009), What Does It Take To Get Out Of Obama’s Guantánamo? (December 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Judge Orders Release From Guantánamo Of Unwilling Yemeni Recruit (December 2009), Serious Problems With Obama’s Plan To Move Guantánamo To Illinois (December 2009), Appeals Court Extends President’s Wartime Powers, Limits Guantánamo Prisoners’ Rights (January 2010), Fear and Paranoia as Guantánamo Marks its Eighth Anniversary (January 2010), Rubbing Salt in Guantánamo’s Wounds: Task Force Announces Indefinite Detention (January 2010), The Black Hole of Guantánamo (March 2010), Guantánamo Uighurs Back in Legal Limbo (March 2010), Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit (April 2010), An Insignificant Yemeni at Guantánamo Loses His Habeas Petition (April 2010), With Regrets, Judge Allows Indefinite Detention at Guantánamo of a Medic (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), Why Judges Can’t Free Torture Victims from Guantánamo (April 2010), How Binyam Mohamed’s Torture Was Revealed in a US Court (May 2010), Guantánamo and Habeas Corpus: Consigning Soldiers to Oblivion (May 2010), Judge Denies Habeas Petition of an Ill and Abused Libyan in Guantánamo (May 2010), Judge Orders Release from Guantánamo of Russian Caught in Abu Zubaydah’s Web (May 2010), No Escape from Guantánamo: Uighurs Lose Again in US Court (June 2010), Does Obama Really Know or Care About Who Is at Guantánamo? (June 2010), Guantánamo and Habeas Corpus: 2 Years, 50 Cases, 36 Victories for the Prisoners (June 2010), Obama Thinks About Releasing Innocent Yemenis from Guantánamo (June 2010), Calling for US Accountability on the International Day in Support of Victims of Torture (June 2010), Judge Orders Release from Guantánamo of Yemeni Seized in Iran, Held in Secret CIA Prisons (July 2010), Innocent Student Finally Released from Guantánamo (July 2010).

As UN Secretary-General Kofi Annan explained on June 26, 1998 (when the day was first marked), “This is a day on which we pay our respects to those who have endured the unimaginable. This is an occasion for the world to speak up against the unspeakable. It is long overdue that a day be dedicated to remembering and supporting the many victims and survivors of torture around the world.”

At the time, Kofi Annan lamented that, although over 100 States had ratified the Convention, the use of torture was “still reported” in many of those countries. Nevertheless, for the US and other supposed civilized countries, the creation of the International Day came at a time when, in general, the involvement of Western nations in torture was minimal.

The threat posed by Osama bin Laden had not yet manifested itself in the African embassy bombings of 1998, the attack on the USS Cole in 2000, and, finally, the attacks on the US mainland on September 11, 2001, which prompted the Bush administration to actively embrace torture. Within a year of the attacks, the President had secured memos purporting to redefine torture, prepared by lawyers in the Justice Department’s Office of Legal Counsel, which was supposed to provide the Executive branch with impartial legal advice.

President Clinton and “extraordinary rendition”

In retrospect, however, the Clinton administration had begun to pave the way for the torture regime that was developed in response to the 9/11 attacks by allowing — or tacitly encouraging — the CIA to become involved in a program of “extraordinary rendition” as early as 1995. Building on a long tradition of kidnapping foreign nationals and bringing them to the US to face justice (the original version of “rendition”), the “extraordinary rendition” program did away with the US courts, and allowed the CIA to kidnap terror suspects in various countries, and to dispose of them by sending them to Egypt.

The first known “extraordinary rendition” took place in September 1995, when Tal’at Fu’ad Qassim, also known as Abu Talal al-Qasimi, a purported Egyptian militant who had been living in exile in Denmark, was seized in Croatia by US forces and, reportedly, questioned aboard a US navy vessel and handed over to Egypt “in the middle of the Adriatic Sea.” He was executed in 2000.

Disturbingly, the plan to seize the next five targets of the “extraordinary rendition” program began on June 25, 1998 (the day before the first International Day in Support of Victims of Torture), when, as the Wall Street Journal explained in 2001, the Egyptian government “issued a prearranged arrest warrant” for Shawki Salama Attiya, who apparently “produce[d] fake visas and other bogus documents” for a cell of Egyptian Islamic Jihad members in Albania. That same day, Albanian police, with the co-operation of the CIA, seized Attiya. “Several days later,” the report continued, “he was taken, handcuffed and blindfolded, to [an] abandoned air base, north of Tirana,” and flown to Egypt, arriving on July 2, 1998. Over the next month, four other members of the alleged cell were kidnapped and flown to Egypt. Attiya later received a life sentence, while two others were hanged, and two others received 10-year sentences. In a bleak postscript, Egyptian Islamic Jihad (which, by this point, was intimately tied to the activities of al-Qaeda through the figure of Ayman al-Zawahiri) responded to the “extraordinary renditions” by vowing vengeance, and the bombings of the US embassies in Nairobi and Dar-es-Salaam, which killed 223 people and wounded over 4,000 others, took place on August 7, 1998.

Although President Clinton’s program, which apparently involved no more than 14 renditions, was tightly controlled and included a strict paper trail and a requirement that convictions in Egypt had already been obtained (however unreliable those convictions may have been), the program provided a ready-made template for the Bush administration.

Torture today

Twelve years after the original International Day in Support of Victims of Torture, the landscape has changed profoundly. Seizing on the “extraordinary rendition” program, the Bush administration involved other countries, including Jordan, Morocco and Syria, and established its own secret prisons in countries including Thailand, Poland, Romania and Lithuania, as well as indulging in the industrial-scale rendition of prisoners to Guantánamo. It has left in its wake malignant policies, whose effects have proven difficult to undo, not only at Guantánamo, but also at Bagram in Afghanistan.

This is in spite of the fact that, on his second day in office, President Obama issued an executive order upholding the absolute ban on torture. However, although this purported to mark a clean break with the Bush administration, its impact has been undermined by the refusal of President Obama — or of his Attorney General, Eric Holder — to order a thorough, independent investigation into the Bush administration’s torture program. This reluctance to address the crimes committed by the previous administration was signaled before Obama took office, when he explained his “belief that we need to look forward as opposed to looking backwards.”

The impact of President Obama’s torture ban has also been damaged by persistent allegations of torture in a secret prison at Bagram, and by the President’s inability to meet his self-imposed deadline of January 22, 2010 for the closure of Guantánamo, where, as critics rightly point out, the open-ended nature of detention is itself a form of abuse. Although the prisoners have had access to lawyers since 2004, and have been able to lodge habeas corpus petitions since June 2008, the underlying situation is not markedly different from how it was in October 2003, when, in a break with protocol, Christophe Girod of the International Committee of the Red Cross told the New York Times, “The open-endedness of the situation and its impact on the mental health of the population has become a major problem.”

Revelations of torture since President Obama took office

The Obama administration’s refusal to open an official investigation into its predecessor’s record has allowed admissions of torture to fester, unaddressed or cynically ignored, in almost every policy area relating to the detention of “War on Terror” prisoners. Just before Obama took office, for example, Susan Crawford, a close friend of Vice President Dick Cheney and a retired judge who served as the convening authority for the military commission trial system at Guantánamo, admitted that she had refused to press charges against Mohammed al-Qahtani, a Saudi prisoner subjected to a brutal program of “enhanced interrogation” in late 2002 and early 2003, because, as she stated bluntly in an interview with Bob Woodward, “We tortured Qahtani. His treatment met the legal definition of torture.”

Mohammed al-Qahtani was not the only prisoner at Guantánamo who was subjected to torture. According to an official who spoke to the New York Times for an article published in January 2005, as many as 1 in 6 of the prisoners held were subjected to “enhanced interrogation techniques.”

Moreover, in the last year and a half, President Obama’s inaction has been regularly challenged, in reports on the treatment in secret CIA prisons of 14 “high-value detainees” transferred to Guantánamo in September 2006, and in reports of the torture of other prisoners. These have surfaced in the District Court in Washington D.C., where judges have been delivering rulings on the prisoners’ habeas corpus petitions, and to date, have found for the prisoners in 36 out of 50 cases.

In April 2009, a confidential ICRC report on the 14 “high-value detainees,” delivered to the US government in 2007, was leaked to the New York Review of Books (PDF). The report, based on interviews with the 14 men at Guantánamo, described how they had been treated in the CIA’s secret prisons, and the men’s statements were so disturbing that the ICRC concluded:

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.

That same month, there was further bad news for Bush administration officials. In response to a court order, the Obama administration released four “torture memos,” written in August 2002 and May 2005 by lawyers in the Justice Department’s Office of Legal Counsel (John Yoo, Jay S. Bybee and Stephen Bradbury), which demonstrated a disturbing predilection for twisting the torture statute out of all recognizable shape in an attempt to redefine torture, so that it could be used by the CIA.

This was followed by an unclassified version of a damning 231-page Senate Armed Services Committee investigation into detainee abuse (PDF), which, although it managed to avoid the use of the word torture, nevertheless concluded that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.” Those held responsible included President George W. Bush, defense secretary Donald Rumsfeld, Vice President Dick Cheney’s legal counsel (and later chief of staff) David Addington, Pentagon general counsel William J. Haynes II, Gen. Richard Myers, the Chairman of the Joint Chiefs of Staff, White House general counsel (and later Attorney General) Alberto Gonzales, Guantánamo commanders Maj. Gen. Michael Dunlavey and Maj. Gen. Geoffrey Miller, and Lt. Gen. Ricardo Sanchez, the commander of coalition forces in Iraq.

Revelations of torture in the Guantánamo prisoners’ habeas petitions

In addition, other references to torture have steadily seeped out of the District Court in Washington D.C., in the judges’ rulings on the Guantánamo prisoners’ habeas corpus petitions. The first concerned Mohamed Jawad, an Afghan teenager seized after a grenade attack in Kabul in December 2002, who had been put forward for a trial by military commission under President Bush. In Jawad’s case, the government ignored the fact that Army Col. Stephen Henley, the military judge in his proposed trial by military commission, had ruled on two separate occasions in October and November 2008 that the crux of the government’s case against him — two “confessions” made on the day of his capture, the first in Afghan custody, and the second, just hours later, in US custody — were inadmissible because they had been obtained through treatment that constituted torture.

Without these confessions, the government essentially had no case, but the Justice Department persisted in pursuing his case before Judge Ellen Segal Huvelle, who granted Jawad’s habeas petition last July after repeatedly stressing that the government did not have a single reliable witness, and that the case was “lousy,” “in trouble,” “unbelievable,” and “riddled with holes.”

In September, Judge Colleen Kollar-Kotelly granted the habeas petition of Fouad al-Rabiah, a Kuwaiti prisoner, after discovering that his confessions about meeting Osama bin Laden and distributing supplies in Afghanistan’s Tora Bora mountains, during a showdown between al-Qaeda and US forces in December 2001, were completely false, and had been conjured up by al-Rabiah after he was subjected to prolonged sleep deprivation and other “enhanced interrogation techniques.”

In November, Judge Kollar-Kotelly granted the habeas petition of Farhi Saeed bin Mohammed, an Algerian, after she concluded that crucial elements of the government’s supposed evidence were unreliable, because they came from statements made by the British resident Binyam Mohamed, shortly after his arrival at Bagram in May 2004. Judge Kollar-Kotelly ruled that Mohamed’s statements were unreliable because, after he was seized in Pakistan in April 2002, he was sent by the CIA to Morocco, where he was reportedly tortured for 18 months, and was then held for another four months in the CIA’s notorious “Dark Prison” near Kabul.

To establish the unreliability of Mohamed’s evidence. Judge Kollar-Kotelly devoted much of her unclassified opinion to a harrowing analysis of his treatment, noting, in particular, that “The government does not challenge or deny the accuracy of Binyam Mohamed’s story of brutal treatment,” and reminding senior officials that the UN Convention Against Torture “requires that governments which are party to it ‘ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.’”

The month after the bin Mohammed ruling, Judge Ricardo Urbina granted the habeas petition of Saeed Hatim, a Yemeni, after crediting Hatim’s claims that, while held in the US prison at Kandahar, Afghanistan, before his transfer to Guantánamo:

he was severely mistreated, including being beaten repeatedly, being kicked in the knees and having duct tape used to hold blindfolds on his head. To this day, he cannot raise his left arm without feeling pain. The petitioner also alleges that he was threatened with rape if he did not confess to being a member of the Taliban or al-Qaeda. As a result, he claims that the inculpatory statements that he made in Kandahar were made only because of these threats. He further alleges that after being transferred to GTMO in 2002, he repeated those inculpatory statements in 2004 because he feared that he would be punished if he changed his story.

The most recent example of torture being exposed in the District Court came in February this year, when, in the case of Uthman Abdul Rahim Mohammed Uthman, a Yemeni, Judge Henry H. Kennedy Jr. granted his habeas petition, after refusing to accept the government’s central allegation — that Uthman had been a bodyguard for Osama bin Laden — because these allegations had been made by two men (Sharqwi Abdu Ali al-Hajj and Sanad Yislam Ali al-Kazimi) who were held in secret prisons before their transfer to Guantánamo, and because “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.”

The need for a thorough investigation

It should be apparent from these reports that the Obama administration will find it impossible to staunch the flow of torture stories, and, moreover, that attempts to do so will only end up destroying whatever lingering credibility the administration has regarding its purported respect for human rights. In January, the Justice Department cynically allowed a senior DoJ official, David Margolis, to override the conclusion of a four-year internal investigation into John Yoo and Jay Bybee, which had concluded that both men should face disciplinary measures for “professional misconduct,” by stating that they had only exercised “poor judgment.”

However, that same month, the United Nations issued a detailed report on secret detention, which, while cautiously endorsing the changes introduced by the Obama administration, pointedly asked what had happened to the many dozens of prisoners held in the CIA’s secret prisons, or rendered by the CIA to prisons in other countries, who had not ended up in Guantánamo. Moreover, just last week, a psychologist in Texas filed a complaint with the Texas State Board of Examiners of Psychologists regarding multiple ethical violations committed by Dr. James Mitchell, one of the architects of the Bush administration’s torture program.

With more revelations of torture expected in the District Court, President Obama would do well to reflect, on this particular day, that when Ronald Reagan signed the UN Convention Against Torture in 1988 he willingly accepted that there are “no exceptional circumstances whatsoever” justifying torture, and also accepted that all signatory countries are obliged to “ensure that all acts of torture are offenses under its criminal law” and “either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.”

In January this year, Glenn Greenwald noted that, when L. Paul Bremer, then the senior State Department official in charge of terrorism policies, described the Reagan administration’s official policy towards terrorists, he declared that “a major element of our strategy has been to delegitimize terrorists, to get society to see them for what they are — criminals — and to use democracy’s most potent tool, the rule of law against them.” Now, however, we have fallen so far from these ideals that, as Greenwald explained:

The express policies of the right-wing Ronald Reagan — “applying the rule of law to terrorists”; delegitimizing Terrorists by treating them as “criminals”; and compelling the criminal prosecution of those who authorize torture — are now considered on the Leftist fringe … In those rare cases when Obama does what Reagan’s policy demanded in all instances and what even Bush did at times — namely, trials and due process for accused Terrorists — he is attacked as being “Soft on Terror” by Democrats and Republicans alike.

On the International Day in Support of Victims of Torture, it is time for Americans who care about justice to demand that the Obama administration stops vacillating on torture, returns to Ronald Reagan’s “Leftist fringe,” and initiates a thorough investigation into the torture policies implemented by the Bush administration.

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 January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout.

For an overview of all the habeas rulings, including links to all my articles, and to the judges’ unclassified opinions, see: Guantánamo Habeas Results: The Definitive List. Also see the archive of articles about Guantánamo and habeas corpus here. For articles about US torture, see the links following the article here, here and here, and the archive of articles here. For chronological lists of all my articles, with links, see here.

I do, however, urge everyone to read the whole report, because the introduction and conclusions are important, as are the sections establishing the legal approach to secret detention and its historical context, the section detailing current practices in 25 other countries worldwide, and the annexes, which contain government responses to a questionnaire about secret detention, and a number of case studies.

Given the length of this section of the report (pp. 43-89), I’m publishing it in three parts. The first, published here, provided an introduction, and dealt with “The ‘high-value detainee’ programme and CIA secret detention facilities,” the second, published below, looks at “CIA detention facilities or facilities operated jointly with United States military in battlefield zones,” and the third looks at “Proxy detention sites,” “Complicity in the practice of secret detention” and “Secret detention and the Obama administration.”

Please note that I have inserted hyperlinks where possible. However, the original report contains footnotes, and not all of these provide links to websites. In most cases, I have added the information contained in the footnotes in square brackets, but for full details, please see the original.

Excerpts from the UN “Joint Study on Global Practices in Relation to Secret Detention in the Context of Counter-Terrorism,” February 2010

Prepared by Martin Scheinin, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Manfred Nowak, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Shaheen Ali, the vice-chair of the Working Group on arbitrary detention, and Jeremy Sarkin, the chair of the Working Group on enforced or involuntary disappearances.

B. CIA detention facilities or facilities operated jointly with United States military in battlefield zones

131. Although it is still not possible to identify all 28 of the CIA’s acknowledged high-value detainees, the figures quoted in a memo of the Office of Legal Counsel of 30 May 2005 written by Principal Deputy Assistant Attorney General Stephen G. Bradbury [PDF] indicate that the other 66 prisoners in the CIA programme were regarded as less significant. Some of them were subsequently handed over to the United States military and transferred to Guantanamo, while others were rendered to the custody of their home countries or other countries. In very few cases were they released.

1. Afghanistan

132. Outside of the specific “high-value detainee” programme, most detainees were held in a variety of prisons in Afghanistan. Three of these are well-known: a secret prison at Bagram airbase, reportedly identified as “the Hangar” [See also the interview with Murat Kurnaz (annex II, case 14)], and two secret prisons near Kabul, known as the “dark prison” and the “salt pit”. During an interview held with the experts, Bisher al-Rawi indicated that, in the dark prison, there were no lights, heating or decoration. His cell was about 5 x 9 feet with a solid steel door and a hatch towards the bottom of it. He only had a bucket to use as a toilet, an old piece of carpet and a rusty steel bar across the width of the cell to hang people from. All the guards wore hoods with small eye holes, and they never spoke. Very loud music was played continuously. He also indicated that he had been subjected to sleep deprivation for up to three days and received threats. Binyam Mohamed provided a similar account to the experts [see annex II, case 18], as did the lawyer of Khaled El-Masri [annex II, case 9] and Suleiman Abdallah [annex II, case 2]. The experts heard allegations about three lesser-known prisons, including one in the Panjshir valley, north of Kabul, and two others identified as Rissat and Rissat 2, but it was not yet possible to verify these allegations. Of the prisoners identified as having been held in secret CIA custody (in addition to the above-mentioned high-value detainees), seven were eventually released and four escaped from Bagram in July 2005, namely Abu Yahya al-Libi, a Libyan; Omar al-Faruq, a Kuwaiti, captured in Bogor, Indonesia, in 2002; Muhammad Jafar Jamal al-Kahtani, a Saudi, reportedly [re-]captured in Khost province, Afghanistan, in November 2006; and Abdullah Hashimi, a Syrian, also known as Abu Abdullah al-Shami. Five prisoners were reportedly returned to the Libyan Arab Jamahiriya in 2006: Ibn al-Sheikh al-Libi [see para. 146 below]; Hassan Raba’i and Khaled al-Sharif, both captured in Peshawar, Pakistan, in 2003, who had “spent time in a CIA prison in Afghanistan”; Abdallah al-Sadeq, seized in a covert CIA operation in Thailand in the spring of 2004; and Abu Munder al-Saadi, both held briefly before being rendered to the Libyan Arab Jamahiriya. In May 2009, Human Rights Watch reported that its representatives briefly met Ibn al-Sheikh al-Libi on a visit to Abu Salim prison in Tripoli, although he refused to be interviewed. Human Rights Watch interviewed four other men, who claimed that, “before they were sent to the Libyan Arab Jamahiriya, United States forces had tortured them in detention centers in Afghanistan, and supervised their torture in Pakistan and Thailand”. One of the four was Hassan Raba’i, also known as Mohamed Ahmad Mohamed al-Shoroeiya, who stated that, in mid-2003, in a place he believed was Bagram prison in Afghanistan, “the interpreters who directed the questions to us did it with beatings and insults. They used cold water, ice water. They put us in a tub with cold water. We were forced [to go] for months without clothes. They brought a doctor at the beginning. He put my leg in a plaster. One of the methods of interrogation was to take the plaster off and stand on my leg”.

133. The released detainees are:

• Laid Saidi, an Algerian seized in the United Republic of Tanzania on 10 May 2003, was handed over to Malawians in plain clothes who were accompanied by two middle-aged Caucasian men wearing jeans and T-shirts. Shortly after the expulsion, a lawyer representing Mr. Saidi’s wife filed an affidavit with a Tanzanian court, saying that immigration documents showed that Mr. Saidi had been deported through the border between Kasumulu, United Republic of Tanzania, and Malawi. He was held for a week in a detention facility in the mountains of Malawi, then rendered to Afghanistan, where he was held in the “dark prison”, the “salt pit” and another unidentified prison. About a year after he was seized, he was flown to Tunisia, where he was detained for another 75 days, before being returned to Algeria, where he was released.

• Three Yemenis — Salah Nasser Salim Ali Darwish, seized in Indonesia in October 2003, Mohammed al-Asad and Mohammed Farag Ahmad Bashmilah — were held in a number of CIA detention facilities until their return to Yemen in May 2005, where they continued to be held, apparently at the request of the United States authorities. Mr. Bashmilah was detained by Jordanian intelligence agents in October 2003, when he was in Jordan to assist his mother who was having an operation. From 21 to 26 October 2003, Mr. Bashmilah was detained without charge and subjected to torture and cruel, inhuman and degrading treatment, including prolonged beatings and being threatened with electric shocks and the rape of his mother and wife [see Declaration of Mohamed Farag Ahmad Bashmilah in support of plaintiffs’ opposition to the motion of the United States to dismiss or, in the alternative, for summary judgment, civil action No. 5:07-cv-02798 in the United States District Court for the Northern District of California, San Jose Division]. A communication was sent by the special rapporteurs on torture and on human rights while countering terrorism to the Governments of the United States, Indonesia, Yemen and Jordan on the cases of Bashmilah and Salim Ali, who were both detained and tortured in Jordan [E/CN.4/2006/6/Add.1, paras. 93, 126, 525 and 550]. Only the latter country responded, declaring that no record showing that the two men had been arrested for the violations of either the penal, disciplinary or administrative codes, and that they did not have documented files indicating that they posed a security concern, eliminating the possibility of their arrest for what may be described as terrorism [A/HRC/4/33/Add.1, para. 123]. The Working Group on Arbitrary Detention adopted its opinion No. 47/2005 (Yemen) on the case on 30 November 2005, declaring their detention to be arbitrary as being devoid of any legal basis. In its reply to the allegations, the Government of Yemen confirmed that Mr. Bashmilah and Mr. Salim Ali had been handed over to Yemen by the United States. According to the Government, they had been held in a security police facility because of their alleged involvement in terrorist activities related to Al-Qaida. The Government added that the competent authorities were still dealing with the case pending receipt of the persons’ files from the United States authorities in order to transfer them to the Prosecutor [A/HRC/4/40/Add.1, para. 15].

• Khaled El-Masri, a German seized on the border of the former Yugoslav Republic of Macedonia on 31 December 2003, was held in a hotel room by agents of that State for 23 days, then rendered by the CIA to the “salt pit”. He was released in Albania on 29 May 2004 [Also see Interview with the lawyer of Khaled El-Masri (annex II, case 9)].

• Khaled al-Maqtari, a Yemeni seized in Iraq in January 2004, was initially held in Abu Ghraib, then transferred to a secret CIA detention facility in Afghanistan. In April 2004, he was moved to a second secret detention facility, possibly in Eastern Europe, where he remained in complete isolation for 28 months, until he was returned to Yemen and released in May 2007.

• Marwan Jabour, a Jordanian-born Palestinian, was seized in Lahore, Pakistan, on 9 May 2004, and held in a CIA detention facility in Afghanistan for 25 months. He was then transferred to Jordan, where he was held for six weeks, and to Israel, where he was held for another six weeks, before being freed in Gaza.

[Also mentioned:] Murat Kurnaz, a Turkish national residing in Germany, interviewed by the experts for the present study, was arrested in Pakistan in November or December 2001 and initially held by Pakistani police officers and officers of the United States. He was then transferred into the custody of the United States at that country’s airbase in Kandahar, Afghanistan, before being taken to the naval base at Guantanamo Bay on 1 February 2002. He was held secretly until May 2002, and released on 24 August 2006.

134. A total of 23 detainees who ended up in Guantanamo were also held in CIA detention facilities in Afghanistan. They include:

(a) Six men seized in the Islamic Republic of Iran in late 2001:

• Wassam al-Ourdoni, a Jordanian, who was released from Guantanamo in April 2004. In 2006, he told Reprieve that he had been seized by the Iranian authorities while returning from a religious visit to Pakistan with his wife and newborn child in December 2001, then handed over to the Afghan authorities, who handed him on to the CIA. He said that the Americans “asked me about my relationship with Al-Qaida. I told them I had nothing to do with Al-Qaida. They then put me in jail under circumstances that I can only recall with dread. I lived under unimaginable conditions that cannot be tolerated in a civilized society.” He said that he was first placed in an underground prison for 77 days: “this room was so dark that we couldn’t distinguish nights and days. There was no window, and we didn’t see the sun once during the whole time.” He said that he was then moved to “prison number three”, where the food was so bad that his weight dropped substantially. He was then held in Bagram for 40 days before being flown to Guantanamo [Clive Stafford Smith, “Abandoned to their fate in Guantánamo”, Index on Censorship, 2006].

• Aminullah Tukhi, an Afghan who was transferred to Afghan custody from Guantanamo in December 2007. He alleged that he had fled from Herat to the Islamic Republic of Iran to escape the Taliban, and was working as a taxi driver when the Iranians began rounding up illegal immigrants towards the end of 2001 [PDF, pp. 71-7].

• Hussein Almerfedi, a Yemeni, still at Guantanamo. He alleged that he was “kidnapped” in the Islamic Republic of Iran and held for a total of 14 months in three prisons in Afghanistan, “two under Afghani control and one under US control [Bagram]” [PDF, pp. 31-40].

• Tawfiq al-Bihani, a Yemeni, still at Guantanamo. Allegedly, after deciding to flee Pakistan after the 9/11 attacks, he was “arrested by Iranian Police in Zahedan, Iran for entering the country without a visa” and held “in various prisons in Iran and Afghanistan, for approximately one year in total [PDF, pp. 66-9].

• Rafiq Alhami, a Tunisian still held at Guantanamo, who alleged that “I was in an Afghan prison but the interrogation was done by Americans. I was there for about a one-year period, transferring from one place to another. I was tortured for about three months in a prison called the Prison of Darkness or the Dark Prison” [PDF, pp. 147-61]. And further: “Back in Afghanistan I would be tortured. I was threatened. I was left out all night in the cold. It was different here. I spent two months with no water, no shoes, in darkness and in the cold. There was darkness and loud music for two months. I was not allowed to pray. I was not allowed to fast during Ramadan. These things are documented. You have them” [PDF, pp. 20-22].

• Walid al-Qadasi, a Yemeni who was rendered to the “dark prison” and held in other prisons in Afghanistan, together with four other men whose whereabouts are unknown [In addition, Aminullah Tukhi explained that 10 prisoners in total -- six Arabs, two Afghans, an Uzbek and a Tajik -- had been delivered to the Americans. Although six of these men are accounted for above, it is not known what happened to the other four: an Arab, an Afghan, the Uzbek and the Tajik]. An allegation letter was sent in November 2005 by the Special Rapporteur on torture in relation to Walid Muhammad Shahir Muhammad al-Qadasi, a Yemeni citizen, indicating that the following allegations had been received: He was arrested in Iran in late 2001. He was held there for about three months before being handed over to the authorities in Afghanistan who in turn handed him over to the custody of the US. He was held in a prison in Kabul. During US custody, officials cut his clothes with scissors, left him naked and took photos of him before giving him Afghan clothes to wear. They then handcuffed his hands behind his back, blindfolded him and started interrogating him. The apparently Egyptian interrogator, accusing him of belonging to Al-Qaida, threatened him with death. He was put in an underground cell measuring approximately two metres by three metres with very small windows. He shared the cell with ten inmates. They had to sleep in shifts due to lack of space and received food only once a day. He spent three months there without ever leaving the cell. After three months, Walid al-Qadasi was transferred to Bagram, where he was interrogated for one month. His head was shaved, he was blindfolded, made to wear ear muffs and a mouth mask, handcuffed, shackled, loaded on to a plane and flown out to Guantanamo, where he was held in solitary confinement for one more month. In April 2004, after having been detained for two years, he was transferred to Sana’a prison in Yemen. In its response, the Government of the United States reiterated its earlier announcements that no Government agency was allowed to engage in torture and that its actions complied with the non-refoulement principle. Opinion No. 47/2005 of the Working Group on Arbitrary Detention also concerns Mr. al-Qadasi [See E/CN.4/2006/6/Add.1, paras. 1 and 527, and the response from the Government of the United States (A/HRC/10/44/Add.4, para. 252). See also the report of the Working Group on Arbitrary Detention, opinion No. 47/2005 (A/HRC/4/40/Add.1)].

(b) Two men seized in Georgia in early 2002 and sold to United States forces:

• Soufian al-Huwari, an Algerian, transferred to Algerian custody from Guantanamo in November 2008; and Zakaria al-Baidany, also known as Omar al-Rammah, a Yemeni, still held at Guantanamo. According to Mr. al-Huwari, both were rendered to the “dark prison”, and were also held in other detention facilities in Afghanistan: “The Americans didn’t capture me. The Mafia captured me. They sold me to the Americans”. He added: “When I was captured, a car came around and people inside were talking Russian and Georgian. I also heard a little Chechnyan. We were delivered to another group who spoke perfect Russian. They sold us to the dogs. The Americans came two days later with a briefcase full of money. They took us to a forest, then a private plane to Kabul, Afghanistan” [PDF, pp. 15-23].

(c) Bisher al-Rawi, an Iraqi national and British resident, was seized in the Gambia in November 2002, and rendered to the “dark prison” at the beginning of December 2002. He was kept shackled in complete isolation and darkness for two weeks. On or around 22 December 2002, he was transferred to Bagram, and then to Guantanamo on 7 February 2003. He was finally released on 30 March 2007. At Bagram, he was reportedly threatened and subjected to ill-treatment and sleep deprivation for up to three days at a time [Interview with Bisher al-Rawi (annex II, case 4)].

(d) Jamil El-Banna, a Jordanian national and British resident, was also seized in the Gambia in November 2002 and rendered to the “dark prison”, then to Guantanamo. He was released from Guantanamo in December 2007.

(e) Six other detainees were flown to Guantanamo on 20 September 2004 after having spent one to three years in custody:

• Abdul Rahim Ghulam Rabbani and Mohammed Ahmad Ghulam Rabbani, Pakistani brothers seized in Karachi, who were held in the “salt pit” [Both Laid Saidi and Khaled El-Masri spoke about getting to know the Rabbani brothers in the “salt pit”];

• Abdulsalam al-Hela, a Yemeni colonel and businessman who was seized in Egypt;

• Adil al-Jazeeri, an Algerian seized in Pakistan [PDF, pp. 315-34];

• Sanad al-Kazimi, a Yemeni seized in the United Arab Emirates [PDF. Also on the flight that took these men to Guantanamo were Ali al-Hajj al-Sharqawi, Hassan bin Attash and Binyam Mohamed. See also paras 151 and 159 below];

• Saifullah Paracha, a Pakistani businessman seized in Thailand, who was held in isolation in Bagram for a year.

Mr. al-Kazimi was apprehended in Dubai in January 2003 and held at an undisclosed location in or near Dubai for two months. He was then transferred to a different place about two hours away. He was kept naked for 22 days, at times shackled, and subjected to extreme climatic conditions and simulated drowning. After six months, he was transferred to United States custody, allegedly pursuant to the CIA rendition programme. He was taken to Kabul and held in the “dark prison” for nine months, where he suffered severe physical and psychological torture by unidentified persons. He was then transferred to Bagram airbase, where he was held for a further four months in United States custody. Again, he was allegedly subjected to severe physical and psychological torture by what he believed were the same unidentified persons he had encountered in the “dark prison” [See the report of the Working Group on Arbitrary Detention, opinion No. 3/2009 (United States of America) (A/HRC/13/30/Add.1)].

135. Four other detainees, held in Bagram, are known because lawyers established contact with their families and filed habeas corpus petitions on their behalf:

• Redha al-Najar, a Tunisian who was seized in Karachi in May 2002.

• Amin Mohammad al-Bakri, a Yemeni who was seized in Bangkok on 28 December 2002 by agents of the intelligence services of the United States or of Thailand. Throughout 2003, his whereabouts were unknown. The Thai authorities confirmed to Mr. al-Bakri’s relatives that he had entered Thai territory, but denied knowing his whereabouts. In January 2004, Mr. al-Bakri’s relatives received a letter from him through ICRC, informing them that he was being kept in detention at the Bagram airbase. It was reported that Mr. al-Bakri was detained owing to his commercial connections with Mr. Khalifa, a cousin of Osama bin Laden later assassinated in Madagascar [Working Group on Arbitrary Detention, opinion No. 11/2007 (Afghanistan/ United States of America) (A/HRC/7/4/Add.1)].

• Fadi al-Maqaleh, a Yemeni seized in 2004, who was sent to Abu Ghraib before Bagram.

• Haji Wazir, an Afghan seized in the United Arab Emirates in late 2002 [PDF].

136. The whereabouts of 12 others are unknown, and the others remain to be identified. It is probable that some of these men have been returned to their home countries, and that others are still held in Bagram. The experts received allegations that the following men were also held: Issa al-Tanzani (Tanzanian), also identified as Soulayman al-Tanzani, captured in Mogadishu; Abu Naseem (Libyan), captured in Peshawar, Pakistan, in early 2003; Abou Hudeifa (Tunisian), captured in Peshawar, Pakistan, at the end of 2002; and Salah Din al-Bakistani, captured in Baghdad. Marwan Jabour also mentioned eight other prisoners. One was Yassir al-Jazeeri (Algerian), seized in Lahore, March 2003 (whom he met), and he heard about seven others: Ayoub al-Libi (Libyan), seized in Peshawar in January 2004; Mohammed (Afghan, born Saudi), seized in Peshawar in May 2004; Abdul Basit (Saudi or Yemeni), seized before June 2004; Adnan (nationality unknown), seized before June 2004; an unidentified Somali (possibly Shoeab as-Somali or Rethwan as-Somali); another unidentified Somali; and Marwan al-Adeni (Yemeni), seized in or around May 2003.

2. Iraq

137. Although the Government of the United States stated that the Geneva Conventions applied to detainees seized during the occupation, an unknown number of persons were deliberately held “off the books” and denied ICRC access. In Abu Ghraib, for example, the abuse scandal that erupted following the publication of photographs in April 2004 involved military personnel who were not only holding supposedly significant detainees delivered by the United States military, but others delivered by the CIA or United States Special Forces units. The existence of “ghost detainees”, who were clearly held incommunicado in secret detention, was later exposed in two United States investigations.

138. In August 2004, a report into detainee detentions in Iraq (chaired by former Secretary of Defense James R. Schlesinger) noted that “other Government agencies” had brought a number of “ghost detainees” to detention facilities, including Abu Ghraib, “without accounting for them, knowing their identities, or even the reason for their detention”, and that, on one occasion, a “handful” of these detainees had been “moved around the facility to hide them from a visiting ICRC team” [PDF].

139. In another report issued in August 2004, Lieutenant General Anthony R. Jones and Major General George R. Fay noted that eight prisoners in Abu Ghraib had been denied access to ICRC delegates by Lieutenant General Ricardo Sanchez, the Commander of the Coalition Joint Task Force in Iraq: “Detainee-14 was detained in a totally darkened cell measuring about 2 metres long and less than a metre across, devoid of any window, latrine or water tap, or bedding. On the door the delegates noticed the inscription ‘the Gollum’, and a picture of the said character from the film trilogy ‘The Lord of the Rings’” [PDF].

140. Although the Schlesinger report noted the use of other facilities for “ghost detainees”, the locations of these other prisons, and the numbers of detainees held, have not yet been thoroughly investigated. In June 2004, the then United States Secretary of Defense Donald Rumsfeld admitted that a suspected leader of Ansar al-Aslam had been held for more than seven months without ICRC being notified of his detention; he also stated: “He was not at Abu Ghraib. He is not there now. He has never been there to my knowledge” [also see this New York Times report]. According to another report, the prisoner was known as “Triple X” and his secret detention was authorized by Lieutenant General Ricardo Sanchez, who issued a classified order in November 2003 “directing military guards to hide [him] from Red Cross inspectors and keep his name off official rosters”. In addition, some locations may well be those in which prisoners died in United States custody. In 2006, Human Rights First published a report identifying 98 deaths in United States custody in Iraq, describing five deaths in CIA custody, including Manadel al-Jamadi, who died in Abu Ghraib, and others at locations including Forward Operating Base Tiger, in Anbar province, a forward operating base near Al-Asad, a base outside Mosul, a temporary holding camp near Nasiriyah and a forward operating base in Tikrit [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 January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

For a sequence of articles discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison , Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), When Torture Kills: Ten Murders In US Prisons In Afghanistan (July 2009), US Torture Under Scrutiny In British Courts (July 2009), What The British Government Knew About The Torture Of Binyam Mohamed (August 2009), Torture in Bagram and Guantánamo: The Declaration of Ahmed al-Darbi (September 2009), UK Judges Order Release Of Details About The Torture Of Binyam Mohamed By US Agents (October 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Dark Revelations in the Bagram Prisoner List (January 2010), Two Algerian Torture Victims Are Freed from Guantánamo (January 2010), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), and also see the extensive Binyam Mohamed archive.

Few people in America have heard of Mingazov, but the residents of Amherst and Leverett know about him because, on November 4, 2009, and April 24, 2010, Town Meetings in both towns passed resolutions offering him a new home — and also offering a new home to Ahmed Belbacha, an Algerian who was cleared for release in 2007. The resolutions also urged Congress to repeal legislation passed last year, preventing any former Guantánamo prisoner from entering the United States except for prosecution.

The resolutions were proposed by Amherst resident Ruth Hooke and Leverett resident Elizabeth Adams. Both are members of No More Guantánamos, “a coalition of concerned US residents, communities, organizations, and attorneys who are working together to ensure justice for the prisoners at Guantánamo Bay, Bagram air base in Afghanistan, and other offshore prison sites maintained by the CIA and the Pentagon around the world.” The organization’s director, Nancy Talanian, explained that the organization’s chapters around the country “choose one or two detainees and share the men’s stories through events, literature, and media to show the public that all Guantánamo detainees are human beings who deserve basic human rights, rather than the monsters that some government officials have described.”

“Our Pioneer Valley chapter chose Ravil Mingazov and Ahmed Belbacha last spring,” she added. “Although Ravil had not yet been cleared, our members were confident that he had done nothing wrong and should be released. We are very happy that the judge agrees.”

What the people of Amherst and Leverett had recognized was that Mingazov was an innocent man, seized as the result of an unfortunate chain of events, whose release from Guantánamo is long overdue. Although his story is unique, it shares similarities with the stories of other refugees who ended up in Guantánamo, and also sheds light on the stories of nine other prisoners, still held in the prison. Like Ravil Mingazov, their presence in Pakistan in 2002, for reasons unconnected with any kind of militant activity, has doomed them to eight long years in Guantánamo, because the US authorities erroneously concluded that there was a meaningful connection between the house they were staying in when they were seized, and the supposed “high-value detainee” Abu Zubaydah, who was seized on the same night.

Ravil Mingazov, a refugee from injustice in Russia

Born in 1967, Mingazov was a ballet dancer, who performed with a number of dance troupes. When he was 19, he was conscripted into the Russian Army, serving for two years in the Army’s ballet troupe. He then served as a volunteer until 1996, when he took a job in the military’s food supply section, transforming an ailing program into one that was recognized as “the best in all the Army’s.”

Mingazov’s troubles only began when he converted to Islam during his service, and discovered that there was widespread intolerance towards Muslim soldiers. When his requests for halal food and prayer time were denied, he took his complaints to his mayor and to a political party, provoking retaliation from his superiors. After the KGB stepped in, ransacking his house, he decided to seek a new country where he could live freely with his wife and his young child.

With his request for a passport denied without explanation, he traveled south to Afghanistan, intending to send for his wife and child once he had located a suitable place for them to live. This could have been Afghanistan, which, before the 9/11 attacks, provided sanctuary to numerous Muslim refugees fleeing religious persecution, but Mingazov’s quest was derailed following the US-led invasion of Afghanistan in October 2001, and his story took a dramatic turn for the worse after he fled with other refugees to a center in Lahore, in Pakistan, run by the vast missionary organization Jama’at-al-Tablighi, where he stayed from January to March 2002.

Although Mingazov was safe in the Tablighi center, he was anxious to return to his wife and child, but was prey to the prevailing opportunism regarding foreigners in Pakistan, who were being sold to the US military for bounty payments. It was at this point that he and two other refugees, Labed Ahmed (an Algerian) and Jamil Nassir (a Yemeni) were offered safe passage to a house in Faisalabad, where, they were told, it would be easier for them to leave the country.

Ahmed, a former drug dealer in Europe, who had been imprisoned several times in Germany and Italy, had ended up in Lahore after being recruited to fight with the Taliban, and had reached Lahore via a safe house in Bannu, in Pakistan’s North West Frontier Province. He was released from Guantánamo in November 2008, but during his detention he explained that, in Lahore, he had been told to go to Faisalabad, “where some people would come to give him his passport and send him back to Germany.” He added that he and two other people, a Russian (Mingazov) and a Yemeni (Nassir), decided to allow themselves to be taken to Faisalabad, but that, after they arrived, at a place called Shabaz Cottage, they were told that they had been brought there by mistake and would be moved to another house after the evening prayer.

The tenuous connection to “high-value detainee” Abu Zubaydah

What none of the men knew at the time was that Shabaz Cottage was being rented by Abu Zubaydah, the former gatekeeper of the Khaldan training camp in Afghanistan, and that the house was under surveillance. As Ahmed explained, however, his only concern was that the house was “big and nice” and “everybody had their own room,” whereas the previous houses he had stayed in had been crowded. As a result, when a vehicle arrived to move the three men elsewhere, Ahmed insisted on staying. He added that, several days later, “The guy from al-Qaeda, Daoud [identified in the hearing as Abu Zubaydah] questioned me as to who I was, what I was doing here and who brought me. I said I’m from Germany waiting on my passport. When I get it, I will leave. He said, no problem, you can stay here for a week. I stayed there for about 12 days and the Pakistani police came. They took us to prison. Daoud was arrested with us, you can ask him about us.”

For Ravil Mingazov and Jamil Nassir, their relocation was no more successful, because the house they were taken to — the Crescent Mill guest house (also referred to as the “Issa” guest house, after its owner, and “the Yemeni house,” after most of its guests) — was raided on the same night that Abu Zubayadah, Labed Ahmed and others were seized in a bloody raid on Shabaz Cottage, and Mingazov and Nassir were seized along with 13 others, who all ended up in Guantánamo, where one of them — Ali Abdullah Ahmed al-Salami — died in mysterious circumstances in June 2006, allegedly as part of a triple suicide.

Judge Kennedy’s unclassified opinion has not yet been made available, so it is unclear why he approved Mingazov’s release, but it is almost certain that he concluded that Mingazov had no connection to Abu Zubaydah. This should have been clear to the US government for some time, for two particular reasons. The first is that, during a military review board at Guantánamo, Labed Ahmed stated that, because he, Mingazov and Nassir “did not have a connection or relationship with Abu Zubaydah,” they “should have been placed in the Yemeni house.”

This indicates that, although Abu Zubaydah had some sort of contact with the house, it was not a place that had any connection with terrorism, and was, at best, a place where a few foreigners fleeing from Afghanistan could be concealed alongside a group of students. Moreover, this analysis was reinforced last May, when Judge Gladys Kessler granted the habeas corpus petition of Alla Ali Bin Ali Ahmed, a Yemeni who was also seized in the house. Accepting that Ali Ahmed was a student, and that the government’s supposed evidence relied, to an intolerable degree, on statements made by unreliable witnesses in Guantánamo, Judge Kessler made a point of noting, “It is likely, based on evidence in the record, that at least a majority of the [redacted] guests were indeed students, living at a guest house that was located close to a university.”

Abu Zubaydah and a global web of tortured confessions

For the rest of the men seized in the Crescent Mill guest house, Judge Kessler’s ruling should have provided encouragement to the government to secure their release, but this has not been the case. In fact, the government hesitated about even releasing Ali Ahmed, explaining, as the New York Times described it last October, that officials had stated, “Even if Mr. Ahmed was not dangerous in 2002 … Guantánamo itself might have radicalized him, exposing him to militants and embittering him against the United States.” With this kind of mentality, no one would ever be released from Guantánamo under any circumstances, and it no doubt helps to explain why only three other survivors of the Crescent Mill raid have been released in the last year: Abdul Aziz al-Noofayee, a Saudi, who was released last June, and two other Yemenis, Mohammed Tahir and Fayad Yahya Ahmed, who were released in December.

Beyond highlighting the ongoing plight of the nine remaining men — all Yemenis, apart from one Palestinian — Judge Kennedy’s ruling is also noteworthy because it once more sheds light on the case of Abu Zubaydah. Despite the existence of evidence demonstrating that Zubaydah was nothing more than a mentally damaged training camp facilitator, and that the Khaldan camp had nothing more than a tenuous connection to al-Qaeda, the Bush administration decided that he was, in fact, a high-ranking member of al-Qaeda, and set about interrogating him using an experimental torture program. This was formalized on August 1, 2002, when John Yoo and Jay S. Bybee, lawyers in the Justice Department’s Office of Legal Counsel, which is charged with objectively interpreting the law as it applies to the executive branch, cynically attempted to redefine torture so that it could be used by the CIA with some sort of legal cover.

Attempts to hold Yoo and Bybee to account for their actions have so far been unsuccessful, but what is even more shocking than the attempt to give legal cover to a torture program supported at the highest levels of the Bush administration is the fact that intelligence assessments of Abu Zubaydah’s significance were so mistaken. As the Washington Post explained last March, after talking to “former senior government officials who closely followed [his] interrogations,” the torture of Zubaydah — which included waterboarding (a form of controlled drowning), confinement in tiny, coffin-like boxes, extreme violence, prolonged isolation, and the use of sustained nudity and loud music and noise — was so worthless that “not a single significant plot was foiled” as a result of it. Instead, his false confessions, extracted through the use of torture, led only to a global web of false allegations — implicating men as far afield as Canada and Europe — that has not yet been unraveled, and whose scale is, as yet, unknown.

Ravil Mingazov and the remaining occupants of the Crescent Mill guest house were not directly implicated in Zubaydah’s torture, as they were seized on the same night as him, but they are victims of the hysteria that greeted and followed his capture. While Zubaydah himself remains in Guantánamo’s secretive Camp 7 for “high-value detainees,” even though there appears to be no way that he can ever be prosecuted, Ravil Mingazov may now be more fortunate. Eight years after he made false statements in Bagram about attending an al-Qaeda training camp and listening to a lecture on jihad by Osama bin Laden, which he did because he was fearful of being forcibly returned to Russia, the State Department must now find a new country that is prepared to accept him instead of his home country — and the government will, hopefully, also consider the cases of the men seized with him in Pakistan on that fear-charged night back in March 2002.

Given Congress’s ban on bringing any cleared prisoners to the US mainland, it is doubtful that officials will pay any heed to the offer made by the people of Amherst and Leverett, but this is a great shame. As Nancy Talanian explained on Thursday, “Congress’s blanket ban on allowing any of the men to live here is standing in the way of the prison’s closure, which we believe will make Americans safer. Guantánamo detainees who cannot safely return home are really no different than other refugees whom western Mass. communities have welcomed in the past. And if the US government, which has held the men for more than eight years, claims [they] would not pose any danger if they are sent to live in allied countries, that should be sufficient assurance that we can be safe with some of them living here.”

Logic and compassion, however, are in short supply in a country still bewitched by the Bush administration’s groundless but enduring rhetoric about Guantánamo containing “the worst of the worst.” Amherst and Leverett may not succeed in welcoming Ravil Mingazov or Ahmed Belbacha to live in Pioneer Valley, but their example should inspire other US citizens to join the movement to make America accountable for its own mistakes, and to call on Congress to allow other wrongly imprisoned men to settle in the United States.

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

As published exclusively on Truthout. Digg the original here.

For an overview of all the habeas rulings, including links to all my articles, and to the judges’ unclassified opinions, see: Guantánamo Habeas Results: The Definitive List. For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (September 2009), 75 Guantánamo Prisoners Cleared For Release; 31 Could Leave Today (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Justice Department Pointlessly Gags Guantánamo Lawyer (November 2009), Judge Orders Release Of Algerian From Guantánamo (But He’s Not Going Anywhere) (November 2009), Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait (December 2009), What Does It Take To Get Out Of Obama’s Guantánamo? (December 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Judge Orders Release From Guantánamo Of Unwilling Yemeni Recruit (December 2009), Serious Problems With Obama’s Plan To Move Guantánamo To Illinois (December 2009), Appeals Court Extends President’s Wartime Powers, Limits Guantánamo Prisoners’ Rights (January 2010), Fear and Paranoia as Guantánamo Marks its Eighth Anniversary (January 2010), Rubbing Salt in Guantánamo’s Wounds: Task Force Announces Indefinite Detention (January 2010), The Black Hole of Guantánamo (March 2010), Guantánamo Uighurs Back in Legal Limbo (March 2010), Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit (April 2010), An Insignificant Yemeni at Guantánamo Loses His Habeas Petition (April 2010), With Regrets, Judge Allows Indefinite Detention at Guantánamo of a Medic (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), Why Judges Can’t Free Torture Victims from Guantánamo (April 2010), How Binyam Mohamed’s Torture Was Revealed in a US Court (May 2010), Guantánamo and Habeas Corpus: Consigning Soldiers to Oblivion (May 2010), Judge Denies Habeas Petition of an Ill and Abused Libyan in Guantánamo (May 2010).

Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009), Bagram Isn’t The New Guantánamo, It’s The Old Guantánamo (August 2009), Obama Brings Guantánamo And Rendition To Bagram (And Not The Geneva Conventions) and Is Bagram Obama’s New Secret Prison? (both September 2009), Dark Revelations in the Bagram Prisoner List (January 2010), Bagram: Graveyard of the Geneva Conventions (February 2010).