I’m delighted to discover that people remain interested in the Bush administration’s use of torture, and questions of accountability that have been brushed under the carpet by President Obama, not just because terrible crimes have been committed and no one has been held accountable, but also because the topic of America’s torture program has generally slipped off the media’s radar (as has that other abiding topic of interest of mine, Guantánamo, and the 171 prisoners still held).

Jeff has done a great job in pulling together examples of prisoners who were subjected not to waterboarding, but to other forms of torture using water that the Bush administration largely managed to avoid mentioning or being asked to justify, including Murat Kurnaz, who discussed having his head held under water in his book, Five Years of My Life: An Innocent Man in Guantánamo, first published in 2007, Mohammed al-Qahtani, the most notorious torture victim at Guantánamo, and others — the Mauritanian Mohamedou Ould Slahi, who was, notoriously, “broken” by torture at Guantánamo, and who had water poured over him to “enforce control” and “keep [him] awake,” the British resident Omar Deghayes, the Algerian Djamel Ameziane (still held, desperate being cleared for release many years ago), and Mustafa Ait Idr, an Algerian living in Bosnia-Herzegovina, released in 2008 after winning his habeas petition, whose torture using water I mentioned in The Guantánamo Files, and in my article, After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims. Also of interest are examples from Iraq, which have also not been publicized widely.

Despite New Denials by Rumsfeld, Evidence Shows US Military Used Waterboarding-Style Torture
By Jeffrey Kaye, Truthout, August 5, 2011

In the controversy over whether torture, especially waterboarding, was used to gather information leading to the capture of Osama bin Laden, former Secretary of Defense Donald Rumsfeld told Fox News’ Sean Hannity recently that “no one was waterboarded at Guantánamo by the US military. In fact, no one was waterboarded at Guantánamo, period.”

In his memoir, Known and Unknown, Rumsfeld maintained, “To my knowledge, no US military personnel involved in interrogations waterboarded any detainees, not at Guantánamo or anywhere else in the world.” But as we shall see, Rumsfeld was either lying outright, or artfully twisting the truth.

Others have insisted as well that the military never waterboarded anyone. Law and national security writer Benjamin Wittes wrote in The New Republic last year that “the military, unlike the CIA, never waterboarded anybody.” Harper’s columnist Scott Horton also noted last year, “There is no documentation yet of waterboarding at Gitmo, but the case book is far from closed on that score, too.”

Yet, though not widely reported and scattered among various articles and reports on detainee treatment by the military, including first-person accounts, there are a number of stories of forced water choking or drowning, both at Guantánamo and other US military sites.

In little-known testimony in May 2008 before Congress, former Guantánamo detainee Murat Kurnaz testified he endured a form of simulated drowning. In his testimony before a subcommittee of the House Committee on Foreign Affairs, Kurnaz said that under US military captivity at Kandahar, Afghanistan, prior to his transfer to Guantánamo, his head was “dunked under water to simulate drowning.”

Asked by Republican Congressman Rohrabacher if he hadn’t then been waterboarded, Kurnaz responded, “No, it’s not waterboarding. It’s called ‘water treatment.’ There was a bucket of water.”

ROHRABACHER: Was a cloth put over your face and you were put on a board?

KURNAZ: There was a bucket of water. And they stick my head in it and at the same time, punch me into my stomach.

Rohrabacher reportedly commented, “The CIA is claiming that that only three people have been waterboarded. And this may be a loophole that they’re suggesting that’s not ‘waterboarding.’”

According to a report on Kurnaz’s testimony at the time by The Christian Science Monitor, Pentagon spokesman Cmdr. Jeffrey Gordon replied to the torture charges: “The abuses Mr. Kurnaz alleges are not only unsubstantiated and implausible, they are simply outlandish.”

Whether implausible or not, waterboarding was one of a number of “counter-resistance techniques” requested for use at Guantánamo by Maj. Gen. Mike Dunleavy, commander of Task Force 170. In an October 2002 memo from Dunleavy’s intelligence chief requesting use of a number of techniques, including sensory deprivation, isolation, stress positions, forced nudity and death threats, there was also a proposal for “Use of a wet towel and dripping water to induce the misperception of suffocation.”

In a follow-up memo approving most, but not all of the requested techniques, Department of Defense (DoD) general counsel William J. Haynes II said of the “wet towel” and other so-called “aggressive” “Category III” techniques, “While all Category III techniques may be legally available, we believe that, as a matter of policy, a blanket approval of Category III techniques is not warranted at this time.” (Emphasis added.)

Water Torture at Guantánamo

Evidence regarding waterboarding or other forms of water torture by suffocation or choking at Guantánamo has been reported, but this article is the first collection of the various reports in one place.

Last April, a report by two doctors who were allowed to examine “medical records and relevant case files … of nine individuals for evidence of torture and ill treatment,” found at least one case of “near asphyxiation from water (i.e., hose forced into the detainee’s mouth)” and another case where a detainee’s head was forced into a toilet.

The report, by doctors Vincent Iacopino and Stephen N. Xenakis, was published at PLoS Medicine. Dr. Xenakis is also a retired brigadier general in the Army, who has worked as a medical consultant on a number of Guantánamo legal cases.

Additionally, accusations of military waterboarding turned up in a Department of Justice (DOJ) Inspector General (IG) report on “FBI Involvement in and Observations of Detainee Interrogations” that was released at almost the same time as Kurnaz’s testimony (May 2008). The IG noted that the chief of the FBI’s Military Liaison and Detainee Unit at Guantánamo told DoD Assistant Attorney General Dave Nahmias, “one of the planned or actual techniques used on [purported 9/11 would-be hijacker, Mohammed] al-Qahtani was simulated drowning.”

In fact, the military admits the use of pouring water over al-Qahtani’s head, as is discussed below.

At another point in the report, the IG describes one FBI agent who “once heard a discussion at GTMO when someone mentioned using water as an interrogation tool and someone else in the group said, ‘Yeah, I’ve seen that.’” According to the IG report, no FBI agent actually reported seeing waterboarding or water torture him or herself.

Whether or not waterboarding was observed by FBI agents at Guantánamo, we know from the minutes of a “Counter-resistance Strategy meeting” at Guantánamo on October 22, 2002, that waterboarding (called the “wet towel” technique) was discussed (see Tab 7 at link). The meeting included legal officials from the CIA, DIA, the Guantánamo intelligence chief, as well as members of the Guantánamo Behavioral Science Consulting Team (BSCT).

At one point, Lt. Col. Diane Beaver, the Staff Judge Advocate at Guantánamo, asked whether SERE (Survival, Evasion, Resistance and Escape) employed “the ‘wet towel’ technique.” Jonathan Fredman, then chief counsel to the CIA’s counter-terrorism center, replied:

If a well-trained individual is used to perform [sic] this technique it can feel like you’re drowning. The lymphatic system will react as if you’re suffocating, but your body will not cease to function. It is very effective to identify phobias and use them (i.e., insects, snakes, claustrophobia). The level of resistance is directly related to a person’s experience.

At this point, a BSCT psychiatrist noted, “Whether or not significant stress occurs lies in the eye of the beholder. The burden of proof is the big issue.” Fredman replied, “These techniques need involvement from interrogators, psych, medical, legal, etc.”

Fredman continued, “The CIA makes the call internally on most of the types of techniques found in the BSCT paper and this discussion.” In a reference to the approvals for waterboarding and other techniques given the CIA by Office of Legal Counsel memos a few months before, he added, “Significantly harsh techniques are approved through the DOJ.” There was no indication in the minutes from the meeting that waterboarding was not allowed for Defense Department use.

Waterboarding of Mohammed al-Qahtani

Mohammed al-Qahtani was a Saudi Arabian citizen brought to Guantánamo in early 2002. Ostensibly believed to be a part of the 9/11 plot, when interrogators became frustrated at their inability to get information out of him, or force his compliance, they turned to methods of interrogation that the Guantánamo Convening Authority Susan Crawford would later herself conclude amounted to torture.

By November 2002, al-Qahtani had become the “first subject of a Special Interrogation Plan,” which relied heavily on the military’s SERE torture school techniques, including isolation, stress positions, sexual humiliation and apparently, a form of waterboarding. SERE was created to provide US military personnel with training to resist torture.

Even years before Crawford’s admission, DoD’s Schmidt-Furlow report, looking at early allegations of detainee abuse, concluded that “the creative, aggressive and persistent interrogation of the subject of the first Special Interrogation Plan [al-Qahtani] resulted in the cumulative effect being degrading and abusive treatment.” No one has ever been charged for such crimes committed against this or any other Guantánamo detainee.

The Schmidt-Furlow report details the use of water torture on al-Qahtani, an aspect of his torture that has been little reported:

On seventeen occasions, between 13 Dec 02 and 14 Jan 03, interrogators, during interrogations, poured water over the subject of the first Special Interrogation Plan['s] head …

There is evidence that the subject of the first Special Interrogation Plan regularly had water poured on his head. The interrogation logs indicate that this was done as a control measure only.

Time Magazine published al-Qahtani’s interrogation logs in 2005. The use of water to drench al-Qahtani’s head does not appear to be a “control measure” when it is discussed in the logs themselves.

On December 23, 2002, a log selection describes how interrogators hung pictures of swimsuit models around al-Qahtani’s neck. Then the lead interrogator “pulled pictures of swimsuit models off detainee and told him the test of his ability to answer questions would begin. Detainee refused to answer and finally stated that he would after [the] lead [interrogator] poured water over detainees [sic] head and was told he would be subjected to this treatment day after day. Detainee was told to think about his decision to answer questions.”

The day before, when al Qahtani had refused to look at “fitness photos,” saying it was against his religion, interrogators had “poured a 24 oz. bottle of water over detainee’s head.” The log notes dryly, “Detainee then began to look at photos.”

In their investigation of detainee abuse, the Senate Armed Services Committee (SASC) noted in a 2008 report that the Navy limited waterboard demonstrations to two pints (32 oz.) of water. A January 13, 2003, memo, described in the SASC report, underreported how much water was poured over Qahtani, saying that “up to eight ounces of water” was poured over Qahtani’s head as a “method of asserting control” when Khatani exhibited ”undesired behavior.”

The SASC report also said that the interrogation plan for another Guantánamo detainee, Mohamadou Ould Slahi, included the practice of pouring water over Slahi’s head to “enforce control” and “keep [him] awake.”

Three More Guantánamo Detainees Report Suffocation by Drowning

Besides Kurnaz and al-Qahtani, at least three other detainees have reported being tortured at Guantánamo by application of water meant to cause suffocation, choking or the sensation of drowning.

A 2009 article by Jeremy Scahill outlined the torture and abuse endured by former Guantánamo detainee and British resident Omar Deghayes. Scahill mentions two incidents where the Immediate Reaction Force (IRF, sometimes called the Emergency Reaction Force, or ERF) used forms of water torture on Deghayes. In one case, the detainee was shackled, his head put into a toilet. The IRF team “pressed his face into the water. They repeatedly flushed it.”

The IRF or ERF team also came into Deghayes’ cell on another occasion and conducted a simulated or partial drowning:

The ERF team came into the cell with a water hose under very high pressure. [Deghayes] was totally shackled and they would hold his head fixed still. They would force water up his nose until he was suffocating and would scream for them to stop. This was done with medical staff present and they would join in.

According to Scahill, the IRF team conducted this form of waterboarding three times on Deghayes. Note that the presence of medical staff is consistent with the use of medical personnel under CIA descriptions of how they conducted waterboarding.

Another example of water torture involving Guantánamo guards appears in a document related to the case of Djamel Ameziane, an Algerian Berber who has been held at Guantánamo for over eight years, despite the fact he never received military or terrorist training, nor fought against the US. According to a 2008 legal filing for Ameziane by the Center for Constitutional Rights (CCR):

In another violent incident, guards entered his cell and forced him to the floor, kneeing him in the back and ribs and slamming his head against the floor, turning it left and right. The bashing dislocated Mr. Ameziane’s jaw, from which he still suffers. In the same episode, guards sprayed cayenne pepper all over his body and then hosed him down with water to accentuate the effect of the pepper spray and make his skin burn. They then held his head back and placed a water hose between his nose and mouth, running it for several minutes over his face and suffocating him, an operation they repeated several times. Mr. Ameziane writes, “I had the impression that my head was sinking in water. I still have psychological injuries, up to this day. Simply thinking of it gives me the chills.” [Emphasis added.]

In March 2008, six Guantánamo detainees filed suit against Bosnia and Herzegovina in the European Court of Human Rights in Strasbourg for failure “for many years to take any steps to negotiate and secure the men’s release from Guantánamo.” One of the men, Mustafa Ait Idr, who had been rendered to Guantánamo and “taken from his pregnant wife in violation of a Bosnian court order to free him,” also reported use of water torture in a manner remarkably similar to that of Ameziane.

A CCR report on “Torture, Cruel, Inhuman and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba” said that on one occasion prison guards demanded to search Idr’s cell. Idr cooperated, but they came in, sprayed him in the face with a chemical irritant and put him into restraints.

According to the CCR report, “Guards then slammed him head first into the cell floor, lowered him, face-first into the toilet and flushed the toilet — submerging his head. He was then carried outside and thrown onto the crushed stones that surround the cells. While he was down on the ground, his assailants stuffed a hose in his mouth and forced water down his throat.” As a result, Idr’s face was paralyzed for several months.

Other threats to use waterboarding on DoD prisoners, or to rendition detainees for water torture, are also on record. According to journalist Robert Windrem in a 2009 story at The Daily Beast, then-Vice President Dick Cheney requested the waterboarding of Muhammed Khudayr al-Dulaymi, the head of the M-14 section of the Mukhabarat. According to the article, the official in charge of interrogations of Iraqi officials at the time, Charles Duelfer, declined the request.

According to the SASC detainee report, the lead agency for SERE, Joint Forces Personnel Agency, constructed a CONOP (Concept of Operations) plan for use at a Special Mission Unit Task Force interrogation center in Iraq. The CONOP recommended use of the “water board.” Military legal figures reportedly objected to that and other techniques, but it is not known whether Special Forces in Iraq used waterboarding or other water torture techniques and the SASC report does not enlighten us on that point.

In another case, former Italian resident and Guantánamo detainee, Tunisian-born Saleh Sassi, reported that in late 2002, Tunisian agents came to Guantánamo and interrogated him. They “left no doubt about what awaited ex-Guantánamo inmates back in Tunisia: ‘water torture in the barrel’ and other horrors.” Sassi was released and sent to Albania in 2010.

Finally, the DOJ IG report on FBI interrogations referenced earlier describes how an Abu Ghraib prisoner, Saleh Muklef Saleh, was restrained and had cold water poured over him on more than one occasion. One time, according to Saleh’s own testimony, “They gave me one or two bottles of water and they asked me to drink it while I was hungry and they forced me to drink it and I did and I felt vomiting, then they ordered me to drink again and they were looking at me and laughing” (pp. 279-280).

Back in 2008, during the Congressional meeting where Murat Kurnaz testified to the use of water torture upon him, Democratic Congresswoman Sheila Jackson-Lee commented, “It seems that we have a new definition … If you were wedded to the language of waterboarding, now we have new language called ‘water treatment,’ which may bear on being torture as well.”

To date, there has been no investigation that specifically has looked at the use of types of water torture, including waterboarding or water treatment, on detainees. The military’s current Army Field Manual on interrogation forbids the use of “waterboarding.” It is the only “prohibited action” term that is described with quotation marks around it.

A Human Rights Watch report issued on July 12 called for President Barack Obama “to order a criminal investigation into allegations of detainee abuse authorized by former President George W. Bush and other senior officials.”

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

Last month, Moazzam Begg, former Guantánamo prisoner, and now the director of Cageprisoners, met up with Saber Lahmer at a conference in Paris to mark the ninth anniversary of the opening of Guantánamo, and also found time to interview him for Cageprisoners. That interview, which is fascinating for a number of reasons — not least Lahmer’s reflections on the innocence of the men in Guantánamo, and his abandonment since his release by the French authorities, who have not allowed him to travel or reunited him with his family — is cross-posted below.

Moazzam Begg: Can you please introduce yourself to our readers?

Saber Lahmer: In the name of Allah Most Compassionate Most Merciful. I send my prayers and peace on the noble Prophet and to proceed … My name is Saber Mahfooz Al-Ahmer (Lahmer), I am an Algerian national, a graduate of the Islamic University of Madinah and am now a resident in the city of Bordeaux, France where I was transferred to from Guantánamo about a year ago. I was born in 1970.

Moazzam Begg: Before talking about how you ended up in Guantánamo please explain how you were arrested in Bosnia, where you had been a resident prior to your abduction.

Saber Lahmer: About a month after the 9/11 attacks I was raided by the Bosnian police and falsely accused of intending to blow up the US embassy in Bosnia. I was imprisoned in Sarajevo on remand for three months after which I was taken to court. The Bosnian judge in the case ruled that I be freed and there was no case to answer for and that the allegations were baseless. So I was freed and left the prison heading for home. On the way back home, in the middle of the street, I was abducted by US and Bosnian police and rendered straight from there to Guantánamo where I remained for eight years and eight months.

Moazzam Begg: And there were five other men with you who suffered the exact same fate?

Saber Lahmer: That’s right, there were five others and all of us have been released – except for one who is still in Guantánamo. I pray Allah frees all of them.

Moazzam Begg: Before we go on to what happened in Guantánamo, can you tell me how you, as an Algerian, ended up in Bosnia?

Saber Lahmer: After I graduated from university in 1996 I was offered work by the Saudi High Commission to go to Bosnia and help the humanitarian effort there as part of my contract which of course was a very important and crucial time for the Bosnians just after the war.

Moazzam Begg: So you saw something of the horrors that were experienced by the people of Bosnia?

Saber Lahmer: Yes, I saw the aftermath of the massacre, rape and pillage of an entire nation — I saw what the cowards had done.

Moazzam Begg: What was going through your mind when they sent you to Guantánamo?

Saber Lahmer: In reality, even when I was still in prison in Sarajevo and I asked those interrogators, “Why am I here, held by you?” they would reply, “We honestly don’t know,” and therefore it indicated that this was just a procedural exercise — nothing more. Afterwards, when I was sent to Guantánamo the interrogators over there had no idea what to question me about; they would say that the file that accompanied me from Bosnia contained no palpable allegations against me. Hence, they would say to me that if I had any information about other people then I should give it to them, but as for any accusations against me, there simply are none. Subsequently, when I was presented to the court [in the habeas corpus petition of the six men, in November 2008] the judge was not able to level any charges against me and that was because all the “evidence” presented about me in my file by the FBI and CIA was laughable. He [the judge] ordered my release.

Moazzam Begg: You are of course married with children, a family man. You were married in Bosnia and have children that you’ve not seen since your abduction. How did you manage to maintain contact with them during your time in custody?

Saber Lahmer: During all the years of my incarceration in Guantánamo I was unable to speak to my wife or children even once. I have two children — a boy and a girl. The boy was about a year and a half when I was taken and the girl I have not even met as she was born after I was taken.

Moazzam Begg: Guantánamo is probably the world’s most notorious prison — at present — but had you heard anything of this place before you became one of its occupants?

Saber Lahmer: I had no knowledge of this place — not even the word, what it meant or even where it was on the map. I was only aware that there was a country by the name of Cuba. I was only made aware of the Guantánamo prison by the police in Sarajevo a few moments before I was actually put on the plane.

Moazzam Begg: You were kidnapped illegally by US — and Bosnian — authorities. What was the reaction of the Bosnian people in relation to what happened to you all, who were legal residents of Bosnia?

Saber Lahmer: A few days before I was imprisoned at Guantánamo the Bosnian public became well aware that there was some kind of latent plan to hand over the six Bosnian Arabs to the Americans, a plan that was agreed between the governments of Bosnia and the USA. Subsequently, over 5,000 people held demonstrations lasting several days outside the prison where we were held, protesting on our behalf. Their purpose was to stop the oppression against all of us who were facing this impending situation. However, since the US can pretty much do whatever it likes with impunity — under the colour of a “legal” veneer — this arrest, rather kidnap, was carried out and the business transaction [of our lives] went ahead unabated.

Moazzam Begg: I have seen pictures of how you were all abducted in Sarajevo. Please tell me about the way in which this happened.

Saber Lahmer: They took us in a brutal, inhuman and barbaric way; they used extreme force, violence and terror. They beat us severely, crushed us and tried to dehumanise us. Let me explain a little: I was taken to a US military base just outside Sarajevo where I was shackled to the floor for three whole days. The temperature at that time was minus 10 [degrees centigrade]. After this we were taken on board a US aircraft and flown to another military airbase — I don’t know if this was in Turkey or Germany — and then on to Guantánamo.

Moazzam Begg: During this time, en route, what were the Americans saying to you?

Saber Lahmer: The statement that I kept hearing repeatedly — via the translators — was, “You are on your way to the American hell from which you will never escape.”

Moazzam Begg: Was it just you — the Bosnians — taken together or were there others who came to Guantánamo with you?

Saber Lahmer: When we stopped over in either Turkey or Germany and boarded another plane there were around forty or so prisoners on board who had been brought over from the Bagram prison. We knew this as we heard different voices speaking in Pashtu, Urdu and some speaking in Arabic. Therefore we realised this was a transit port where prisoners were brought from various places before being shipped off to Guantánamo.

Moazzam Begg: And how were you seated on the aeroplane?

Saber Lahmer: Of course we were seated in a very painful, savage way. Our hands and legs were tied very tightly with metal shackles; our eyes were covered with blacked-out goggles; our mouths were sealed with cloth; our ears were covered with large headphones; and, if we moved, even slightly, we’d get punched in the face or body.

Moazzam Begg: Were you able to communicate, to speak with any of the other prisoners?

Saber Lahmer: As I said, we’d receive a barrage of punches and strikes from the guards if we so much as moved. Even those who were clearly in a state of terrible discomfort or were just sick received no mercy. Instead, if any one dared complain or ask for medical assistance they would get beaten.

Moazzam Begg: This was in January 2002 — nine years ago. You were amongst the second group of prisoners sent to Guantánamo and were held at what, at that time, was Camp X-Ray. What did you see when you got there?

Saber Lahmer: When I go there I witnessed [prisoners] people of imaan [faith]. People who refused to bow down before anyone except Allah. When I saw them I recalled the words of Allah Mighty and Sublime: “Indeed this is the group that believed in their Lord and We [Allah] increased their guidance.” We saw nothing but good of them and we learned a great deal from them even before they learned from us.

Moazzam Begg: What did the Americans say to you when you arrived at Guantánamo?

Saber Lahmer: The first words I heard from them was, “Welcome to the American hell.” After that I was taken immediately to interrogation where they only really sought one thing: If I had any information about anything that I could tell them. I told them that this is not my problem. My problem is that you accuse me of trying to blow up the US embassy in Bosnia and yet no one is asking me any questions about that now. They would always avoid this question — and I would remind them. In the end, when I decided that I would not speak to them about any subject except regarding the embassy allegation they began to punish me. Consequently, most of my time in Guantánamo was spent in isolation and solitary confinement.

Moazzam Begg: What were the allegations against the other Bosnian Arabs who came with you?

Saber Lahmer: Exactly the same as me: that we, as a group of six men, were involved in a conspiracy to blow up the US embassy. What I find amazing about this “conspiracy” allegation is that the Americans accepted that we did not even know one another [before the arrests]. This was the contradiction: they would say we know that so-and-so does not know so-and so, and yet they would still claim that we somehow conspired together.

Moazzam Begg: How were you able to communicate with your family about what had happened to you all this time?

Saber Lahmer: There was no way to communicate with them at all. Hence, I heard nothing from my family for several years. The first letter I received from my family was via my lawyer who first saw me in 2004.

Moazzam Begg: Just so people understand, why would you have a lawyer when there are no charges against you, no court proceeding and legal process that you have access to?

Saber Lahmer: Firstly, according to their procedures a person has the right to legal representation if he is imprisoned — whether he is charged or not.

Moazzam Begg: But this happened only after you’d been imprisoned for almost three years that they allowed an opportunity for lawyers to come to Guantánamo.

Saber Lahmer: Yes, and they did not want this to happen — they did not want to allow us any way to legally challenge our incarceration. However, it was due to the outside pressure placed on the US administration after stories of abuse and torture had become synonymous with Guantánamo and the fact that they were acting in contravention of every law relating to the treatment of prisoners. Even with the presence of lawyers it was just to give Guantánamo a veneer of having some kind of legal system when in fact there still is none. You won’t find any place in the world that imprisons people without giving them at least some legal rights.

Moazzam Begg: You spent over eight years imprisoned in Guantánamo. This is an incredibly long time, almost impossible for most people to contemplate. What was the hardest part of your ordeal and how did you deal with it?

Saber Lahmer: I wouldn’t say that there were some days in Guantánamo that were hard, they were all hard. And what we witnessed there were events that no one would encounter in any ordinary prison. However, we passed these days with strength and patience from Allah even though we could never have imagined that we could have spent all this time facing the various types of torture and abuse which have been refined to a modern day art by scholars and psychiatrists. These types of torture are not “radical” or traditional as such but they have been perfected after many years of experiment and study to a fine art and focus on the psychological as much as or even more than the physical.

Moazzam Begg: What do you think is the biggest lesson the US administration learned from the Guantánamo experiment?

Saber Lahmer: That [our] imaan will never be extinguished.

Moazzam Begg: What were the Americans intending to gain out of all this?

Saber Lahmer: It is as the words of Allah [in the Quran] when he says: “They wish to extinguish the light of Allah through their words but Allah repels them and protects and completes His light …” The issue has nothing to do with terrorism. Those imprisoned in Guantánamo are not terrorists and the greatest evidence of this is that they are still avoiding legal proceedings at every level. And you can now see that Obama is trying to play the same dirty game as his predecessor by avoiding any legal process. Instead, they are approaching prisoners and asking them to sign a piece of paper admitting they are reformed terrorists and that they will be freed once they do so and will also not face charges. The reason for this is clear: there are no charges or evidence against these people [the prisoners]. If they were taken to court both Obama and his predecessor would be exposed because these men have been held for so long and after all that, no charges. This would be a cause of great shame to the US leader. Thus, they prefer people leave Guantánamo without trial.

Moazzam Begg: There are prisoners who have memorised the Quran, memorised texts of ahadeeth [Prophetic sayings] by word of mouth, learned languages from other prisoners and made fitness routines for themselves. How did you spend your time, how did you benefit, as it were, from your imprisonment?

Saber Lahmer: Books to educate oneself were prohibited in Guantánamo and that was because they wanted people to leave that place ignorant and unable to understand anything around them after all this time in prison. They know of course that in many prisons people can study many subjects and attain great benefit from their time in prison so that their time in prison isn’t completely wasted. However, out of malice they deliberately made sure we had nothing to study and, based on the concepts developed through psychological experimentation, they ensured we did not have the tools to benefit from improving ourselves through gaining knowledge. They only permitted the distribution of the Noble Quran — not for our benefit but for their own, so they could say that they are affording us religious freedoms. This is also evidenced from the fact, especially in the latter days, that almost every prisoner has memorised the entire Quran — al hamdu lillah [Allah be praised].

Moazzam Begg: In addition to this, some prisoners who had knowledge of different subjects were teaching the others?

Saber Lahmer: Yes, certainly. Your brother here took on the task of teaching others all that he was able to from what he had studied during his life as a free man and similarly anyone who had anything to teach would do so in order for others to benefit and gain reward in the Hereafter. So for example, someone who had learned grammar and comprehension would teach those who had little grasp of that subject, likewise those who had memorised classical texts would teach the others and so on. Thus, although the Americans did not wish us to benefit from anything we managed to benefit a great deal from one another.

Moazzam Begg: As you said, you spent many years in solitary confinement. How did you manage to learn anything during that time?

Saber Lahmer: I spent years in isolation: one and a half years in Camp Six, a similar time I spent in Camp Echo and some time in other places and in such places prisoners were prevented from anything. The only thing that one could do during that time was to live with the book of Allah, Mighty and Sublime and no other, which was our friend and companion — and what a beautiful friend and companion. During all this time I did not see the sun — or anything outside. In fact, by the time this period had ended I had forgotten the colour of the sky and what it looks like.

Moazzam Begg: There are a few prisoners who have lost their minds in Guantanamo. What do you know about this and how can this happen?

Saber Lahmer: Yes, I have myself seen some people who have in reality lost their minds. They include a Palestinian, some Afghans and some Turkistanis [Uyghurs] who had completely lost their minds. Hence, the US administration does not wish to release them, fearing the response the world will have to their already battered world image. There is of course no doubt that this has happened directly as a result of the torture and abuse suffered by these men and the psychological pressures placed upon them over a period of nine years — especially during interrogations. Day after day, month after month and year after year, this has caused the men to lose a grip on reality and led to the descent into insanity. Sadly, this has happened to several prisoners.

Moazzam Begg: Despite this most of the prisoners have left Guantánamo with a heightened sense of their faith and strength of character. How did you manage to keep and, indeed, develop your faith during this time?

Saber Lahmer: Guantánamo is a place of isolation far removed from all normal civilisation. Thus, a person of faith will see this as an opportunity to be in seclusion with Allah. I’ve heard so many of the prisoners say that they had always wanted to have some time to spend alone, to reflect on their lives and spend in contemplation and personal meditation, but that the world had always got the better of them. And so we can use this as an opportunity to review the pages of our lives, to correct that which is wrong within us and reflect on our hopes for the future. And essentially, to strengthen our relationship with our Creator since we are prevented from any other thing in this place. And, as it is said, it may be that something seemingly harmful is in fact more worthy than you think.

Moazzam Begg: Were any of the guards or interrogators humane or sympathetic towards you?

Saber Lahmer: As for the interrogators I did not see any good at all from them. Rather, I saw the opposite from them, wanting to destroy any hope we had of freedom or a future. Suffice to say that they said things like, “If we were allowed to, we would have killed you a long time ago. You don’t deserve any mercy. It’s only the law that’s preventing us.” As for the guards, they told us that they would get special training two months before they came to Guantánamo and get indoctrinated against us, being told that we are savages, that we are very dangerous, that they need to be very wary of us at all times, and that we do not deserve to be treated with mercy. Of course, many of them changed their minds by the time they left Guantánamo.

Moazzam Begg: Some of the soldiers embraced Islam and others were sympathetic. What did you experience of this?

Saber Lahmer: Yes, this is true with those who realised the truth, and I would ask all those who became Muslims about the reason for this, and they would say that it was due to many reasons. They were moved by the brotherhood they witnessed between the prisoners. They were amazed at our bowing and prostrating to Allah and how that in an integral part of our lives, which we will not give up for anyone. They saw that as the reason behind our incomprehensible (to them) patience. They also commented that when they looked at our faces they would see happiness and tranquility which they found remarkable under the circumstances. Also, they said, the authorities described us in one way but that their experience of us — almost living with us on the other side of the wire — was the total opposite. They also recognised our treatment as oppression and injustice, and saw the hypocrisy of telling the outside world that we were being treated fairly, with respect and dignity. The soldiers [the unbiased ones] saw through all of this. All of these things created in them a desire to ask us more about Islam and eventually enter into its fold — al hamdu lillah.

Moazzam Begg: I just wanted to tell you that there is a sister who embraced Islam recently who was formerly a guard at Guantánamo and she told me that the seed of Islam was planted in her heart during her time there and that she wanted all the prisoners to know this.

Saber Lahmer: Yes — that’s true. There were male and female soldiers who embraced Islam secretly. They did this because they understood the negative repercussions they would face, sadly, because of the open hostility towards Muslims.

Moazzam Begg: What was your relationship with the other prisoners like and how did living with them for so long affect you as a person?

Saber Lahmer: Before I arrived at Guantánamo I heard about them through the media that they were allegedly the worst of all of God’s creatures. But from the time that I met them and began my life of exile with them I recalled the words of Allah Mighty and Sublime: “Muhammad is the Messenger of Allah; and those with him are forceful against the disbelievers, merciful among themselves. You see them bowing and prostrating [in prayer], seeking bounty from Allah and [His] pleasure. Their mark is on their faces from the trace of prostration.” These were people of good, of obedience [to Allah] and patience. Their prior concern in life was earning the pleasure of Allah. All of this had a great effect on my life and I began to emulate them in all that is good and, as the poet said, “I love the righteous even if I am not of them.” I tried all I could to be like them, though I could not attain their level.

Moazzam Begg: At its height there were around 780 prisoners in Guantánamo, but over 600 have been released. You were there for 8 years and witnessed many prisoners leave while you remained behind. What went through your mind when this happened?

Saber Lahmer: I never saw anyone leave from Guantánamo who didn’t cry in the hope that they would be the last to leave that place — wishing only that their brothers would leave before them. It occurred many times that when a person was told he was due to be released, the prisoner would ask to speak to the authorities so that he could inform them that he does not want to be released and instead wants someone else to leave in his stead. Of course, this is from an internal and brotherly point of view, and it does not mean that anyone would like to stay in a place that is filled with oppression and abuse.

Moazzam Begg: It is clear that the US administration seemed bent on breaking the resolve and resistance of the prisoners, but it seems as if the opposite was achieved. The weak became strong and the strong an example for others. What brought this about?

Saber Lahmer: In truth the Americans didn’t understand some of the basic concepts of human nature. They wanted to destroy us — and destroy our faith in the religion of Islam. It was not the case of wanting to prevent terrorism. If it was we would have applauded them. But they wanted to extinguish the light of Allah — and the one who wishes to do this must be exposed because he is at war with the Lord of the Worlds. Relevant to this is the story of Abdul Muttalib when his camels were taken by the King of Abyssinia [Abraha] who had come to destroy the Ka’bah. The king said to him, “I thought you had come to ask me about my intention to destroy the Ka’bah but you ask me for your camels instead?” Abdul Muttalib replied, “I am asking for my property because the Ka’bah has a Lord who will maintain its own protection.” In the end, as we know, Allah destroyed this army of elephants as is recorded in the Quran. This is the final result for whoever wishes to obstruct the way of Allah.

Moazzam Begg: What did you see or experience in relation to religious abuse during your time in custody?

Saber Lahmer: As I said, they used every tool available to dent our faith and tried very hard to make us leave our religion and practice of it. In fact, some interrogators would say that it was their mission to ensure that the prisoners left this place having completely forgotten their religion, but Allah wished to foil their plot. In addition, I saw the soldiers kick the Quran with their booted feet; I saw with my own eyes in Camp X-Ray soldiers throwing the Quran into a toilet bucket; I encountered interrogators who would curse and swear at Allah and his messenger in the belief that this would enrage me and that somehow I would start talking to them and co-operating with them as a result. They would make fun of our faith in order to needle us, knowing that it was something very dear to our hearts.

Moazzam Begg: This sort of thing led to more resistance and non-cooperation which included the hunger strikes. What was the result of this? Did you take part in the strikes?

Saber Lahmer: Yes, we took part in the hunger strikes when abuses against our faith occurred — like the desecration of the Quran. The hunger strikes were very long and it was an extremely harsh time, but the result was that the US administration put out a general order that no soldier is permitted to touch the Quran. Of course, this wasn’t out of respect for our book or our faith but for their own purposes completely — so that they didn’t have to deal with our response.

Moazzam Begg: How did the authorities try to break the hunger strikes?

Saber Lahmer: They tried to force-feed us with liquid food by forcing tubes through our nostrils — and sometimes our mouths — and pushing them into our stomachs while we were tied down to a chair with our arms, legs and heads placed in restraints. And, if only they wanted to feed us using this process that’s one thing, but the way in which they forcibly inserted and removed these tubes was so painful that it is clear they just wanted to break our will to hunger strike rather than the strike itself.

Moazzam Begg: Did they succeed in breaking the strikes in this way?

Saber Lahmer: They did not succeed and they will never succeed because stamping authority by force never wins.

Moazzam Begg: When was the first time you heard that you might be released from Guantánamo and who told you?

Saber Lahmer: After I was declared innocent by the US I was moved to Camp Iguana where I spent several months with the Uyghurs until the time for my release finally came. So although I had been cleared for release for a very long time, I was not released even then until almost a year later.

Moazzam Begg: How did your transfer from Guantánamo and release to France finally come about?

Saber Lahmer: This was through the French ambassador in Washington — I met one of the French embassy officials who offered to accept and take me to France. I asked them what they were prepared to do for me in France and they told me, oddly, that there is no need to discuss too much of that and that the moment I step foot in France I would be afforded all the rights and avenues to advance my life and live as a normal human being. But, since my return I have, sadly, spent most of my time in a tiny room — one that resembles a Guantánamo cell in many ways.

Moazzam Begg: The first thing each person released thinks of is their family. Were you able to make contact with them?

Saber Lahmer: I went to and left from Guantánamo an innocent man — no charges, no accusations even. I was told before I came to France that I’d have all my rights — which would include the ability to go to visit my family in Bosnia, but until now I have been prevented from doing so as I have no travel documents. Hence, I have not seen my children in all this time and no one is even prepared to discuss this issue with me.

Moazzam Begg: How was your first conversation with your children after your release; did they see you as a stranger or even know who you are?

Saber Lahmer: When I called them for the first time they did not really want to speak to me because they could not recognise me as a father — I’m a complete stranger to them. How can a child speak to a stranger with such an obstacle placed in front of it? I sense this when I speak to them all the time.

Moazzam Begg: This has been the experience of many Guantánamo returnees: fathers who don’t know their own children, children who cannot recognise their fathers. Who bears the responsibility for all this?

Saber Lahmer: We cannot just blame America for this, especially for those who are now free. The countries that have taken in Guantánamo prisoners but have made absolutely no provision for the basic human right of a family being together, reunited after such an ordeal, demonstrates still how we are regarded as less than human.

Moazzam Begg: There was some mention of your case recently in WikiLeaks. Can you tell us about this?

Saber Lahmer: Two things emerged from the WikiLeaks for me. Firstly, that I was brought over to France for the promise of a financial incentive and package and, secondly, became a sort of a bargaining chip for the purposes of improving Franco-American relations, which, as everyone knows, are quite often sour. This is what has become apparent.

Moazzam Begg: How do you feel about this?

Saber Lahmer: Since my resettlement here no one from the government has spoken to me at all — not once, despite writing to them, or contacting them through lawyers — nothing. At present I just feel like I’ve been moved from the big Guantánamo to the lesser one, simply because I have been abandoned by the very people who promised to me give me my basic rights.

Moazzam Begg: Finally, what advice do you have for our readers and people who are interested the cases of the Guantánamo prisoners?

Saber Lahmer: I would ask all those who read this to do all they can to assist Cageprisoners and other organisations in their efforts to have the prisoners of Guantánamo released and receive justice. Also, they should not forget those who have been released from there, because those who have been freed in reality still live in Guantánamo. And when I ask people to help both groups of people I mean that there must be real, tangible efforts made to assist the downtrodden and forgotten prisoners of Guantánamo. Steps taken must be straight and consistent and as the saying goes, if you speak then listen and if you hit then you [must] feel pain [too].

Moazzam Begg: May Allah reward you with the best for sharing your thoughts.

Saber Lahmer: May Allah reward you and all the brothers and sisters at Cageprisoners for your efforts to assist the prisoners.

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

Differing power blocs within the D.C. Circuit Court

The first bloc within the Circuit Court consists of Judge Janice Rogers Brown, and Judge Brett M. Kavanaugh, both appointees of George W. Bush, and Senior Judge A. Raymond Randolph.

In January, ruling on the appeal of Ghaleb al-Bihani, a Yemeni who had served as a cook for Arab forces supporting the Taliban, and had lost his habeas petition in January 2009, Judges Brown and Kavanaugh claimed that the President’s detention powers in wartime were not limited by the international laws of war. These two judges were mounting a far-reaching defense of the legislation used to justify the detentions at Guantánamo — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks — that even the Obama administration thought was excessive.

Judge Randolph’s interventions, meanwhile, have been even more troubling. Having defended every piece of legislation related to Guantánamo that was subsequently overturned by the Supreme Court during the Bush administration, he delighted, in July, in overturning the successful habeas petition of Mohammed al-Adahi, a Yemeni who had accompanied his sister to Afghanistan to marry a man connected to al-Qaeda, but who had won his habeas petition because Judge Gladys Kessler had concluded that al-Adahi himself was not “part of” al-Qaeda.

This appeared to be correct, but in a ruling notable for personal slurs against Judge Kessler’s integrity, Judge Randolph not only reversed al-Adahi’s successful petition, but also indicated that he thought that the burden of proof in the habeas cases was too high, even though the government only has to establish, by a preponderance of the evidence (a potentially very vague balance of probabilities), that the petitioners were “part of” al-Qaeda and/or the Taliban to approve their ongoing detention.

The other bloc in the Circuit Court, consisting of Chief Judge David B. Sentelle and Judges Douglas H. Ginsburg, Karen LeCraft Henderson, Judith Ann Wilson Rogers, David S. Tatel, Merrick B. Garland, and Thomas B. Griffith, has proven to be rather less driven by ideology in dealing with the habeas appeals. In August, when they denied al-Bihani’s en banc habeas appeal, they nevertheless made a point of issuing a note demonstrating their dissatisfaction with the extreme position taken by Judges Brown and Kavanaugh regarding the President’s wartime powers, which effectively discredited it.

In addition, in June this year, Judges Ginsburg and Henderson and another judge, Senior Judge Harry T. Edwards, ordered the lower court to reconsider the case of Belkacem Bensayah, one of six Algerians living in Bosnia-Herzegovina, who had been kidnapped and flown to Guantánamo in January 2002, on the basis of a spectral plot to blow up the US embassy in Sarajevo. In November 2008, Judge Richard Leon had granted the habeas petitions of all these men, with the exception of Bensayah, but the Circuit Court found that “the evidence upon which the district court relied in concluding Bensayah ‘supported’ al-Qaeda is insufficient … to show he was part of that organization.”

These judges have not always been so alert. Just six days before the Bensayah ruling, for example, Judges Ginsburg and Tatel joined Judge Kavanaugh in denying the habeas appeal of Sufyian Barhoumi, an Algerian seized with Abu Zubaydah in Faisalabad, Pakistan in March 2002, drawing on discredited claims that Zubaydah, for whom the CIA torture program was specifically developed, was a major player in al-Qaeda, despite copious evidence in recent years to demonstrate that, in fact, the misappraisal of Abu Zubaydah’s significance is one of the most chronic intelligence failures in the whole of the “War on Terror.”

Nevertheless, on Friday, when Chief Judge Sentelle and Judge Tatel were joined by Judge Brown to consider the government’s appeal against the successful habeas petition of Mohamedou Ould Salahi (aka Slahi), a Mauritanian whose habeas petition was granted in April by Judge James Robertson, it was noticeable that reason was rather more in evidence than ideology.

Crucially, however, in every appeal from Al-Bihani onwards, the Circuit Court has agreed that being “part of” al-Qaeda and/or the Taliban is sufficient to justify detention, rather than being part of the “command structure” of either organization, as Judge John D. Bates had, for a while, established in the District Court rulings. This narrowing of the detention standard has had a knock-on effect on recent rulings, leading to more recent victories for the government, and it also played a major part in the deliberations of Judges Sentelle, Tatel and Brown.

The case of Mohamedou Ould Salahi: Torture, and Judge Robertson’s ruling

Salahi’s case is contentious for a variety of reasons, not least because, after his capture in Mauritania in November 2001, he was subjected to torture in Jordan, on behalf of the CIA, and was then subjected to a specifically tailored torture program in Guantánamo, which included:

prolonged isolation, prolonged sleep deprivation, beatings, death threats, and threats that his mother would be brought to Guantánamo and gang-raped. This program, which was implemented in May 2003, and augmented with further “enhanced interrogation techniques” authorized by defense secretary Donald Rumsfeld, culminated, in August 2003, in an incident when Salahi was taken out on a boat, wearing isolation goggles, while agents whispered, within earshot, that he was “about to be executed and made to disappear.”

Salahi’s torture was so severe that that, in May 2004, Lt. Col. Stuart Couch of the Marine Corps, who had been assigned his case as a prosecutor the year before, resigned rather than pursuing the case, telling his boss that, in addition to legal reasons, he was “morally opposed” to the interrogation techniques used on Salahi.

Quite what Salahi had done to warrant this treatment, and that had led to him once being described as the “highest-value detainee at the facility,” was thoroughly explored by Judge Robertson in April. Although the 9/11 Commission Report described him as “a significant al-Qaeda operative” who “recruited 9/11 hijackers in Germany,” along with Ramzi bin al-Shibh, the “high-value detainee” who allegedly coordinated the 9/11 attacks with Khalid Sheikh Mohammed, Judge Robertson was not convinced, noting that Salahi has stated that “he did nothing more than give bin al-Shibh and his friends lodging for one night,” and also noting that the government now “acknowledg[es] that Salahi probably did not even know about the 9/11 attacks.”

Judge Robertson accepted, as I explained in a previous article, that “Salahi was obviously no stranger to al-Qaeda. His cousin and brother-in-law is Mahfouz Walad al-Walid (better known as Abu Hafs al-Mauritania, a religious scholar regarded by US authorities as a spiritual advisor to Osama bin Laden,” and he also lived briefly in Canada, where he moved in circles that included Ahmed Ressam, the failed “Millennium Bomber,” and was also in contact, at various points in the 1990s, with a handful of other men who were later convicted for terrorist activities. However, as I also pointed out:

[A]s Judge Robertson explained in his unclassified opinion, “Associations alone are not enough … to make detention lawful.” Although he accepted, as Salahi himself admitted, that “he traveled to Afghanistan in early 1990 to fight jihad against communists and that there he swore bayat [an oath of loyalty] to al-Qaeda,” he also, essentially, accepted Salahi’s assertion that “his association with al-Qaeda ended after 1992, and that, even though he remained in contact thereafter with people he knew to be al-Qaeda members, he did nothing for al-Qaeda after that time.”

The Circuit Court refers the case back to the District Court

In assessing the government’s appeal, the Circuit Court judges accepted (PDF) that the government had dropped claims that Salahi was involved in any way in the 9/11 attacks or had “’purposefully and materially support[ed]’ forces associated with al-Qaeda ‘in hostilities against US Coalition partners,’” but maintained that, following the Circuit Court’s narrowing of the definition of involvement with al-Qaeda and/or the Taliban required to justify ongoing detention — that the prisoners were “part of” either organization — Judge Robertson’s opinion should be vacated and the case sent back to the District Court to reconsider in light of the revised definition.

This was, I believe, an acceptable compromise, as the government had urged the Circuit Court “to reverse and direct the district court to deny Salahi’s habeas petition,” whereas the Court accepted instead that further questions needed asking, which required further investigations by the lower court. Crucially, the Court noted that, “When Salahi took his oath of allegiance in March 1991, al-Qaeda and the United States shared a common objective: they both sought to topple Afghanistan’s Communist Government,” which is an important point, and the judges also included a list of possible questions for the District Court to consider, which demonstrate that they had given some thought to Salahi’s history:

For example, does the government’s evidence support the inference that even if Salahi was not acting under express orders, he nonetheless had a tacit understanding with al-Qaeda operatives that he would refer prospective jihadists to the organization? Has the government presented sufficient evidence for the court to make findings regarding what Salahi said to bin al-Shibh during their “discussion of jihad and Afghanistan”? Did al-Qaeda operatives ask Salahi to assist the organization with telecommunications projects in Sudan, Afghanistan, or Pakistan? Did Salahi provide any assistance to al-Qaeda in planning denial-of-service computer attacks, even if those attacks never came to fruition? May the court infer from Salahi’s numerous ties to known al-Qaeda operatives that he remained a trusted member of the organization?

The government’s unacceptable position regarding Salahi’s torture and his status as an informer

However, while the decision to “remand for further proceedings” is acceptable, it remains apparent that the government continues to play unacceptable games with Salahi for two reasons. The first is because its behavior begs the question of whether it is morally acceptable to seek a legal basis for Salahi’s ongoing detention when, as Judge Robertson stated (and as was cited by the Circuit Court), “The government’s problem is that its proof that Salahi gave material support to terrorists is so attenuated, or so tainted by coercion and mistreatment, or so classified, that it cannot support a successful criminal prosecution.”

The second reason, as I have discussed before, is because, as Peter Finn explained for the Washington Post in an article in March this year, Salahi and another man, Tariq al-Sawah, an Egyptian explosives expert for al-Qaeda, have, over the years, become “two of the most significant informants ever to be held at Guantánamo” — in al-Sawah’s case because he was thoroughly disillusioned with his former life, and in Salahi’s case because he began cooperating after his torture in 2003.

As a result of their cooperation, both men “are housed in a little fenced-in compound at the military prison, where they live a life of relative privilege — gardening, writing and painting — separated from other detainees in a cocoon designed to reward and protect … Each has a modular unit outfitted with a television. Each has a well-stocked refrigerator. They share a garden, where they grow mint for tea [and] are reported to have become close.”

Crucially, as I also explained:

[A]lthough the government has, to some extent, “rewarded them for cooperation,” no one in a position of authority has dared to propose the next logical step: releasing them under some sort of witness protection program. Finn explained that some military officials endorsed this proposal, believing that the establishment of a witness protection program, “in conjunction with allies,” might well “cultivate more informants.”

W. Patrick Lang, a retired senior military intelligence officer, told Finn bluntly, “I don’t see why they aren’t given asylum. If we don’t do this right, it will be that much harder to get other people to cooperate with us. And if I was still in the business, I’d want it known we protected them. It’s good advertising.”

As Guantánamo nears the ninth anniversary of its opening, however, no one in the Obama administration seems to care how counter-productive it is to treat informants this way. Instead, the Justice Department remains as determined as it was under George W. Bush to defeat every habeas petition, whether, as in most of the 19 cases won by the government, the men in question were nothing more than insignificant foot soldiers for the Taliban in a military conflict that had nothing to do with the 9/11 attacks or other acts of international terrorism, or whether, as in the cases of Salahi and Tariq al-Sawah, it would be useful to reflect on what message it sends to would-be informants when the government fights aggressively in court to continue detaining “two of the most significant informants ever to be held at Guantánamo,” rewarding them only with mint tea.

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 “Terrorism, Habeas Corpus, and the D.C. Circuit Court of Appeals Habeas Petition.”

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 since the start of 2010, see: 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), Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part One) (July 2010), Obama and US Courts Repatriate Algerian from Guantánamo Against His Will; May Be Complicit in Torture (July 2010), In Abu Zubaydah’s Case, Court Relies on Propaganda and Lies (July 2010), Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part Two) (July 2010), Judge Orders Release from Guantánamo of Mentally Ill Yemeni; 2nd Judge Approves Detention of Minor Taliban Recruit (August 2010), Judge Denies Habeas Petition of Afghan Shopkeeper at Guantánamo (September 2010), Nine Years After 9/11, US Court Concedes that International Laws of War Restrict President’s Wartime Powers (September 2010), Fayiz Al-Kandari, A Kuwaiti Aid Worker in Guantánamo, Loses His Habeas Petition (September 2010), Heads You Lose, Tails You Lose: The Betrayal of Mohamedou Ould Slahi (September 2010), First Guantánamo Habeas Appeal to US Supreme Court (Fayiz al-Kandari, October 2010).

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.” Cross-posted on The Public Record and Uruknet.

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).

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NOTE: This list has now been superseded by a dedicated page, “Guantánamo Habeas Results: The Definitive List,” which will be used to monitor the ongoing habeas rulings.

As part of my series, “Guantánamo Habeas Week” (introduced here, and expanded, on April 23, to become “Guantánamo Habeas Fortnight”), it’s my pleasure to present a list of the 47 habeas corpus rulings made to date, with links to the articles I have written over the last 19 months analyzing the judges’ rulings.

As I explained in the introduction to this series, I remain impressed that the judges involved have ruled in the prisoners’ favor in 34 of the 47 cases, particularly because they have revealed the alarming flimsiness of most of the material presented by the government as evidence — primarily, confessions extracted through the torture or coercion of the prisoners themselves, or through the torture, coercion or bribery of other prisoners, either in Guantánamo, the CIA’s secret prisons, or proxy prisons run on behalf of the CIA in other countries.

However, as I also explained, I remain deeply troubled about the justification for continuing to hold the majority of the prisoners who lost their habeas petitions, because the basis for doing so — the Authorization for Use of Military Force, passed by Congress in the wake of the 9/11 attacks and maintained as a justification by President Obama — was, and is a deeply flawed document, which fails to distinguish between a small group of genuine terrorists (al-Qaeda) and a considerably larger group of men (and boys) associated with the Taliban. The result is that men continue to be consigned to indefinite detention, on an apparently sound legal basis, even though they were only peripherally involved with the military conflict in Afghanistan to secure the fall of the Taliban, and should, all along, have been held (if at all) as prisoners of war, and protected by the Geneva Conventions.

Please note that, although 23 of the prisoners who won their habeas petitions have been released, eleven are still held. With the exception of the Uighurs, the government has appealed the rulings (or appears intent on appealing). In the cases of prisoners who lost their habeas petitions, a number of appeals have also been filed. See the Center for Constitutional Rights’ Habeas Scorecard for further information on the status of the various appeals.

The 47 Guantánamo Habeas Corpus Results

October 2008

1 WON: Abdul Helil Mamut (aka Abdul Khalil Manut, Abdul Nasser, Abdulnassir) (Uighur, ISN 278)
Released in Bermuda, June 2009.
2 WON: Abdullah Abdulquadirakhun (aka Abdulla Abdulqadir, Jalal Jalaladin) (Uighur, ISN 285)
Released in Bermuda, June 2009.
3 WON: Emam Abdulahat (aka Salahidin Abdulahad, Abdul Semet) (Uighur, ISN 295)
Released in Bermuda, June 2009.
4 WON: Huzaifa Parhat (aka Hozaifa Parhat, Ablikim Turahun) (Uighur, ISN 320)
Released in Bermuda, June 2009.
5 WON: Nag Mohammed (aka Edham Mamet) (Uighur, ISN 102)
Released in Palau, October 2009.
6 WON: Ahmad Tourson (Uighur, ISN 201)
Released in Palau, October 2009.
7 WON: Anwar Hassan (aka Hassan Anvar) (Uighur, ISN 250)
Released in Palau, October 2009.
8 WON: Abdulghappar Abdul Rahman (Uighur, ISN 281)
Released in Palau, October 2009.
9 WON: Dawut Abdurehim (Uighur, ISN 289)
Released in Palau, October 2009.
10 WON: Adel Noori (Uighur, ISN 584)
Released in Palau, October 2009.
11 WON: Arkin Mahmud (Uighur, ISN 103)
Released in Switzerland, March 2010.
12 WON: Bahtiyar Mahnut (Uighur, ISN 277)
Released in Switzerland, March 2010.
13 WON: Abdul Razak (Uighur, ISN 219)
Still held.
14 WON: Yusef Abbas (Uighur, ISN 275)
Still held.
15 WON: Saidullah Khalik (Uighur, ISN 280)
Still held.
16 WON: Hajiakbar Abdulghupur (Uighur, ISN 282)
Still held.
17 WON: Ahmed Mohamed (Uighur, ISN 328)
Still held.

For my analysis of the ruling, see: From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs.
For Judge Ricardo Urbina’s unclassified opinion, see here. And see here for a transcript of the hearing.
For the releases in Bermuda, see: Who Are The Four Guantánamo Uighurs Sent To Bermuda?
For the releases in Palau, see: Who Are The Six Uighurs Released From Guantánamo To Palau?
For the releases in Switzerland, see: More Dark Truths from Guantánamo, as Five Innocent Men Released.
For the Supreme Court’s refusal to consider the case of the last five Uighurs held, see: Guantánamo Uighurs Back in Legal Limbo.

November 2008

18 WON: Mohammed Nechle (Bosnian Algerian, ISN 10003)
Released in Bosnia, December 2008.
19 WON: Mustafa Ait Idr (Bosnian Algerian, ISN 10004)
Released in Bosnia, December 2008.
20 WON: Boudella al-Haj (Bosnian Algerian, ISN 10006)
Released in Bosnia, December 2008.
21 WON: Lakhdar Boumediene (Bosnian Algerian, ISN 10005)
Released in France, May 2009.
22 WON: Sabir Lahmar (Bosnian Algerian, ISN 10002)
Released in France, November 2009.
1 LOST: Belkacem Bensayah (Bosnian Algerian, ISN 10001)
Still held.

For my analysis of the ruling, see: After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims.
For Judge Leon’s unclassified opinion, see here.
For the releases in Bosnia, see: Freed Bosnian Calls Guantánamo the “worst place in the world”.
For the release of Boumediene in France, see: Pain At Guantánamo And Paralysis In Government.
For the release of Lahmar in France, see: Four Men Leave Guantánamo; Two Face Ill-Defined Trials In Italy.
For Bensayah’s appeal, see: First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling. And also see this New York Times article examining conflict within the Obama administration on prisoner cases, including that of Bensayah.

December 2008

2 LOST: Hisham Sliti (Tunisia, ISN 174)
Still held.
For my analysis of the ruling, see: No End in Sight for the “Enemy Combatants” of Guantánamo.
For Judge Richard Leon’s unclassified opinion, see here.

January 2009

3 LOST: Muaz al-Alawi (aka Moath al-Alwi) (Yemen, ISN 28)
Still held.
For my analysis of the ruling, see: No End in Sight for the “Enemy Combatants” of Guantánamo.
For Judge Richard Leon’s unclassified opinion, see here.

23 WON: Mohammed El-Gharani (Chad, ISN 269)
Released June 2009.
For my analysis of the ruling, see: Judge Orders Release of Guantánamo’s Forgotten Child.
For Judge Richard Leon’s unclassified opinion, see here.
For El-Gharani’s release, see: Guantánamo’s Youngest Prisoner Released To Chad.

4 LOST: Ghaleb al-Bihani (Yemen, ISN 128)
Still held.
Al-Bihani appealed, and lost his appeal in January 2010.
For my analysis of the ruling, see: How Cooking For The Taliban Gets You Life In Guantánamo.
For Judge Richard Leon’s unclassified opinion, see here.
For my analysis of the verdict in the appeal, see: Appeals Court Extends President’s Wartime Powers, Limits Guantánamo Prisoners’ Rights.
For the Circuit Court’s unclassified opinion, see here.

March 2009

24 WON: Yasim Basardah (aka Yasin Basardh) (Yemen, ISN 252)
Still held.
For my analysis of the ruling, see: Guantánamo And The Courts (Part Two): Obama’s Shame.
For Judge Ellen Huvelle’s unclassified opinion, see here.

April 2009

5 LOST: Hedi Hammamy (aka Abdulhadi bin Haddidi) (Tunisia, ISN 717)
Still held.
For my analysis of the ruling, see: Farce at Guantánamo, as cleared prisoner’s habeas petition is denied.
For Judge Richard Leon’s unclassified opinion, see here.

May 2009

25 WON: Alla Ali Bin Ali Ahmed (Yemen, ISN 692)
Released September 2009.
For my analysis of the ruling, see: Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses.
Also see: Guantánamo: A Prison Built On Lies.
For Judge Colleen Kollar-Kotelly’s unclassified opinion, see here.
For Ali Ahmed’s release, see: Three Prisoners Released From Guantánamo: Two To Ireland, One To Yemen.

June 2009

26 WON: Abdul Rahim al-Ginco (aka Abdul Rahim Janko) (Syria, ISN 489)
Released.
For my analysis of the ruling, see: Why Did It Take So Long To Order The Release From Guantánamo Of An Al-Qaeda Torture Victim?
Also see: Andy Worthington Discusses Guantánamo on Democracy Now!
For Judge Richard Leon’s unclassified opinion, see here.

July 2009

27 WON: Khalid al-Mutairi (Kuwait, ISN 213)
Released October 2009.
For my analysis of the ruling, see: Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker.
Also see: Guantánamo And The Courts (Part Three): Obama’s Continuing Shame.
For Judge Colleen Kollar-Kotelly’s unclassified opinion, see here.
For al-Mutairi’s release, see: Two More Guantánamo Prisoners Released: To Kuwait And Belgium.

28 WON: Mohamed Jawad (Afghanistan, ISN 900)
Released August 2009.
For my analysis of the ruling, see: As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat.
Also see: How Judge Huvelle Humiliated The Government In Guantánamo Case.
For Judge Ellen Huvelle’s unclassified opinion, see here. And see here for a transcript of the hearing.
For Jawad’s release, see: Reflections On Mohamed Jawad’s Release From Guantánamo.

August 2009

6 LOST: Adham Ali Awad (Yemen, ISN 88)
Still held.
For my analysis of the ruling, see: No Escape From Guantánamo: The Latest Habeas Rulings.
For Judge James Robertson’s unclassified opinion, see here.

29 WON: Mohammed al-Adahi (Yemen, ISN 33)
Still held.
For my analysis of the ruling, see: No Escape From Guantánamo: The Latest Habeas Rulings.
For Judge Colleen Kollar-Kotelly’’s unclassified opinion, see here.
For my analysis of the government’s subsequent appeal, and Judge Kollar-Kotelly’s response to it, see: What Does It Take To Get Out Of Obama’s Guantánamo?

7 LOST: Fawzi al-Odah (Kuwait, ISN 232)
Still held.
For my analysis of the ruling, see: No Escape From Guantánamo: The Latest Habeas Rulings.
For Judge Colleen Kollar-Kotelly’s unclassified opinion, see here.

September 2009

8 LOST: Sufyian Barhoumi (Algeria, ISN 694)
Still held.
For information about Barhoumi, see:
Guantánamo trials: critical judge sacked, British torture victim charged.
For the 2-page ruling by Judge Rosemary Collyer, see here. The unclassified opinion has not been released.

30 WON: Fouad al-Rabiah (Kuwait, ISN 551)
Released December 2009.
For my analysis of the ruling, see: A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions.
For Judge Colleen Kollar-Kotelly’s unclassified opinion, see here.
For al-Rabiah’s release, see: Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait.

November 2009

31 WON: Farhi Saeed bin Mohammed (Algeria, ISN 311)
Still held.
For my analysis of the ruling, see: Judge Orders Release Of Algerian From Guantánamo (But He’s Not Going Anywhere).
For Judge Colleen Kollar-Kotelly’s unclassified opinion, see here.
For an analysis of the significance of Judge Kollar-Kotelly’s ruling with reference to statements made by torture victim Binyam Mohamed, see: Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK.
For a more detailed article, based on an analysis of Judge Kessler’s unclassified opinion, see: How Binyam Mohamed’s Torture Was Revealed in a US Court.

December 2009

9 LOST: Musa’ab al-Madhwani (Yemen, ISN 839)
Still held.
For my analysis of the ruling, see: “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition.
For Judge Thomas Hogan’s unclassified opinion, see here. And see here for a transcript of the hearing.

32 WON: Saeed Hatim (Yemen, ISN 255)
Still held.
For my analysis of the ruling, see: Judge Orders Release From Guantánamo Of Unwilling Yemeni Recruit.
For Judge Ricardo Urbina’s unclassified opinion, see here.
For a more detailed article, based on an analysis of Judge Urbina’s unclassified opinion, see: Why Judges Can’t Free Torture Victims from Guantánamo.

February 2010

10 LOST: Suleiman al-Nahdi (Yemen, ISN 511)
Still held.
For my analysis of the ruling, see: The Black Hole of Guantánamo.
For Judge Gladys Kessler’s unclassified opinion, see here.
For a more detailed article, based on an analysis of Judge Kessler’s unclassified opinion, see: Guantánamo and Habeas Corpus: Consigning Soldiers to Oblivion.

11 LOST: Fahmi al-Assani (Yemen, ISN 554)
Still held.
For my analysis of the ruling, see: The Black Hole of Guantánamo.
For Judge Gladys Kessler’s unclassified opinion, see here.
For a more detailed article, based on an analysis of Judge Kessler’s unclassified opinion, see: Guantánamo and Habeas Corpus: Consigning Soldiers to Oblivion.

33 WON: Uthman Abdul Rahim Mohammed Uthman (Yemen, ISN 27)
Still held.
For my analysis of the ruling, see: The Black Hole of Guantánamo.
For Judge Henry H. Kennedy Jr.’s unclassified opinion (March 2010), see here.
For Judge Henry H. Kennedy Jr.’s revised unclassified opinion (April 2010), see here.
For a more detailed article, based on an analysis of Judge Kennedy’s unclassified opinion, see: Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture.

March 2010

34 WON: Mohamedou Ould Slahi (aka Salahi) (Mauritania, ISN 760)
Still held.
For my analysis of the ruling, see: Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit.
For Judge James Robertson’s unclassified opinion, see here.
For a more detailed article, based on an analysis of Judge Robertson’s unclassified opinion, see: Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims.

12 LOST: Mukhtar al-Warafi (Yemen, ISN 117)
Still held.
For my analysis of the ruling, see: Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit.
For Judge Royce C. Lamberth’s unclassified opinion, see here.
For a more detailed article, based on an analysis of Judge Lamberth’s unclassified opinion, see: With Regrets, Judge Allows Indefinite Detention at Guantánamo of a Medic.

April 2010

13 LOST: Yasin Qasem Muhammad Ismail (Yemen, ISN 522)
Still held.
For my analysis of the ruling, see: An Insignificant Yemeni at Guantánamo Loses His Habeas Petition.
Judge Henry H. Kennedy Jr.’s unclassified opinion is not yet available.

(‘’)

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), and, if you appreciate my work, feel free to make a donation.

The introduction to “Guantánamo Habeas Week” was discussed in detail by Jeff Kaye on Firedoglake and Invictus, by Kelly Vlahos at Antiwar.com, which also posted a link on its front page, and by Jeff Farias, and was cross-posted on The Public Record, Eurasia Review, The World Can’t Wait, War Criminals Watch, Campaign for Liberty, Global Research, The Lift: Legal Issues in the Fight against Terrorism, Uruknet, Cageprisoners, New Left Project, Political Theatrics, Countercurrents, Zinmag Chronicle and The Ruthless Truth. It was also mentioned in a round-up of news on Foreign Policy’s website, by Reprieve, and on Democratic Underground. In addition, the full list was cross-posted on The Public Record, The World Can’t Wait, New Left Project and War Criminals Watch, and was linked to in a banner headline on Cageprisoners’ front page.

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).

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).

Sabir Lahmar, an Algerian freed in France

Sabir Lahmar’s release is long overdue. An Islamic scholar, he was living in Bosnia-Herzegovina and working for a charity, the Saudi High Committee for Relief, when, in October 2001, the US government accused him, and five other Algerians living in Bosnia-Herzegovina as citizens or residents, of plotting to blow up the US embassy in Sarajevo. After a three-month investigation, which the Bosnian authorities were forced to undertake by the US government (human rights activist Srdjan Dizdarevic said that “the threats from the Americans were enormous,” and that there “was a hysteria in their behavior”), the men were cleared of all charges. However, on January 18, 2002, as they were released from custody, they were kidnapped by US agents and sent to Guantánamo, where they endured brutal treatment and discovered that the US authorities had no interest in the supposed bomb plot, and were, instead, using them in an attempt to secure intelligence about Arabs who had settled in Bosnia-Herzegovina after the ethnic war of 1992-95.

In November 2008, the six men finally had the opportunity to challenge the basis of their detention in a US court. Their hearing took place five months after the Supreme Court granted the prisoners constitutionally guaranteed habeas corpus rights, after ruling that legislation passed by Congress in 2005 and 2006, which purported to strip the prisoners of the habeas rights that the Supreme Court had first granted them in June 2004, was unconstitutional.

District Court Judge Richard Leon, a no-nonsense appointee of President George W. Bush, granted the habeas corpus petitions of five of the six men, including Lahmar, after concluding that the government had provided no credible evidence that, as was alleged in place of the bomb plot, they intended to travel to Afghanistan to take up arms against US forces. The sixth man, Belkacem Bansayah, was ruled to be legally detained as an “enemy combatant,” based on the government’s claims that he was “link[ed] to al-Qaeda and, more specifically, to a senior al-Qaeda facilitator,” although he is currently appealing the ruling.

In his ruling, Judge Leon also implored the Justice Department, the Defense Department and the intelligence agencies not to appeal his verdict, which would “at a minimum, constitute another 18 months to two years of their lives.” As he explained, “It seems to me that there comes a time when the desire to resolve novel, legal questions and decisions which are not binding on my colleagues pales in comparison to effecting a just result based on the state of the record.”

Nevertheless, although three of the five men — Mustafa Ait Idr, Hadj Boudella and Mohammed Nechla — were released within weeks of the decision, the fourth, Lakhdar Boumediene, had to wait until May to be freed, when he was accepted by the French government, and Lahmar has had to wait for another six months before he too has been given a new home in France.

Speaking to AFP, Rob Kirsch, Lahmar’s attorney, said that his client, who is now 39 years old, will be allowed “to rebuild his life as a free man after nearly eight years of illegal detention. Mr. Lahmar suffered years of inhumane, isolating imprisonment. He was separated from other human contact until one month after Judge Leon ruled that the detention of Mr. Lahmar was illegal.” He also praised French President Nicolas Sarkozy and Foreign Minister Bernard Kouchner as “straight shooters throughout this process,” adding, “We appreciate the opportunities they have given to Sabir Lahmar and Lakhdar Boumediene.”

A Palestinian freed in Hungary

Little news has yet emerged about the prisoner released in Hungary. On September 16, Prime Minister Gordon Bajnai announced that Hungary “would take in one former prisoner, likely to be a Palestinian national,” and last week Gabor Juhasz, the minister in charge of the civilian secret services, confirmed that the Hungarian government had “given its official consent to the Hungary-US agreement on accepting a detainee from Guantánamo.” He added, however, that, in common with the other releases in Europe in recent months (in Portugal, Ireland and Belgium), the government had decided “not to disclose the identity of the former prisoner, the person’s time of arrival or place of residence.” He also explained that the government would “provide support to the former detainee for settling in the country, including “access to health-care services, language learning opportunities [and] assist[ance] in finding a job.”

From jail to jail: the Tunisians transferred to Italian custody

This is good news for Sabir Lahmar and the unidentified Palestinian, but for Adel Ben Mabrouk bin Hamida Boughanmi and Mohammed Tahir Riyadh Nasseri, the two Tunisians transferred to Italian custody, the future looks as bleak as the last seven years that they have spent in Guantánamo. As the Justice Department explained in a press release announcing their transfer, “Both detainees are the subject of outstanding arrest warrants in Italy and will be prosecuted there … These transfers were carried out pursuant to a Memorandum of Understanding concluded by Attorney General Eric Holder and Italian Justice Minister Angelino Alfano in September. The United States has coordinated with the government of Italy to ensure the transfers take place under appropriate security measures and will continue to consult with the government of Italy regarding these detainees.”

This perhaps sounds relatively innocuous, but as I reported in July, when the rumors first surfaced that Silvio Berlusconi had agreed to take a number of Tunisian prisoners from Guantánamo, there are serious doubts about the circumstances in which the prisoners have been transferred. These are not alleviated by the careful mention of a Memorandum of Understanding, and they hardly warrant the thanks extended by the DoJ — “The United States is grateful to the government of Italy for helping achieve President Obama’s directive to close the Guantánamo Bay detention facility” — unless that sentence were to be followed by the words, “by any means necessary.”

As Daniel Gorevan, a spokesman for Amnesty International, noted in March, after EU Justice Commissioner Jacques Barrot stated that the US government had raised the possibility of a Memorandum of Understanding between the EU and the US on the protection of detainees in Guantánamo, during a meeting on March 17, “Any memorandum of understanding between the USA and Europe on Guantánamo detainees must take into account this fundamental requirement: all detainees who are not charged and tried fairly in US courts must be released safely.”

This is clearly not the case with the two men who have just arrived in Italy from Guantánamo, as I explained in July, when reports in La Repubblica and information obtained from sources in the United States allowed me to confirm that, after the US government informally asked the Italian government in April to take six or seven prisoners from Guantánamo, the Department of Public Security and the Ministry of Justice compiled a list of Guantánamo prisoners who had criminal proceedings pending against them in Italy, and then focused on three prisoners, including Boughanmi and Nasseri, on the basis that they would be transferred from Guantánamo to Italian jails.

As I also noted:

[La Repubblica] suggested that Roberto Maroni, the Minister of the Interior (and a member of Italy’s notoriously right-wing Northern League), only approved their transfer when he received reassurances that they would not be set free, and this was confirmed in an article in the Christian Science Monitor, in which reporter Anna Momigliano wrote that Maroni, whose party was bluntly described as “oppos[ing] the presence of Muslim immigrants” in Italy, stated, “I oppose taking [the prisoners] in, as long as we are not sure they will be kept behind bars.”

La Repubblica added that the prisoners would not receive “credit” for their seven years in Guantánamo, and noted that, in 2007, the Milanese Public Prosecutor’s office had requested extradition of two of the men, but the Ministry of Justice refused to forward the extradition request to the US government because Guantánamo was “not US territory.” As a result, it is understood that the US government’s transfer of the men to Italian custody will not involve extraditing them, but rather expelling them, and the Italian government can therefore treat them not as prisoners who have already served a jail sentence, but as fugitives who are obliged to serve a full term. As a source in the United States explained, this novel approach to disposing of prisoners in Guantánamo is actually a form of “rendition.”

These fears have not been allayed with the transfer, under the cover of a Memorandum of Understanding, of two of the three men mentioned in July. Both were taken into custody on their arrival in Milan, and are currently being questioned, and no indication has yet been provided as to whether they will face a trial, and whether their lost years in Guantánamo will be taken into account should they be sentenced.

The fog of evidence

In the fog of rumors and allegations surrounding the men, it is difficult to know where the truth lies. According to Italian prosecutors, both were involved with an Islamic center in Milan that had connections with al-Qaeda, and arrest warrants for both men were issued while they were in Guantánamo. In 2005, Boughanmi was accused of “international terrorism, falsification of documents, aiding illegal immigration, theft and drug trafficking,” and in 2007 Nasseri was accused of “organizing in Afghanistan the logistics for fighters coming from Italy ‘where they were trained in the use of weapons and in preparation for suicide attacks,’” and was also described as “the head of the Tunisians in Afghanistan, ‘from where he maintained constant relations with the structures in Italy and Milan.’”

However, Boughanmi, who was 31 years old when he was seized crossing from Afghanistan into Pakistan, explained to his lawyers that he worked in restaurants in Naples and Rome, and as a barber in Milan, and stated that he traveled to Afghanistan in early 2001, “because I became a Muslim when I was in Europe. My country was very tough on the Muslims. Afghanistan was a country where they were willing to take anybody, you don’t need any money to live there, and they welcome all the Muslims.”

In addition, as I explained in July:

In Guantánamo, he denied an allegation that he was part of a terrorist network in Italy, and that he “possibly” falsified passports “for fleeing al-Qaeda combatants who make it to Europe” (that use of the word “possibly” generally indicating that even the US military regarded the allegation as unreliable). He also refuted allegations that he was an “extremist” in Bosnia-Herzegovina during the civil war, and, to prove it, showed the tribunal the visa stamps in his passport, which he requested as evidence. The information about his purported activities in the former Yugoslavia was apparently provided by the Tunisian government, which had sentenced him in absentia to 20 years in prison for allegedly being a member of a terrorist organization operating abroad.

Less is known publicly about Nasseri, who was 35 years old at the time of his capture in Afghanistan, because he refused to take part in any of the military review processes at Guantánamo (the Combatant Status Review Tribunals and the annual Administrative Review Boards), although it was noted that he refuted all the allegations against him. Some of these related to the Italian arrest warrant mentioned above, a claim that he fought in Bosnia may have come from the Tunisian government (which gave him a ten-year sentence in absentia for being a member of a terrorist organization operating abroad), and no clue whatsoever was provided to back up an allegation that he “led a band of thieves in Italy and Spain who cooperated with Algerian terrorists.”

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

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

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

With al-Libi conveniently out of the picture, and Abu Zubaydah psychologically destroyed (in April this year, one of his attorneys, Joe Margulies, wrote that he “has permanent brain damage,” and that, “In the last two years alone, he has experienced about 200 seizures”), it seems unlikely that any of these doubts about Nasseri will ever be addressed.

For their part, the Italian authorities seem to be relying heavily on an informer, Lazhar Ben Mohamed Tlil, a Tunisian who traveled to Afghanistan to undertake military training, and who is now the main source of information — for US officials as well as the Italian authorities — on the movements of Tunisians and others in Afghanistan and Europe. Three weeks ago, Italian prosecutor Elio Ramondini told the Associated Press that, without Tlil, the prosecution of the Guantánamo suspects in Italy “is not difficult, it is impossible.”

Whether Tlil deserves this star billing is unknown. His testimony may, for example, be unreliable, but perhaps a court can sort that out if he remains cooperative. For now, his lawyer has explained that he is “unhappy with Italy’s witness protection program,” and feels “abandoned,” and that, as a result, he is “threatening to withhold testimony,” both from the Americans, who want him to testify in the United States, and also from the Italian prosecutors.

Just as troubling, given the lack of information about the circumstances of the men’s transfer to Italy, is the fact that the Italian government announced on Tuesday that it was still looking at a number of other cases of prisoners in Guantánamo. Franco Frattini, the Foreign Minister, said that Italy has agreed “to take in others,” but added, “we haven’t pinpointed yet” which prisoners to take.

If trials are justified on the basis of genuine evidence of wrongdoing, then it will presumably be acceptable that extraditions, expulsions or “renditions to justice” are a new tool for a President who has allowed so many doors to shut on his plans to close Guantánamo, but without transparent and reliable assurances that trials will be fair, and that the men will receive credit for their lost years in Guantánamo, I fail to see how this deal between Barack Obama and Silvio Berlusconi can be regarded as a valid step forward in bringing to an end the injustices of Guantánamo and the “War on Terror.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout. Cross-posted on Common Dreams and AlterNet.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 25 prisoners released from February to October 2009, 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.

The list is based on the deliberations of an interagency Task Force, established by President Obama on his second day in office, to determine who should be released, and who should continue to be held, and in my article I looked at the cases of 31 of the prisoners (26 Yemenis, three Saudis and two Kuwaitis, one of whom has since been released), pointing out that, in theory, there was no reason for them not be released immediately.

However, I also pointed out that members of Obama’s own administration had told the New York Times that the government was afraid of releasing the Yemenis (even though they had been cleared for release), because Guantánamo itself might have radicalized [them], exposing [them] to militants and embittering [them] against the United States,” and I should also have added, as former military defense attorney Maj. David Frakt pointed out to me in an email, that the men’s release is also dependent on the whims of Congress, where lawmakers “passed a law this summer that requires the administration to give Congress 15 days notice before releasing anyone from Guantánamo.”

Nevertheless, although Congressional obstruction may well be an additional complication (which I discussed in another article last week, “Lawyer Blasts ‘Congressional Depravity’ On Guantánamo”), it remains apparent that the route out of Guantánamo for these 30 men ought to be easier than it is for the other 44 prisoners cleared for release, as these are men who cannot be repatriated either because of fears that they will face torture or other ill-treatment (including arbitrary detention and show trials) on their return, or because (in the cases of two Palestinians) they are, effectively, stateless refugees.

Who are the 44 prisoners?

Of these 44 prisoners, 15 had their release ordered by judges in US District Courts, as a result of the habeas corpus petitions that were authorized by the Supreme Court in an extraordinarily important ruling in June 2008. 13 of these men are Uighurs — Muslims from China’s oppressed Xinjiang province, whose release was ordered by Judge Ricardo Urbina a year ago, and whose plight I have written about extensively (particularly here and here) — and the others are an Algerian, Sabir Lahmar, whose release was ordered last November, and Abdul Rahim al-Ginco, a young Syrian, tortured and imprisoned by al-Qaeda and the Taliban, whose release was ordered in June this year.

The other 29 are as follows: nine Tunisians, six more Algerians, three more Syrians, two Egyptians, two Uzbeks, two Palestinians, an Azerbaijani and a Tajik. Although their names have not been provided, the identities of the majority of these men can be deduced by a process of elimination (there are, for example, only two Egyptians, two Uzbeks, and one Azerbaijani in Guantánamo), and, in addition, the decision to release the Tajik prisoner, Umar Abdulayev, is known about because it was announced in July.

As I explained at the time, this decision was distressing to Abdulayev and his lawyers for two reasons: firstly, because when government lawyers announced that they would “no longer defend his detention,” they also announced that they “want[ed] US diplomats to arrange to repatriate him,” even though Abdulayev is terrified of returning to Tajikistan, because he was threatened by Tajik agents who visited him in Guantánamo; and secondly, because the Task Force’s decision also led the Justice Department to ask a judge to drop Abdulayev’s habeas petition, prompting his lawyers to point out that the Task Force’s decision was “not a determination that [Abdulayev’s] detention was or was not lawful,” and that it therefore “does nothing towards removing the stigma of being held in Guantánamo or being accused of being a terrorist by the United States.”

This is actually a widespread problem for those cleared for release who fear repatriation, not only because recent rulings by the Court of Appeals have removed a number of judicial safety nets established by judges to prevent the enforced repatriation of a number of prisoners in Guantánamo (for whom the “stigma” of “being accused of being a terrorist by the United States” is of grave importance), but also because, in a wider sense, the Obama administration is unwilling to state openly that any prisoner was seized by mistake (as one of the prisoners’ lawyers recently explained to me, no lawyer would advise admitting responsibility, as it would open the floodgate to compensation claims). As a result, the administration is doing nothing to facilitate the work of Daniel Fried, the senior diplomat employed in March 2009 as the Special Envoy to Guantánamo, whose unenviable task it is to persuade other countries to accept released prisoners from Guantánamo.

Even putting aside for a moment the difficulties caused by the refusal of the Court of Appeals and Congress to accept cleared prisoners into the United States (which fuels a reluctance to help in European countries, as Fried acknowledged in a recent interview with the BBC), there are disturbing signs that this reticence on the part of the administration to state openly and categorically that colossal mistakes were made by the Bush administration is also undermining the very decisions made by Obama’s own Task Force.

Recently, for example, when Swiss officials visited Guantánamo to investigate the cases of four men cleared for release, in an attempt to work out if they would be prepared to accept any of these men, they returned, not with an honest appraisal, but with weighted conclusions that could only have been presented to them by the US military, who had, in effect, opened up their files and shown them material which purported to be evidence, but which, in other prisoners’ habeas petitions, has been demonstrated, time and again, to be nothing more than false allegations made by other prisoners (under duress or as a result of bribery) or by the prisoners themselves, multiple levels of unacceptable hearsay, and “mosaics” of intelligence that do not stand up to independent scrutiny.

According to reports in the Swiss media, the government representatives concluded that, of the four men they investigated, two Uighurs were “low-risk,” even though they are no risk at all, having persuaded the Bush administration to drop its claims that they were “enemy combatants,” and having been cleared by military review boards under the Bush administration, by a US District Court, and by the Obama administration’s Task Force, and two other men, an Uzbek and a Palestinian — also cleared by Bush-era military review boards and by Obama’s Task Force — were considered “medium-risk” and “high-risk.”

What has the Task Force been doing for eight months?

Beyond these absurd discrepancies, which do nothing to help Obama’s cause, the other conclusion I draw from an analysis of the Task Force’s figures is that, after eight months of reviewing the prisoners’ cases, it has made very little progress, despite detailed consultations with lawyers and other experts, despite detailed searches for information relating to the men, which was scattered throughout numerous departments and agencies in a disturbingly incoherent manner, and despite the establishment of a database bringing all the available information together in one place.

Although exact numbers are impossible to work out, it is clear that, of the 29 men cleared by the Task Force, all but nine (at most) were actually approved for transfer, between 2006 and 2008, by Administrative Review Boards at Guantánamo. When Obama came to power, eight Tunisians, five Algerians, four Uzbeks, three Palestinians, an Egyptian, a Libyan, and Umar Abdulayev, the Tajik, had all been approved for transfer. Some tweaking has taken place — a Palestinian has been removed from the list, and the Azerbaijani, Poolad Tsiradzho, has been added, plus an Algerian, an Egyptian, two Libyans and three Syrians — and, in addition, it is possible that the Task Force has shifted position on a few of those approved for transfer under Bush.

However, when added to the 14 or so Yemenis discussed in the last article, this figure of 25 or so prisoners is hardly a triumph for the Task Force, and indicates, yet again, that when it comes to Guantánamo, the President’s bold start in January, when he issued his executive order regarding the closure of the prison, has been steadily eroded by confusion, extreme caution and indecision.

If this damned icon of the dark years of George W. Bush, Dick Cheney, Donald Rumsfeld and their close advisors is ever to close, it is time for Barack Obama, Eric Holder and Robert Gates to regroup and to accept that confusion plays only into the hands of those haunted by the ghost of Dick Cheney, and that clarity is required. Moreover, despite lawyers’ fears of new waves of litigation, this clarity has to involve the nation’s leaders acknowledging why the District Courts have ruled, in 79 percent of the habeas petitions before them, that the men in question are neither terrorists nor soldiers and should be released.

The truth is out there — and I am only one of many writers who have been explaining it for the last four years — but I will spell it out again: the majority of the prisoners were seized for bounty payments by US allies, were never screened according to the Geneva Conventions to determine whether or not they were combatants of any kind, and are held not because of anything resembling evidence, but through a shamefully poor attempt to build up a case against them in the isolation of Guantánamo, through a combination of torture, coercion and bribery, and the use of raw intelligence masquerading as facts.

Everyone in Guantánamo deserves better than this: both the few dozen men who are genuinely accused of involvement with al-Qaeda, the 9/11 attacks and other acts of international terrorism, who should face trials for their alleged crimes, and the majority of the prison’s population, whose release is still being prevented, or made horrendously complicated, by both the Executive and the lawmakers in Congress — some innocent men, and others who were soldiers in a now almost forgotten civil war between the Taliban and the Northern Alliance, whose ongoing detention is based not on any notions of justice, but on the lingering legacy of the Bush administration’s mistaken decision to equate al-Qaeda with the Taliban.

Note: For more information on the prisoners cleared for release, see my article, “Guantánamo’s refugees,” and also see the following profiles on the Reprieve website: Ahmed Belbacha (Algeria), Nabil Hadjarab (Algeria), Said Farhi (Algeria), Adel Fattough Ali El-Gazzar (Egypt), Sherif El-Mashad (Egypt), Ayman al-Shurafa (Palestine), Adel Hakeemy (Tunisia), Hedi Hammamy (Tunisia) and Saleh Sassi (Tunisia).

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation. Cross-posted on The Public Record.

Although Judge Leon ruled that the government (having never mentioned the bomb plot once the men arrived in Guantánamo) had failed to establish that the five men intended to travel to Afghanistan to take up arms against US forces (a claim it had conjured up during their long imprisonment, based solely on classified information from an unnamed source, which Judge Leon found “inadequate”), he ruled that Bensayah could continue to be held as an “enemy combatant,” because 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.” Leon also stated, “There can be no question that facilitating the travel of others to join the fight against the United States in Afghanistan constitutes direct support to al-Qaeda in furtherance of its objectives and that this amounts to ‘support’ within the meaning of the ‘enemy combatant’ definition governing this case.”

Last week, as BLT noted, a panel of the D.C. Circuit Court of Appeals — comprising Judges Douglas Ginsburg and Karen LeCraft Henderson, with Senior Judge Harry Edwards — began hearing an appeal in Bensayah’s case, in which his lawyers “are challenging, among other things, the admission of certain evidence and the legal definition of ‘enemy combatant.’” BLT added that, as with the original habeas case, which was held in closed hearings, “Much of the record in the D.C. Circuit is classified and under seal,” although the court “released heavily redacted versions of the briefs on Sept. 11.”

In a brief filed in June, Marc Fleming, one of Bensayah’s lawyers, claimed that Judge Leon relied on “unfinished” intelligence reports and “uncorroborated assertions from anonymous sources” in making his ruling, and added, “The court’s ruling authorizes military imprisonment for mere intention, without finding that Mr. Bensayah acted affirmatively to advance any military objectives. Whatever authority the Executive has to detain alleged ‘enemy combatants,’ it cannot extend to cases of mere ‘intention’ without proof of any action.”

Fleming also explained that Judge Leon had “refused to order the government to search for exculpatory information,” adding that it was only provided to him in April this year (although BLT noted that the Justice Department said that the information, which is classified, “supports Leon’s judgment”).

Fleming also stated that, two weeks before Judge Leon made his ruling, on the evening of November 11, 2008, he chastised the government for not being “in a zone where you are meeting the standards set by the [court],” regarding the provision of relevant information, before giving the Justice Department “a second chance,” and that, as a result, government lawyers submitted more classified information to the court, but at such a late date that Bensayah’s lawyers had only 31 hours to research the new information, which was “insufficient time,” according to Fleming, who added that a request from the judge for further time to deal with the documentation was denied.

In the run-up to Bensayah’s appeal, Justice Department lawyer Sharon Swingle sent a letter to the court, dated August 28, stating that the government was “prepared to argue the case in open court so long as no classified information is discussed,” but that the courtroom would have to be cleared “if the appellate judges wanted to ask about classified information.” “The Department of Justice has provided classified material to the Court with the understanding that the secrecy of this information will be protected,” she explained.

In response, Fleming said that “the inability to argue classified information in open court would hurt Bensayah’s effort to have Leon’s order reversed.” In a reply to the court, he wrote, “We certainly believe that there is a strong public interest in this appeal, and we would welcome an argument in open session if the government were to agree that the record below and all of the rulings under appeal could be discussed publicly. Absent such an agreement by the government, however, Mr. Bensayah’s contentions on appeal cannot be meaningfully presented or assessed in open session, because oral argument necessarily will require reference to the classified record and the classified briefs.”

Despite Fleming’s protestations, the judges sided with the Justice Department. The case continues on September 24, in a session closed to the public, when Fleming and his colleagues will be hoping that the judges will accept that “mere ‘intention’ without proof of any action” is insufficient to justify Bensayah’s continued detention as one of only seven Guantánamo prisoners to have lost their habeas appeals (out of 36 in total).

Note: A statement submitted to the court by Belkacem Bensayah in his habeas case is here, and see the following for a list of all the exhibits submitted in the case of Bensayah and the other five men (Boumediene v. Bush). In the most recent commentary on the men’s cases, in the Huffington Post on August 24, Seema Jilani wrote: “In 2001, the US reportedly tapped [Bensayah's] mobile phone conversations with Abu Zubaydah, allegedly an al-Qaeda operative. In an interview in Bosnia, Anela Belkacem, Bensayah’s wife, states they did not have enough money to own a mobile phone. According to [one of his lawyers, Stephen] Oleskey, ‘The Bosnian police couldn’t even get this number to work.’ Anela claims her husband ‘has been sacrificed … No one wants to admit they made a big mistake in detaining these men.’”

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

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).

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).

Echoing the position taken by the Bush administration, Eric Holder’s Justice Department is pursuing patently indefensible cases that should have been dropped before being presented to a judge, and is also engaged in what appears to be a systematic policy of delays when it comes to providing exculpatory material to the prisoners’ defense teams (in other words, material that tends to disprove the government’s case), or, in fact, any other material that is vital to mounting a proper defense. Moreover, when given the option to defend a judge’s right to order the release of prisoners against whom no case could be proved, the Justice Department sided with a notoriously pro-Bush judge in the Court of Appeals, who ruled that, although a District Court judge could demolish the government’s case against a Guantánamo prisoner, he or she was powerless to actually order the prisoner’s release.

When Barack Obama came to power, one of his first acts was to issue a number of Executive Orders to tackle some of the worst excesses of the Bush administration’s “War on Terror.” The new President banned the use of torture and promised to close Guantánamo within a year, and to this end established an inter-departmental Guantánamo Task Force to review the prisoners’ cases, and to work out what to do with them. Whilst it was understandable that the Obama administration wanted to conduct its own review, to understand who was actually being held at Guantánamo, I had misgivings from the beginning about how this would mesh with the ongoing District Court reviews of the prisoners’ cases, which had been triggered last June when the Supreme Court ruled, in Boumediene v. Bush, that the prisoners had habeas corpus rights.

In the months since, I have not been reassured that two layers of review — one by the Executive, and one by the judiciary — is the most effective way of dealing with the prisoners’ cases, and these misgivings have been exacerbated by the Justice Department’s obstruction, delays and imitation of Bush-era policies outlined above, to the extent that I can only conclude that the administration is either attempting to sideline the courts, and believes that the only valid review process is the one being undertaken by its own inter-departmental Guantánamo Task Force, or that Eric Holder is not in charge of his own staff.

Both conclusions are disturbing; the first because sidelining the judiciary in favor of an essentially secretive Executive review is so uncomfortably reminiscent of the ways in which the Bush administration operated, and the second because, on a topic as important as Guantánamo, the Attorney General’s seeming inability to direct the operations of those working on the Guantánamo habeas cases reveals that the DoJ is still full of employees who maintain allegiance to Bush-era policies, that Holder himself holds those views, or, as above, that he is concerned only with the findings of the Guantánamo Task Force, and is unconcerned by the prisoners’ long legal struggle to test the basis of the allegations against them in a court of law.

With the Justice Department recently humiliated in two habeas reviews — of Alla Ali Bin Ali Ahmed, a Yemeni, and of Abdul Rahim al-Ginco, a Syrian who was tortured by al-Qaeda before he ended up in US custody — and almost certainly about to face another humiliation in the case of Mohamed Jawad, an Afghan whose story I have been reporting since October 2007 (see here, here, here and here), I have decided to take this opportunity to present a three-part overview of the habeas cases over the last 13 months.

In this first part, I examine the history of the habeas cases under the Bush administration, and in the second and third parts I bring the story up to date by looking in detail at the many failures of the Obama administration, as outlined above. Bear in mind throughout that, of the 31 cases decided by the courts, 26 have ended in defeat for the government, an 84 percent success rate for the prisoners that both justifies campaigners’ claims that the prison has largely held men (and boys) with no connection to al-Qaeda or any other terrorist group, and shows up the prison’s defenders (former Vice President Dick Cheney and the politicians mentioned above) as, at best, deluded, and, at worst, outright liars.

The Guantánamo prisoners’ long struggle to secure rights

Thirteen months ago, the long quest of the men held at Guantánamo to secure the most fundamental right of a prisoner — to be brought before a judge to ask why he is being held — was granted by the Supreme Court in Boumediene v. Bush (named after the Algerian prisoner, Lakhdar Boumediene, who was finally released from Guantánamo in May).

It was not the first time that the Guantánamo prisoners had been granted habeas corpus rights. Four years before, on June 29, 2004, the Supreme Court had ruled, in Rasul v. Bush, that they had habeas corpus rights, after concluding that Guantánamo — which was chosen as the location for the prison because it was presumed to be beyond the reach of the US courts — was “in every practical respect a United States territory,” and that therefore the 800-year old “Great Writ,” first conceived in England in the reign of King John, applied to the prisoners. As Justice John Paul Stevens declared,

Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.

The Supreme Court had been stirred to this unusual ruling, granting habeas rights to foreigners detained in wartime, because of its grave concerns that the prisoners, held, uniquely, as “enemy combatants” — in other words, neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects, who would face a trial in federal courts — had never been adequately screened to determine whether they should be held, and were, literally, outside the law.

The ruling in Rasul shattered the secrecy necessary for Guantánamo’s existence as a lawless experiment in coercive interrogations to continue as it had for two and a half years, because lawyers began arriving at the prison, to draw up habeas petitions, and to hear — and then to transmit to the outside world — some of the prisoners’ horrendous stories of the abuse and torture to which they had been subjected.

In terms of the law, however, little else changed. The Bush administration ignored the thrust of the Supreme Court’s ruling — that the prisoners should be able to challenge their detention in federal courts — and instead introduced military review boards (the Combatant Status Review Tribunals) to review their cases. Drawing on classified evidence that was not disclosed to the prisoners, who were prevented from having legal representation, these were dreadfully one-sided affairs, designed primarily to rubberstamp the prisoners’ automatic designation, on capture, as “enemy combatants,” as Lt. Col. Stephen Abraham, a veteran of US intelligence who served on the tribunals, explained in a series of shocking and deeply damaging revelations in 2007.

Nevertheless, the administration behaved at the time as though the tribunals were legitimate, and, moreover, set about gutting Rasul by persuading Congress to pass two hideously flawed pieces of legislation — the Detainee Treatment Act of 2005, and the Military Commissions Act of 2006 (PDF) — which, amongst other provisions, purported to strip the prisoners of the habeas rights granted in Rasul. These laws never prevented lawyers from visiting their clients in Guantánamo (although the Pentagon did all it could to be obstructive), but they did freeze the habeas cases, leaving the men to stew in a legal limbo that became all the more intolerable as the years dragged by.

This, then, was the main reason why Boumediene was so important, as, four years on from its first ruling, the Supreme Court was obliged to stamp its authority by ruling that Congress had acted unconstitutionally when it passed the habeas-stripping provisions in the DTA and the MCA, and to rule that this time around the prisoners’ habeas rights were constitutionally guaranteed, meaning that they could not once more be tampered with by somnambulant or otherwise incapacitated politicians, bent into unconstitutional shape by a bullying Executive branch.

A stunning early victory, followed by Justice Department obstruction

Two weeks after Boumediene, one of the cases that had been frozen for years was resuscitated in the Court of Appeals, with dire results for the government. The case, Parhat v. Gates, was brought by Huzaifa Parhat, one of the Uighurs (Muslims from China’s oppressed Xinjiang province) who were finally freed from Guantánamo a month ago, and allowed to settle in Bermuda, and when the judges — two Conservatives and a Liberal, it should be noted — were free to act, they duly ruled that Parhat’s four-year old designation as an “enemy combatant” was “invalid.”

The court was unconvinced by the government’s claims that Parhat, who had fled Chinese oppression and had been living in a run-down settlement in Afghanistan’s Tora Bora mountains that was unconnected to either al-Qaeda or the Taliban, was part of a Uighur separatist group, and lambasted the quality of the government’s evidence — in which an attempt to make a case was conjured up by citing from three separate classified government reports — as being akin to a nonsense poem by Lewis Carroll, author of Alice’s Adventures in Wonderland. “Lewis Carroll notwithstanding,” the judges wrote, “the fact the government has ’said it thrice’ does not make an allegation true.”

Despite this early victory, the District Court’s attempt to swiftly implement habeas reviews, which was driven, in particular, by the Supreme Court’s admonition that, “While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody,” and its demand that “The detainees in these cases are entitled to a prompt habeas corpus hearing,” was stymied when the Justice Department almost immediately began dragging its heels.

On July 2, 2008, the District Court’s Chief Judge Royce C. Lamberth announced that Senior Judge Thomas F. Hogan (photo, left) had been assigned “to coordinate and manage proceedings in all Guantánamo Bay cases so that these cases can be addressed as expeditiously as possible,” but when lawyers for the prisoners and DoJ representatives met Judge Hogan two weeks later, Assistant Attorney General Gregory Katsas “asked for two months to recruit lawyers and at least another two months to amend the existing returns [roughly 100 in total] and file 100 new ones.” He claimed, additionally, that the effort would strain the Justice Department’s resources “almost to the breaking point.”

As the Miami Herald explained in a pointed editorial, “the court was skeptical, to say the least. Judge Hogan said he could not fathom why evidence would suddenly have to be changed if it had been considered strong enough to warrant holding the detainees for periods of up to six years.” In Hogan’s own words, “If it wasn’t sufficient, then they shouldn’t have been picked up.”

In addition, as I explained in an article last July,

The government was no more fortunate when it came up against District Judge Richard Leon, who had decided not to transfer his cases — 12 in total, involving 35 prisoners — to Judge Hogan. “This is going to be moved as fast as possible,” Judge Leon told a similar gathering of Guantánamo lawyers and DoJ representatives. “These men have waited long enough to get a decision. The Supreme Court has spoken. They want this done. By God, we’ll get this done.”

Judge Leon also explained, as Reuters described it, that he “would not allow the Department of Defense or the CIA to delay the cases while reviewing classified information used to hold the prisoners as enemy combatants.” “Let there be no doubt that the Department of Defense and the CIA must be prepared to come to the courtroom and defend their decisions if we get any sense that there is an effort by those agencies to slow down the proceedings,” he said.

Judge Leon added that he wanted to decide the cases before the next President takes office in January 2009, and, although this was rather optimistic, the dogged determination with which he obeyed the Supreme Court’s order meant that he did indeed manage to review a number of cases before his self-imposed deadline, while other judges had not even gotten off the starting blocks.

To do this, however, he had to overcome more delaying tactics. As I reported last September, although judges had been appointed to review the 250 habeas cases in July, and the District Court “ordered the government to file factual returns at a rate of fifty per month, with the first fifty due by August 29, 2008,” the Justice Department waited until just before the deadline, and then, with only 22 returns filed, filed an “instant motion” begging for more time, pleading that it “simply did not appreciate the full extent of the challenges posed by the extensive need for classified information in these cases when [it] proposed to complete the first set of factual returns by the end of August,” and asking for an extension of 30 days.

Senior officials, including Daniel Dell’Orto, the Acting General Counsel for the Department of Defense, and Gen. Michael Hayden, the Director of the CIA, described “the substantial resources and efforts the government has devoted to preparing factual returns and the risk of harm to the national security involved in releasing classified information to persons outside the Executive Branch.”

Judge Hogan agreed to grant the government’s motion, noting that the cases were “not run of the mill; they involve significant amounts of sensitive, classified information concerning individuals whom the government alleges were part of or supporting the Taliban or al-Qaeda or other organizations against which the United States is engaged in armed conflict.” However, he added that he only agreed “reluctantly,” and was “disappointed in the government’s failure to meet the schedule the Court adopted based in part on the government’s assurances.” Citing statements in which the government claimed that it had “attempt[ed] to meet its goal” and that it would “continue to strive to meet the 50-per-month requirement,” Judge Hogan added, pointedly, that the Court was “not merely setting a ‘goal’ for which the government is to ‘strive,’” but was, rather, “ordering the government to produce at least fifty factual returns by month’s end, followed by at least another fifty more each month thereafter until production is complete.”

As I also explained in September,

In conclusion, while Judge Hogan recognized the government’s explanation that, since the Supreme Court ruling, its “[a]ttorneys and others from multiple agencies have worked long and hard, nights and weekends,” he reminded the executive that “the government has detained many of these petitioners for more than six years, and the time has come to provide them with the opportunity to fully test the legality of such detention in a prompt, meaningful manner.”

He added, with a hint of irritation about the administration’s sidelining of the judiciary, that the decision to grant the prisoners habeas rights was “no bolt out of the blue,” as the government contended, because the Supreme Court had ruled, four years before (in Rasul v. Bush), that they had this right.

Court victories for the Uighurs and five Bosnian Algerians

In October, when, after Parhat, the government conceded defeat in the case of the Uighurs and abandoned all pretense that any of the 17 men were “enemy combatants,” Judge Ricardo Urbina, reviewing their habeas cases in the District Court in Washington D.C., ordered all 17 men to be released to the care of communities in the capital, and in Tallahassee, Florida, who had prepared detailed plans for their resettlement, because it was unsafe for them to return to China, because no other country had been found that would accept them, and because their continued detention was unconstitutional.

“I think the moment has arrived for the court to shine the light of constitutionality on the reasons for detention,” Judge Urbina stated in his landmark decision, adding, “Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful. Because separation-of-powers concerns do not trump the very principle upon which this nation was founded — the unalienable right to liberty — the court orders the government to release the [men] into the United States.”

Sadly for the Uighurs (and for the cause of justice, so shamefully disdained at Guantánamo), the government fought back, launching an immediate appeal to prevent a judge from actually ordering the release of men into the United States against the wishes of the Executive. Shamelessly resuscitating its own long-discredited claims that the Uighurs were “a danger to the public,” who had “admitted receiving weapons training at a military training camp” (even though it had failed to challenge the Uighurs’ cases before Judge Urbina), the government requested a stay on Judge Urbina’s ruling, and this was granted by a three-judge panel in the Court of Appeals, which included Judge A. Raymond Randolph, who, notoriously, voted for every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court.

This was an enormous disappointment, of course, but while the Uighurs awaited a full ruling by the Court of Appeals, Judge Leon then hit his stride, launching the first full habeas reviews since Guantánamo opened six years and ten months previously by demolishing the cases against five out of six Algerians who had been kidnapped in Bosnia (where they had been living and working for many years) and flown to Guantánamo in January 2002.

Notoriously, the men had been seized in connection with an alleged plot to blow up the US embassy in Sarajevo, but the plot had never been mentioned during their detention at Guantánamo, and when the habeas reviews came round, five of the six men were, instead, accused of intending to travel to Afghanistan to take up arms against US forces.

In his ruling, on November 20, when he was called upon to determine whether the prisoners could continue to be held as “enemy combatants” because they were “part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the US or its coalition partners” — or because they had “committed a belligerent act or ha[d] directly supported hostilities in aid of enemy armed forces” — Judge Leon authorized the habeas claims of five of the six men, explaining that the government had relied “exclusively on the information contained in a classified document from an unnamed source,” but stressing that this information — “the only evidence in the record directly supporting each detainee’s alleged knowledge of, or commitment to, this supposed plan” — was inadequate, because, although the government had “provided some information about the source’s credibility and reliability,” it had not “provided the Court with enough information to adequately evaluate the credibility and reliability of this source’s information.”

Three disturbing victories for the government

There was some consolation for the government, in that Judge Leon (photo, left) ruled that the sixth man, Belkacem Bansayah, could continue to be held as an “enemy combatant,” because 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.” Leon also stated, “There can be no question that facilitating the travel of others to join the fight against the United States in Afghanistan constitutes direct support to al-Qaeda in furtherance of its objectives and that this amounts to ‘support’ within the meaning of the ‘enemy combatant’ definition governing this case.”

Judge Leon’s ruling in Bensayah’s case raised a new set of problems for lawyers, as did his ruling in two further cases on December 30, when he turned down the habeas petitions of two other prisoners — Muaz al-Alawi, a Yemeni, and Hisham Sliti, a Tunisian — on the basis that Sliti was associated with al-Qaeda, and al-Alawi “was part of or supporting Taliban or al-Qaeda forces,” because he “stayed at guest houses associated with the Taliban and al-Qaeda … received military training at two separate camps closely associated with al-Qaeda and the Taliban and supported Taliban fighting forces on two different fronts in the Taliban’s war against the Northern Alliance.”

As I explained in an article at the time, the problem with all these decisions was that the Supreme Court had not empowered the lower courts to question whether the very definition of an “enemy combatant” was sufficient to hold prisoners indefinitely without charge or trial if a plausible case was established that they had somehow been involved with al-Qaeda or the Taliban. The most fundamental difficulty was with rulings relating to involvement with the Taliban, as this harked back to the initial mistakes that were made when the Taliban (a government, however despised) was equated with al-Qaeda (a small terrorist group), and this was made clear in the case of Muaz al-Alawi.

Although al-Alawi was in Afghanistan before the 9/11 attacks, and was fighting with the Taliban against the Northern Alliance, Judge Leon ruled that he was an “enemy combatant” because he endorsed the government’s claim that, “rather than leave his Taliban unit in the aftermath of September 11, 2001,” al-Alawi “stayed with it until after the United States initiated Operation Enduring Freedom on October 7, 2001; fleeing to Khowst and then to Pakistan only after his unit was subjected to two-to-three US bombing runs.” As I put it at the time,

In other words, Judge Leon ruled that Muaz al-Alawi can be held indefinitely without charge or trial because, despite traveling to Afghanistan to fight other Muslims before September 11, 2001, “contend[ing] that he had no association with al-Qaeda,” and stating that “his support for and association with the Taliban was minimal and not directed at US or coalition forces,” he was still in Afghanistan when that conflict morphed into a different war following the US-led invasion in October 2001. As Leon admitted in his ruling, “Although there is no evidence of petitioner actually using arms against US or coalition forces, the Government does not need to prove such facts in order for petitioner to be classified as an enemy combatant under the definition adopted by the Court.”

While this suggests to me that Muaz al-Alawi should, at best, have been held as a prisoner of war according to the Geneva Conventions (so that we would now be discussing whether it was appropriate to hold PoWs forever, when the specific conflict in which they were seized — toppling the Taliban regime in Afghanistan — was achieved seven years ago), the cases of Belkacem Bensayah and Hisham Sliti are rather more complicated. In Bensayah’s case, the problem is that his alleged involvement with al-Qaeda centered on his purported relationship with Abu Zubaydah, the supposed “high-value detainee,” who, as has been demonstrated in detail over the last few years, was not actually a member of al-Qaeda at all, and in Sliti’s case, Judge Leon’s ruling essentially involved guilt by association. As I explained in January,

He may well have been connected with others who were involved in or interested in terrorism, but his own trajectory is that of a junkie rather than a jihadist, or, if you prefer, a tourist rather than a terrorist. Judge Leon disregarded Sliti’s own claim that he went to Afghanistan “to kick a long-standing drug habit and to find a wife,” but it was certainly true that he had been a drug addict in Europe (where he had been imprisoned in various countries on several occasions), and, as his lawyer Clive Stafford Smith has explained, he has a worldly cynicism that is fundamentally at odds with the fanatical rigor of al-Qaeda.

Victory for Guantánamo’s youngest prisoner

As the Bush administration left office, these fundamental problems had not been addressed, leading me to conclude that, although Judge Leon was observing the law, it was both cruel and unjust, “as the three men in question continue to be held with less rights than those afforded to the most murderous individuals imprisoned on the US mainland, even though none of them is alleged to have harmed a single US citizen.”

However, the tally of verdicts — 22 habeas appeals granted in 25 cases — indicated that the habeas reviews had triumphantly demonstrated the necessity of providing the Guantánamo prisoners with a means to challenge the basis of their detention, and these odds improved on January 14, when Judge Leon delivered his final ruling under the Bush administration, delivering a last resounding blow to Guantánamo’s credibility by granting the habeas petition of Mohammed El-Gharani, a Saudi resident (and Chadian national) who was just 14 years old when he was seized in a random raid on a mosque in Karachi, Pakistan, where he had traveled in the hope of furthering his education.

In spite of this, the government claimed that El-Gharani “arrived in Afghanistan at some unspecified time in 2001,” and was “part of or supporting Taliban or al-Qaeda forces,” for a variety of reasons, including claims that he received military training at an al-Qaeda-affiliated military training camp, fought against US and allied forces at the battle of Tora Bora, and was a member of an al-Qaeda cell based in London.

Noting that the government’s supposed evidence against El-Gharani consisted of statements made by two other prisoners at Guantánamo, and that, moreover, these statements were “either exclusively, or jointly, the only evidence offered by the Government to substantiate the majority of their allegations,” Judge Leon stated that “the credibility and reliability of the detainees being relied upon by the Government has either been directly called into question by Government personnel or has been characterized by Government personnel as undermined,” and dismissed all the claims, reserving particular criticism for the claim that El-Gharani had been a member of a London-based al-Qaeda cell. As I wrote in January,

This was, indeed, the most extraordinary allegation, as El-Gharani was just 11 years old at the time, and, as his lawyer, Clive Stafford Smith, explained in his book The Eight O’Clock Ferry to the Windward Side: Seeking Justice in Guantánamo Bay, “he must have been beamed over to the al-Qaeda meetings by the Starship Enterprise, since he never left Saudi Arabia by conventional means.”

Leon’s verdict was marginally less colorful, but no less devastating. “Putting aside the obvious and unanswered questions as to how a Saudi minor from a very poor family could have even become a member of a London-based cell,” he wrote, “the Government simply advances no corroborating evidence for these statements it believes to be reliable from a fellow detainee, the basis of whose knowledge is — at best — unknown.”

This was a high point in the litigation on behalf of the Guantánamo prisoners, and as Barack Obama swept into office, there was a widespread anticipation that the obstruction of the Bush years would come to an end, and that Obama and his Attorney General Eric Holder would move swiftly to facilitate the swift passage of the remaining habeas cases.

As I demonstrate in Part Two and Part Three of this article, however, in its first six months in office, the Obama administration has behaved as though George W. Bush and Dick Cheney are still in the White House, pressing ahead with cases that are as worthless and unprincipled as those against the Uighurs, the Bosnian Algerians and Mohammed El-Gharani, indulging in the same obstruction that disappointed Judge Hogan last August, and refusing — ever — to tell the American public what it really needs to know: that the Bush administration’s “War on Terror” was such a disaster that, when the Guantánamo prisoners have had an opportunity to challenge the basis of their detention in a US court, 84 percent of the cases considered have led to a humiliating defeat for the government, whether that government was led by George W. Bush, or by Barack Obama.

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

As published exclusively on the website of the Future of Freedom Foundation. Cross-posted on The Public Record and uruknet.

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), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009). Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009).

In 2007 and 2008, I also reported on the progress of Boumediene v. Bush, the court case that bore his name, and last November was delighted when five of the six men’s claims of innocence were finally vindicated in a US court. In a habeas corpus review triggered by the Supreme Court’s ruling in Boumediene, the judge — Richard Leon, an appointee of George W. Bush — ruled that the government had failed to establish that Boumediene and four of his co-accused had been planning to travel to Afghanistan to fight the United States (a charge which had materialized out of nowhere during their long imprisonment) and ordered their release.

Although three of the prisoners were released in December, to be reunited with their families in Bosnia, Boumediene and another man — Sabir Lahmar — faced problems because they did not have Bosnian citizenship. Lahmar is still in Guantánamo, but Boumediene was finally released when President Sarkozy of France, in a gesture of support for Barack Obama, agreed to accept him, because he has relatives in France, and also accepted his wife and two daughters, who had returned to Algeria after his capture.

Two weeks ago, Boumediene was interviewed for the first time since his release, but yesterday ABC News broadcast another, more detailed interview conducted by Jake Tapper (in Paris), in which Boumediene began by confirming that, at the time of his initial arrest in October 2001, after the US authorities had put pressure on their Bosnian counterparts to investigate the supposed plot, he had been working for the Red Crescent, providing help to orphans. “I’m a normal man,” he said. “I’m not a terrorist.” He added that, from the beginning, the whole story of the plot was “false and ludicrous.” “They search my car, my office, nothing,” he said. “Cell phone, nothing. Nothing. Nothing.”

However, although the charges were dropped, and the Bosnian courts ordered the release of Boumediene and the five other men, the Bush administration once more put the Bosnian government under enormous pressure, and on the night of their release — January 17, 2002 — they were handed over to the US military and flown to Guantánamo.

Two weeks later, President Bush mentioned the men in his State of the Union address, stating, “Our soldiers, working with the Bosnian government, seized terrorists who were plotting to bomb our embassy,” even though the plot was never mentioned in Guantánamo, and even though, as Jake Tapper noted, “To this day, officials of the Bush administration have provided no credible evidence to back up that accusation.”

Describing his first few weeks at Guantánamo, Boumediene stated that “he thought that his cooperation, and trust in the United States, would serve him well and quicken his release.” As he explained, “I thought America, the big country, they have CIA, FBI. Maybe one week, two weeks, they know I am innocent. I can go back to my home, to my home.” But instead, as Tapper described it, “he endured harsh treatment for more than seven years.” When Tapper asked him if he thought that he had been tortured, the answer was “unequivocal.” “I don’t think. I’m sure,” Boumediene said.

He proceeded to explain that he “was kept awake for 16 days straight, and physically abused repeatedly,“ described “being pulled up from under his arms while sitting in a chair with his legs shackled, stretching him,” and said that “he was forced to run with the camp’s guards and if he could not keep up, he was dragged, bloody and bruised.”

After he embarked on a hunger strike in December 2006, to protest his seemingly unending imprisonment without charge or trial, he described the “games” the guards would play with him, “putting his food IV up his nose and poking the hypodermic needle in the wrong part of his arm,” and asked, pointing to scars on his arm from the use of tight shackles, “You think that’s not torture? What’s this? What can you call this? Torture or what? I’m an animal? I’m not a human?”

He added that “he had believed that the United States honored religious diversity but believed guards at Guantánamo took actions to disrespect his religious beliefs,” saying, “They shaved my beard, because they don’t respect me, because the guards they don’t let me sleep. They don’t let me read my Koran, they don’t let me pray normal like people like Muslim outside the Guantánamo.”

Boumediene also confirmed that no one at Guantánamo ever asked him about the supposed plot to blow up the embassy in Sarajevo, and asked him only about al-Qaeda and Osama bin Laden, about which he knew “nothing.” However, in a startling confirmation that the prison ran more on false confessions than on real intelligence (which, of course, still plagues the majority of those who are still held), he explained that “it was in his interest to lie to the interrogators, who would reward the detainees if they admitted guilt,” telling Tapper, “If I tell my interrogator, I am from al-Qaeda, I saw Osama bin Laden, he was my boss, I help him, they will tell me, ‘Oh you are a good man.’ But if I refuse? I tell them I’m innocent, never was I terrorist, never never, they tell me, ‘You are not cooperating, I have to punch you.’”

Despite “the harsh treatment and uncertainty over his fate,” Boumediene explained that “he did not want to die because he had something to live for back home.” He told Tapper, “Every day, I think about my wife and my daughters,” but he also explained how the authorities at Guantánamo did everything in their power to enforce his isolation (as part of the techniques designed to “break” prisoners), not only taking away his personal possessions — including his wedding ring — as they would in a “normal” prison, but also making sure that he had almost no communication with his loved ones. As Tapper described it, “He now has a stack of letters, that his wife wrote to him that never arrived, a ‘return to sender’ stamp on the envelope.” Reinforcing the notion that the authorities’ primary motive was to “break” the prisoners, Boumediene added, “Over there you lose all the hopes, you lose all hope. Any good news, they don’t want you to be happy.”

After his two resounding victories against the Bush administration — in Boumediene v. Bush and in his own habeas case — Boumediene revealed that he “made himself a T-shirt that, like a soccer scoreboard, reads, ‘Boumediene: 2, Bush: 0.’”

It was a rare moment of levity in a long and completely unjustifiable ordeal, but it couldn’t make up for all the years he had lost. As he explained to Tapper, his reunion with his family was overwhelming, in part because his daughters are now 13 and 9 years old. “I cried, just cried,” he said. “Because I don’t know my daughters. The younger, when I moved from Bosnia to Gitmo, she had 18 months, only 18 months. Now 9 years. Now she’s big. Between 18 months, baby and 9 years, she walking, she’s talking, she play, she’s joking. It’s a big difference.”

In conclusion, Boumediene said that he understood, “to a degree,” how the 9/11 attacks prompted “strong reactions” from the US government, but was unable to accept that mistakes made would be uncorrected seven years later. “The first month, okay, no problem, the building, the 11 of September, the people, they are scared, but not 7 years,” he said. “They can know whose innocent, who’s not innocent, who’s terrorist, who’s not terrorist. I give you 2 years, no problem, but not 7 years.”

Although Tapper noted that he “stressed that he has no problem with the American people,” he added that he “could not hide his anger against Bush and other senior administration officials,” who he called “stupid.” “Myself, I try to forget Guantánamo,” he explained, “[but] I can’t forget the four or five people, they are stupid, they are very very stupid. I can’t forget them.” He added that he and his attorney, Rob Kirsch of the law firm WilmerHale, were “considering a lawsuit against the US government,” but, more importantly, he “needs money to survive.”

Reparations for Guantánamo have not yet become prominent — although it is surely only a matter of time, and it is a topic that was also raised today by Thomas Hammarberg, the Council Of Europe’s Human Rights Commissioner — but as Rob Kirsch explained, “I think that he needs to have an income paid to him for the rest of his life. His family essentially has been thrown into poverty because of a mistake that we made seven-and-a-half years ago. What he needs is a chance to get back where he would have been.”

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