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Freelance investigative journalist Andy Worthington continues his 70-part, million-word series telling, for the first time, the stories of 776 of the 779 prisoners held at Guantánamo since the prison opened on January 11, 2002. Adding information released by WikiLeaks in April 2011 to the existing documentation about the prisoners, much of which was already covered in Andy’s book The Guantánamo Files and in the archive of articles on his website, the project will be completed in spring 2012.

This is Part 31 of the 70-part series. 386 stories have now been told. See the entire archive here.

In late April, I worked with WikiLeaks as a media partner for the publication of thousands of pages of classified military documents — the Detainee Assessment Briefs — relating to almost all of the 779 prisoners held at Guantánamo since the prison opened on January 11, 2002. These documents drew heavily on the testimony of the prisoners themselves, and also on the testimony of their fellow inmates (either in Guantánamo, or in secret prisons run by or on behalf of the CIA), whose statements are unreliable, either because they were subjected to torture or other forms of coercion, or because they provided false statements in the hope of securing better treatment in Guantánamo.

The documents were compiled by the Joint Task Force at Guantánamo (JTF GTMO), which operates the prison, and were based on assessments and reports made by interrogators and analysts whose primary concern was to “exploit” the prisoners for their intelligence value. They also include input from the Criminal Investigative Task Force, created by the DoD in 2002 to conduct interrogations on a law enforcement basis, rather than for “actionable intelligence.”

My ongoing analysis of the documents began in May, with a five-part series, “WikiLeaks: The Unknown Prisoners of Guantánamo,” telling the stories of 84 prisoners, released between 2002 and 2004, whose stories had never been told before. This was followed by a ten-part series, “WikiLeaks and the Guantánamo Prisoners Released from 2002 to 2004,” in which I revisited the stories of 114 other prisoners released in this period, adding information from the Detainee Assessment Briefs to what was already known about these men and boys from press reports and other sources. This was followed by another five-part series, “WikiLeaks and the Guantánamo Prisoners Released After the Tribunals, 2004 to 2005,” dealing with the period from September 2004 to the end of 2005, when 62 prisoners were released.

This, as I explained, was the period in which, after the prisoners won a spectacular victory in the Supreme Court in June 2004, in Rasul v. Bush, when the Supreme Court granted them habeas corpus rights (in other words, the right to ask an impartial judge why they were being held), lawyers were allowed to meet the prisoners for the first time, and the secrecy that was required for Guantánamo to function as an interrogation center beyond the law was finally broken.

However, although the Bush administration allowed habeas petitions to proceed, Congress attempted to strip the prisoners of their habeas rights in the Detainee Treatment Act in 2005, and the administration also responded to the Supreme Court’s ruling with its own inferior version of habeas, the Combatant Status Review Tribunals, a sham process designed to rubber-stamp their designation as “enemy combatants” who could be held indefinitely.

With just 38 prisoners cleared for release after the CSRTs, another review process — the annual Administrative Review Boards — took over, reviewing whether prisoners still had ongoing intelligence value, and whether they still posed a threat to the US. These were essentially the decisions being taken by JTF GTMO and CITF, and they reveal how, in the “War on Terror,” prosecuting criminals (the few genuine terror suspects in Guantánamo) and holding soldiers off the battlefield until the end of hostilities had largely given way to the strange mixture of threat assessments and intelligence assessments that fill the Detainee Assessment Briefs.

With 260 prisoners profiled in the first 20 parts of this project, the next ten-part series, “WikiLeaks and the Guantanamo Prisoners Released in 2006,” covered the stories of the 111 prisoners released in 2006 (and the three who died at the prison in June 2006), almost all of whom were freed because of political maneuvering rather than anything to do with justice, as is the case with this latest ten-part series, dealing with the 124 prisoners released in 2007, including two more who died without ever having been charged or tried.

I also hope that readers will reflect on the problems of over-classification that have been thoroughly chronicled in the preceding series analyzing the Detainee Assessment Briefs. My analysis to date has established repeatedly that even patently innocent prisoners seized by mistake were regarded as a “low risk,” rather than as no risk at all, and it is important for readers to bear in mind that the entire process of detaining and processing prisoners and exploiting them for their supposed intelligence was shot through with a drive to conclude that they were all a threat, and to overlook the distressing fact that most of them were seized in a largely random manner, mostly by America’s Afghan and Pakistan allies, at a time when substantial bounty payments were widespread, and were never subjected to anything that resembled an adequate screening process.

And then, of course, as I have outlined above, and as is revealed extensively in the files, they were trapped in a prison where officials, in their ill-conceived desire for “actionable intelligence,” ended up attempting to justifying their detention either by coercing or bribing the prisoners themselves or coercing or bribing their fellow prisoners, while showing them the photo albums of prisoners known as the “family albums,” to come up with allegations that could be passed off as plausible, whether or not there was any substance to them at all.

The Complete Guantánamo Files: WikiLeaks and the Prisoners Released in 2007 (Part One of Ten)

David Hicks (ISN 2, Australia) Released May 2007

As I explained in Chapter 9 of my book The Guantánamo Files, David Hicks, one of the most well-known prisoners at Guantánamo, who was 26 years old at the time of his capture in Afghanistan in November 2001, was a former horse trainer from Adelaide, who converted to Islam after traveling to Europe and training with the Kosovo Liberation Army in 1999, and then traveled to Pakistan to study in a madrassa, subsequently crossing into Afghanistan to continue his studies — at what he described as a “center for Islamic revolution” — and to fight with the Taliban, as was reported in an article in the Australian in December 2006.

On November 10, 2001, he rang his father on a satellite phone from a ditch outside Kandahar, telling him he was going to help the Taliban defend Kabul from the Northern Alliance. He then made his way to Kunduz, and on November 24, as the last bastion of Taliban power in northern Afghanistan fell to the Northern Alliance, he decided to make his escape. Climbing on board a taxi-van with dozens of Afghans, he tried to hide his blond hair and blue eyes, but was unsuccessful. As the van made its way through the streets of Pul-i-Khumri, south of Kunduz, the driver noticed his pale skin and called the local Northern Alliance commanders. Heavily armed soldiers stopped the van at a checkpoint, seized Hicks and took him to a cell in the local garrison, where, he said, he was sold for $15,000 to the Americans, who took him to the Northern Alliance prison at Sheberghan, under the control of the warlord General Rashid Dostum.

Because of his color and his nationality, Hicks, like John Walker Lindh, was singled out for particular attention by the US military. According to Shah Mohammed (ISN 19, released in May 2003), who was held with him in Guantánamo, he was treated differently from the majority of the prisoners from the moment he arrived in Sheberghan. “He was asked a lot of questions [by the Americans], more than us,” he said. Hicks himself said, in court documents discussed in the New York Times, that US soldiers “tied his hands and feet and beat him with bare fists during two-hour sessions,” and forced him to sit on a window ledge, while six soldiers pointed their weapons at him. He also explained that one interrogator, “obviously agitated, took out his pistol and aimed it at me, with his hand shaking violently with rage,” adding, “I realized that if I did not cooperate with US interrogators, I might be shot.”

His treatment at Sheberghan was, however, just the start of his misery. While the majority of those around him were transferred to Kandahar or released through deals made by General Dostum, Hicks was one of a handful of prisoners (including Lindh) who were flown to the USS Peleliu for interrogation, where his American interrogators were joined by unsympathetic representatives of his home country, and where he heard other prisoners “screaming in pain” while being interrogated. He was then moved to the USS Bataan, where conditions became “drastically” worse, and it was while he was on this second ship that he and other prisoners were taken by helicopter to some vast, barn-like buildings in an undisclosed location, where they were forced to kneel for ten hours, and where, Hicks said, “I was hit in the back of the head with the butt of a rifle several times (hard enough to knock me over), slapped in the back of the head, kicked, stepped on, and spat on.” It was only after these avenues of abuse had been exhausted that he was finally transferred to the US prison at Kandahar airport.

There, he said, he and other prisoners “were forced to lie face down in the mud while solders walked across our backs,” and he “was stripped, his body hair shaved,” and, he said, a piece of “white plastic was forcibly inserted in my rectum for no apparent purpose,” about which soldiers “made crude comments.”

In Guantánamo, Hicks said, he was repeatedly beaten, once for eight hours, and frequently while he was restrained and blindfolded. “I have been beaten before, after and during investigations,” he said, adding that he had also been “menaced and threatened, directly and indirectly, with firearms and other weapons before and during investigations.” He also said that he was subjected to sleep deprivation “as a matter of policy,” and according to Ruhal Ahmed, Shafiq Rasul and Asif Iqbal (the “Tipton Three”), he was one of numerous prisoners refused medical treatment — in his case, treatment for a hernia at a time when they recalled that he had “gone downhill” and appeared willing to make any number of false confessions to alleviate his plight. Revealing he extent to which very little information regarding the prisoners’ ill-treatment is available in their publicly available files, the Pentagon’s own brief allegations against Hicks contain no reference whatsoever to any of the above.

In the documents released by WikiLeaks in April 2011, the file relating to Hicks was a “Recommendation to Retain under DoD Control,” dated September 17, 2004, in which it was noted that he was born in August 1975, and was “in good health.”

In telling his story, the Joint Task Force noted that, after being introduced to Islam by members of Jamaat al-Tablighi (the worldwide missionary organization that was nevertheless regarded by US authorities as “a Tier 2 NGO target”; in other words, an organization that had “demonstrated the intent and willingness to support terrorist organizations willing to attack US persons or interests”), he ”became aware of the situation and struggles occurring in Kosovo, as well as the role of the Kosovo Liberation Army (KLA), while working as a horse trainer in Japan in 1998 and 1999.

He “claimed it was the plight of the people in Kosovo that urged him to seek the KLA,” and then traveled to Kosovo, where he trained for three months, but never saw combat, as the conflict ended. After a thwarted attempt to fight in East Timor, he flew to Pakistan in the fall of 1999, where, in December 1999, “while performing missionary work for the JT [he] met with representatives of the Pakistan-based Kashmiri separatist group Lashkar-e-Tayyiba (LeT),” described as “a Tier 1 target”; in other words, one of a number of terrorist groups, “especially those with state support, that have demonstrated the intention and the capability to attack US persons or interests,” even though LeT’s main preoccupation was the India-Pakistan conflict regarding Kashmir, and even though Hicks’ sole preoccupation was with Kashmir, and did not involve US interests at all.

After traveling to Lahore and Quetta for discussions, and to join LeT, Hicks traveled to Muzzafarabad, the capital of Azad Jammu and Kashmir, for training, although again he never saw combat, as Pakistan’s largest and most influential intelligence agency, the Inter-Services Intelligence Directorate, was “controlling the number of troops in Kashmir,” and did not let hi in, even though he apparently “stated he would have waited several months or longer for an attempted insertion into Kashmir.” Thwarted again, he managed to enter Afghanistan instead, and traveled to Kandahar “in search of military training, based on information from a contact with the Taliban in Pakistan.’ He then returned to Pakistan, and studied the Koran at a madrassa in Karachi for four months.

In December 2000, he returned to Kandahar, and, on this occasion, was apparently “introduced to the Al-Qaida organisation,” and reportedly undertook military training at the Al-Farouq training camp, described as “Al-Qaida’s Al-Farouq terrorist camp,” even though its main purpose was basic military training. It was stated that he “trained with Al-Qaida at multiple locations in Afghanistan, including the Abu Obeida terrorist camp for urban warfare training,” and met with Mohammed Atef and Abu Hafs, two senior figures in Al-Qaida. He also visited the front lines, but again missed out on combat.

In describing his capture, it was noted that, “[a]s the Taliban lines fell, and just prior to the capture of Mazar-e-Sharif by the Northern Alliance, [he] fled the area to Kunduz, AF, by riding in a truck,” and “then traveled to Bagram, AF, where Northern Alliance national soldiers arrested him,” and “was turned over to US Forces and incarcerated on the USS Pettiloo (actually, as noted above, the USS Peleliu). He was sent to Guantánamo on the day the prison opened, January 11, 2002, allegedly because it was assessed that he “may provide knowledge of Al-Qaida Training Camps in Afghanistan.”

However, as I explained in my article, “How to Read WikiLeaks’ Guantánamo Files” (originally published on WikiLeaks’ website when the Guantánamo files were first published, as part of my work liaising between WikiLeaks and its media partners):

[T]he “Reasons for Transfer” included in the documents, which have been repeatedly cited by media outlets as an explanation of why the prisoners were transferred to Guantánamo, are, in fact, lies that were grafted onto the prisoners’ files after their arrival at Guantánamo. This is because, contrary to the impression given in the files, no significant screening process took place before the prisoners’ transfer. As Chris Mackey, a senior interrogator who worked in Afghanistan, explained in a book that he wrote about his experiences (The Interrogators), every prisoner who ended up in US custody had to be sent to Guantánamo, even though the majority were not even seized by US forces, but were seized by their Afghan and Pakistani allies at a time when substantial bounty payments for “Al-Qaida and Taliban suspects” were widespread.

In assessing Hicks’ story, the Task Force described him as having had “direct involvement with senior Al-Qaida leadership, including Osama Bin Laden,” even though there was no indication that he had met bin Laden. It was also claimed that he “actively sought out extremist organisations throughout the world in order to train, operate, and fight with them” (even though he always missed out on combat), and that his “involvement and extensive training with the KLA, LeT, Al-Qaida, Taliban, and Jamaat al-Tablighi [made] him a highly skilled and advanced combatant, as well as a valuable asset and possible leader for extremist organisations” (which, again, was a huge exaggeration considering that Hicks had never fought anyone).

It was also claimed that he was “an admitted/sworn fighter for Al-Qaida and [had] written a statement affirming such,” even though this statement obviously contained what the US authorities wanted to hear, and not what actually happened. It was also stated that he had been assessed as being “of high intelligence value,” and that he still possesse[d] intelligence value,” although “due to his current trial by Military Commission,” for which he had been “formally charged with conspiracy, attempted murder by an unpriviledged [sic] belligerent, and aiding the enemy,” JTF GTMO stated that it would “not continue exploitation efforts.”

The Task Force also noted that Hicks’ “overall behavior” in Guantánamo had been  “compliant,” although he was assessed as being “deceptive.” It was also assessed that he posed “a high risk, and pose[d] a significant threat to the US, its interests and allies,” and, as a result, Brig. Gen. Jay W. Hood, the commander of Guantánamo at the time, recommended that he be “retained under DoD control.”

As the Task Force noted, however, its appraisal was not especially relevant, because, in July 2003, Hicks was one of the first six prisoners to be put forward for a trial by Military Commission, along with Salim Hamdan, Ali Hamza al-Bahlul, Ibrahim al-Qosi, and, initially, Moazzam Begg and Feroz Abbasi (although they were subsequently released). The Commissions were declared illegal by the Supreme Court in June 2006, but were then revived by Congress, and the first trial of the revived system was Hicks’, in March 2007.

As I explained in Chapter 20 of The Guantánamo Files, on March 26, 2007, a weary David Hicks accepted a plea bargain and declared that he was guilty of the only charge that was eventually raised against him: providing “material support for terrorism.” For his cooperation, he was sentenced on March 30 to nine months’ imprisonment, rather than the seven years that the prosecution had been seeking, and was told that he would be returning home in May 2007 to serve his sentence in Australia.

This was some comfort for Hicks, but observers noted that the process was still fundamentally flawed. Australian lawyer Lex Lasry told the Sydney Morning Herald that the court looked “pretty dysfunctional.” He was not impressed when the judge, Marine Col. Ralph Kohlmann, eliminated two of Hicks’ three lawyers, excluding one, Joshua Dratel, after he refused to agree in advance to court procedures that had not been drawn up, and he complained that when Hicks’ remaining lawyer, Maj. Michael Mori, objected that Kohlmann was not sufficiently impartial, he “sat in judgment of himself” and “solemnly found that there were no grounds to find he was not impartial.”

For further information about how Hicks’ release came about as part of a deal arranged between Vice President Dick Cheney and Australia’s Prime Minister John Howard, see “The politics of David Hicks’ release from Guantánamo confirmed: plea bargain arranged between Cheney and Howard,” and for further information about the corrupt political maneuvering in the Military Commissions, see, ““The Dark Heart of the Guantánamo Trials.”

After his release, Hicks told his story in depth in his book, Guantánamo: My Journey, published in October 2010. For an excerpt, see “Former Guantánamo Prisoner David Hicks Describes His First Two Weeks at Camp X-Ray,: and also see “Empathy and Self-Reflection: An Extraordinary Article by Jason Leopold About His Friendship with Former Guantánamo Prisoner David Hicks,” and “Ex-Guantánamo Prisoner David Hicks Gives His First Interview — To Jason Leopold of Truthout.”

Gholam Ruhani (ISN 3, Afghanistan) Released December 2007

Gholam Ruhani, who was 26 years old at the time of his capture, was seized in December 2001 with Abdul-Haq Wasiq (ISN 4, still held), the Taliban’s deputy minister of intelligence, and one of the few senior Taliban figures captured by the Americans, in a potentially perilous Special Forces operation in Ghazni, south of Kabul, as I explained at the time of his release, also drawing on an account I gave in Chapter 10 of The Guantánamo Files. At the time, Ghazni was a Taliban stronghold, but when the Special Forces received a tip-off that a local warlord had arranged a meeting with Qari Amadullah, the Taliban’s minister of intelligence, in which, it was suggested, Amadullah might provide information that would lead to the capture of Osama bin Laden, their commander, Gary Berntsen approved the mission.

In the end, Amadullah did not turn up, and clearly had no intention of doing so. Safely ensconced in Pakistan, after escaping from Afghanistan, he spoke to a journalist in late December, interrupting the interview to take a phone call, and then declaring, “I am personally requested by Mullah Omar and Sheikh Osama to go to Uruzgan and take the command of new guerrilla war preparations, which will start as soon as possible, and you will hear the news in papers and on BBC.”

Unsurprisingly, having effectively given US forces his itinerary as a result of this loose talk, he was killed in a US air strike a few days later. In the same interview, however, he also spoke about Abdul-Haq Wasiq. He said that Mullah Omar, who, he claimed, was living in a safe place in the mountains north of Kandahar, had asked him to visit, but he had been unable to do so, “because a lot of people know me, and I am frightened they will capture me somewhere on the road. So I sent my assistant Mullah Abdul-Haq Wasiq to Kandahar. Unfortunately he was captured by American agents in Ghazni.”

This suggests that Wasiq either made his own negotiations with the Americans in Ghazni, or was invited and then betrayed by the local warlord, because after the meeting he was duly arrested, along with Gholam Ruhani, by the Special Forces operatives, who duly declared that they were “the number two and three in Taliban intel.”

In Guantánamo, Wasiq has been coy about his role, claiming that he was forced to join the Taliban, and that he sometimes acted as the deputy minister of intelligence, but only to combat “thieves and bribes.” This did not convince his tribunal, who greeted him with the words, “Good afternoon, Mr. Minister. Seldom before have we had someone of such prestige and responsibility.” Ruhani, however, was adamant that he was not the “number three in Taliban intel.” He said that he was a Taliban conscript, who fulfilled his duties in a clerical capacity to avoid being sent to the front lines, and explained that he was asked to attend the meeting between the Taliban and the Americans because he had learned a little English while studying electronics manuals in a store run by his elderly father. “I turned over my pistol and ammunition to the American, as an act of faith, because it was a friendly meeting,” he said. “I expected to leave the meeting and return to my life, my shop and my family. Instead, I was arrested.”

In the documents released by WikiLeaks in April 2011, the file relating to Ruhani was a “Recommendation for Transfer Out of DoD Control (TRO),” dated January 14, 2007, in which it was noted that he was born in 1975 and was “in good health.”

In telling his story, the Task Force noted that, according to his own account, his family owned an electrical store in Ghazni, where he attended school until, fearing that he would be drafted by the Communist government, his parents sent him, via a family friend, to Iran, where he worked in a textile factory for two and a half years, and only returned to Afghanistan “sometime after 1992, while President Burhanuddin Rabbani was in office.” He then “worked in his father’s store stocking shelves and cleaning” until 1996, when the Taliban “gained control of Kabul” and “began conscripting people.”

He then “took a job with the Ministry of Intelligence because he did not want to go to war,” and “spent approximately two years working with a thirteen or fourteen-man security detail in Kabul,” and also “served as a driver for the group leader, Muhammad Nabi Majrooh,” described as “the Director of the Operations Department who helped [him] get the job.” Majrooh later sacked him (for unspecified reasons), and was then dismissed himself, “because the Taliban suspected he was collaborating.with the Northern Alliance,” but Ruhani “maintained employment at the security office,” when a man named Asim took over. Throughout this period, he added, “he did not receive any formal weapons training, but did carry a pistol for work.”

In describing the circumstances of his capture, it was noted that, the day before the Northern Alliance captured Kabul in November 2001, he “left Kabul for Ghazni, where he continued working at his father’s store.” It was then, he said, that an acquaintance named Nanwai “contacted [him] stating he needed an English translator for a meeting.” Ruhani “agreed to accompany Nanwai to the meeting, which occurred at Haji Ghulan Muhammad Hotak’s house in Ghazni.” In a footnote, the Task Force explained that Hotak was “assessed to be a high-level Hezb-e-Islami Gulbuddin (HIG) commander in the Wardak province, and a major narcotics trafficker and weapons facilitator,” who was seized and held in Bagram, where he was designated ISN 1674, and was released on October 14, 2006.

At the meeting, Hotak made a phone call and told Ruhani to ask the unidentified person who answered when he was coming to Ghazni. He was told that it would be in two or three days, and so, three days later, on December 10, 2001, “Nanwai and Hotak requested [Ruhani] attend another meeting at a school,” at which Abdul-Haq Wasiq was present, and Hotak “requested [Ruhani] to act as an interpreter between [Wasiq], Hotak, and the ‘Americans.’” They then drove from the school “to where the ‘Americans’ were waiting,” but Ruhani “claimed he could not understand them because they spoke ‘British English,’” and another translator took over. “The purpose of this meeting,” Ruhani stated, “was to identify the location of Mullah Muhammad Omar,” the leader of the Taliban.

Despite this, at some point during the meeting, “one of the ‘Americans’ exited the house, reentered with American soldiers,and arrested all of the Afghans,” who were then taken to the US prison at Bagram airbase. Ruhani was on the first flight into Guantánamo on January 11, 2002 (the day the prison opened), on the spurious basis that it was to “provide information on the following: Four members of a thirteen or fourteen-man Taliban unit who were his superiors in Kabul [and] Weapons security and duties of the Taliban team in Kabul.”

In assessing his story, the Task Force claimed that he “downplay[ed] his position and authority in the Taliban Intelligence organisation,” alleging that Qari Ahmadullah, the Taliban Chief of Intelligence, was his brother-in-law, and that Muhammad Nabi Majrooh was Qari Ahmadullah’s brother.” Even if true, this would not preclude the possibility that he played only a minor role in the Taliban’s intelligence operations in Kabul, and although an unidentified “sensitive contact” identified him “as Majrooh’s deputy in 2001,” there is no way of knowing if there was any truth to this allegation.

Primarily, the Task Force seemed to regard him with some wariness because of his alleged family associations, claiming that Qari Ahmadullah did not die in December 2001, and, on June 7, 2003, “led a group of 36 extremists in a fatal bomb attack against a bus carrying German Intemational Security Assistance Forces (ISAF) in Kabul,” and that, in September 2006, Muhammad Nabi Majrooh, “along with two Taliban military commanders, planned to conduct suicide attacks throughout Afghanistan.” Again, although there were footnotes referring to specific reports that dealt with these claims, they have not been independently verified, and, in any case, they serve only to suggest that Ruhani was suspicious because his sister married Qari Ahmadullah.

In assessing him, the Task Force concluded that he was “of medium intelligence value,” and posed “a medium risk, as he may pose a threat to the US, its interests and allies,” because he “ha[d] familial ties to active Anti-Coalition Militia (ACM) entities, and would probably join ACM groups dedicated to attacking US and coalition forces in Afghanistan if released.” He was also “assessed as a medium threat from a detention perspective,” whose “overall behaviour ha[d] been compliant and non-hostile toward the guard force and staff,” although, on September 1, 2005, he “damaged government property by stuffing pieces of his flip flops into his sink.” As a result, Rear Adm. Harry Harris, the commander of Guantánamo, updating a previous recommendation for his continued detention (dated January 21, 2006), recommended him for transfer to ongoing custody in Afghanistan, in a wing of the main prison in Kabul, Pol-i-Charki, that was refurbished by the Americans, and was used to hold prisoners returned from Guantánamo from April 2007 onwards.

Abdallah Al Matrafi (ISN 5, Saudi Arabia) Released December 2007

A father of three, Abdallah al-Matrafi (also identified as Abdul Aziz al-Matrafi), who was 38 years old at the time of his capture, had directed a fund-raising committee in Bosnia, and had worked as an imam in Mecca before establishing the charity Al-Wafa, as I explained at the time of his release, also drawing on an account in Chapter 16 of The Guantánamo Files. At the time of his release, he was presumably aware that most of the dozens of other prisoners who had worked for Al-Wafa had been freed, as their claims that they were involved in genuine humanitarian aid work were accepted one by one. He, however, was regarded as a more significant prisoner, against whom was stacked an array of allegations of his involvement with both the Taliban and Al-Qaida.

After the invasion of Afghanistan began, al-Matrafi sent his family to safety in Pakistan, but stayed on in Kabul, even though the organization’s stores were the targets of bombing raids, in which seven aid workers were killed. He finally left the capital when he was seriously injured in a bombing raid, and his family last heard from him on December 10, 2001, as he was about to board an Emirates flight from Lahore to Dubai. He never made it onto the plane. Abducted at the airport by US agents, he was transferred back to Afghanistan and put on the first flight to Guantánamo.

Little was heard about him in Guantánamo, although it was clear that the authorities regarded him as a major supporter of terrorism, alleging in his tribunal that he knew Osama bin Laden, that his plan to provide funds to bin Laden for training caused disagreement within Al-Wafa, that he admitted that Al-Wafa purchased weapons and vehicles for the Taliban, and that he “negotiated a deal that allowed the Taliban to direct Al-Wafa’s activities.”

In his review boards, further allegations were added, including claims that he “admitted he took orders from Osama bin Laden,” that he “provided financial support to Al-Qaida after the US-led invasion of Afghanistan in October 2001, and that he purchased medical laboratory equipment for a microbiologist who was “developing anthrax for Al-Qaida.”

Set against these allegations, however, were a number of counter-claims, which, typically, were ignored when the authorities declared him an “enemy combatant.” On several occasions, al-Matrafi stated that there was no relationship between Al-Wafa and Al-Qaida, “explaining that Al-Qaida disliked Al-Wafa, and both organizations were in disagreement.” It was also noted in the Summary of Evidence for his second review board that, two months before 9/11, he met with bin Laden at his house in Kandahar, and stated that the purpose of the meeting was “to discuss unresolved issues” from a previous meeting, “concerning disagreements between Al-Wafa and Al-Qaida.”

A brief survey of al-Matrafi’s statements before his capture is sufficient to explain his refusal to accept that he was affiliated with terrorists. In October 2001, after Al-Wafa was blacklisted, he appeared on the Arabic news channel Al-Jazeera, protesting his innocence and offering to open up the organization’s accounts to public scrutiny.

In addition, two prisoners in Guantánamo who had worked for Al-Wafa backed up his statements. Ayman Batarfi (ISN 627, released December 2009), a Yemeni doctor who tended wounded soldiers during the battle of Tora Bora, pointed out that, although Al-Wafa had a good working relationship with the Taliban, this was required to pursue its humanitarian work, and both Batarfi and another man, Mustafa Hamlili, an Algerian-born Pakistani resident (ISN 705, released in July 2008), reinforced al-Matrafi’s claim that the organization was regarded with suspicion by Al-Qaida because of its Saudi links.

Batarfi may, in fact, be the alleged “Al-Qaida facilitator” mentioned in the Summary of Evidence from al-Matrafi’s first review board, who identified him as “having problems with Osama bin Laden because [he] had come to do charity work in Afghanistan and was funded by the Saudi royal family, who Osama bin Laden rejected and denounced.” This source added, moreover, that al-Matrafi “would take Saudis from Al-Farouq [the main training camp for Arabs in Afghanistan] and try to send them back to Saudi Arabia.”

None of this helped him, however, and what probably counted against him more than anything else was the apparent discovery, in August 2002, of a store of chemicals in offices used by Al-Wafa in Kabul, which included “36 types of chemical, explosives, fuses and terrorist guide books.” Whether this had anything to do with him is unknown. His brother, Mohammed, reiterated that the organization had no links to Al-Qaida. “My brother and I have repeatedly said we have no terrorist links, and that any organization, official or non-governmental, is free to come and investigate our headquarters,” he told the press, adding, “We are only helping the Muslim people of Afghanistan.”

Nothing more has been heard of al-Matrafi since his release, but as I explained when he was repatriated, “Time alone will tell what the Saudi government makes of [Abdul Aziz] al-Matrafi on his return, but, like the allegations against his workers that disappeared under scrutiny like a malevolent mirage, it may well be that those who vouched for him were correct in their appraisal that he was the head of a charity that was required to work with the Taliban, but that was otherwise committed to bringing humanitarian aid to some of the most deprived people on earth.”

In the documents released by WikiLeaks in April 2011, the file relating to al-Matrafi was a “Recommendation for Continued Detention Under DoD Control (CD),” dated October 25, 2007, in which it was noted that he was born in July 1964, and was “in overall good health.”

In telling his story, the Joint Task Force noted that, between 1982 and 1984, “he served as a tank mechanic in the Saudi Arabian Army, achieving the rank of sergeant,” and then traveled to Afghanistan to participate in the resistance to the Soviet occupation, described as “the Soviet Jihad.” He was apparently there for 18 months,  and met Osama bin Laden and other mujahideen who were later involved in Al-Qaida.

From 1993 until 1997, he served as “the local director in Mecca for the High Commission for Muslims in Bosnia-Herzegovina,” identified as “probably” referring to the Saudi High Commission for Relief, and further identified as “an NIPF Priority 2B TSE,” defined as “having available resources and being in a position to provide financial support to terrorist organizations willing to attack US persons or interests, or provide witting operational support to Priority 2B terrorist groups.”

It was also noted that he “returned to Afghanistan sometime between April 2000 and March 2001,” after meeting with “the founder of Al-Wafa, Shaykh Abdallah al-Rayis,” who asked him to “set up offices and religious institutes in Afghanistan.” Al-Matrafi subsequently “met with the Afghan Minister of Education, Emir Khan Motaqi, who advised [him] on appropriate locations for the religious institutes,” and “then returned to Saudi Arabia to discuss his findings with Shaykh al-Rayis.” On returning to Afghanistan, he established Al-Wafa offices in Kandahar, Kabul, Herat, and Karachi.

So far, there were no claims that Al-Wafa had any connection with Al-Qaida, although the Task Force also alleged that, during Ramadan in 2000, he met with Abu Hafs al-Mauritani, a religious scholar (who, later, was ferociously opposed to the 9/11 attacks), who apparently took him to meet Osama bin Laden “to discuss the Al-Wafa offices in Afghanistan, and the differences between the ideologies of Al-Qaida and Al-Wafa.” According to the Task Force, at the end of the meeting, bin Laden gave him a letter authorizing Abu Hafs to assist him in establishing additional al-Wafa offices in Afghanistan. As a result, it was claimed, he “submitted the appropriate papers through the office of the Taliban Supreme Commander, Mullah Omar,” and, “[i]n the spring of 2001, an Al-Wafa office opened in Kabul,” although, in the account above, it seemed that al-Matrafi managed to open offices without any assistance whatsoever from bin Laden.

A this point, the allegations take a darker turn. After claiming that, in “late spring of 2001,” al-Matrafi was approached “regarding providing funding for Taliban Ministry of Communication and Electricity projects in Afghanistan” by the Pakistani nuclear scientist and Islamic scholar Dr. Bashir Ud-Din Mahmud (aka Sultan Bashiruddin Mahmood), a co-founder of the Pakistani charity Ummah Tameer-e-Nau (“Reconstruction for the Islamic Community”), and Shaykh al-Farouq (aka Suheil al-Farouq), the head of the UTN office in Kabul, it was claimed that, in approximately July 2001, he “again met with UBL to discuss Al-Qaida and Al-Wafa issues, and, just before September 11, 2001, “met with Al-Qaida biological and chemical expert Yazid Sufaat and directed him to the Al-Wafa office in Pakistan.”

These are severe allegations, but it has never been established that there was actually any truth to them, given the doubts expressed in the accounts related before the WikiLeaks files were released, and nor has it been established that there is any truth to an additional claim that, after 9/11, he “facilitated the movement of Al-Qaida operatives into Afghanistan.” What is clear is that, in early December 2001, he “crossed from Afghanistan into Pakistan with the help of his translator Muhammad Ajmal,” who “convinced Pakistani customs officials that [he] was ill and needed immediate medical attention,” and who then took him to a Lashkar-e-Tayyiba office in Lahore. There, he “provided [him] with an escort in order to obtain a visa and the necessary exit paperwork before taking [him] to the airport.”

However, Pakistani police arrested al-Matrafi at Lahore airport on December 11, 2001, and he was transferred to US custody on December 29, 2001. He apparently reported that, when he was seized, he had various items in his possession, including $1,000, although the Task Force noted that none of the items were held by JTF-GTMO. He was sent to Guantánamo on February 13, 2002 to “provide information on the following: The financing of Al-Qaida operations in Bosnia, Pakistan, and Afghanistan using Al-Wafa as a front operation [and] Key Al-Qaida and Taliban leaders.”

In assessing his story, the Task Force noted that he had been “truthful about many of his activities as a director of Al-Wafa,” but claimed that “he omit[ted] other details and attempt[ed] to downplay his associations with and support to Al-Qaida by stating that all of his support went to the Taliban or for the betterment of the Afghan people.” It was also noted, as he said repeatedly and was noted elsewhere, that he “claimed that he did not agree with [Osama bin Laden] and Al-Qaida’s goals and that Al-Qaida did not trust Al-Wafa.”

In a detailed analysis, it was claimed, with reference to the chemical weapons claims mentioned above, that “he attempted to procure chemical warfare weapons for use against US and Coalition forces and was involved in Al-Qaida’s attempts to develop or procure Weapons of Mass Destruction,” and that he “authorized Al-Wafa to spend $5000 US to assist Al-Qaida anthrax researcher, Yazid Sufaat, purchase laboratory equipment.” It is not certain where these claims came from, but it is alarming to realize that one source, mentioned here, may have been Jamal Mar’i (ISN 577, released December 2009), a Yemeni who worked for Al-Wafa in Karachi, who was kidnapped from his home on September 23, 2001 and rendered to a secret prison in Jordan before ending up in Guantánamo, or, even more worryingly, Jamil Qasim, who was never even sent to Guantánamo.

Ayman Batarfi (ISN 627, also released in December 2009) was a Yemeni doctor,  identified by Mar’i as “Sufaat’s associate,” although that may not have been a reliable claim, given the circumstances of Mari’s detention. Mar’i also said that Batarfi “gave Sufaat the telephone number for Jamil Qasim who Sufaat was to contact for funding assistance,” and who “was a micro-biology student and served as a junior medical advisor for Al-Wafa in the Karachi office along with [Mar'i] and Abu Ahmad (aka Imran Uways).” Qasim, also identified as Jamil Qasim Saeed Mohammed, was reportedly flown to Amman, to the same secret prison that Jamal Mar’i was sent to, but he never resurfaced. In 2007, Amnesty International told the Washington Post it had “asked the Jordanian government for information on his whereabouts but ha[d] not received an answer.”

Other unsubstantiated claims about al-Matrafi were that he “attempted to purchase a computerized laser-guided missile system costing $500,000 US,” in which the missiles “would contain a chemical substance, have a range of 1,500 kilometers, and have a destruction radius of 1,500 square meters” (which sounds like a paranoid fantasy, rather than anything real), and there were also suspicions that, because he “admitted he met with Dr. Bashir Ud-Din Mahmud,” it was possible he “was involved in attempting to procure a nuclear weapon for Al-Qaida.”

This was in spite of the fact that, although he was “assessed to be a supporter” of the Al-Qaida network, he was “not assessed to be a member of Al-Qaida,” and, more importantly, it contradicted a statement by the “high-value detainee” Walid bin Attash (ISN 10014, still held), who “commented that the Al-Wafa NGO disagreed with Al-Qaida’s opposition to the Saudi government and actively attempted to undermine Al-Qaida’s recruiting and training programs in Afghanistan prior to 11 September 2001,” and another statement by Humud al-Jadani (ISN 230, released July 2007), who “reported that [al-Matrafi] disagreed with the message [Osama bin Laden] was preaching to the mujahideen concerning martyrdom.” Al-Jadani said that al-Matrafi “felt that martyrdom was attained by fighting to the last breath, whereas [bin Laden] was preaching suicide missions.” He added that bin Laden “became upset and threatened [al-Matrafi]’s life, ordering [him] never to go near any of the Al-Qaida guesthouses again and never talk again to the mujahideen about martyrdom.”

Whle the US allegations against al-Matrafi were, then, largely full of holes, it was of interest that the Mabahith (the Saudi intelligence service) “provided information on 37 detainees, in order of precedence, whom they designated as being of high priority interest,” and that al-Matrafi “was the 13th name on that list,” because the Mabahith had previously had him “under surveillance for recruiting activities.”

In conclusion, the Task Force assessed him as being “of high intelligence value,” and of posing “a high risk, as he is likely to pose a threat to the US, its interests, and allies,” and it was also claimed that he was “a high threat from a detention perspective,” even though his “overall behavior ha[d] been mostly compliant and rarely hostile to the guard force and staff.” As a result, Rear Adm. Mark H. Buzby, the commander of Guantánamo at the time, recommended his continued detention, updating a similar recommendation on September 9, 2006. Nevertheless, he was released just two months after this updated recommendation, for reasons that have never been explained, and, on his return, was presumably put through the Saudi government’s extensive rehabilitation program.

Abdullah Ghulam Rasoul (ISN 8, Afghanistan) Released December 2007

As I explained in a footnote to Chapter 10 of The Guantánamo Files, Rasoul, who was 28 years old at the time of his capture, was seized in a car with two Taliban commanders, Mullah Norullah Noori (ISN 6, still held) and Mullah Mohammed Fazil (ISN 7, still held) after the fall of the city of Kunduz, the last Taliban stronghold in northern Afghanistan, in November 2001. In Guantánamo, he claimed that he was a Taliban recruit, who was seriously wounded in 1997, and added that he rejoined the Taliban in 1999 “to gain better medical attention,” and went to Kunduz to fight the Northern Alliance in September 2001.

In the documents released by WikiLeaks in April 2011, the file relating to Rasoul was a “Recommendation for Transfer Out of DoD Control (TRO),” dated December 25, 2006, in which he was identified as Abdullah Gulam Rasoul, and it was noted that he was born in 1973, and was “in good health.”

In telling his story, based on his own account, the Joint Task Force noted that he was from a village in Helmand province, that he claimed “he only attended two years of school during his adolescence,” and that he also claimed “he never received any formal military training.” He also claimed, as he later did in his tribunal at Guantánamo, that he “answered the call to jihad twice, once in 1997 and the second time in 1999.”

He further explained that, on the first occasion, he “decided to travel to Kabul, AF, to join the Taliban,” when he “was issued an AK-47 while staying at a compound that housed 15 to 20 people,” but, after just a month, “was seriously wounded after a bombing raid by Massoud” (Northern Alliance leader Ahmad Shah Massoud, who was assassinated two days before the 9/11 attacks), and was then held in hospital “for approximately seven or eight months.”

In 1999, when he rejoined the Taliban in Kandahar, he claimed “he reacquired an AK-47 for his personal use,” and said he stayed in a compound known as Kuli Urdo, which “housed military personnel and several tanks,” although he added that he “would spend a few days at the compound and a few days at home.” He also said that, while there, he “recalled seeing” Mullah Norullah Noori (identified as Sham Ul-Haq Noorullah), and another unidentified man named Allah Uddin.

After traveling to Kunduz in September 2001 “to join Taliban soldiers in the fight against the NA” (although he claimed “he never saw combat”), he said he “recalled seeing his friends from Kuli Urdo, Mullah Mohammed Fazil (identified as Mohammed Fazl), and two other men, Dadi Allah, and Mullah Beradar.” He also pointed out that, of the 5,000 Taliban in Kunduz, all “were under the command of [Fazil], Allah, and Beradar.”

Describing the circumstances of his capture, the Task Force claimed that, on November 28, 2001, he and Noori and Fazil (both described as “Taliban leaders”) and two other unidentified men “turned themselves over to General Dostum,” although it seems more likely that, as he explained on other occasions, they were all seized while traveling together in a car. Dostum then “moved the group to Mazar-e-Sharif,” and, in early December 2001, took Rasoul, Noori and Fazil to his prison at Sheberghan. After being transferred to US custody, they were held on two US ships — the USS Peleliu and the USS Bataan — and were then taken to Bagram. Rasoul was on the first flight into Guantánamo, when the prison opened on January 11, 2002, and the spurious reason given for his transfer was to “provide information on the following: Extensive information on Taliban leader Mullah Mohammad Fazl.”

In assessing his story, the Task Force noted that his “true position and standing within the Taliban ranks ha[d] not been clearly determined,” because he “continue[d] to identify himself as being a mere foot soldier,” even though he “identified [Fazil, Noori], Mullah Beradar, Mullah Dadullah-Lang, and Mullah Quyem (NFI) as friends and associates.” Providing a variation on his capture story, the Task Force noted that it was “highly doubtful that the detainee, who was allegedly standing with other Taliban soldiers along a roadside, would be singularly selected by General Dostum’s soldiers to join [Noori] and [Fazil] in the vehicle they were secured in, unless [he] was as significant as his fellow captives.”

The Task Force also picked up on the fact that Fazil was the “Taliban Army Chief of Staff,” and that Noori was the “Governor of Balkh Province,” and noted that Rasoul “was placed in a house with the high-ranking government officials, while the other two foot soldiers were sent to Qala-i-Janghi prison,” where hundreds of Taliban soldiers were sent after surrendering, and where a notorious massacre took place. An analyst noted that, although Rasoul claimed it was “normal that low ranking people ride in cars with high-ranking commanders,” he “stayed with the high-ranking officials at a separate facility” while “about 500 of [Fazil's] troops went to the Qala-i-Janghi prison.”

There were other, idiotic claims — that Rasoul “carried three Casio watches on his person at the time of capture,” and that two were the model F-91W, which was “a type of watch used in improvised explosive devices (IEDs)” — but when it came to understanding Rasoul’s significance, the fact that he “admitted being a bodyguard to [Fazil],” and that Fazil said that he “performed duties as a bodyguard, driver, and administrative assistant” (even though he also described his duties as being “more like a foot soldier”) ought to have made it clear that he was of some significance, although instead the decision was made to release him.

The Task Force concluded that he was “of medium intelligence value,” and that he posed “a medium risk, as he may pose a threat to the US, its interests and allies.” He was also “assessed to be a low threat from a detention perspective,” whose “overall behaviour ha[d] been compliant and rarely hostile to the guard force and staff,” and, as a result, Rear Adm. Harris, updating a recommendation for “Continued Detention Under DoD Control (CD) with Transfer Language” (dated December 24, 2005), recommended him for transfer out of DoD control, although he was not released for another year.

After his release, as I explained in an article for the Guardian, “Who are ‘the worst of the worst’?,” he apparently resurfaced as Mullah Abdullah Zakir, a Taliban leader responsible for roadside bomb attacks against British forces, and, by March 2010, had apparently risen through the ranks to become Mullah Omar’s top deputy, after the capture of Mullah Berader (aka Barader). Also known as Mullah Abdul Qayyum Zakir, a detailed profile of him was published in the Christian Science Monitor in April 2010. He was also profiled in Newsweek in May 2011.

Fahed Mohamed Al Qahtani (ISN 13, Saudi Arabia) Released July 2007

Fahed al-Qahtani, who was just 19 at the time of his capture, had been recruited for jihad in his home country, as I explained in an article at the time of his release, drawing on an account in a footnote to Chapter 2 of The Guantánamo Files. In Guantánamo, he explained that he had also been aided in his travel by a facilitator, but also said, “I went for jihad to Afghanistan, but when I got there I changed my mind. I saw some things there that were against my religion … Things like worshipping a cemetery where people have died. That has nothing to do with our religion, worshipping graves.” Refuting allegations that he attended Al-Farouq, the main camp for Arab recruits, and that Osama bin Laden visited while he was there, he insisted that he spent most of his time in a house in Kabul that was “a cooking facility for the [Taliban] front line,” and then fled with others to Kunduz, the last Taliban bastion in the north, “until we were surrounded and there was an agreement to have all the Arabs delivered to Mazar-e-Sharif.”

Delivered, with several hundred others, to Qala-i-Janghi, a nearby fort, he survived a US-led massacre, which took place after some of the prisoners started an uprising, by somehow escaping from the fort without being killed. “I was present but did not participate in the fighting,” he explained. “I escaped during the fighting and turned myself in one day after. I went to the market to turn myself in. I met people in the market who were in the army of [General] Dostum [one of the leaders of the Northern Alliance]. That is where I was when I was recaptured … Dostum sold me to the Americans … They put me in jail and I was tortured by Afghans and made to say things. I was moved to Kandahar. When I got to Cuba I told the interrogators the real story.” Despite apparently telling the truth, the most extraordinary piece of “evidence” against al-Qahtani emerged in Guantánamo, when it was shamelessly alleged that he “admitted under duress that he was an Al-Qaida [sic] and had met Osama bin Laden.”

In the documents released by WikiLeaks in April 2011, the file relating to al-Qahtani was a “Recommendation for Continued Detention Under DoD Control (CD),” dated May 26, 2006, in which he was identified as Fahd Nasir Muhammad al-Oahtani, and it was noted that he was born in January 1982, and was “in good health.”

In telling his story, the Joint Task Force noted that he dropped out of high school, and, on a trip to Mecca, “met a Yemeni named Abu al-Maali (variant: Ma’ali) who discussed with him the uprising in Palestine,” and told him “he should travel to Afghanistan (AF) for training and then return to Saudi Arabia for subsequent missions in Palestine.” Al-Maali told al-Qahtani “he would arrange for passports, visas and travel arrangements,” and promised he would meet him in Afghanistan “at a later date.” Al-Qahtani then asked three friends to accompany him, and, although they were reportedly unwilling, al-Maali persuaded them as well.

Traveling to Kandahar via Karachi and Quetta, al-Qahtani and his friends “were taken to the Arab guesthouse near the Hajji Habash Mosque.” He said he “spent approximately one week in the guesthouse and was told to hand over his documents for safekeeping while he was training,” although he “fell ill just prior to departing for the Al-Farouq training camp,” and “spent three months in a clinic recovering from malaria.”

When he recovered, he was sent to Al-Farouq, and “after he completed basic training, he returned to the guesthouse in Kandahar and was told he could return to Saudi Arabia or stay at the house.” He “opted to stay at the house, wait for Abu [al-]Maali to arrive, and obtain money for his return trip,” but al-Maali obviously didn’t arrive, because, in approximately April 2001, al-Qahtani left the Kandahar guesthouse and traveled to Kabul, and then Kunduz, staying in Taliban guesthouses, and in Kunduz, where the house was a staging area for Taliban fighters traveling to the front lines and for weaponry,” he apparently “made several trips to Takhar province,” and “continued to travel between the two locations until approximately mid-November 2001, when fighters on the front lines, led by [a man named] Gharib, retreated to the Kunduz guesthouse.”

When General Dostum’s Northern Alliance forces surrounded Kunduz, a deal was arranged whereby fighters were told that, if they surrendered, they would be transported to Kandahar. Al-Qahtani and others and were loaded onto trucks, but, instead of being disarmed, taken to Kandahar and freed, as they expected, they were taken to Mazar-e-Sharif, and imprisoned in the Qala-i-Janghi fort. There, his  group “was put in the fortress basement,” and the next day he “was taken out, beaten, and robbed.” Then, when he “was being moved to the courtyard, he heard an explosion and fighting broke out.” This, as noted above, was an uprising by some of the prisoners, who feared they were about to be shot, but it was savagely put down in what has become known as the Qala-i-Janghi massacre.

Al-Qahtani, however, was fortunate not be killed, as he later explained in his tribunal at Guantánamo. As he said, he “took cover behind some trees and remained there until nightfall when he escaped the fortress with fifteen other fighters.” They then split up and he traveled with two of the men to a market near Mazar-e-Sharif, where he “was shot and captured by Northern Alliance forces,” and claimed “to have been taken to a house and tortured for two days before being taken to another house where he was tortured into admitting he was Al-Qaida,” and then “taken to a third house for one day” until he was “transferred to a hospital where he was briefly treated.”

After being treated, he “was taken to a fourth house where he was detained with the others he had escaped Qala-i-Janghi with and held until the end of Ramadan,” and was then turned over to US forces. He recalled “being one of the first to arrive at the Kandahar Detention Facility,” which opened on December 28, 2001, and he was also on the first flight into Guantánamo on January 11 2002, when the spurious reason given for his transfer was to “provide information on the following: Al-Farouq training camp.”

In assessing his story, the Task Force noted that, although he “initially admitted attending Al-Farouq,” he had “since retracted this claim stating he received training while in a guesthouse on the front lines.” Nevertheless, the Task Force insisted on assessing him as “a probable member of Al-Qaida who traveled to Afghanistan to receive basic, and possibly advanced, militant training,” who “resided in numerous Al-Qaida and Taliban guesthouses and attended at least one Al-Qaida training camp.”

This was a reference to Al-Farouq, but it was noticeable that, beyond his own single confession, later retracted, the only witness who placed him at Al-Farouq was Mohammed al-Qahtani (ISN 63, still held), the most notorious torture victim at Guantánamo, whose testimony is therefore extremely unreliable. Al-Qahtani, identified as “Al-Qaida member Maad al-Qahtani,” apparently “stated that he attended basic training at Al-Farouq with detainee and graduated in mid-February 2001,” and added that “[t]hey also attended advanced training together at Tarnak Farms, from March to mid-April 2001.”

It was also noted that Mohammed al-Qahtani “later stated he had not attended advanced training with detainee and only went to basic training with [him],” but although an analyst noted that, “[s]tarting in winter 2002/2003, [he] began retracting statements,” it was also noted that, “based on corroborating information it is believed that [his] initial admissions were the truth,” and that, as a result, it was “assessed that his identification of detainee as an advanced training classmate is factual, not the mistake [he] would like us to believe.”

Another unreliable claim made by Mohammed al-Qahtani, mentioned in Fahed al-Qahtani’s file, was that, “when questioned whether any of his training camp classmates volunteered for or were asked about their willingness to participate in martyrdom missions,” he stated,”they all were; otherwise they would not have traveled to Afghanistan for jihad,” even though there is no indication that there is any truth to this claim, as many of those who traveled for jihad — the majority, I believe — traveled to take part in the military conflict with the Northern Alliance, and not to take part in martyrdom missions.

In conclusion, the Task Force concluded that he was “of medium intelligence value,” and that he posed “a medium risk, as he may pose a threat to the US, its interests and allies.” It was also noted that he was “assessed as a high threat from a detention perspective,” because his “overall behavior ha[d] been non-compliant and hostile to the guard force and staff.” As a result, Rear Adm. Harris, updating a recommendation that he be retained in DoD control (dated June 11, 2004), recommended him for continued detention, but added, crucially, “If a satisfactory agreement can be reached that ensures continued detention and allows access to [al-Qahtani] and/or to exploited intelligence, [he] can be Transferred Out of DoD Control (TRO),” although it took another 14 months for that agreement to be negotiated, and he was then put through the Saudi government’s extensive rehabilitation program.

Majid Al Joudi (ISN 25, Saudi Arabia) Released February 2007

In “The Guantánamo Files: Website Extras (8) – Captured in Afghanistan,” in which I drew partly on a brief account in Chapter 19 of The Guantánamo Files, I explained how Majid al-Joudi, who was 34 years old at the time of his capture, was a long-term hunger striker. In my book, I explained that the lawyer Julia Tarver Mason, who represented ten Saudi prisoners, visited Guantánamo in October 2005 and noted that three of her clients — Majid al-Joudi, as well as Abdul Rahman Shalabi and Yousef al-Shehri — reported to her the brutal manner in which they were being force-fed, because they were taking part in the prison-wide hunger strike that began that summer.

They said that the feeding tubes, which were “the thickness of a finger,” were regarded as objects of torture. She reported that they were forcibly shoved up the prisoners’ noses without anaesthetic or sedatives being provided, and that this resulted in prisoners “vomiting up substantial amounts of blood,” but added that when they did so, “the soldiers mocked and cursed at them, and taunted them with statements like ‘look what your religion has brought you.’” She also noted the prisoners’ claims that they “were verbally abused and insulted and were restrained from head to toe” while the feeding took place, with “shackles or other restraints on their arms, legs, waist, chest, knees, and head,” that attempts to give them intravenous medication were “often quite painful … as inexperienced medical professionals seemed incapable of locating appropriate veins,” and, most shockingly, that, while doctors, including the head of the hospital, were watching, “the guards took tubes from one detainee, and with no sanitization whatsoever, reinserted it into the nose of a different detainee. When these tubes were reinserted, the detainees could see the blood and stomach bile from other detainees remaining on the tubes.”

However, at the time I wrote The Guantánamo Files, I knew nothing else about al-Joudi’s story, as the documents relating to his case were not released by the Pentagon until September 2007. In his one and only appearance at any of the hearings, in November 2006, al-Joudi said that, in October 2001, he was invited to join the humanitarian aid effort in Afghanistan that followed the US-led invasion of October 2001, and that he subsequently took a break from his work — in two family-run fabric stores — and traveled to Afghanistan in mid-November to work for a month for the charity Al-Wafa. He added that, over a two-week period, he distributed food and clothing to villages near Kandahar until he was wounded in the leg. According to the allegation in his last Unclassified Summary of Evidence, he “stated he was hit by a car and taken to a hospital that was taken over by Al-Qaida,” and that he told the men, who “initially thought he was mujahideen and was in Afghanistan to fight with the Taliban,” that “he was volunteering with Al-Wafa.”

As I explained in relation to Abdul Aziz al-Matrafi (ISN 5, above), working for Al-Wafa was enough to be regarded as a terrorist in Guantánamo, where its legitimate humanitarian aid work was ignored. In al-Joudi’s case, the US authorities insisted, despite his protests to the contrary, that documents in his possession when he was captured suggested “he was closely involved with Al-Qaida and that he was either a trainer or a trainee on an anti-surveillance course” — even though this was highly improbable, if not impossible, if he had arrived in Afghanistan just a month before he was seized.

In the documents released by WikiLeaks in April 2011, the file relating to al-Joudi was a “Recommendation for Continued Detention Under DoD Control (CD),” dated September 28, 2006, in which he was identified as Majid Abdallah al-Judi and Majeed Abdallah, and it was noted that he was born in 1967, and was “in good health.”

In telling his story, the Joint Task Force noted that, according to his own account (largely mirroring what I wrote in my online chapter), he was “a distant cousin of King Abdullah Hussein, the current ruler of Jordan,” although in Mecca, where his family lived, he began working in the family’s clothing store, run by his brother, after leaving school, until, one day in approximately October 2001, “the director of the Al-Wafa branch office in Mecca, Muhammad Abdallah Hasan, visited [his] store on several occasions to discuss volunteering in Afghanistan.”

On November 2, 2001, al-Joudi said, he “went to the Al-Wafa office in Mecca and entered into an agreement to volunteer to work for Al-Wafa in Afghanistan (AF) only during Ramadan 2001.” He was provided with “an airline ticket and $2,000 USD,” and left Saudi Arabia soon afterwards, traveling to Kandahar, where the local office manager met him, and he was provided with a room in a house. Two days after his arrival, he said, he and two other Saudi nationals “started delivering food to surrounding villages,” but, around December 1, 2001, when he was returning to the office, after calling his family from a phone booth, “a car struck him as he was crossing a street,” and he “was rendered unconscious and taken to a nearby hospital,” the Mirwais Hospital (aka the Chinese Hospital), where he was taken in “with a broken leg and facial injuries.”

He stated that, “when he awoke, he learned that the hospital had been taken over by members of Al-Qaida,” and that there were “eight armed individuals, using the hospital as a safe haven and barricading themselves on the second floor.” He added that some of them “strapped explosives to their bodies, threatening to blow themselves up if attacked,” although they were killed after a siege, and it was noted that al-Joudi’s file listed his date of capture as December 15, 2001, “when coalition forces removed [him] from the hospital.” He was sent to Guantánamo on January 21, 2002, on the spurious basis that it was to “provide information on the following: The Al-Wafa office in Kandahar.”

In assessing his story, the Task Force stated bluntly that his account was “assessed to be false,” because he had “provided fictitious names for Al-Wafa employees, and detained Al-Wafa employees [did] not recognize [him],” and also because his “claimed arrival date at the Kandahar Al- Wafa office [was] at least a month later than the period Al-Wafa reportedly closed the office.” It was therefore claimed that his “associations with Al-Wafa [were] assessed to be a cover story to mask his true activities and associations including his membership in Al-Qaida.”

It was claimed that, due to his “evasiveness, non-cooperation, false cover story … pocket litter, and circumstances of capture,” he was “assessed to be a member of Al-Qaida defending Kandahar who was injured during coalition attacks and hospitalized where he was subsequently captured.” His pocket litter, which he denied belonged to him, apparently included “a handwritten page on which he vowed to remain a jihadist as long as he was alive,” and “two after-action reports detailing the results of surveillance exercises,” which were assessed as having been conducted at the Kandahar Airport Training Camp, and there were also claims that his name was found on incriminating documents recovered from computers seized in house raids involving Al-Qaida members, although there was no direct testimony from any other prisoner to incriminate him.

In conclusion, the Task Force assessed him as being “of medium intelligence value,” and of posing “a medium risk, as he may pose a threat to the US, its interests and allies.” It was also noted that he was “assessed to be a high threat from a detention perspective,” because his “overall behaviour ha[d] been non-compliant and often hostile to the guard force and staff,” although there was no mention whatsoever of him being a long-term hunger striker. As a result, Rear Adm. Harris, updating a previous recommendation for his continued detention (dated November 1, 2005), repeated that recommendation, but added, crucially, “If a satisfactory agreement can be reached that ensures continued detention and allows access to [al-Joudi] and/or to exploited intelligence, [he] can be Transferred Out of DoD Control (TRO).”

After his release, and after he had been put through the Saudi government’s extensive rehabilitation program, the Pentagon claimed that al-Joudi became involved in unspecified terrorist activities. In May 2009, the Pentagon produced a fact sheet, “Former Guantánamo Detainee Terrorism Trends” (PDF), in which it was claimed that he had been involved in “Terrorist facilitation,” and, moreover, that his involvement was “confirmed” rather than “suspected.” However, no further information has been provided to justify this claim.

Zayd Al Husayn Al Ghamdi (ISN 50, Saudi Arabia) Released November 2007

Zayd al-Husayn al-Ghamdi, as I explained at the time of his release (and also in “The Guantánamo Files: Website Extras (9) – Seized in Pakistan (Part One)“), who was 27 years old at the time of his capture, was seized in Afghanistan in December 2001, although his family did not even know he was in Guantánamo until 2006, because the US authorities had described him as a Jordanian. In Guantánamo, it was noted that he traveled to Afghanistan in July 2001, and he was declared an “enemy combatant” after his tribunal in October 2004 on the basis of three particularly thin allegations: that he was a member of the Saudi charity Al-Wafa, that he “carried a weapon in Afghanistan,” and that he was “present and wounded during military operations at Khost” in December 2001.

These allegations were augmented in the years that followed, but nothing about these additional claims suggests that they were reliable. The authorities alleged that he “was identified” as the “occasional leader” of a group of fighters in the northern city of Taloqan, but ignored another narrative that could be pieced together from other statements: that al-Ghamdi reported that he left home “to provide help for the refugees in Afghanistan,” that he worked for Al-Wafa as a laborer in Kabul, and that he traveled to Taloqan because, after approaching Taliban representatives in Kabul to find out “places needing assistance with orphans,” he had been told that Taloqan was a suitable area.

The additional information compiled by the authorities also provided an explanation of the circumstances of his capture, which contradicted the claim that he was “wounded during military operations.” After fleeing to Khost, al-Ghamdi said that he “stopped in the first Taliban center he came to,” which was subsequently bombed. Injured and “rendered unconscious,” he awoke in a hospital in Miram Shah, in Pakistan, where he was arrested and transferred to US custody.

In the documents released by WikiLeaks in April 2011, the file relating to al-Ghamdi was a “Recommendation for Transfer Out of DoD Control (TRO),” dated December 5, 2005, in which he was also identified as Zayed M. al-Hussain, Zaid Muhammad Sa’ad al-Husayn, Zayed Mohammed Saad al-Hussain, and Zayid al-Ghamzi, and it was noted that he was born in 1974, and was “in good health,” although he had “a history of right tibia fracture with surgical intervention prior to detention.” It was also noted that he “went on hunger strike in August 2005,” and had been “evaluated by behavioral health for cluster personality traits.”

In telling his story, the Joint Task Force failed to resolve the confusion about his nationality, noting that, although he “stated he was born in Amman, JO, because his Saudi parents were visiting Jordan at the time his mother went into labor,” and that the family “returned to Saudi Arabia within a month of [his] birth,” an analyst noted that a “visiting Saudi delegation did not identify him as a citizen during a July 2002 visit” (although the Jordanian authorities, who met with him, “did not identify him as a citizen” either).

According to al-Ghamdi’s account, he left university in Jeddah after one semester in order to work as an auto mechanic, and “was inspired to go to Afghanistan (AF) to help destitute immigrants” after reading a flyer issued by the Al-Haramain Intemational Foundation.” After obtaining a visa for Pakistan, he flew to Karachi, and then traveled to Kabul via Quetta, where, he said, “he spent three weeks at a religious institution, the Center for the Preservation of Islamic Virtue in Kabul.” There, Taliban representatives told him “where in Afghanistan he could assist orphans.”

He then “traveled to the first of these places,” the Bamiyan region, “where he remained for three months at Taliban centers,” and “reportedly spent two to three months teaching Shia orphans the Koran and attempting to convert them to Sunni Islam.” In addition, “he claimed to have bought the children food and clothing and helped the community at large by digging wells and helping to repair walls.” From Bamiyan, he said, he traveled to the Pul-e-Khumri region in northern Afghanistan, around the capital of Baghlan province, “where he reportedly spent one month. ”

He also said that he was then “escorted by the Taliban to Kunduz and then traveled by taxi to Taloqan, where he “reportedly spent two months teaching the Koran to children and distributing bread and rice to the poor.” He “claimed he resisted Taliban pressure to fight against the Northern Alliance, as he felt it was contrary to his missionary work to pick sides and fight fellow Muslims.” He also “admitted carrying a sidearm for protection while in Afghanistan, but denie[d] firing it or ever receiving military training.”

Describing the circumstances of his capture, he said that, after the US-led invasion began, “he decided to return to Saudi Arabia,” and “first went to Kabul before proceeding to Khost.” However, on or about December 5, 2001, while leaving Khost, he “was reportedly wounded during an air raid, rendered unconscious, and placed in a taxi,” and, when “he regained consciousness, he was in Miram Shah.” After explaining that “he did not know when or how he crossed the Afghanistan/Pakistan border,” he said that he was then transferred to US custody and held in the US prison at Kandahar airport. He was sent to Guantánamo on June 8, 2002, on the spurious basis that it was to “provide information on the following: The Wafa Humanitarian Organization [and] Taliban student centers in Afghanistan.”

In assessing his story, the Task Force noted that he was “assessed to be deceptive,” and had given “very generic and innocuous descriptions of his activities while in Afghanistan, consistent with a cover story to hide possible participation in Al-Qaida terrorist training and combat against coalition forces,” and had “provided conflicting accounts of several details of his background.” It was noted, for example, that only on one occasion, during an interview in February 2002, had he “claimed to have worked as a laborer for the Al-Wafa organization, but ha[d] not mentioned his personal involvement in the organization during further questioning.” It was also claimed that his “frequently observed physical and martial arts training [was] inconsistent with his purported story as a simple missionary,” although it is difficult to see how that conclusion could be defended.

However, although it was assessed that al-Ghamdi was “a possible Al-Qaida member who fought alongside Al-Qaida and Taliban mujahideen against US/Coalition forces under the auspices of [Osama bin Laden]‘s former 55th Arab Brigade,” there was no actual evidence. The only witness was Yasim Basardah (ISN 252, released), widely known as the most prolific and unreliable witness in Guantánamo, who lied about dozens of his fellow prisoners.

Basardah — and Basardah alone — “reported that detainee was a fighter and occasional leader of approximately 30 men in the Taloqan region,” and also “claimed he saw detainee at Taloqan with a Libyan named Omar, a military leader at Taloqan and at Tora Bora,” who “had been in Taloqan for approximately five years fighting against the Northern Alliance.” Basardah also “reported” that al-Ghamdi was “a fellow Yemeni” (even though he was not), who “fought with him in the Taloqan region of northern Afghanistan prior to the 11 September 2001 attacks,” and who, following the attacks, “went to Kabul and stayed in the same guesthouse” as him, and then “reportedly traveled to Kandahar, the last time [Basardah] saw [him] until they were reunited at JTF-GTMO.”

In conclusion, the Task Force assessed al-Ghamdi as being “of low intelligence value,” and, despite only having Basardah’s unreliable testimony to go on, as posing “a medium risk, as he may pose a threat to the US, its interests and allies.” He was also “assessed as a high threat from a detention perspective,” because his “overall behavior ha[d] been non-compliant and hostile to the guard force and staff,” and, as a result, Maj. Gen. Jay W. Hood, the commander of Guantánamo at the time, updated a recommendation that he be transferred to continued detention in another country (dated April 22, 2005), and recommended him for transfer out of DoD control” instead, although he was not released for almost two years, and was then put through the Saudi government’s extensive rehabilitation program.

Majid Al Barayan (ISN 51, Saudi Arabia) Released September 2007

Majid al-Barayan, who was 29 years old at the time of his capture, was captured on the Pakistani border, as I explained in “The Guantánamo Files: Website Extras (3) – ‘Osama’s Bodyguards.’” In Guantánamo, he was subjected to a number of dubious allegations produced by his fellow prisoners — or even by “high-value” detainees, held in secret prisons run by the CIA, where the use of torture was widespread. For example, he was apparently identified, by unnamed sources and “an al-Qaeda member,” as “being on the front lines near Taloqan,” in northern Afghanistan, in April 2001, when he apparently “was assigned to an anti-aircraft artillery weapon,” and he was also accused of attending Al-Farouq, of being in Tora Bora, and, most bluntly, of being “a member of Al-Qaida.” Another prisoner — who I thought may have been Yasim Basardah, the most notorious liar in Guantánamo — said that he “saw the detainee at Osama bin Laden’s private airport in Kandahar, Afghanistan in early 2001,” which also appeared to be an unreliable claim.

For his part, al-Barayan had attempted to portray himself as a missionary, although his interrogators were unconvinced, noting that, although he claimed that he taught children in an orphanage, he did not know the name of the orphanage or any of the children’s names, and could not remember how many children were at the establishment. In addition, a hint that he may indeed have been at Tora Bora came in the following passage: “When the detainee was asked if things were confusing during the fighting, with people running up the hills and back down again, and many people dying, he replied, yes. When the detainee was asked if he fired at the Americans, he replied, no, not at the Americans. We could not see them.”

In the documents released by WikiLeaks in April 2011, the file relating to al-Barayan was a “Recommendation for Continued Detention Under DoD Control (CD),” dated September 28, 2006, in which he was also identified as Majid Abdallah Said Barayan, and it was noted that he was born in September 1972, and was “in good health.”

In telling his story, the Joint Task Force noted that al-Barayan’s family was originally from the Hadramout region of Yemen, but evidently moved to Saudi Arabia (although this was not mentioned). According to his own account, it was noted that, between 1992 and 1994, he “worked as an accountant for the al-Aziziya Water Company in Saudi Arabia,” and, in 1995, traveled to the UK to attend a college in Salisbury, when he also visited the Finsbury Park Mosque in London. Four months later, he returned to Saudi Arabia, and, in 1998, he traveled to Seattle for 30 days, and “enrolled in an English language course.” On his return to Saudi Arabia, he “enrolled in Career Craft, a three-month employment placement program,” and then “found a job as an accounting clerk and was later promoted to warehouse supervisor.”

It was also noted that, in January 2001, he took a vacation in Malaysia, and also stopped in Pakistan, where he visited Karachi and Lahore, and, after returning home, during July 2001, “began contemplating dawa,” and “decided to travel to Afghanistan because he had heard it was in dire need of assistance.” In Quetta, he said, he went to a guesthouse, where he “told the guesthouse operator that he wanted to go to Afghanistan,” and “left the following morning for Kandahar, AF in a taxi,” adding that, “[s]ince he did not have to pay for the ride, he assumed that it had been paid for by the guesthouse operator.”

In Kandahar, he said, he was taken to a Taliban guesthouse, where he “was asked why he was in Afghanistan, and he replied that he was there for dawa.” He stated that “the guesthouse operator asked [him] if he would train to be a fighter, but [he] declined.” Approximately seven to ten days later, he said, “he was driven to a guesthouse in Kabul, where he was encouraged to join the struggle against the Northern Alliance, but again he declined,” and he was “then transported to a small town between Kabul and Ghazni, AF where he spent approximately six weeks teaching children at an orphanage how to properly clean themselves before prayer.”

He also stated that, approximately two to three weeks after the 9/11 attacks, he “fled the Kabul area to seek refuge in Khost,” where he “was provided refuge by an Afghan named Noor Muhammad,” who, approximately one month later, told him that “there was a group of Arabs getting ready to flee to Pakistan.” Muhammad “subsequently drove [him] to a safehouse where he joined approximately 30-40 Arab males who were traveling to the Pakistani border.” There they were seized by border guards, and “transported to Peshawar, PK where they were held for approximately two weeks.” He was transferred to the Kandahar Detention Facility on December 27, 2001, and was sent to Guantánamo on February 9, 2002, on the spurious basis that it was to “provide information on the following: Finsbury Park Mosque in London.”

In assessing his story, his brief stay in the UK six years before his capture was certainly regarded as significant by the Task Force. The Finsbury Park Mosque, for example, with input from British intelligence, was described, rather hysterically, as “a key transit facility in London for the movement of North African and other extremists to and from Al-Qaida training camps in Afghanistan,” and it was also noted that al-Ghamdi attended the mosque with Muhammad al-Shabibi, a friend from Saudi Arabia, and another man named Sadeh, one of al-Shabibi’s friends, who he stayed with while on London, and who, without evidence, was described as “possibly” being Mossem Sadeh, allegedly “an Armenian facilitator connected to [Osama bin Laden] and associated with such poisons as Anthrax and Botulinum Toxin,” even though there was nothing to suggest that this was the case.

The Task Force also stated that he had “not been forthright about the time he spent in the United States and other countries,” which I regard as a hugely predictable analysis, with no evidential basis, and also noted that he was “assessed as acquiring fake Malaysian passport stamps to cover his true activity, which was to receive militant training at Al-Farouq Training Camp,” even though he “continue[d] to adhere to his cover story of teaching the Koran at an orphanage in Afghanistan.”

In attempting to justify its claim that he was “assessed to have participated in armed hostilities against US and coalition forces in Taloqan, Tora Bora and near Kabul under [Osama bin Laden]‘s former 55th Arab Brigade,” the Task Force drew on a handful of witnesses, although none of them were necessarily reliable. One, Hamud Dakhil Hamud (ISN 230, released in July 2007, and also identified as Humud al-Jadani), stated that al-Ghamdi “lived in Saudi Arabia, went to Afghanistan and fought in Tora Bora with Al-Qaida.” He also “claimed that he first saw [him] in Tora Bora and then later at a guesthouse in Kandahar in 2001,” and that al-Ghamdi “told him that his participation in hostilities at Tora Bora was his first jihad and that he had studied in America and Europe.”

I have no idea if these statements were accurate, but four other witnesses were certainly unreliable. One was Mohammed al-Qahtani (ISN 63, still held, and identified as Maad al-Qahtani), who was the most notorious torture victim at Guantánamo, making all his claims unreliable. He apparently “photo identified detainee as a mujahid from Saudi Arabia who was at Tora Bora.”

The second notoriously unreliable witness, as I guessed, was Yasim Basardah (ISN 252, released), who, just to reiterate, is known as the most prolific and unreliable witness at Guantánamo. Basardah identified al-Ghamdi as “an Al-Qaida trained Arab fighter who holds both Saudi and Yemeni citizenship, but is a native Yemeni,” and said that he saw him in Tora Bora. He also “claimed that he knew [him] quite well, having lived with him for over a month in Taloqan and having fought together against the Northern Alliance at the front,” and “added that detainee was in charge of an anti-aircraft missile launcher on top of a Toyota truck.” He also said that he “saw detainee at a safehouse in Kabul,” and “remarked that [he] received training at al-Farouq.”

The last two unreliable witnesses, also well known in Guantánamo as liars, were: Abdul [Hakim] Bukhary (ISN 493, released September 2007), a Saudi who “identified detainee as an individual who was very close to [Osama bin Laden], visited the US, and issued fatwas at JTF-GTMO,” and Ali A. Motaieb (ISN 111, released in January 2009, and also identified as Ali al-Tayeea), an Iraqi who “remarked that the detainee had tried to organize a fatwa in JTF-GTMO.”

In conclusion, the Task Force assessed him as being “of medium intelligence value,” and of posing “a high risk, as he is likely to pose a threat to the US, its interests and allies.” It was also noted that he was “a high threat from a detention perspective,” because his “overall behavior ha[d] been compliant but sometimes hostile to the guard force and staff,” and, as a result, Rear Adm. Harris, updating a recommendation for his continued detention (dated September 19, 2005) repeated that recommendation. Given this, it is not known why, 13 months later, he was released, although on his release, he was, of course, put through the Saudi government’s extensive rehabilitation program.

Isa Al Murbati (ISN 52, Bahrain) Released August 2007

In Chapter 12 of The Guantánamo Files, I explained how Isa al-Murbati, who was 36 years old at the time of his capture, was a grocer, married with five children, who had previously served in the army. Accused of traveling to Afghanistan in November 2001 with the intention of fighting, and of training to use an AK-47 in Kabul, he said in Guantánamo that he had never been in Afghanistan and had traveled to Pakistan for medical treatment. He pointed out that he was issued with a medical visa — dated 28 October 2001 and valid for one month, it was included in his passport, which was held by the US authorities — and was arrested by the police on arrival in Pakistan.

In Chapter 8, drawing on “Guantánamo Bay Detainee Statements,” compiled in May 2005 by his attorneys Mark Sullivan and Joshua Colangelo-Bryan of Dorsey & Whitney (PDF), I explained how al-Murbati said that, in the US prison at Kandahar, where he was transferred after his capture, he was “shackled to a pole outside in very cold weather,” and, “every hour, US military personnel threw cold water on [him] while he was shackled to the pole.” He said that this took place every night for a week, and added that on one occasion he was taken to an area away from the other prisoners, because Red Cross representatives were visiting the camp, and the authorities did not want them to see him.

Speaking of the abusive conditions at Guantánamo, particularly under Maj. Gen. Geoffrey Miller, Isa al-Murbati said that, on one occasion, after an interrogation, the guards dragged him back to his cell by his shackles, causing his ankles to bleed, and then forced his head into the toilet and flushed it, and described another occasion when the lights in his block were suddenly turned off at night, and a group of guards, accompanied by a dog, entered his cell and sprayed mace in his eyes.

When al-Murbati’s lawyers first met him in October 2004, he was wearing a cast on his arm as the result of a series of incidents of escalating brutality that had been provoked when he asked one of his guards — a young, white sergeant with “a reputation for being difficult” — for a spoon. A few days later, when he was returned to his cell after an interrogation session and, as usual, put his shackled hands through the slot in the door so that the shackles could be removed, the sergeant grabbed the belt attached to the shackles and “pulled it violently, even putting his foot against the cell door to create greater leverage,” which caused him “significant injury.”

Al-Murbati also said that he was subjected to a package of abusive measures that was implemented in a widespread manner, and that involved, in his case, the air conditioning being turned off so that his cell became almost unbearably hot,  In addition, on several occasions, according to his account, the floor was “treated with a mixture of water and a powerful cleaning agent,” which was then thrown on his face and body, “causing great irritation’ and making it difficult to breathe.” He was also subjected to loud music and noise, and explained that he was played songs “that had Arabic language lyrics praising Jesus Christ,” and on other occasions “very loud music and white noise was played through six speakers arranged close to [his] head” for twelve hours, and “multiple flashing strobe lights were used as well,” which were so strong that he “had to keep his eyes closed.” He also reported that he was subjected to sleep deprivation, as part of the program known euphemistically as the “frequent flier program,” whereby he was “moved from cell to cell in the Tango and Oscar [isolation] blocks, typically on an hourly basis,” and, as a result, was “never able to sleep for more than short periods.” He did not specify how long he had been subjected to this, but it is known from other accounts that prisoners were moved in this manner — every few hours — for day, weeks and even months, and that this is clearly torture.

Just before his release, he told Joshua Colangelo-Bryan that he was “held in almost total isolation,” and was “regularly prevented from sleeping and from communicating with his fellow detainees,” as I explained in an article based on a report by Geoffrey Bew in Gulf Daily News. Al-Murbati had been held for over six months in Camp 6, the newest of the prison blocks at Guantánamo, where prisoners, including dozens cleared for release, were kept in isolation for at least 22 hours a day. Colangelo-Bryan reported that the guards in Camp 6 “run large fans,” which “sound like jet engines and prevent captives from communicating and deprive them of sleep,” and explained, “In his cell, Isa cannot see other detainees and he can barely communicate with them. He told me that it is possible to speak with his brothers through an air conditioning vent in his cell. However, to reach the vent, Isa has to stand on his cement bunk. Most often if he tries to talk to others this way, guards tell him to get off his bunk. They also threaten to take away the few items that Isa has in his cell if he does not follow their directions,” which, as Bew described it, “forces him to crouch to talk under the door, for which he is also berated if caught.”

In the documents released by WikiLeaks in April 2011, the file relating to al-Murbati was a “Recommendation for Continued Detention Under DoD Control (CD),” dated July 15, 2006, in which he was identified as Issa Ali Abdullah al-Murbati, and it was noted that he was born in 1965, and was “in good health.”

In telling his story, the Joint Task Force noted that, from 1984 to 1998, he “was a member of the Bahraini Air Force (BAF) as an F-5 mechanic,” and, in approximately 1993, “traveled to Lowery AFB in Denver, Colorado and attended electronics training.” It was also noted that, while he was a member of the BAF, he “attempted to open a bar in a hotel” with a friend, but the business failed and “resulted in [his] release from the Air Force for unspecified reasons.” He was apparently reinstated in 1997 but “released permanently in 1998 after being deemed unproductive.”

He then “opened a vegetable stand with his brother,” but, in approximately 2000, he quit “because of the long hours and obtained a job as a plumber,” which he stayed in for approximately eight months before injuring himself. At this point, as “a result of his failed business ventures, [he] had accrued a debt of 15,000 Bahraini Dinars (approximately $39,855 USD) for which he had been jailed five times for non-payment.”

At this obvious low point in his fortunes, Shaykh Mustafa, a missionary with the vast missionary organization Jamaat al-Tablighi, who was speaking at a mosque in Manama, told him “Allah would take care of his debts if he traveled to Afghanistan (AF) to fight jihad.” Mustafa asked him “if he would hand-carry an envelope of donations to Shaykh Mansur at the al-Makki Mosque in Karachi, Pakistan (PK),” and showed him an envelope “which contained $3000 USD in $100 USD denominations, and sealed it in front of him.” Al-Murbati then “obtained a one month visa for Pakistan,” and, on approximately November 2, 2001, flew to Karachi.

In Karachi, he delivered the envelope to Shaykh Mansur, spent twelve days at the mosque and then traveled to Afghanistan, where, with the assistance a man from the Karachi mosque, he and three others were taken to Kandahar. There, four unidentified Arabs apparently informed them that “there was not training available at that location.” The group then traveled to Kabul, and “resided in an unidentified house with twenty other individuals for four days,” until al-Murbati “heard that the Taliban was pulling out of the north, and decided to return to Kandahar,” where he apparently checked into the Chinese Hospital (aka the Mirwais Hospital), despite having no injuries.

There he apparently decided to return to Pakistan, and “departed the hospital with an unidentified group of individuals and headed towards Khost,” but after pulling over to the side of the road, with others, in order to break the Ramadan fast, he “was washing his hands after eating, [when] one of the jihadists from the group of fasters accidentally discharged a hand grenade,” and he “was injured by shrapnel in his neck, left wrist and portions of his right back,” and “was taken to a nearby clinic where the metal was removed.” Afterwards, “he was given an injection of painkiller, and placed on a bus headed towards Pakistan.” This bus “stopped at another clinic in the tribal lands to have the wounded passengers’ bandages removed,” and, the next morning, set off for Peshawar.

However, “approximately a half-hour from Peshawar, the bus was stopped at a Pakistani checkpoint, all occupants (except a single Pakistani) were arrested and detainee’s money (approximately $1000 USD) was taken.” He added that the Pakistani authorities “placed him in a hospital for two weeks and then transferred him to a Pakistani prison for two or three additional weeks.” The Task Force added that “Pakistani reporting” identified his date of capture as December 12, 2001, and he was transferred to US custody on December 27, 2001. The Task Force also noted that it was “probable, based on similarities in their accounts,” that al-Murbati, Asim al-Aasmi (ISN 49, released in February 2010), and Zayed al-Hussain (ISN 50, see above), who were all traveling from Khost, and were all injured, were captured together outside Peshawar.

Al-Murbati was sent to Guantánamo on June 8, 2002, on the spurious basis that it was to “provide information on the following: Possible Al-Qaida or Taliban recruiter, travel facilitator, and JT member, Shaykh Mustafa, Safehouse on Ansari Street in Kabul [and] Upper level Al-Qaida and Taliban personnel.”

In assessing his story, the Task Force claimed that his brother, Abd al-Rahim al-Murbati, was “a known financier who helped move funds for an Al-Qaida financial facilitator,” and was imprisoned by the Saudi authorities in June 2003. This led to Isa al-Murbati being “assessed to be a probable courier for the Al-Qaida network, using the JT as a cover,” although there was an absence of evidence. The Task Force suspected that his visit to Afghanistan in 2001 was not his first visit, but was unable to prove its suspicions, and, instead, relied on its innuendo regarding his brother, and claims from two dubious witnesses.

The first was Yasim Basardah (ISN 252, released), a Yemeni known as the most prolific and unreliable witness in Guantánamo, who “photo-identified detainee stating he recognized [him] from the US prison in Afghanistan” — which, of course, has no significance as identification. Basardah “said he had very little information on detainee, other than the fact that he was a merchant working in the milk trade,” and “stated detainee would ship milk from Afghanistan to Bahrain.” Instead of recognizing that Basardah knew nothing about al-Murbati, an analyst noted that he had “never mentioned being involved in the milk trade,” and it was “interesting” that Basarfdah “would identify him as such.” Ridiculously, the analyst added, “The word ‘milk’ is often used by extremists as a cover word for the PK machine gun. It is possible that  detainee was couriering money under the guise of dawa (charitable) donations to acquire weaponry.” It is not known if this is the same analyst who, noting that, in a September 2003 letter to his niece, al-Murbati “cryptically, and out of context, inquire[d], “What is the news surrounding ‘Oranges’?” stated that the word “oranges” was “used by extremists as a cover word for hand grenades.”

In conclusion, the Task Force assessed him as being “of medium intelligence value,” and of posing “a high risk, as he is likely to pose a threat to the US, its interests and allies.” Elsewhere, it was noted that he was “considered a high risk as he will probably engage in nefarious activity if released.” He was also “assessed as a high threat from a detention perspective,” because his “overall behavior ha[d] been non-compliant and hostile to the guard force and staff.” As a result, Rear Adm. Harris, updating a recommendation that he be retained in DoD control (dated May 6, 2005), recommended him for continued dentition. It is not known what changed in the next 13 months to lead to his release.

As I explained in an article after his release, drawing on a report in Gulf Daily News, Geoffrey Bew explained that, on arrival, al-Murbati “was whisked straight to the Public Prosecution in Manama for a roughly three-hour debriefing, where he was greeted by family members, including his eldest and youngest sons, MPs, supporters and friends.” His youngest son, seven-year old Ebrahim, who was just a baby when he last saw his father, held a bouquet of flowers for him, and said, “It is the first time I will to speak to my father. I am very happy.” Al-Murbati’s eldest son, 17-year old Ali, was “trembling with emotion as he declared the family’s delight,” and said, “I am so happy. I feel so good. I cannot believe it. We heard he was coming home, but could not believe it.” After the debriefing, al-Murbati returned to his home, where he was reunited with his wife and his two daughters.

Bew also reported that MP Mohammed Khalid, who helped campaign for the release of all the Bahraini prisoners, said that it was “a great day,” but added that “the next push would be for compensation.” “I am very happy with today’s event,” he said. “This is the last page in the Guantánamo Bay chapter. Now we want compensation for all the Bahrainis who have come home.”

Saud Dakhil Al Mahayawi (ISN 53, Saudi Arabia) Released July 2007

The story of Saud al-Mahayawi, who was 25 years old at the time of his capture, was completely unknown until two months after his release, when the allegations against him were released as part of a package of documents made publicly available by the Pentagon. As I explained in “The Guantánamo Files: Website Extras (3) – ‘Osama’s Bodyguards,’” according to the US authorities, he had not even traveled to Afghanistan until “the latter part of 2001,” when his “religious pilgrimage” began, following a meeting at a prayer session with an Afghan, who “explained that the people of his country needed to be instructed concerning the Koran.”

Revealing their cultural ignorance, those who compiled the Summary of Evidence against al-Mahayawi noted that he “later contacted the Afghan and expressed interest in going to Afghanistan to teach the Koran, despite [his] inability to speak the language,” an observation which indicates that the authors had clearly failed to comprehend that, as the literal word of God transmitted to the Prophet Mohammed in Arabic, the Koran is always learned and recited in Arabic, even if those learning it speak other languages.

Al-Mahayawi said that he sold his business and his car to raise the money to travel to Peshawar in Pakistan, where he was met by the Afghan, who took him to Khost to teach the Koran. He explained that he believed that, after about a month, his Afghan friend stole about 5,000 Saudi Riyals from him (about $1,300), which made him “very depressed and angry,” so that he “thought about going home.” When the US-led invasion began, he stated that he “feared for his life,” and asked the owner of the house he was staying in to arrange for a guide to take him to the Pakistani border, where, he said, he “surrendered himself to the Pakistani border patrol,” who “subsequently turned [him] over to the American authorities.”

In contrast to al-Mahayawi’s story, the US authorities alleged that he “was captured with an individual who stated he first met the detainee in Tora Bora,” and that he “was identified as an Al-Qaida fighter at a guard post in the valley” between Jalalabad and Tora Bora, where he “was armed with a Kalashnikov (AK-47) and fired his weapon after coming under fire from Afghans in the valley.” Another mysterious individual “stated that although the detainee claimed affiliation with Jamaat al-Tablighi [a vast apolitical proselytizing organization, with millions of members worldwide], he was actually a fighter at Tora Bora.”

In addition, it was claimed that “[s]everal of the individuals in the group with whom the detainee was captured are believed to have been bodyguards of Osama bin Laden,” indicating that he was part of a group identified as “the Dirty Thirty,” who were mostly accused of being bodyguards for Osama bin Laden, even though there has been no way of verifying if those claims are reliable, as they may have been produced by Mohammed al-Qahtani (ISN 63, still held), who was the most notorious torture victim in Guantánamo, and whose statements are therefore unreliable, or by others seized at the time whose statements were produced in unknown circumstances that may have involved torture or other forms of coercion. There was also one more unspecified, and very vague allegation attributed to a “senior Al-Qaida operative,” who apparently “identified the detainee and believed he saw him in Afghanistan.”

In the documents released by WikiLeaks in April 2011, the file relating to al-Mahayawi was a “Recommendation for Continued Detention Under DoD Control (CD),” dated April 15, 2007, in which he was also identified as Saud Dakhilallah al-Jihni and Saud Dakheel al-Hareth, and it was noted that he was born in August 1976, and was “in good health.”

In telling his story, the Joint Task Force noted that, according to his own account, which largely corresponded with the one he later told his tribunal, he “dropped out of high school in 1998 after one year and began selling dates at a local market in Jeddah until 2001,” and, while visiting Mecca in 2000, “met a Pakistani named Abdul Rahman,” who told him “about the incorrect method many Afghans were using to practice Islam and suggested [he] travel to Afghanistan to help teach them correctly.”

In early September 2001, he said, he flew to Karachi, where he contacted Abdul Rahman. He then traveled to Peshawar, where Abdul Rahman met him and took him to a village outside Khost (mistakenly identified, I believe, as Torkham, which is a border town some distance from Khost). He added that he “was carrying 8,000 to 10,000 Saudi riyals (SAR) at the time,” and said that, in Afghanistan, while staying with Abdul Rahman in a house owned by a man named Abdullah, he “would teach poor and disadvantaged Muslims to read the Koran in Arabic and how to properly perform Islamic rituals.” After approximately one month, he said, Abdul Rahman “stole approximately 5,000 SAR from [him] and disappeared.”

Al-Mahayawi said he “used his remaining money to purchase cold weather clothes for himself and the children,” but after three months, “the violence in Afghanistan increased and [he] decided to leave Afghanistan to avoid death or injury.” He said that he “traveled to the Afghanistan-Pakistani border with 30 other Arabs and surrendered to the Pakistani border patrol on 15 December 2001.” Taken to a prison in Peshawar, he was transferred to US custody on December 27, 2001, and was sent to Guantánamo on January 16, 2002, on the spurious basis that it was to “provide information on the following: Recruitment of clergy from Saudi Arabia to Afghanistan.”

In assessing his story, the Task Force claimed that he “was captured with the ‘Dirty 30,’” and explained that they had been “identified as being a mix of [Osama bin Laden] bodyguards, Al-Qaida members, and Taliban fighters who attempted to flee Afghanistan during the Al-Qaida withdrawal from Tora Bora.” It was also noted that al-Dahayawi “had no identification, documents, weapons, or equipment in his possession at the time of his capture.”

The Task Force also claimed that he was “a member of Al-Qaida who was active in Kandahar and engaged US and Coalition forces in combat action at Tora Bora,” although the two sources for this claim were both notoriously unreliable. One was Yasim Basardah (ISN 252, released), well known as the most prolific and unreliable witness at Guantánamo, who identified al-Mahayawi as Saud al-Juhuni, or Shakir, and said he was “an Al-Qaida trained fighter at a guard post in the valley between Tora Bora and Jalalabad, AF during the Al-Qaida defense of Tora Bora against US and Coalition forces in early to mid-December 2001.” He also said that he “was armed with an AK-47 and fired his weapon when [he] came under fire from Afghans in the valley.” In another interrogation, Basardah said that he “claimed an affiliation with Jamaat al-Tablighi (JT), was a fighter at Tora Bora, and had unidentified problems with the Saudi authorities.”

The other unreliable witness was Mohammed al-Qahtani, who said he “met detainee in Kandahar and Tora Bora,” and “knew him as Shakir, a mujahid from Jeddah.” The references to the name Shakir look convincing, but they may have been prompted, and, in addition, an analyst noted that al-Mahayawi denied staying in Kandahar.

In further attempts to justify regarding al-Mahayawi as a threat, the Task Force referred to his “name and aliases” being found on a list in the pocket litter of an alleged Saudi fighter, which indicated to an analyst that he “probably stayed at an Al-Qaida-affiliated guesthouse and possibly attended an Al-Qaida training camp,” and “variations of [his] name and aliases” being “found on numerous associated Al-Qaida documents and computer files that were discovered during raids of safehouses in Afghanistan and Pakistan between 2001 and 2003,” although these references are not necessarily reliable as there are significant doubts about the names and especially the alleged aliases involved.

As if to confirm this, the Task Force also claimed that al-Mahayawi “possibly arranged travel for mujahideen seeking personal visits to [Osama bin Laden],” which is, of course, in a different league from claims that he was a foot soldier who pretended to be a teacher. This convoluted claim came about because Abu Zubaydah, the supposed “high-value detainee” for whom the Bush administration’s torture program in secret CIA prisons was specifically invented, “stated that he saw detainee in Afghanistan.” This means that Zubaydah was the “senior Al-Qaida operative,” mentioned above, who apparently “identified the detainee and believed he saw him in Afghanistan,” and what was also noteworthy was the fact that the US authorities had picked up on another claim made by Zubaydah in unknown circumstances — that “an individual by the name of Abu al-Hareth” was “the facilitator for mujahideen traveling to visit [Osama bin Laden],” and decided that this was “a variant” of al-Mahayawi’s alias.

Despite the raft of dubious allegations above, it was clear that none of the witnesses had identified him as a bodyguard for bin Laden, as it was noted only that he “was captured as part of a group of 30 Al-Qaida fighters, including 18 who have been identified as UBL [bin Laden] bodyguards.” As was specifically noted, ”Contrary to a previous assessment, JTF-GTMO assesses that detainee was almost certainly not a UBL bodyguard. Despite detainee’s presence among a group of confirmed UBL bodyguards during the retreat from Tora Bora, statements by multiple Al-Qaida members, including senior Al-Qaida leaders and UBL bodyguards currently in custody at JTF-GTMO, indicate that detainee was not part of UBL’s security detail, but only joined the group of bodyguards during the withdrawal.”

Elsewhere, however, there were allegations from the Saudi authorities that also troubled the Task Force. It was noted that, “Prior to the Saudi delegation visit in 2002, Mabahith [Saudi intelligence] provided information on 37 detainees whom they designated as high priority targets,” and it was stated that he “was number 21 on that list, having been watchlisted by the Saudi government for his travels to Chechnya and jihadist activities in Ethiopia.” By way of further explanation, it was noted that, according to Mabahith, he “was listed on two Saudi government watch lists. The first was a list of individuals forbidden to travel for five years, per decree dated 23 February 1998. The second was a Watch and Arrest listing for detainee’s trip to Chechnya (NFI), per ministerial decree dated 21 February 2002.” It was also noted, “Mabahith arrested detainee in Mecca for attempting to create a new jihad organization (NFI) in A’Wkadin, Ethiopia.”

In conclusion, the Task Force assessed him as being “of medium intelligence value,” and of posing “a medium risk, as he may pose a threat to the US, its interests, and allies.” It was also noted that he was “assessed to be a high threat from a detention perspective,” because his “overall behaviour has been semi-compliant and occasionally hostile toward the guard force and staff.” As a result, Rear Adm. Harris, updating a recommendation for “Continued Detention Under DoD Control (CD) with Transfer Language,” dated February 27, 2006, recommended him for continued detention, although he was released just three months later, to be put through the Saudi government’s extensive rehabilitation program.

Sultan Al Uwaydha (ISN 59, Saudi Arabia) Released November 2007

In Chapter 5 of The Guantánamo Files, I explained how Sultan al-Uwaydha, who was 26 years old at the time of his capture, was accused of having been in Tora Bora, of visiting one of bin Laden’s houses, and of having experience of assembling and sighting anti-aircraft weapons. I then looked at his story in more detail at the time of his release (and also in “The Guantánamo Files: Website Extras (3) – “Osama’s Bodyguards‘”), when, as I noted, his explanation for being in Afghanistan — that he traveled to “teach the Koran to poor and disadvantaged Muslims,” and that he duly taught the Koran to children in various locations, before hooking up with his uncle in Khost and escaping to Pakistan, where he was arrested — was severely at odds with the authorities’ version.

The authorities claimed that he was “arrested after crossing into Pakistan from Afghanistan with 30 other persons suspected of being Osama bin Laden bodyguards,” and was, therefore, suspected of being one of the so-called “Dirty Thirty.” Other allegations, from an unidentified “source,” from “an Al-Qaida operative,” and from “a senior Al-Qaida operative,” purported to reinforce this notion that he was one of 30 bodyguards for bin Laden. One of these “sources,” for example, stated that “he knew the detainee and that he was probably an Osama bin Laden bodyguard because the detainee was always with Osama bin Laden,” although this sounded distinctly dubious, even before the release of the military files by WikiLeaks promised to shed light on the identities of those making the allegations.

In the documents released by WikiLeaks in April 2011, the file relating to al-Uwaydha was a “Recommendation for Continued Detention Under DoD Control (CD),” dated August 1, 2007, in which he was also identified as Sultan Ahmad al-Dardir Musa Uwaydha and Sultan Asman al-Uwaydah, and it was noted that he was born in 1974, and was “in good health.”

In telling his story, the Joint Task Force noted, based on his own account, that, after graduating from high school, he “lived at home and worked for his older brother as a carpenter,” and also “participated in religious studies” at a mosque in Medina. He also said that, in 2000, after Muhammad Ghulam, a Pakistani visitor to his mosque, invited him to visit Pakistan, he “accepted the invitation and flew to Karachi, PK, where he stayed in a hotel for about a week before heading to Afghanistan (AF) to teach the Koran,” traveling with Ghulam via Quetta to Kandahar, where they stayed “as tourists before going to Ghazni.”

Al-Uwaydha said that he “taught the Koran to children at a mosque in Ghazni,” and, in approximately August 2001, left for Kabul, but, because he did not know any Arabs in Kabul, then “traveled to Khost to find his uncle, who was assessed to be Abd al-Rahman Shalabi Isa Uwaydha (ISN 42, still held, and also identified as Abdul Rahman Shalabi), but ended up traveling “to a nearby village where he taught at the local mosque for two to three months.” At the end of this period, when “the Northern Alliance had advanced south and entered Kabul,” he “returned to Khost, found his uncle, and they then decided to go to Pakistan.”

He added that he and his uncle “traveled to the Afghanistan-Pakistan border with 30 other Arabs and surrendered to the Pakistani border patrol on 15 December 2001,” after an eight-day journey. The Task Force claimed that he “was captured with a group known as the ‘Dirty 30,’ which reportedly “consisted of a mix of [Osama bin Laden] bodyguards, Al-Qaida members, and Taliban fighters who attempted to flee Afghanistan during the Al-Qaida withdrawal from Tora Bora.” It was also noted that al-Uwaydha “claimed he lost his passport, money, and other important documents during his travel from Afghanistan,” and that, after his capture, the Pakistani authorities held him in a prison in Peshawar, and transferred him to US custody on December 27, 2001. He was sent to Guantánamo on January 16, 2002, on the spurious basis that it was to “provide information on the following: Hideouts of UBL [Osama bin Laden] in Afghanistan, Travel history of UBL [and] Recruitment of clergy from Saudi Arabia to Afghanistan.”

In assessing his story, the Task Force claimed that he “fail[ed] to provide an accurate account of his reasons for traveling to, and activities while in Afghanistan,” and noted, as they did with all the prisoners captured at this time, that another prisoner had told them that “a Pakistani prison warden advised detainee’s group to say they were in Afghanistan to teach the Koran or for religious studies.” He was, instead, “assessed to be a member of al-Qaida” and a bodyguard for Osama bin Laden, although the witnesses who purportedly confirmed this — and who were referred to anonymously above — were not necessarily reliable.

Two were “high-value detainees” held and tortured in secret CIA prisons. The first, Walid bin Attash,(ISN 10014, still held), described as a “[s]enior Al-Qaida operative,” apparently “photo-identified detainee as Hamza Sharif, one of UBL’s bodyguards, who arrived in Afghanistan at the end of 2000, trained at al-Farouq and then joined the security detail,” and the second, Ahmed Khalfan Ghailani (ISN 10012, convicted in federal court in New York in January 2011), also described as a “[s]enior Al-Qaida operative,” even though he was no more than a minor player, reportedly “photo-identified detainee as Hamza al-Sharif, who served as one of UBL’s bodyguards in late 2000 and early 2001.” Ghailani also “stated detainee was with UBL in Kandahar and Kabul and heard that detainee later fled with UBL to Tora Bora.”

Two other witnesses were also the victims of torture in the CIA’s network of secret prisons. The first, Sharqawi Abdu Ali al-Hajj (ISN 1457, still held), described as a “[s]enior Al-Qaida facilitator,” said he “recognized detainee as a Saudi from Medina who traveled to Afghanistan in 1998 and was a UBL bodyguard from that time forward” (even though al-Uwaydha reportedly arrived in Afghanistan in 2000), and also “stated detainee’s alias was Hamza al-Sharif and that detainee was close to UBL,” and the second, Sanad Ali Yislam al-Kazmi (ISN 1453, still held), described as an “admitted Al-Qaida member,” reportedly “identified detainee as Hamza Sharif, a bodyguard from Saudi Arabia.”

In addition, Mohammed al-Qahtani (ISN 63, still held), the most notorious victim of torture at Guantánamo, identified detainee as a probable UBL bodyguard because detainee was always with UBL,” and Yasim Basardah (ISN 252, released), well known as the most prolific and unreliable witness at Guantánamo, apparently “photo-identified detainee as a UBL bodyguard.” Basardah also said he “saw detainee four times in Afghanistan with UBL,” and “stated detainee traveled to Tora Bora to prepare the location three weeks before UBL’s arrival.” He also “emphasized detainee had close ties to al-Qaida.” In further interrogations, Basardah led the authorities to believe that al-Uwaydha “reportedly directed fire against US forces, was known for his skills with weaponry, and attended al-Farouq Training Camp.” Basardah told his interrogators that “he personally observed detainee arrange anti-aircraft fire against US forces in Tora Bora and that detainee was good at driving tanks,” and also claimed that he “was able to repair many different types of weapons.”

A further allegation from a torture victim came from Abu Faraj al-Libi (ISN 10017, still held), another “high-value detainee” held and tortured in secret CIA prisons, and described as a “[s]enior al-Qaida operative,” who said he “recognised detainee as Hamza, a driver for a guesthouse in Kandahar whom he had seen in 2000.”

It may be, of course, that all of the allegations above were true, but if that is the case then it is difficult to see why al-Uwaydha was released. He was assessed as being “of medium intelligence value,” and of posing “a high risk, as he is likely to pose a threat to the US, its interests and allies,” although he was only “assessed as a low threat from a detention perspective,” because his “overall behaviour” had only been sometimes “hostile to the guard force and staff.” As a result, Rear Adm. Buzby updated a previous recommendation for his continued detention (dated August 3, 2006) with a similar recommendation, although he was released just three months later, to be put through the Saudi government’s extensive rehabilitation program.

Muhammad Al Jihani (ISN 62, Saudi Arabia) Released July 2007

As I explained in “The Guantánamo Files: Website Extras (3) – “Osama’s Bodyguards,’” Muhammad al-Jihani, who was 34 years old at the time of his capture, was a former taxi driver, who was so unforthcoming in his tribunal at Guantánamo that it was impossible to ascertain anything other than the fact that he claimed that he had been teaching the Koran in Afghanistan. When asked, “Did you have a place to do that? Did you already contact the mosque or something where you were going to teach?” he responded by saying, grumpily, “All these questions are in my files. Go back to the file and read the file.” The Summary of Evidence against him, released after he was freed, adds a little to the picture, but not very much.

Al-Jihani said that he had traveled to Afghanistan in June 2000, using his own money to pay for his travel, in order “to perform Islamic missionary work after hearing several fatwas issued by Imams in Jeddah,” and clearly refuted all claims that he had traveled for other reasons, including those made by an unidentified “source” who identified him “as one of 30 men who were Osama bin Laden bodyguards and drivers,” and another unidentified source who identified him as “one who visited Kabul, Afghanistan for approximately two weeks between fighting on the front lines.” In addition, a “senior al-Qaeda operative” allegedly claimed that al-Jihani “might have stayed at the Hamza al-Ghamdi guest house in Kabul,” and an “admitted jihadist” described him as a mujahideen fighter in Afghanistan, who “taught the Koran, fought at Tora Bora, Afghanistan and was one of Osama bin Laden’s bodyguards.” As with other prisoners, it was to be hoped that the military files released by WikiLeaks would shed light on the identities of those making these allegations.

In the documents released by WikiLeaks in April 2011, the file relating to al-Jihani was a “Recommendation for Continued Detention Under DoD Control (CD),” dated July 13, 2006, in which he was identified as Mohammed N. al-Juhani and Muhammad Naji Subhi al-Mahayawi al-Juhani, and it was noted that he was born in October 1967, and was “in good health.”

In telling his story, the Joint Task Force, drawing on his own account, noted that he “worked as a self-employed taxi driver for approximately 15 years,” and that, as was discussed in the information presented to his tribunal, he said that he “traveled to Afghanistan (AF) to perform missionary work after hearing several fatwas (religious edicts) issued by imams (prayer leaders) in Jeddah.” He added that he left Saudi Arabia in June 2000 “without speaking to anyone about his trip,” and “did not receive any assistance from outside parties regarding his travel plans,” and explained that he traveled to Kabul via Karachi and Quetta, using “money that he had saved, between 7,000 and 10,000 Saudi Riyals (approximately $1,866 and $2,666USD), to fund his travel and personal expenses.”

Al-Jihani said that, in Kabul, he stayed with a man named Abdul Hadi, the imam of a mosque, and “turned over his passport and half of his money” to him. Then, for the next year and half, “he taught the Koran to young men between the ages of seven and seventeen,” and stated that he “never participated in any type of military training or combat.” At the end of November 2001, he said that “he left Kabul as it was no longer safe and traveled to Khost,” where he met up with with “a group of 30 men traveling to Pakistan.” On arrival in Pakistan, however, they were seized by Pakistani border guards, who, as the Task Force described it, “arrested detainee with a group of confirmed [Osama bin Laden] bodyguards, al-Qaida members and Taliban fighters,” otherwise known as the “Dirty 30.” He was then held in a prison in Peshawar, and transferred to US custody on December 27. 2001. He was sent to Guantánamo on January 14, 2002, although the Task Force conceded that his file “does not indicate why he was sent to JTF-GTMO; however, his transfer was likely due to his perceived associations with the 30 UBL bodyguards, Al-Qaida members, and Taliban fighters with whom he was arrested.”

In assessing his story, the Task Force claimed that al-Jihani “was unable to provide any details of his associate[s] or locations” for the 17 months that he said he was teaching in Afghanistan,” and noted that “reporting from other sources possibly identified [him] as a UBL bodyguard and a fighter in Kabul since 1999, as well as in Tora Bora.” These sources, however, were not necessarily reliable.

Two were “high-value detainees” held and tortured in secret CIA prisons. The first, Ahmed Khalfan Ghailani (ISN 10012, convicted in federal court in New York in January 2011), described as an “Al-Qaida operative,” said that al-Jihani “fought on the front lines under Abd al-Hadi al-Iraqi” (ISN 10026, still held), who was described as “one of UBL’s most senior commanders and the person in charge of non-Afghan Taliban and Al-Qaida fighters (Al-Qaida’s 55th Arab Brigade) in the Afghanistan northern front,” and added that he “visited Kabul for two weeks prior to returning to the fight.” The second, Abu Zubaydah, the supposed “high-value detainee” for whom the Bush administration’s torture program was specifically invented, reportedly “believed detainee to be a Yemeni national who possibly stayed at the Al-Qaida affiliated Hamza al-Ghamdi guesthouse in Kabul and was seen on the front line in Kabul.” This was particularly worthless testimony, of course, as al-Jihani was not a Yemeni, and the allegations regarding Kabul mean nothing, and what it summons up, therefore, is a desperate Abu Zubaydah being shown photos while held in some torture dungeon, and trying to come up with something that would please his captors.

Another witness was also a victim of torture in the CIA’s network of secret prisons. Sharqawi Abdu Ali al-Hajj (ISN 1457, still held), described as an “Al-Qaida member and facilitator,” apparently “reported that detainee fought on the front lines north of Kabul in a place called Suraca El San’ani (NFI),” which was also a rather empty claim.

In addition, Mohammed al-Qahtani (ISN 63, still held), the most notorious victim of torture at Guantánamo, apparently “stated detainee was a mujahid at Tora Bora,” and “added he and the detainee were on a ‘Jihad mission’ there.” In another interrogation, al-Qahtani “identified detainee as an associate in Kandahar.” Another witness was Yasim Basardah (ISN 252, released), well known as the most prolific and unreliable witness at Guantánamo, who “claimed detainee fought in the Ktal region of the Tora Bora Mountains.”

Furthermore, when it came to the claim that al-Jihani was a bodyguard of Osama bin Laden, it was revealed, crucially, that Basardah was “the only one to specifically name [him] as a bodyguard.” In a fascinating section, in which it was claimed that it was “possible the bodyguards may have information on [bin Laden]‘s intended movements which can provide clues to his current whereabouts” (and which is now no longer necessary, of course), the Task Force explained that “[s]ome of the significant reports which identify the bodyguards, but do not include detainee, are from debriefings of [Sharqawi Abdu Ali al-Hajj]; senior Al-Qaida facilitator Abu Zubayduh; senior Al-Qaida operational planner and former UBL bodyguard Walid Muhammad Salih bin Attash (aka Khallad); and UBL’s driver [Salim Hamdan, ISN 149, released in December 2008]” — in other words, not Mohammed al-Qahtani, as was widely thought before the files were released (although al-Qahtani certainly was also responsible for “identifying” bodyguards).

In another significant passage, there was a reference to Ibn al-Shaykh al-Libi (ISN 212, but never held at Guantánamo), a particularly important “high-value detainee,” whose torture in Egypt in 2002 led to a false confession that Al-Qaida operatives had been meeting with Saddam Hussein to discuss obtaining chemical and biological weapons, which was then used to justify the invasion of Iraq, even though al-Libi retracted it. Sent back to Libya after several years in secret CIA prisons, al-Libi died in Gaddafi’s Abu Salim prison in May 2009, reportedly by committing suicide, although observers believed that he had been killed. In al-Jihani’s case, it was noted that “Ibn al-Shaykh al-Libi’s inability to identify detainee from al-Libi’s time at the Yaqub Mosque and the detainee’s inability to provide information about personalities and descriptive features of the Yaqub Mosque casts additional doubt on his cover story.”

In conclusion, the Task Force assessed al-Jihani as being “of medium intelligence value,” and of posing “a high risk, as he is likely to pose a threat to the US, its interests and allies,” because his “placement within Al-Qaida and his lack of cooperation indicate continued support to Islamic extremism and increases the potential of him rejoining these elements if released.” It was also noted that he was “a low threat from a detention perspective,” because his “overall behavior ha[d] been mostly compliant and non-hostile to the guard force and staff.” As a result, Rear Adm. Harris, updating a recommendation that he be retained in DoD control (dated June 3, 2005), recommended him for continued detention, although it was noted, “If a satisfactory agreement can be reached that ensures continued detention and allows access to [al-Jihani] and/or to exploited intelligence, [he] can be Transferred Out of DoD Control (TRO),” although that agreement was evidently not reached for another year, when he was finally released, to be put through the Saudi government’s extensive rehabilitation program.

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

In particular, I was impressed by David’s descriptions of the corrosive effects of solitary confinement and indefinite detention, his explanation of the “micro-level psychoanalysis” of the prisoners, used to assess every strength and weakness in an effort to destroy their supposed “resistance,” and his fears regarding the mental health of the 172 men still held, about whom he says, “I shudder to think what state of mind those who are still detained in GTMO must be in, and wonder how damaged they will be upon release.” Please note that this article, as with all Truthout articles, is made available for republication under a creative commons license.

EXCLUSIVE: An Interview With Former Guantánamo Detainee David Hicks
By Jason Leopold, Truthout, February 16, 2011

David Hicks was one of the first “war on terror” detainees to be sent to Guantánamo the day the prison facility opened on January 11, 2002. He is one of the small group of detainees who challenged President George W. Bush’s November 13, 2001 executive order authorizing indefinite detention, which led to a landmark 2004 Supreme Court case, Rasul v. Bush, in which the Supreme Court said detainees have the right to habeas corpus. Hicks spent five-and-a-half years at Guantánamo and was tortured. Last October, he published a memoir, Guantánamo: My Journey. This is his first interview since his release from Guantánamo in 2007.

Jason Leopold for Truthout: Can you describe for me what you felt, emotionally, as you were writing the book and having to relive the torture you were subjected to?

David Hicks: At times I wrote as a third person, as if I was writing a chronological research report as part of my day job. At other times I had moments of vivid clarity. I would stop typing, sit back, and stare into nothing. The smells, sounds, the feeling of actually being there came flooding back as if had been transported to the camps of Guantánamo, clearly remembering what it was like to have actually been there.

Jason Leopold: Solitary confinement appears to be among the worst of all the terrible experiences prisoners faced at Guantánamo. Can you explain what it does to you in a way that Americans, with no experience of such things, can understand what such isolation, especially with no knowledge of how long it will last, does to a person?

David Hicks: Solitary and indefinite detention are two different things and are devastating when combined. Isolation has a powerful impact on the mind, especially when coupled with incommunicado detention as in GTMO. Everything outside the four walls is quickly forgotten. With no mental stimulation the mind becomes confused and dull. That state of mind is an advantage to interrogators who manipulate every aspect of your environment. They create a new world reality. Time ceases to exist. Talking becomes difficult, so when conversations do take place, you cannot form words or think. Even when hostility is not present such as during a visit with a lawyer or International Committee of the Red Cross (ICRC) visit, coherent sentences become elusive and huge mental blanks become common, as though you are forgetting the very act of speaking. Everything you think and know is dictated by the interrogators. You become fully dependent with a childlike reliance on your captors. They pull you apart and put you back together, dismantling into smaller pieces each time, until you become something different, their creation, when eventually reassembled.

Indefinite detention is draining and cruel. Only after five and a half years when I had been promised a date of release did the intense battle with insanity subside, and that I started to feel a little more normal again. I finally had some certainty and felt a glimmer of control return. I began to remember that another world existed and could once again dream about what that world used to feel like. Indefinite detention is draining because you are taken prisoner and thrown into a cage. No reason is given or any relevant information or explanation offered. There are no accusations, no court rooms or judges. Nobody informs you, “you will be here for X amount of time.” It’s an impossible situation to accept and every minute is spent silently asking and hoping, “this cannot last forever, I will have to be released soon‚”. But when the mind is so desperate, when you are on your last legs, you can’t let go of the thought that you could be released any moment, even if all seems lost and hopeless. In a strange way it is one of those things the mind latches onto for a source of strength, a reason to keep going: false hopes and dreams are better than nothing.

Jason Leopold: What do you believe gave you the strength to survive in such terrible conditions? Have you sought medical or psychological help since returning? If so, has it helped you?

David Hicks: I survived because I had no choice, as many of us may unfortunately experience at some time in our lives. It was a psychological battle, a serious and dangerous one. It was a constant struggle not to lose my sanity and go mad. It would have been so easy just to let go: it offered the only escape. I have attended regular counseling since being released. It has helped but the passing of time has been just as helpful. Being exposed to such a consuming environment for five and a half years leaves a stain that cannot be removed overnight. It will take longer to reverse the consequences but even so, some experiences, especially ones so prolonged, can never be entirely forgotten. I shudder to think what state of mind those who are still detained in GTMO must be in, and wonder how damaged they will be upon release. If they are released. At the time of writing, the US government is seriously considering enacting indefinite detention into law. It is hard to comprehend that they will effectively sentence someone to life in prison, without ever being charged, accused of breaking a law, or not even being told why they are being held. As with medical experimentation, indefinite detention on its own is a form of torture which causes mental anguish.

Jason Leopold: At what moment in your mind did you begin to realize or understand that you were being tortured?

David Hicks: I was beaten by US forces the first time I saw them and realized straight away that torture was going to be a reality. It was very scary. As I say in my book, I could not help thinking of the saying, “like trying to get blood from a stone,” and I was afraid of becoming that stone.

Jason Leopold: What do you think makes a human being torture another human being?

David Hicks: In Guantánamo torture was driven by anger and frustration. It seemed like a mad fruitless quest to pin crimes on detainees, to extract false confessions, and produce so-called intelligence of value. The guards were desensitized and detainees dehumanized. Soldiers were not allowed to engage us in conversation. They were told to address us by number only and not by name. They were constantly drilled with propaganda about how much we supposedly hated them and wanted them dead and how much they needed to hate us. On occasion, when some groups of soldiers jogged around the camp perimeters I heard them sing lyrics such as, “you hate us and we hate you.” One time in the privacy of Camp Echo a male soldier broke down when we were alone repeating, “what have I become?” after having arrived from an interrogation of a detainee in another camp.

Jason Leopold: Can you describe for me the facial expressions of the interrogators and/or the guards as you were being abused? How did they react to your pain?

David Hicks: Usually the guards seemed cold and indifferent. They deployed a “just doing my job” attitude, such as when they chained me to the floor in stress positions or made me sleep directly on a metal or concrete floor in a very cold air-conditioned room in only a pair of shorts. However some soldiers displayed discomfort and embarrassment. Usually guards were only used to restrain detainees, move them about, or help in the background with equipment. It was the interrogators who did the dirty work, expressing, hatred and frustration. At times soldiers did participate directly in beatings however, such the beatings I received before I arrived in GTMO (in Afghanistan, in transit, or when I was rendered to the two naval ships before being sent to Guantánamo). These soldiers made a sport of it.

Jason Leopold: Did any US soldier or any US official present at Guantánamo during your interrogations ever speak out about your torture or the torture of other detainees?

David Hicks: If you mean protest during the act of torture, never. Many soldiers in private, however, apologized for what their government was doing to us and emphasized that not all Americans were like that or agreed with such treatment.

Jason Leopold: Were you ever interrogated by anyone from the CIA?

David Hicks: Some interrogators stated which agencies they represented, some didn’t, while others lied about who they worked for. To the best of my knowledge I was seen by the CIA, FBI, US military intelligence, MI5 from the UK, ASIO and the AFP from Australia. There were other organizations working in GTMO, some I had never heard of before.

Jason Leopold: In your book you write: “These beatings and other activities were systematic and ordered from above, not the result of low-ranking MPs looking for ways to have some fun.” Did anyone ever state who from above ordered the beatings?

David Hicks: The soldiers were very open about where their orders came from and interrogators never allowed us to forget that they controlled every aspect of our lives; whether it was torturing us, allowing us a shower, clothing, or a letter from home. Then there were examples such as when General [Geoffrey] Miller took over camp procedures in early 2003. He unleashed a new wave of interrogation techniques upon us. Each new General, and wave of interrogators who were accompanied by experts from various professions, brought newly signed orders from Department of Justice employees allowing ever harsher techniques.

Jason Leopold: Have you read the torture memos written by former Justice Department attorneys John Yoo and Jay Bybee? Were you ever subjected to torture techniques described in those memos?

David Hicks: I have read them but it was some time ago and I cannot currently recollect all that they contained. Some of the techniques I was subjected to from the memos was being chained to the floor, known as “stress positions.” Sleep deprivation was an everyday occurrence during all of the years I spent in GTMO. Noise manipulation also happened often depending on what camp I was in. They used chainsaw motors and loud music in Camp Delta. They used temperature extremes on me, which meant subjecting me to the freezing cold because they knew I have a low tolerance to the cold. Sensory deprivation, prolonged isolation and other psychological manipulation techniques were also used on me (injecting me with substances, giving me cold and sometimes green food such as eggs, putting cameras up on the ceiling). They also used techniques that exploited my fears.

Jason Leopold: You write that, at Camp Echo, guards were placed to observe you constantly and that they wrote notes about your every behavior. Did you ever ask these guards what their instructions were, or if they knew what their superiors did with these notes? Did they ever tell you?

David Hicks: We were observed in all camps. Guards always carried a pen and note book having been ordered to write down everything we did, including the trivial such as what we did to pass the time and what we spoke about when other detainees were around. They even recorded how we went to the bathroom, i.e. did we shield ourselves from neighboring detainees or guards and if so, how? Nothing went un-noted. This information was combined with personality traits learnt from interrogations, ranging from how we spoke to how we responded to the so-called “enhanced interrogation techniques.” The end result was the US government compiling files on each of us, including a micro-level psychoanalysis. They knew our likes and dislikes, fears and weaknesses. These files were then used against us in interrogation and in daily camp life. It was about crushing and defeating us, to make us become so desperate that we would do and agree to anything to escape.

Collecting this information and what they used it for was no secret and some guards explained this program when in private. In Camp Echo guards who sat outside our cages staring at us twenty four hours a day had to write what we were doing every fifteen minutes night and day. The interrogation rooms of Camp Delta had an entire wall as a one way observation glass. Behind these walls sat teams of so-called experts: Intelligence officers, behavioral scientists, psychologists; people who made conclusions upon which they decided what techniques were to be employed. By this I mean what programs the detainee would be subjected to in his cage such as sleep deprivation, noise or food “manipulation.” There was no shortage of ideas, resources, expertise, or personnel. A lot of effort went into these customized interrogations. Nothing was private. We were violated internally, psychologically, spiritually. They probed and tinkered in recesses so deep; parts of ourselves we are not conscious of or in touch with in our daily lives and may not even connect with and discover in our lifetimes.

Jason Leopold: Did you ever meet separately with a psychologist or psychiatrist when at Guantánamo, for ostensibly psychological reasons, either a psychological test or assessment, or for supposed treatment of any sort?

David Hicks: No, but they did approach me occasionally during the last year or so I spent in GTMO to see if I would talk and cooperate. Apart from their contributions in interrogations they were always lurking in the back ground, waiting to “help a detainee,” but to really act as another prong to interrogation. If a detainee even whispered for such medical intervention a “mental health expert” would appear with a pocket of unknown medication and a long list of probing questions. They were not there to help, but to harm. We knew this and so I always refused to speak with them when they offered. If I did speak with them, such as the period when I eventually, after two years, had limited access to a lawyer, for example, the questions would have been centered on how I intended to defend myself and any court actions I was considering. All they wanted was information, or to find a new way to defeat you.

Jason Leopold: Were psychologists and/or medical professionals present at all interrogations? Were the interrogations ever stopped to check your heart rate and/or pulse?

David Hicks: The major physical beatings I endured occurred in Afghanistan, during transportation and en-route to GTMO. During those sessions, one was around 10 hours, my vital signs were checked often. In GTMO medical personnel were not in the same room as me during actual interrogations but from my understanding they were monitoring my interrogations from behind the one-way glass in Camp Delta. For other detainees, such as those being shocked or water boarded, medical personnel were present, or if drugs were being administrated during interrogation, as I describe in my book when they extracted false confessions from one of the UK detainees. They were present when I was injected in the spine, but that experience is one that I don’t like to talk about.

Jason Leopold: Have your attorneys tried to get a copy of your medical records?

David Hicks: Yes, but with no luck. We gave up thinking we might be allowed to see them long ago. Even upon return to Australia, where I was forced to spend the first seven months in isolated detention as part of the agreement to get out of GTMO. My family requested an independent blood test be taken on my return to Australia. They were refused without an excuse. It was nearly eight months since GTMO and about a year since being given medication before I was allowed to have my first blood test. I was informed that too much time had passed to see what I had been given.

Jason Leopold: During your interrogations, did the interrogators ever ask you questions about Iraq?

David Hicks: No, the policy of incommunicado was strictly enforced. For years we knew absolutely nothing about the outside world. We weren’t even meant to know the time of day, let alone our location, especially any news. The first time I learnt about the war in Iraq was the end of 2003. A guard was kind enough to allow me to read his copy of FHM magazine and it contained an article about the US invasion, otherwise I would not have known. Rumors of a war in Iraq did not begin to circulate amongst the detainees until 2004 and were viewed with skepticism by most. The military did not inform us officially of the Iraq invasion until late 2006 by placing large posters of Saddam hanging from a noose around the camps with slogans splashed across the front like, “this could be you.” It was only then that detainees believed that the war had taken place.

Jason Leopold: You have written eloquently of your terrible experience with what you say was medical experimentation, calling it the worst and darkest of your experiences there. Have you talked with any other detainees about whether they had similar experiences? How do you think about it now?

David Hicks: When I was injected in the back of the neck I was being held in isolation, so I was unable to discuss what had happened with other detainees. A year passed before I was eventually able to see and communicate with fellow detainees, and I am unable to remember today if I discussed that particular personal experience with them. We did discuss medical experimentation in general, however. A detainee with UK citizenship described being injected daily, resulting in one of his testicles becoming swollen and racked with pain. Along with these daily injections he was subjected to mind games by interrogators, medical personnel, and guards who worked as a team. Under these conditions they were able to extract written false confessions from him. How I experienced the injection at the base of my neck is described in detail in my book. In a nutshell, I felt my soul had been violated. That is just one experience I had with medication. There were many pills and injections, plus constant blood tests over the years. Everybody regardless of their citizenship should acknowledge that medical experimentation, whether on human beings or animals, is unacceptable. As with animals, we were held as prisoners when these procedures were forced upon us against our will. And as with animals, we were voiceless.

Jason Leopold: Did any interrogator or other official working for the US government ever use the word “torture” or “experiment” as you were being interrogated?

David Hicks: I don’t remember the word torture being used but there were many ways to imply it. After a torture session for example an interrogator would just say, “the treatment you have recently endured can always be repeated,” and threats were often made referring to past treatment or what was happening to other detainees. Guards often alluded to GTMO as being a big laboratory where we were subjected to their government’s well-honed techniques. I remember in the early days while being held aboard a US ship when a soldier said, “be strong man no matter what they do to you, just keep your head in God man.” It didn’t leave me with much confidence.

Jason Leopold: Did you ever sign any document stating that you consented to the medications/injections you received? Did anyone ever ask you to sign such a document?

David Hicks: I had two surgeries while in GTMO. One was for a double hernia, while the other was to remove painful golf ball size lumps on my chest. The cause of the lumps or what they were was never explained to me but research since my release indicates that it was either the mediations I was forced to take or the extreme stress levels may have been responsible. On the two occasions I was operated on I was asked to sign a consent form, which I did. However, my permission was not sought nor had I any choice when it came to being force fed tablets, or the numerous injections that we were all given. Many blood tests were also taken consistently over the years I was detained.

Jason Leopold: How typical was it, do you think, that interrogators attempted to get prisoners to become agents for their government?

David Hicks: Interrogators attempted to bribe detainees with food, bed sheets, toilet paper and other “luxuries‚” to become spies and to give information about other detainees. On occasion some detainees in GTMO became so drained and broken that they would succumb to the temptation. Interrogators tried everything to make detainees “confess,” including being asked to lie via imagination or simply to agree to an interrogator’s theories. Interrogators became desperate with the passing of time to find and pin actual crimes on detainees, and paper trails have shown they were willing to manipulate evidence in their favor. There was one time in 2003 when we were all asked if we would work for the US government performing secret operations off the island, somewhere abroad. Nearly every detainee laughed at this question and word quickly spread so we knew we weren’t alone. Apparently the proposition was a part of their profiling system. Interrogators worked around the clock to break us. Once broken, detainees were asked to agree to anything by interrogators, to repeat after them, to sign confessions, to be false witnesses, or to sow discord amongst detainees.

Jason Leopold: When did you become aware that journalists were writing about torture at Guantánamo and at prisons in Iraq and Afghanistan?

David Hicks: Not until the photos from Abu Ghraib in Iraq had become public. I found the public debate interesting. At first it was, “are they being tortured or not?” Then once torture was confirmed, the debate evolved to, “is it acceptable, is it justified, is it legal?” I am surprised by how many people still try to justify torture and support it as government policy, as an extra “necessary” tool to tackle terrorism.

Jason Leopold: Do you know if any prisoners ever died at Guantánamo while you were there?

David Hicks: Four died during my time in Guantánamo.

Jason Leopold: Have you heard about the three prisoners who allegedly committed suicide in June 2006? Do you know anything about them? Do you believe they committed suicide?

David Hicks: Suicide is possible in that situation, but evidence has emerged in various forms and from various sources suggesting foul play. Some witnesses are soldiers and have said that they believe that the detainees were “accidentally” killed during an interrogation at a secret camp on the island called “Camp No‚” as in no, it doesn’t exist. It seems they pushed their dangerous techniques too far. The fact that the organs were removed from the bodies so that an independent autopsy could not be carried out raises more questions than answers. This topic is covered in detail in my book with researched references pointing to foul play.

Jason Leopold: Did you ever interact with Shaker Aamer, the last British resident still held at Guantánamo?

David Hicks: I saw him on the odd occasion over the years and exchanged greetings, otherwise I never had the chance to talk or interact with him. The military has often kept him separated from other detainees and I believe subjected him to horrific treatment. When I left GTMO in early 2007 I knew that he was being held in isolation in Camp Echo because that is where I was. Whenever I saw him he always looked so skinny, weak, and tired. I cannot understand why they continue to hold him and the nearly two hundred men still detained there.

Jason Leopold: Were dogs ever used to invoke fear in you? You describe the use of chainsaws in your book. What was the purpose of this?

David Hicks: Not personally. Dogs were mainly used against detainees known to have a fear of them. Our individual fears and weaknesses were used against us as customized interrogations. The chainsaw engines kept at full revs were used as part of their noise manipulation program. It prevented detainees from communicating with each other, prevented sleep, and basically drove us mad.

Jason Leopold: Can you tell me whether you have any flashbacks and if so what triggers it? When that happens, what do you start to feel?

David Hicks: Daytime flashbacks consist of those moments of vivid clarity as I described previously, but it is the dreams that are the worst. I see myself having to begin the long process of imprisonment again accompanied with vivid feelings of hopelessness and no knowledge of the future or how long it will last. The other dreams consist of gruesome medical experimentations too horrible to describe. Losing my personality, my identity, memories and self is much more frightening to me than any physical harm. It is these dreams that are the most common and terrifying.

Jason Leopold: Do you remember former Guantánamo guards Brandon Neely and Albert Melise?

David Hicks: Unfortunately, I don’t remember Neely from Camp X-Ray, it was a very confusing time for me. We established contact last year, but I became aware of Neely some time ago when he flew to the UK and publicly met some of the former UK detainees. He apologized for what he and his government had done. He is a brave man and I admire his courage and moral values so it was an honor to speak with him. I remember the polite and respectful soldiers, and the bad, but especially the good men and women I spent time with privately, such as in Camp Echo.

One of those good men is Albert Melise who made contact with me to apologize, to offer help, and to see if I was alright. I remember him well because he did what he could in that controlled high security environment to help slow the deterioration of my sanity for the few months I spent with him. He is another brave man that I respect and admire, to add his voice to the growing number of witnesses that are coming forward to publicly share the truth and expose that shameful time in our history. Melise did a lot to help me in those dark times, and it was a joy to hear his voice that first time as a free man. I hope to gather enough funds so I can fly these two men to Australia to thank them personally and show my gratitude for their friendship and trust. I’d like to show them my hospitality and my country, and to show them how much I appreciate their past kindness and current bravery.

Neely and Melise were not alone in covertly showing humanity to myself and other detainees whenever they had the opportunity. A handshake, an apology (though that responsibility shouldn’t have to have been shouldered by them), even a simple hello and a smile goes a long way in an environment drowning in hostility and hatred. There were other soldiers who helped me in their own way and apologized for what was happening when no one else was around. As bad as that place was, and some of the people who worked there, they were all human and there is good in all of us. A good percentage of the soldiers were very young and most were only reservists who had never expected to be deployed. It was always interesting to watch the shock on their faces when they first entered the camps, a scene they had often seen only in old war movies and the realization that their government “did torture.” Some of these poor souls suffered greatly as they experienced the “other” America and struggled to carry out questionable orders. It is not just the tortured who suffer.

Jason Leopold: What do you think should happen, if anything, to the individuals who tortured you and the government officials who sanctioned it?

David Hicks: As for the soldiers I don’t think “following orders” is an excuse. Interrogators should be disciplined and charged if found to have acted illegally. All medical personnel who participated in interrogations, whether doctors, nurses, corpsmen, psychologists and psychiatrists should be investigated and banned from practicing, even if they only gave advice or kept silent if aware of what was happening. I also think that the highest ranking military officials, politicians, and lawyers who created and supported the system need to go in front of an international court.

But these are not the only issues. GTMO should be closed, torture abolished, military commissions scrapped, renditions ceased, indefinite detention should be a thing of the past, and people (including children) should no longer be made to “disappear” into unknown black site prisons.

Justice is coming slowly, however. Former Guantánamo soldiers, translators, FBI and other US employees, even prosecutors, have gone public to expose the truth of GTMO and many documents have made it into the public realm. Spain and Germany had begun the process of prosecuting former president Bush and members of his regime but after being pressured by the US they dropped the proceedings [note: two cases in Spain are ongoing]. The latest country said to be exploring the possibility of prosecuting US officials is Poland for the US using its soil in its rendition program. Last year Italy convicted [22] CIA agents [and a US Air Force Colonel] in absentia for their involvement in kidnapping an Italian [resident, Abu Omar]. The former UK detainees were recently paid just over a million pounds in compensation and the Australian government has just paid compensation to the other Australian [Mamdouh Habib] who was held in GTMO after being tortured in Egypt. In both instances these men were required to drop their court cases against the state. WikiLeaks has been another vehicle shedding light on what took place at GTMO and beyond, exposing those responsible for illegal acts. Sometime this year about thirteen hundred diplomatic cables are to be released concerning Australia. I have been told to look out for information concerning my case. Especially cables that talk about the treatment I was receiving, and who was involved with the political interference and creation of the plea deal that I was forced to sign if I was ever to come home. I will be watching with great interest once all that information comes to light.

Jason Leopold: Is there anything the US government or the Australian government told you that you can never speak about?

David Hicks: There was a one-year gag order upon my release and I had to sign a plea agreement that said I had never been mistreated by US officials or their employees while in US detention. I am also not allowed to challenge or “collaterally attack” my conviction, seek compensation or other remedies, or sue anyone for my illegal imprisonment and treatment. I have been advised that no court would uphold the plea agreement.

Jason Leopold: There aren’t many Caucasians at Guantánamo. How were you treated by the other detainees? And now that you’ve been released, how have you been treated by the public?

David Hicks: There weren’t many Caucasians at GTMO but I wasn’t the only one. Before the release of detainees began there must have been close to forty European citizens spread between eight or nine western European countries. Usually most detainees treated each other the same regardless of their geo-political or cultural background. The Australian public has been wonderful; very welcoming, glad to see me home and very helpful. I often have people approach me to say hello.

Jason Leopold: How did you and your wife Aloysia meet?

David Hicks: Aloysia has been involved in human rights activism for years and in her efforts for social justice became involved in the Australian campaign to see me released from Guantánamo Bay. Over the years she came to know my dad quite well, and he played a part in our relationship.

Jason Leopold: You have a long life ahead of you. What would you like to accomplish? What are your hopes and dreams?

David Hicks: When I was released I wondered if refugees newly arrived in a country felt similar. I had to begin a new life from the beginning, from collecting a set of identification papers to such privileges as a vehicle license and obtaining a Medicare card. Despite long-term plans such as owning a home I have been taking a day at a time, receiving treatment for physical and mental injuries, finding employment and working, and when I get the chance or I’m in the mood, fishing or socializing. Writing my book for two years took up a lot of my time, as does keeping abreast of all the continuous developments regarding GTMO, the so-called war on terror and its related policies, and those whose lives (detained or not) they continue to effect, including my own. Life is very busy for me. Finding the love of my life has been my biggest accomplishment, of course! And then writing my book. Otherwise there is a lot of work left to do and in the years to come I will continue to rebuild my life, seek normality, and to live in peace with the hardships of the past far behind me.

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.

Last October, during “Berkeley Says No to Torture” Week, I finally met Jason, along with many other pioneering journalists, authors, activists and lawyers, and subsequently read News Junkie, admiring Jason’s humanity and his ability to address his own weaknesses. I was therefore thrilled to discover, last week, that he had been talking to David Hicks, the former Guantánamo prisoner from Australia, who was released in March 2007 after accepting a plea deal in a trial by Military Commission, and who recently published his autobiography, Guantánamo: My Journey, and that, as well as interviewing David, he had found himself deeply moved and challenged by the encounter, and had written an essay for Truthout exposing these thoughts and feelings.

That article — to my mind a unique take on how reporters address the Guantánamo story, which also includes compelling testimony from a former guard who has never spoken publicly before — is cross-posted below, and I’ll be cross-posting Jason’s interview with David soon after. Please note that this article, as with all Truthout articles, is made available for republication under a creative commons license.

My Tortured Journey With Former Guantánamo Detainee David Hicks
By Jason Leopold, Truthout, February 16, 2011

I’ve been struggling these past few weeks.

I read a book written by a former Guantánamo detainee named David Hicks titled, Guantánamo: My Journey. It’s a powerful and heartbreaking memoir and it made a profound impact on me emotionally.

I interviewed Hicks after I read his book. We spoke about a half-dozen times over the past two months. This is the first interview he’s granted since he was released from the “least worst place” in 2007.

Hicks is the Australian drifter who converted to Islam, changed his name to Muhammed Dawood and ended up at training camps in Afghanistan the US government said was linked to al-Qaeda, one of which was visited by Osama bin Laden several times. Hicks was picked up at a taxi stand by the Northern Alliance in November 2001 and sold to US forces for about $1,500. Hicks was detainee 002, [one of the first prisoners] processed into Guantánamo on January 11, 2002, the day the facility opened.

Hicks was brutally tortured. Psychologically and physically for four years, maybe longer. He was injected in the back of his neck with unknown drugs. He was sodomized with a foreign object. He spent nearly a year in solitary confinement. He was beaten once for ten hours. He was threatened with death. He was placed in painful stress positions. He was exposed to extremely cold temperatures, loud music and strobe lights designed to disorient his senses.

I’ve been obsessed with the torture and rendition program since details of it first surfaced nearly a decade ago. I’m not exactly sure why I’m so fascinated and outraged by every tiny detail, every new document dump or why I chase every new lead as if I were paparazzi trying to get a shot of Lindsay Lohan. What I do know is that there’s something about the crimes committed by the Bush administration in our name that haunts me.

I had never spoken to a former detainee before I phoned Hicks at his home in Sydney, Australia, a few days before the New Year. There was something surreal about listening to Hicks’ voice as he described his suffering in painstaking detail. Maybe it was the fact that there was a real person on the other end of the receiver and not just a name on a charge sheet. I found it incredibly difficult to separate the reporter from the human being once Hicks stopped speaking. Before I hung up the phone after our first conversation, I told Hicks I was sorry.

“I’m sorry my government tortured you, David,” I said.

“Thanks, mate,” Hicks said, his voice cracking.

What I’ve been grappling with was how to tell Hicks’ story. I’ve truly been at a loss for words. I had to dig deep to figure out why I felt it was too painful to sit in front of a blank computer screen to think about what I wanted to write. Here’s what I discovered: I empathized with Hicks and, perhaps more than anyone, I understood how the then-26-year-old ended up in Afghanistan associating with jihadists a decade ago.

Five years ago, I published my memoir, News Junkie, and, like Hicks, I too was brutally honest about my own feelings of alienation, my battle with drug and alcohol addiction, a desire for attention, a desperate need to belong and a terrible choice I made in my early 20s to ingratiate myself with a couple of made members of a New York City crime family.

Admitting that I share some things in common with Hicks scares me. It’s another reason I believe I felt paralyzed.

I wanted to approach this as a straight news story and simply report that Hicks was tortured, that he was abandoned by his country, used as a political pawn by Australia’s former Prime Minister John Howard in his bid for reelection and forced to plead guilty to a charge of providing material support for terrorism in order to finally be freed from Guantánamo. But I’ve written so many of those reports and all of them end with a shrug here, some outrage there and no one being held accountable.

So, I’ve made the decision that I would expose my own vulnerability and tell you how my interview with the man dubbed the “Australian Taliban” has weighed heavily on my mind. I still cannot comprehend what could drive a human being to torture another human being. Hicks said, at Guantánamo, “torture was driven by anger and frustration.”

“It seemed like a mad fruitless quest to pin crimes on detainees, to extract false confessions and produce so-called intelligence of value,” Hicks told me. “The guards were desensitized and detainees dehumanized. Soldiers were not allowed to engage us in conversation. They were told to address us by number only and not by name. They were constantly drilled with propaganda about how much we supposedly hated them and wanted them dead and how much they needed to hate us. On occasion, when some groups of soldiers jogged around the camp perimeters I heard them sing lyrics such as, ‘you hate us and we hate you.’ One time in the privacy of Camp Echo a male soldier broke down when we were alone repeating, ‘what have I become?’ after having arrived from an interrogation of a detainee in another camp.”

Brandon Neely, a former Guantánamo Military Policeman (MP), who escorted Hicks off the bus at Camp X-Ray the day Guantánamo opened, said some soldiers tortured detainees because they wanted revenge for 9/11. He said that’s the message that was passed down from above.

“We were told (by superior officers) all of the detainees, including Hicks, were the ones who planned 9/11 or had something to do with it,” Neely said in an interview. “We were told over and over and over that all these guys were caught fighting Americans on the front lines and at any given time if we turned our back on them they would kill us in a heartbeat. We were told that everyday before we went to work inside the camps. After a while, the attitude was, ‘who cares how we treated the detainees.’”

A day before he left Fort Hood, Texas, for Guantánamo, Neely said his unit was told “by the company commander, the colonel and platoon sergeant that these people were not Prisoners of War. They were detainees and the Geneva Conventions would not be in effect.”

George W. Bush did not formally rescind Geneva Conventions protections for “war on terror” detainees until February 7, 2002.

Neely told me a remarkable story about the hours before Hicks arrived at Camp X-Ray that underscores how impressionable he and his fellow soldiers were and how the US government conditioned its military personnel to view detainees as animals.

“When Hicks’ bus got to Camp X-Ray we were told this guy was a mercenary, he was fighting Americans and we had to be real careful around him, Neely said. “We were actually told Hicks tried to bite through the hydraulic cables on the C-130 en route to Guantánamo. So everyone was on edge.”

Neely was 21 when he was sent to Guantánamo. On June 2, 2002, his 22nd birthday, Neely received an “achievement medal” for “exceptional meritorious service while serving as a Military Policeman (MP) in support of Operation ‘Enduring Freedom’, Guantánamo Bay, Cuba.”

Nearly seven years later, Neely went public and revealed details about the abuses he witnessed and one that he participated in while he was at Guantánamo. Like Hicks, who Neely said reminded him “of a guy I would have just gone out and have a beer with,” he has been suffering all of these years. It was as if he were being tortured every time he saw or heard about a detainee being beaten or worse during the six months he worked at the prison facility. I can feel his pain. Literally.

Neely’s a cop in Houston now. He’s got a wife and three kids. He told me, “there has not been a day that goes by that I have not re-lived what I did or saw in Guantánamo.” Hicks reached out to Neely last year after he saw him on a BBC special. Neely had flown to London to meet a couple of former British detainees he used to guard and to apologize for the way they were treated. He and Hicks are pretty close now.

I asked Hicks if he could describe the facial expressions of his tormentors while he was being tortured and if he recalled how they reacted to his pain.

“Usually the guards seemed cold and indifferent,” Hicks said. “They deployed a ‘just doing my job’ attitude, such as when they chained me to the floor in stress positions or made me sleep directly on a metal or concrete floor in a very cold air-conditioned room in only a pair of shorts. However, some soldiers displayed discomfort and embarrassment. Usually guards were only used to restrain detainees, move them about, or help in the background with equipment. It was the interrogators who did the dirty work, expressing hatred and frustration. At times soldiers did participate directly in beatings, however, such as the beatings I received before I arrived in GTMO (in Afghanistan, in transit, or when I was rendered to the two naval ships before being sent to Guantánamo). These soldiers made a sport of it.”

“I was beaten by US forces the first time I saw them and realized straight away that torture was going to be a reality. It was very scary. As I say in my book, I could not help thinking of the saying, ‘like trying to get blood from a stone’ and I was afraid of becoming that stone.”

There’s a harrowing section in Hicks’ book where he describes how he had given up all hope after years of detention and abuse and planned to commit suicide.

“I was desperate; there was no other way out,” Hicks wrote.

Those words. I’ve uttered them before. I’ve written them. I know what that kind of desperation feels like. I ask Hicks if we could talk about it, but there’s silence on the other end of the receiver.

“Hello? You still there, David?” I said.

“Yeah mate.”

I didn’t press him. Maybe he was having a flashback. Perhaps he didn’t want to talk about it. I decided to end our conversation.

“Let’s catch up later in the week. We covered a lot of ground.”

“Cheers, mate,” David said and hung up.

I had a knot in my stomach. I had a hard time sleeping for the next few nights. I could not focus on anything but the images in my mind of a helpless Hicks being tormented. It made me realize that one can never comprehend the extent of someone’s pain and suffering until we hear about it first hand. I would get out of bed during those sleepless nights and walk into my son’s room and just stare at him sleeping in his crib. There was something about that image of pure innocence that was soothing to me.

One afternoon, a couple of hours after another session on the phone with Hicks, I took my son to school. As I stood in the background and watched him interact with about 30 other two-year-old boys and girls, tears began streaming down my cheeks. I had not expected to be overcome with so much emotion. I’m embarrassed admitting that I was. Unsure of what was happening at first, I touched my eyes thinking that perhaps something else was coming out of the tear ducts. I didn’t spend much time thinking about what I was feeling at that moment. But, in hindsight, I believe I was coming to terms with how we all eventually lose our innocence. Something about that seems tragic to me. It reminds me of a passage in another memoir, The Ticking Is the Bomb, by Nick Flynn, who wrote about his own obsession with the Bush administration’s torture program:

“Here’s a secret: Everyone, if they live long enough, will lose their way at some point. You will lose your way, you will wake up one morning and find yourself lost. This is a hard, simple truth.”

Not surprisingly, the Pentagon has vehemently denied Hicks’ torture claims. In 2007, as a condition of his guilty plea and release from Guantánamo, the US government forced him to sign a document stating that he had “never been treated illegally.” Hicks, who was the first detainee sentenced under the Military Commissions Act of 2006, said he is also “not allowed to challenge or collaterally attack my conviction, seek compensation or other remedies, or sue anyone for my illegal imprisonment and treatment.”

What makes Hicks’ story all the more tragic is how badly he’s been vilified by the Australian media since his memoir was published last October for having the audacity to finally reveal the details of his torture. Yet, the Australian media seems willing to accept that Howard pressured the Bush administration to charge Hicks with a war crime, because Hicks “had unexpectedly become a political threat,” according to Washington Post reporter Barton Gellman.

Gellman, author of a book on Dick Cheney titled Angler, wrote that Howard, “under pressure from home,” met with Cheney during the vice president’s trip to Sydney in February 2007, where the two discussed Iraq, and told Cheney, “there must be a trial ‘with no further delay’ for David Hicks who was beginning his sixth year at the U.S. naval prison at Guantánamo Bay.”

“Five days later, Hicks was indicted as a war criminal,” Gellman wrote. “On March 26 [2007], he pleaded guilty to providing ‘material support’ for terrorism. Shortly after Cheney returned from Australia, the Hicks case died with a whimper. The US government abruptly shifted its stance in plea negotiations, dropping the sentence it offered from 20 years in prison to nine months if Hicks would say that he was guilty.”

“Only the dramatic shift to lenience, said Joshua Dratel, one of three defense lawyers, resolved the case in time to return Hicks to Australia before Howard” faced re-election in 2007, Gellman reported.

But Hicks’ plea deal prohibited him from speaking to the media for a year. That’s how Howard dealt with this “political threat.” But justice was poetic as Howard lost his bid for another term in office.

Hicks’ plea deal, “negotiated without the knowledge of the chief prosecutor, Air Force Col. Morris Davis, was supervised by Susan J. Crawford, the convening authority over military commissions. Crawford received her three previous government jobs from then-Defense Secretary Cheney — she was appointed as his special adviser, Pentagon inspector general and then judge on the US Court of Appeals for the Armed Forces.”

Political interference in Hicks’ case, however, began even earlier. Davis, who resigned as chief prosecutor from military commissions at Guantánamo over the government’s handling of terrorism cases, revealed that a day after US officials met with the Australian ambassador to the United States in early January 2007, Defense Department General Counsel William Haynes called him up and asked, ‘how quickly can you charge David Hicks?’ even though at the time he had no regulations for trial by military commissions.”

Davis would later say that Hicks should not have been charged. Stephen Kenny, one of Hicks’ former attorneys, said that “it has always been my position that [Hicks] never committed any crime.”

“We looked at Australian law, international law and Afghani law and we were unable to identify any breach of those laws, Kenny said. The law that he eventually pleaded guilty to [material support for terrorism] was not actually an international war crime at all. In fact it was a crime that didn’t exist.”

Recently, the Australian government entered into a secret financial settlement with Mamdouh Habib, another Australian citizen abandoned by the Howard administration. Habib was arrested in Pakistan in 2001 and rendered to Egypt where he said he was brutally tortured for seven months before he ended up at Guantánamo. Habib was released in 2005 and was never charged with a crime, but he sued the Australian government after he got out, claiming it was complicit in his torture.

Hicks said if he were offered a similar financial settlement he wouldn’t turn it down. But what he really wants is the Australian government “to formally recognize that the 2006 Military Commissions Act was unfair” and designed simply to obtain guilty pleas.

“The Australian government has acknowledged that I have never hurt anyone or committed a crime under Australian law, so the least they can do is formally recognize my conviction as null and void,” Hicks said.

Although the Pentagon and the Australian governments continue to deny Hicks was tortured, at least one former Guantánamo military guard said he was.

“David Hicks was tortured, no doubt,” said Albert Melise, who has never spoken publicly before, in several video chats we had via Skype. “Solitary confinement is torture and I think what it did to David’s mind is torture. Would you want to be in a windowless room 23 hours a day?”

But Melise said he didn’t witness any of it. He only knows what Hicks told him. But, “being a cop and having experience separating what’s true and false,” he believes Hicks was being truthful. However, Melise also thinks Hicks, to some extent, “confused the stories of others who told him of their torture and made it his own.”

“His torture did not happen when I reached his camp,” Melise said. “He cut deals so it would stop. But I can tell you that David is one of those people who is easily manipulated. He was an easy target for the interrogators. They knew they could break him mentally and physically and they did.”

Melise, 40, was a Massachusetts Housing Authority officer when his Army reserve unit was activated and he was shipped off to Guantánamo to work as an MP.

Melise’s job duties called for him to escort detainees held in Camp Delta to their interrogations where he would “chain them down” to the floor or chair “knowing what he’s going to go through.”

The detainees sat there for hours in stressful positions while Melise stood behind a one-way mirror and watched their interrogations and waited for it to come to an end. He was present when detainees were slapped, when the temperature in the interrogation room was turned down real low and the volume on the music was turned up to excruciatingly loud levels and when the strobe lights were flicked on, part of the standard operating procedure designed to break the detainees and make them feel as uncomfortable as possible.

“That’s torture,” Melise said.

But I wanted Melise to tell me what happened in those rooms after the interrogators started questioning the detainees.

“Please don’t ask me about those things,” Melise said. “I saw a lot and I still have nightmares over it. I’ve seen these guys cry.”

I wondered if Melise bore witness to any of the horrific pictures my mind created during that split-second gap in our conversation.

“O.K. I understand,” I told Albert. “I won’t go there. I’m so sorry.”

“I’m a good soul and I was put in a horrible place,” Albert said.

“I know you are,” I told him. “Well, how about this. Can you tell me what you saw in the detainees’ eyes?”

“Sadness,” Melise said. “Like they could not believe the Americans are putting them through that. It was an emotional look. I’ll never forget it.”

Melise hated his job. He started drinking.

“Bacardi 151,” he said. “Two bottles a night.”

He said, “when you see people broken down so much you tend to drink a little to cope with what you’re seeing. I couldn’t deal with what they were putting me through.”

Melise said “fake” detainees were planted at Camp Delta to try and gather intelligence from the “real” detainees. He said he knew they were “fake” because they were “placed in cells for two or three months and then they would pretend to be going to another camp for interrogations.” But, “I would see them shopping, dancing or ordering a sandwich or hanging out at McDonald’s during that time.” Then the “fake” detainees would return to their cells.

He said detainees were also bribed with prostitutes as an incentive to get them to work as agents for the US government. He said there was a camp at Guantánamo that just housed children, some of who were as “young as 12 and over 8″ years old, called Camp Iguana.

“One of my buddies worked there,” Melise said. “Sick.”

There was also a camp where CIA interrogators worked out of called Secret Squirrel.

Eventually, Melise asked for a transfer.

“I begged them to get me out of there,” Melise said. “I just couldn’t take it anymore.”

“Albert, do you know what would make a human being torture another human being?” I asked him.

“I don’t have the answer,” he said, shaking his head. “It takes a really disturbed individual to torture someone. That’s not me. I didn’t sign up for that. I couldn’t live with myself and I couldn’t drink it away.”

So, Melise was transferred to Camp 4 for a few weeks and then landed at Camp Echo. That’s where he met Hicks and detainees from the UK who have since been released like Moazzam Begg or “Mo,” which is how Melise referred to him.

“Mo once cried in front of me and said he should become Christian,” said Melise, who has frequent Skype chats with Begg now. “I told him to tighten up and stay with your heart. Fuck what’s happening now. You’ll pull through. I said ‘don’t question your faith. Don’t think you need to change.’ He once told me I was not like the other soldiers, something shined in me that he could not explain.”

At Camp Echo, Melise said he “redeemed” himself.

“I let [the detainees] out of their cells and just let them talk and hang out,” he said. “I knew it would help them mentally. I knew it would help them cope with many things they had gone through. I also gave up what I had. I gave them normal food from my lunch to eat, cigarettes, protein bars, whatever was mine was theirs. I could have gone to prison myself for doing that, believe me. But I know I did the right thing.”

“Why did you do that?” I asked.

“For sympathetic reasons,” he said. “Because I sat in on interrogations. I wanted to give them a sense of humanity. Nobody deserves to be treated like that. They were not the ‘worst of the worst,’” a description placed upon the detainees by former Secretary of Defense Donald Rumsfeld. “I’m an ex-cop and I can tell whose a criminal and who isn’t and a lot of these detainees I met were not terrorists.”

Melise told me he “likes getting this stuff off my chest” and I wanted to tell him that listening to him gave me a sense of hope and made me feel like maybe the dearth of compassion is not as widespread as I originally thought. But I held back.

Melise wanted Hicks to feel like he was back home in Australia, so he would sneak his DVD player into Hicks’ cell and watch movies with him, such as “Mad Max,” which starred Mel Gibson, and “Snatch” and “Lock, Stock & Two Smoking Barrels,” directed by Madonna’s ex-husband, Guy Ritchie.

“I figured if he heard Mel Gibson’s accent he would feel like he was back in Australia,” Melise said.

I sent an email to Hicks asking if he remembers Melise.

“I remember him well because he did what he could in that controlled high security environment to help slow the deterioration of my sanity for the few months I spent with him,” Hicks said. “I hope to gather enough funds so I can fly [Melise and Neely] to Australia to thank them personally and show my gratitude for their friendship and trust. I would like to show them my hospitality and my country and to show them how much I appreciate their past kindness and current bravery.”

Melise, who is married with a wife and son, is now studying to be a nurse “so I can really help people in the future.” He recently re-enlisted in the Army reserves for another three years.

I was about to end my interview with Melise, but I had one last question.

“Do you think David is a terrorist?”

“No,” Melise said. “I don’t think he’s a terrorist. I plan on visiting him one day. Why would I do that if I thought he was a terrorist?”

Melise got up from his chair and walked out of sight. He shouted, “Sit tight!” He said he wanted to show me something. It’s a letter. He held it up against the video camera on his computer.

“I took this with me when I left Guantánamo in ’04,” Melise said. “It’s a letter David wrote that he asked me to send to his father.”

Melise never sent it. It was too risky, he said.

But he faxed a copy of it to me. Letters to and from detainees were reviewed by military personnel and were often redacted. But this six-page letter, written in April 2004 as Hicks’ legal team was challenging the legality of the military commissions, is clean. It clearly shows the psychological torture Hicks had endured and how he was being coerced into pleading guilty to crimes the US government knew he did not commit. The letter is addressed to Hicks’ father, Terry Hicks, who waged a campaign in Australia and the US to raise awareness about his son’s plight.

Hicks wrote that he owed his life to Melise. He said the letter he sent to his father “is very important because it’s the first and probably only time I will be able to tell you the truth of my situation.”

“Before I start I want you to know that the negative things I am going to say has nothing to do with the MP’s that are watching me,” Hicks wrote. “Some of them are marvelous people who have taken risks to help improve my day to day living. It’s because of such people that I have kept my sanity and still have some strength left. In the early days before I made it to Cuba I received some harsh treatment in transportation including mild beatings (about 4). One lasted for 10 hours. I have always cooperated with interrogators. For two years they had control of my life in the camps. If you talk and just agree with what their [sic] saying they give you real food, books and other special privileges. If not they can make your life hell. I’m angry these days at myself for being so weak during these last two years. But I’ve always been so desperate to get out and to try to live the best I can while I’m here …”

“I’m sick of writing you letters saying how good it is here. I’ve always done that because I’m afraid of what the authority’s [sic] may do to me. If I told you the reality they wouldn’t give you the information. I want to be able to make as much noise as possible. To let people know of what’s really happening here.”

Hicks then predicted his own future.

“Know that if I make a deal it will be against my will,” he wrote. “I just couldn’t handle it any longer. I’m disappointed in our government. I’m an Australian citizen. If I’ve committed a crime I can be man enough to accept the consequences but I shouldn’t have to admit to things I haven’t done or listen to people falsely accuse me. We can’t let them get away with it.”

I sent Hicks the letter. He said he doesn’t recall writing it. But he intends on giving it to his father.

“How were you able to survive?” I asked Hicks.

“I survived because I had no choice, as many of us may unfortunately experience at some time in our lives,” he said. “It was a psychological battle, a serious and dangerous one. It was a constant struggle not to lose my sanity and go mad. It would have been so easy just to let go: it offered the only escape.”

Like Melise, however, Hicks said he, too, still has flashbacks. And like Melise, Hicks said, “it’s the dreams that are the worst.”

“I see myself having to begin the long process of imprisonment again accompanied with vivid feelings of hopelessness and no knowledge of the future or how long it will last,” Hicks said. “The other dreams consist of gruesome medical experimentations too horrible to describe. Losing my personality, my identity, memories and self is much more frightening to me than any physical harm. It is these dreams that are the most common and terrifying.”

Hicks isn’t a practicing Muslim anymore. A couple of years ago, he got married — to a human rights activist named Aloysia. He also has a job working as a landscaper.

He said counseling has helped him, “but the passing of time has been just as helpful.”

“Being exposed to such a consuming environment for five and a half years leaves a stain that cannot be removed overnight,” Hicks said. “It will take longer to reverse the consequences but even so, some experiences, especially one so prolonged, can never be entirely forgotten.”

I had no idea how this story would end or what I would discover when I finally sat down at the computer and started to type. I now know that torture not only permanently scars the torture victim, but it also leaves its mark on everyone who comes in contact with that person.

Editor’s Note: Hicks’ book is not available for sale in the US. However, it can be ordered from online bookshops in Australia.

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.

Revolution Interview with Investigative Journalist Andy Worthington
The Outrage of the Bush-Obama Military Commissions

According to recent news reports, the Obama administration is getting ready to conduct a new series of Military Commissions trials for a number of prisoners being held at the U.S. torture camp at Guantánamo. These Military Commissions, begun under George W. Bush, basically deprive defendants of all rights, and have been part of the whole new level of fascistic repressive measures since 9/11. Revolution talked about the background and the new developments around the Military Commissions with Andy Worthington, 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 U.S.). His website is here.

The Revolution Interview is a special feature of Revolution to acquaint our readers with the views of significant figures in art, theater, music and literature, science, sports and politics. The views expressed by those we interview are, of course, their own, and they are not responsible for the views published elsewhere in our paper.

Revolution: Before we get into the new developments, can you give us some background on the Military Commissions — what they are, their beginnings?

Andy Worthington: What they are is a specific type of military trial that has been used throughout American history. It was most recently used in the Second World War, in the cases of certain Nazi saboteurs. And when the Bush administration was fishing around for new ways to deal with people it had captured, in the early days of the “war on terror,” then it came across the Military Commissions, specifically as they were used in the Second World War. These were established through a “military order,” which was passed with virtually no oversight from anyone, signed by President Bush on November 13, 2001.

The background story to that is that it was essentially hustled through a couple of departments in the White House without anybody really seeing what was going on. Former U.S. Secretary of State Colin Powell later said that he’d not even heard about this, that he saw it on TV. This was essentially the document that established the notion of “enemy combatants” and said these guys can only be tried by Military Commissions, and evidence that would not be permitted in normal courts will be able to be used. I think what was obvious from that document to people who were looking closely was that it was an attempt to set up show trials that would be able to draw on evidence derived from torture and then execute people the administration said were guilty.

It then took quite a while for the administration to be able to put the trials in place. Almost before anything had gotten going, in 2005, a number of prosecutors resigned because they realized this was a bent system. From 2004 to 2006, 10 people were charged. There were various pretrial hearings that were held, but they were all shambolic. Pretty much everything that has ever taken place in a Military Commission hearing as part of the “war on terror” has been shambolic because the rules are so ill-defined, there are so many holes in all the procedures. And this went on until June 2006 when the Supreme Court ruled that the military commissions were illegal. They actually ruled that they contravened the Military Code of Justice and the Geneva Conventions.

So having been thrown out, the Bush administration then went to Congress to revise them. And in that amended form, they have had a second phase of activity. I think it’s quite important to note that at this point, Congress invented war crimes that were tryable by Military Commission. So although the initial idea of having Military Commissions for alleged terror suspects came from Dick Cheney and his chief legal advisor, David Addington, when it was revised by Congress, Congress specifically attempted to make war crimes out of crimes that are not recognized as war crimes, such as “murder by an unprivileged belligerent.”

So at the start of 2007 the Military Commissions were back. From then until the end of the Bush administration, they again stumbled on from one disaster to another. Twenty-eight men were put forward for trials by Military Commission, but only three ever went to trial. The first of those cases was David Hicks, the Australian, and a plea deal had been arranged between Dick Cheney and Prime Minister John Howard of Australia. Hicks had been picked up on the radar in Australia — there was a movement around the injustices against him. So there was a deal that was struck that was supposed to help get John Howard reelected. It failed. But Hicks was “encouraged” to file for a plea deal, whereby he spent another six months in prison back in Australia, in exchange for admitting to “material support for terrorism” — which is one of the key ingredients in federal court terrorism prosecutions, but is one of the invented “war crimes.” It’s not traditionally been viewed as a war crime.

The second case in the summer of 2007 was Salim Hamdan, who was one of a number of drivers who worked for Osama bin Laden, a Yemeni who had taken the job for money. The military jury in his case threw out the conspiracy charge, correctly understanding that one of the many guys who drove bin Laden around wasn’t privy to any secrets, although they did find him guilty of “material support for terrorism.” The jury gave him a five and a half year sentence but the judge back-dated that to the time of his capture. He was a free man five months after that.

The only other case under Bush — the week before the presidential election in November 2008 — was Ali Hamza al-Bahlul, a Yemeni who had made a propaganda video for al-Qaida, which he admitted to. Al-Bahlul refused to take part in the process at all. As a result he was not represented legally, because lawyers are not allowed to represent an unwilling client, and even though the military was pushing his lawyer to do so, he refused to take part. So they had a trial for a week, which was a completely one-sided trial because he refused to mount a defense at all. And at the end of that, almost on the eve of the presidential elections, he was found guilty and sentenced to life — in Guantánamo, which he is serving. So that is the background under Bush.

Revolution: Stepping back a little, looking at the Military Commissions under Bush, wasn’t this a significant departure from the legal “norms” in the U.S.? In the history of the U.S., there have been many instances of politically motivated cases and injustices, especially involving people who those in power see as threats, or oppressed people on a daily basis. But still, the Military Commissions represented a major leap in repressive measures — in throwing out basic rights, allowing torture, and so on.

Andy Worthington: Well when they were brought back by Congress, there was an attempt by Congress to say that the use of torture wouldn’t be allowed. The fundamental problem with the Military Commissions is that terrorism is a crime, but the Bush administration, and now the Obama administration, were trying to prosecute people in military settings for crimes, which they were trying to turn into war crimes. And that’s the fundamental misconception about the whole thing, why it doesn’t fit together.

Revolution: Barack Obama campaigned with pledges to shut Guantánamo down and stop the Military Commissions, among other promises. So what has happened under Obama?

Andy Worthington: He suspended the Military Commissions on his first day in office in order to review them, and on his second day in office he also issued executive orders that promised to close Guantánamo within a year, upheld the absolute ban on torture, and promised humane interrogations of detainees in the future. However, in May 2009, he delivered a major national security speech at the National Archives, where he put Military Commissions back on the table. He also put the indefinite detention without charge or trial of some prisoners back on the table as well. And all the dreams and hopes that he was going to either charge or release prisoners, and if charged, try them in federal courts began to unravel at that point. So that’s a simple answer, that on May 2009 he was told, or persuaded to change his mind.

Revolution: So what about these recent reports that Obama is planning to ramp up the Military Commissions again?

Andy Worthington: What’s happened under President Obama is that very little was happening for the first 18 months — there were hearings still going on, but the plan was that the administration wanted to have both federal court trials and Military Commissions. In May 2009 the administration moved one man from Guantánamo, Ahmed Khalfan Ghailani, to the U.S. mainland (and he was sentenced to life without parole in federal court last week). However, in November 2009, when U.S. Attorney General Eric Holder announced that Khalid Sheikh Mohammed and four other men accused in involvement in the 9/11 attacks would be brought to the U.S. mainland to face trial, the backlash against that meant that the administration shelved its plan.

That refusal to follow through on its initial statement meant that it gave Congress time to pass a law prohibiting it, which is what lawmakers did just before Christmas, when they passed legislation preventing President Obama from bringing prisoners to the U.S. mainland to face trial. So Obama’s only option is Military Commissions, but their history, under Obama, has not been better than it was under Bush. Last summer, when I think they had been hoping that federal courts and Military Commissions would be coexisting, they reached the trial phase of Ibrahim al-Qosi, another peripheral figure in the al-Qaida picture, really, a man who from what I can see sometimes was a cook in a compound that was sometimes used by Osama bin Laden. So, you know, pretty tangential to everything. When the administration was faced with the prospect of actually going ahead with a trial, it pushed for a plea deal instead. We don’t officially know how long he’s going to serve but the rumor is that he’ll serve two more years and then go back to Sudan.

And in autumn there was the trial of Omar Khadr, the former child prisoner from Canada, who also accepted a plea deal. And he’s apparently serving eight years, one more year in Guantánamo and seven in Canada. That was a total disgrace because he was a child when he was captured after a battle in Afghanistan.

Revolution: He was also tortured in Bagram prison in Afghanistan and threatened with rape…

Andy Worthington: Absolutely. Was tortured. Was never treated as a juvenile prisoner should be treated according to the UN Convention on the rights of a child in war time—which the U.S. signed after his capture, signed in January 2003, and which require the rehabilitation rather than punishment of juveniles who are under 18 when the alleged crime took place. Plus Khadr had to confess to invented war crimes, that he was an “alien unprivileged enemy belligerent” who was not allowed to be in a combat situation with U.S. forces. It was “illegal” for him to do so. That’s just a complete disgrace. But, unperturbed [laughs] the administration has now announced — it hasn’t been officially announced, but it has been indicated that they’re revving up to hold more trials by Military Commission at Guantánamo. There are four guys we’ve been told about, who are likely the ones who are going to be put on trial.

Revolution: One of them is Abd al-Rahim al-Nashiri, and it has been openly acknowledged that he is one of the detainees that the U.S. tortured with waterboarding. And one of the outrageous things about the Military Commissions is that so-called evidence obtained under torture and hearsay evidence can be used against the defendant, who has no way of challenging them.

Andy Worthington: Yeah, absolutely. And the administration has tried to fudge this. When in November 2009 Holder announced the apparently imminent prosecution of Khalid Sheikh Mohammed and four other men, he also said that the Military Commissions are officially back, and here are five guys that we’re going to put on trial, and he tried to distinguish between the two systems by saying Military Commissions are more connected with activities that took place in the military context, claiming that, in al-Nashiri’s case, which allegedly involved the attack on the USS Cole [in 2000], was a military target, whereas they were saying 9/11 was a civilian target. I don’t think that really stands up to scrutiny because as you’ve indicated, what lies behind this are issues of evidence. And what they’ve actually done is decide what they think they can get away with in whatever forum. And it’s part of the reason that, the more confident they are, then they’ll go for a federal court trial, where torture evidence is definitely excluded, and hearsay evidence isn’t going to wash. They’ve got more leeway in the Military Commissions.

And of course, beyond the federal courts and the Military Commissions, there is a third category of people — those they want to hold indefinitely without charge or trial, because they have said: we think these people are too dangerous, but we don’t even have the evidence that would stand up in a Military Commission — i.e., they really don’t have anything resembling evidence at all. So it would all have to be hearsay. And yes, it’s troubling that they rely on hearsay because it’s so much tied in with the torture program, essentially. Not just the “high-value detainee” program and extraordinary renditions and CIA secret prisons where torture was clearly central, but the fact is that torture permeates so much of the way in which the men were held and interrogated in Afghanistan before they went to Guantánamo. So in Kandahar and primarily in Bagram, as in Guantánamo itself, where there was a regime in place, certainly for two years, that was a version of the torture program that had been used by the CIA in their secret prisons. It didn’t involve waterboarding, but it did involve torture.

Revolution: How many prisoners are there currently at Guantánamo, and what are their conditions of imprisonment?

Andy Worthington: There are 173 men being held at Guantánamo. In general, conditions improved under Obama. This doesn’t apply to all of them. There are still some men held in solitary. In general though, they have been allowed to mingle more and to have some recreational facilities. Although recently we’ve heard from prisoners, who have unclassified phone calls with their lawyers, that there’s something going on there, that they’re actually moving people back into spending more time in isolation. But there has been in general an improvement, which I think has indicated that they’re in it for the long haul.

After all, Guantánamo’s purpose as an interrogation center is long gone. That was the whole point, really, about what the Bush administration wanted, was to hold people outside the law, so that it could do whatever it wanted to do to them, to get what it described as “actionable intelligence.” It wasn’t concerned with what the hell it was going to do with these people, and it wasn’t concerned with prosecution. It was about intelligence. And sadly what happened was that when people didn’t tell them what they thought they should be telling them, whether that was because they were withholding it or they were completely wrong people, then they introduced torture, having fooled themselves into thinking that torture was going to be a good way of getting the truth. But it doesn’t necessarily get you anything even resembling the truth, or you can’t separate the truth from fiction. You end up accusing someone falsely, kicking so many doors down in the middle of the night, and dragging off to dungeons other people whose name was divulged because someone’s been tortured, not because they did anything. That web of where torture leads is absolutely horrible.

Revolution: There are still U.S. prisons, in Afghanistan for example, where people are still being held in conditions of torture…

Andy Worthington: There’s the prison in Bagram. There are persistent stories of a secret prison that is part of Bagram. And I think it’s very credible that, although there has been in general an effort to learn from a lot of the mistakes of the Bush administration, operationally there are certainly people who find it useful to have some leeway in how people can be treated. And I think more fundamentally the problem that is demonstrated by Afghanistan is that Bagram, which is the main prison for the ongoing U.S. operations in Afghanistan, is not a place that has been returned to the rule of the Geneva Conventions. It’s a place where people are held for a significant amount of time without any adequate screening to determine whether they should be there and then are given a review which actually resembles the review process at Guantánamo, which the Supreme Court found inadequate in 2008. The military is not operating according to the Geneva Conventions. That’s the kind of major change that happened, I think, that hasn’t been addressed.

The more disturbing aspect is that around the edges of this amended military detention scenario are people that are kept off the books for a while completely so that they can be leaned on a bit. We’re dealing definitely with torture. All the stories demonstrate that we’re dealing with torture. The magic word for most people with torture is: were they waterboarded. Well that’s not the issue here, really. It’s people that have been subjected to prolonged solitary confinement and sleep deprivation, for example. That’s a form of torture.

Revolution: Are there any other points about these reports of new Military Commission hearings we should be aware of?

Andy Worthington: What we know is that the administration initiated a Task Force when Obama came into office. They spent a year going through all the Guantánamo cases, deciding what to do with them. This involved officials and lawyers from government departments and agencies — I describe them as pretty sober set of career officials — who carefully went through what information they could about the men held to decide what should be done with them. Now I have a problem with that because there’s already a legal process underway, which is their habeas corpus decisions. President Obama had set up essentially a kind of executive parallel review process. So I have a problem with that anyway, but this is their basis for deciding what to do with the men held.

And they said, of the 173 men held — and bear in mind three of the ones are held because of the results of their Military Commissions — they want to put 33 men on trial, they want to hold 48 indefinitely without charge or trial, and the rest ought to be released. And so clearly, there’s a big problem — 89 men recommended for release who are still held. Another big problem — 48 men held indefinitely without charge or trial because any evidence against them you can’t use, so it’s not evidence. And that’s a fundamental problem. Thirty-three men are supposed to be put on trial. So are they going to give up on holding federal court trials? Are they possibly going to, as has been suggested, use Justice Department funds to bypass Congressional ban on bringing prisoners to the U.S. mainland using the Defense budget and put them on trial?

The trial of Ghailani, which resulted in a jury convicting him of only one count out of 285, was portrayed by the supporters of the Military Commissions as a failure. I mean, if you had not been paying attention, you could think that the man was acquitted. He wasn’t. That one charge carried a maximum of life without parole. And last week the judge sentenced him to life without parole. That also proved to Obama’s critics that the federal courts are a safe venue for prosecuting terrorists. I think it’s easy to say that actually it also demonstrated federal court trials are too successful because they deliver punitive sentences. Because if you survey the whole landscape of terrorism-related offenses prosecuted in federal courts, there are very, very worrying sentences being handed down for people doing virtually nothing, receiving enormous sentences.

But if they want to proceed with these trials, of Khalid Sheikh Mohammed, for example, and the four other men in a venue that will be internationally recognized, if they want to attempt to draw a line under the whole of this “war on terror,” which started because of 9/11, and here are the guys who are supposed to have done the whole thing — are they going to do that? Or are they going to accept that, no it’s too unpopular to do that, just leave them in Guantánamo, and we’ll start picking away at people, one by one, and put them on trial in Military Commissions and see if that works? I don’t quite know which course of action they’re going to take. But first of all they’re going to have to get through the trials of the men they’ve put forward.

We’ve spoken about al-Nashiri. But another of the three other men they’ve put forward — Ahmed al-Darbi, picked up in Azerbaijan — seems also to have a history that’s replete with torture, particularly in Bagram, probably in the secret part of Bagram that was running under the Bush administration. One of them, to me, is completely pointless — a minor insurgent, if anything, in Afghanistan, an Afghan named Obaidullah. What on earth is going on here, with an attempt to prosecute him? We’ll have to see how it goes. My feeling is that they will carry on trying to secure plea deals in these Military Commission trials, as it’s the only venue where they can do trials at all at the moment. And it may be that, if you look on average at how the Commissions have worked out, they’re actually working out better for the prisoners in terms of getting out of Guantánamo than any other way.

Revolution: Aside from the individual cases of these prisoners, there is the overall moral and legal implications of the continuing existence of Guantánamo, of indefinite detentions, and so on.

Andy Worthington: I don’t know how it’s possible to shift the discussion to where it should be. But all of this, whatever Obama has tried to do the last few years, has really failed to shift the structure of detention, from what was so falsely established by the Bush administration. This is a new kind of thing in history. We’re not dealing with soldiers. We’re not dealing with criminals. We’re dealing with a new category of human beings who don’t deserve to have any rights, the “enemy combatants.” Now Obama dropped that terminology. But when they want to put the people in Guantánamo on trial in Military Commissions as we saw with Omar Khadr, they have to be declared by a judge to be “alien unprivileged enemy belligerents,” which they think is more in spirit with the Geneva Conventions. But again, it’s a legacy of this fundamental problem that hasn’t been addressed, which is, there is not a third category of prisoner, there are only two types of people that you hold. They are either criminal suspects and you put them on trial — speedily, I believe, is an important aspect of that — or they’re prisoners of war, they’re soldiers who you’ve captured in wartime, whether they’re wearing a regular uniform or not, and that’s it.

There’s an enormous resistance to going back to the world that existed before 9/11 in that sense. The Bush position is ferociously defended by numerous Republicans now. But it’s also essentially, fundamentally defended by the Obama administration as well, however much they may try to dance around that — and if challenged, they would probably talk about how this isn’t about projecting into the future, this is a legacy problem they’re trying to deal with, and under the terms of this legacy problem, that detention situation exists. They could redefine people as prisoners of war protected by the Geneva Convention. Then we could all be debating about how long the war lasts and how long it’s appropriate to hold these men.

So it’s a disastrous confusion, really, the position we’re in now, with all these different factions fighting their own corners, and the people in Guantánamo ultimately being the losers. If they’re cleared for release, they’re not going anywhere. If they were recommended to be put forward for trial, then one avenue for trial has been cut off, the other one doesn’t look promising. Then behind that are men to be held indefinitely without charge or trial, which was exactly what the Bush administration intended in the first place. And however that’s dressed up, that’s not fundamentally any different either.

I hope that at some point we will be able to push the debate onto these issues of scrapping the whole terminology that underpins detentions in the “war on terror” and get back to an understanding that people are either criminals or soldiers, and that’s the end of the story.

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

This year the President’s bitter surprise for the prisoners (which has encouraged a widespread peaceful protest at the prison, as reported here) was two-fold. The first was his failure to veto a military spending bill passed by Congress, which contained cynical and unconstitutional provisions preventing the transfer of any prisoner to the US mainland, in which lawmakers also demanded the power to prevent the release of prisoners to countries regarded as dangerous.

While these were evidently unacceptable assaults on Presidential authority, dashing the administration’s hopes of holding federal court trials for any of the remaining 173 prisoners and confirming the intent of Congress to enshrine the Yemeni moratorium in legislation, and also to prevent any prisoners from being released to other countries including Afghanistan, Obama refused to veto the bill, feebly claiming that he would try to negotiate with Congress, but thereby conceding that there was no way that the prison would close in the foreseeable future — or, very probably, in the rest of his term in office.

The Return of the Military Commissions

The second bitter surprise for the prisoners was the announcement last week, first mentioned by the New York Times, that, although federal court trials have effectively been suspended, specifically derailing the administration’s stated intention to prosecute Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks in federal court, the administration is preparing to push ahead instead with trials by Military Commission for at least some of the 33 men recommended for trials by Obama’s Task Force.

This decision is particularly disappointing because it hands victory to the most ideologically misguided Republicans, who like the idea of Military Commissions because they reinforce their false notion of terrorist suspects as “warriors” in the Bush administration’s “War on Terror,” while enraging many of Obama’s own supporters, who are opposed to trials by Military Commission because they represent a second-tier system of justice, inferior to federal court trials, and, in particular, because they contain “war crimes” specifically invented by Congress.

As Lt. Col. David Frakt, a law professor and the military defense attorney for two prisoners at Guantánamo, explained in Congressional testimony in summer 2009:

If one were to review the charges brought against all of the approximately 25 defendants charged [under President Bush] in the military commissions, as I have, one would conclude that 99% of them do not involve traditionally recognized war crimes. Rather, virtually all the defendants are charged with non-war crimes, primarily criminal conspiracy, terrorism and material support to terrorism, all of which are properly crimes under federal criminal law, but not the laws of war.

The decision to revive the Commissions is also disappointing because, as ProPublica reported in a follow-up to the Times‘ story, last August, when “President Obama’s national security advisers, including Secretary of Defense Robert Gates, Attorney General Eric Holder and Secretary of State Hillary Clinton, met in the White House situation room to decide whether and how to go forward with trials for some Guantánamo prisoners,” they reportedly “left the White House that August day committed to moving forward simultaneously with prosecutions in federal court and military commissions.” As ProPublica stated explicitly, “No military trials would be held anywhere unless trials in federal courtrooms were held at the same time.”

The only glimmer of hope, as ProPublica also reported, is that:

[S]ome experts have suggested that the restrictions [on moving prisoners to the US mainland] affect only the Pentagon. Justice Department funds could still be used to move prisoners to the United States. If that is the White House view, it will be known only when a prisoner is moved to the United States for trial. And only then will it be clear whether the White House policy to move simultaneously on prosecutions in federal court and military commissions still holds.

However, given Obama’s history of bowing to Republican pressure on almost everything to do with Guantánamo, it strikes me as highly unlikely that he would willingly invite an avalanche of criticism to descend on him by stealthily moving prisoners to face trial to the US using Justice Department funds.

If that were the case, he would already have robustly defended federal court trials, whereas the sad truth is that, when tested, he withdrew from the fray. That test came in October and November, during the trial and conviction of Ahmed Khalfan Ghailani, the only man to be moved by the Obama administration from Guantánamo to the US mainland to face a federal court trial (a move that took place in May 2009, before Congress decided to do all it could to usurp the President’s powers). When the jury in Ghailani’s case convicted him on one count of conspiracy, in connection with the bombing of the US embassy in Dar-es-Salaam, Tanzania in August 1998, and cleared him of 284 other charges, Obama refused to speak up to defend the court system, allowing his distorted critics to behave as though Ghailani had somehow beaten the system, even though he faced a minimum prison sentence of 20 years, and, when his sentence was delivered today, received a life sentence without parole.

The sad history of the Military Commissions

With the Commissions back in play, therefore, the only hope for those who believe, correctly, that federal courts are the only legitimate venue for trying offenses related to terrorism, is that the system first dragged from the grave by Dick Cheney in November 2001, and revived by Congress in the fall of 2006, and again in 2009 (under Obama), after the Supreme Court ruled in June 2006 that Cheney’s version violated both the Geneva Conventions and the Uniform Code of Military Justice, will be as much of a failure as it has on all its other previous outings — the three convictions under Bush, and the two under Obama:

• David Hicks, an Australian, who, in March 2007, accepted a plea deal and was a free man nine months later;
• Salim Hamdan, a Yemeni, and one of several drivers for Osama bin Laden, who was cleared of conspiracy charges by his military jury, and was a free man five months after being convicted and sentenced for providing material support to terrorism in August 2008;
• Ali Hamza al-Bahlul, a Yemeni who made a promotional video for al-Qaeda, and received a life sentence in November 2008 after a one-sided trial in which he refused to mount a defense;
• Ibrahim al-Qosi, from Sudan, a sometime chef for al-Qaeda members in a compound used by Osama bin Laden, who accepted a plea deal in July last year, and is expected to be freed in July 2012; and
• Omar Khadr, a Canadian, and a former child prisoner, who was put forward for a trial by Obama despite his former status as a child (which should have guaranteed that he was rehabilitated rather than prosecuted), and who agreed to a plea deal in October, which involves him serving one more year in Guantánamo, and then being repatriated to serve seven more years in Canada.

Of these, the trial of Omar Khadr ought to have been the biggest humiliation for the Obama administration, and a sure sign of troubles to come, as his guilty plea involved the spurious war crimes invented by Congress, and it was both depressing and shameful to watch as Obama presided over a system in which Khadr was obliged to accept that he was an “alien unprivileged enemy belligerent,” whose participation in — or presence at — the firefight in July 2002 that led to his capture was illegal.

The men scheduled to face trials by Military Commission

As the New York Times explained last week, the men scheduled to face trials include three of the five men mentioned by Attorney General Eric Holder on November 13, 2009, on the same day that he announced the federal court trial of Khalid Sheikh Mohammed and his alleged 9/11 co-conspirators. With al-Qosi and Khadr dealt with, the remaining three are Noor Uthman Mohammed, Ahmed Mohammed al-Darbi and Abd al-Rahim al-Nashiri. A fourth man is Obaidaullah, an Afghan. All of these men (like al-Qosi and Khadr) are hold-overs from the Bush-era Commissions, when 29 men in total were charged, but only three trials took place, as mentioned above.

Noor Uthman Muhammed

In the case of Noor Uthman Muhammed, accused of being the deputy emir of a training camp in Afghanistan, the main problems were summarized in a report from his most recent hearing at Guantánamo in September last year, by Raha Wala, a Georgetown Fellow in Law and Security, who attended the hearing on behalf of Human Rights First, and elaborated on some of the failures of the Commissions that I mentioned above. Wala wrote:

One reason Noor’s case is a bad fit for a war crimes prosecution is that it’s unclear whether a military commission can even exert jurisdiction over Noor for crimes that the government says he committed. Most of the criminal acts Noor allegedly committed took place from the mid-1990′s to 2000, purportedly before the United States was at war with anyone. Yet the military commissions were originally created in response to the September 11th terrorist attacks to try individuals for war crimes, raising questions about whether the military commission even has jurisdiction to hear Noor’s case. The crimes Noor allegedly committed — material support of terrorism and conspiracy — are not traditional law of war violations typically tried in military commissions. Moreover, attempts by Congress to codify material support and conspiracy as war crimes may very well be seen as imposing ex post facto punishment, with military commissions serving as a venue for trying individuals like Noor for “war crimes” that simply didn’t exist at the time these alleged unlawful acts took place.

Similarly, Noor must be considered an “unprivileged enemy belligerent” for the military commission to assert jurisdiction over him. This means that the prosecution needs to show that Noor was unlawfully taking part in hostilities during an armed conflict. Yet, as was mentioned above, the United States was not at war in the 90′s during Noor’s alleged crimes. And Noor denies that he was affiliated with any armed forces, although the US government claims he was providing support for a Taliban training camp [actually the Khaldan camp, which was independent of both the Taliban and al-Qaeda]. Even if the US government’s accusations are accurate, it’s not clear that the Taliban was involved in any armed conflict during the time of Noor’s alleged unlawful acts either.

Other problems for the government are that Muhammed’s case relates to two others that the administration ought be extremely wary of publicizing: that of Abu Zubaydah, the supposed “high-value detainee” for whom the CIA torture program was first developed, who, it turned out, was not a significant figure in al-Qaeda at all, and that of Ibn al-Shaykh al-Libi, the emir of Khaldan, who was flown to Egypt by the CIA, tortured until he confessed to non-existent links between Saddam Hussein and al-Qaeda, which were used to justify the invasion of Iraq in March 2003, and later returned to Libya, where he died in mysterious circumstances in May 2009. Despite this, in September, prosecutors in Muhammed’s case declared their intention to use Abu Zubaydah’s diaries as evidence when his case comes to trial.

Ahmed Mohammed al-Darbi

In the case of Ahmed Mohammed al-Darbi, a Saudi seized in Azerbaijan in June 2002 and rendered to US custody in Bagram, Afghanistan, before being sent to Guantánamo, the main problem for the government is that his case is tainted with torture. He is accused of plotting to attack a ship in the Strait Of Hormuz, meeting Osama bin Laden and attending a training camp in Afghanistan, but at a hearing in September 2009, his civilian lawyer, Ramzi Kassem, urged that all of the 119 statements that al-Darbi made to interrogators should be ruled out, because they were obtained through the use of torture and abuse, including beatings, threats of rape, sensory deprivation, sleep deprivation and sexual humiliation, both at Bagram, where al-Darbi was held for eight months, and at Guantánamo (a full statement by al-Darbi is available here).

Abd al-Rahim al-Nashiri

The most troubling case is that of Abd al-Rahim al-Nashiri, one of 14 “high-value detainees” transferred to Guantánamo in September 2006, after being held in secret CIA prisons for nearly four years. I have written about the problems with al-Nashiri’s case since he was originally charged in June 2008, and these were summarized last week, when the New York Times noted that:

[His case] would attract global attention because he was previously held in secret Central Intelligence Agency prisons and is one of three detainees known to have been subjected to the drowning technique known as waterboarding.

Lt. Cmdr. Stephen Reyes of the Navy, a military lawyer assigned to defend Mr. Nashiri, declined to comment on any movement in the case. But he noted that two of Mr. Nashiri’s alleged co-conspirators were indicted in federal civilian court in 2003, and he made clear that the defense would highlight Mr. Nashiri’s treatment in CIA custody.

“Nashiri is being prosecuted at the commissions because of the torture issue,” Mr. Reyes said. “Otherwise he would be indicted in New York along with his alleged co-conspirators.”

The Times might also have mentioned that, shortly after al-Nashiri’s capture, he was threatened with a gun and a power drill in a secret CIA prison in Thailand, and was then moved to Poland, where, in September last year, he was granted “victim” status in an ongoing investigation into Polish complicity in the establishment of a secret CIA prison at Stare Kiejkuty, near Szymany.

Obaidullah

For the last of the men, Obaidullah (also spelled Obaydullah), the decision to proceed with a trial by Military Commission demonstrates how, as under President Bush, the Commissions’ ill-conceived dragnet not only includes alleged terrorists, but also minor figures in the Afghan insurgency, whose connection to terrorism is only justifiable under the absurd terms of the “War on Terror,” which treats terrorists and soldiers equally, and attempts to criminalize soldiers, while denying criminal trials for terrorists.

A year ago, when Eric Holder announced that Obaidaullah had been charged, I revisited an article I wrote when he was first charged under President Bush in September 2008, noting not only that he had plausible compliants that he was tortured by US forces in Bagram, but also that he was

charged with “conspiracy” and “providing material support to terrorism,” based on the thinnest set of allegations to date: essentially, a single claim that, “[o]n or about 22 July 2002,” he “stored and concealed anti-tank mines, other explosive devices, and related equipment”; that he “concealed on his person a notebook describing how to wire and detonate explosive devices”; and that he “knew or intended” that his “material support and resources were to be used in preparation for and in carrying out a terrorist attack.”

As I also explained:

It doesn’t take much reflection on these charges to realize that it is a depressingly clear example of the US administration’s disturbing, post-9/11 redefinition of “war crimes,” which apparently allows the US authorities to claim that they can equate minor acts of insurgency committed by a citizen of an occupied nation with terrorism.

In conclusion, while the charges against Obaidullah remain incomprehensible, there is no reason to suppose that the invented war crimes misapplied to the other men will ensure that their trials by Military Commission — also dogged by evidence of torture — will secure credible convictions, or be regarded as legitimate outside the United States.

January really is the cruelest month, at least for those still languishing in the Pentagon’s prison at Guantánamo.

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

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

In fact, after deliberating for five days, the jury found him guilty on one count of conspiracy to destroy US property and buildings, which carries a mandatory 20-year sentence, although the judge in his case, Judge Lewis Kaplan, can decide that a life sentence is appropriate.

Why, then, did Representative Peter King (R-NY), who is poised to become the chairman of the House Homeland Security Committee in January, exclaim, “This is a tragic wake-up call to the Obama Administration to immediately abandon its ill-advised plan to try Guantánamo terrorists” in federal civilian courts?

The reason is naked ideology, of a very damaging kind, as Rep. King revealed in the comment that followed. “We must treat them as wartime enemies,” he said, “and try them in military commissions at Guantánamo.”

For Rep. King and his fellow Republicans, who were queuing up to damn President Obama for his imperceptible failure, the naked truth is that they would have been even more dissatisfied if the jury had convicted Ghailani on the other 284 counts on which they found him not guilty, as it would have made it more difficult for them to attempt to justify their obsession with treating Ghailani — and all the other prisoners in Guantánamo — as “warriors” in the “War on Terror” launched by the Bush administration, for whom federal court trials are ideologically unsuitable.

Such is the blinkered obsession of these critics that they actively want information derived from torture to be used in the trials of alleged terrorists, and they blame Judge Kaplan for upholding the law by excluding from the trial the government’s alleged “star witness,” a Tanzanian named Hussein Abebe, whose name was revealed by Ghailani while he was being subjected to torture in a secret prison run by the CIA — part of a network of secret prisons in which he was held for two years and two months, after his capture in Pakistan in July 2004, until his transfer to Guantánamo, with 13 other alleged “high-value detainees,” in September 2006.

To these critics, it is irrelevant that information derived through the use of torture was excluded by Judge Kaplan because such information can never be used in federal court — and because the use of torture is a crime under domestic US law — just as it is irrelevant that Hussein Abebe’s testimony may also have been suspicious, as Marcy Wheeler pointed out in two articles on FireDogLake.

Nor, bizarrely, do they care that experts with deeper knowledge of the Commissions have pointed out that a military judge in a trial by Military Commission would also have excluded evidence derived through the use of torture, or that the Commissions themselves have a dismal record when it comes to successful prosecutions, having secured just five verdicts since their revival nine years ago: three through plea deals (in the cases of David Hicks, Ibrahim al-Qosi and Omar Khadr); one, in the case of Salim Hamdan, a driver for Osama bin Laden, after a trial in which the military jury threw out a charge of conspiracy; and another, in the case of Ali Hamza al-Bahlul, who produced a propaganda video for al-Qaeda, after a one-sided trial in which al-Bahlul refused to mount a defense.

With the exception of al-Bahlul, who is serving a life sentence (although this is being appealed), all these supposed victories have perished under scrutiny: in 2007, Hicks was freed almost immediately, to serve just seven months in Australia; Hamdan received a sentence of five and a half years, but the judge decided it included time already served, and he was a free man after just five months; al-Qosi, a sometime cook for al-Qaeda, is expected to serve two years; and Omar Khadr’s plea deal means he will be freed from Guantánamo in a year, with seven years ahead of him in a Canadian prison.

Also irrelevant to these advocates of torture and bent trials is the fact that federal courts have an enormously successful track record of prosecuting terrorists, and that the fate of Ghailani’s alleged co-conspirators in the 1998 bombings provides a salutary lesson regarding these successes, providing a ringing endorsement of federal court trials for terrorists, and — along the way — also providing a damning repudiation of the extralegal novelties of the “War on Terror.” Rather than being diverted into a network of secret prisons run by the CIA, where torture was making an ill-advised renaissance, Mohamed Rashed Daoud al-’Owhali, Khalfan Khamis Mohamed, Mohamed Sadeek Odeh and Wadih el-Hage were interrogated by FBI officials without the use of torture, were successfully convicted in a federal court in New York in May 2001, and were sentenced to life without parole in October 2001 — when the “War on Terror” had already begun.

All of the above is supposedly irrelevant to critics of the verdict in Ghailani’s trials because these cheerleaders for the Commissions — and for the use of information derived through the use of torture — want to ignore reality and return to the world envisaged by former Vice President Dick Cheney and his legal counsel David Addington in November 2001, when they first revived the Military Commissions, intending that they would be able to launder information derived through torture, and sentence supposed terrorist suspects to death without anything remotely resembling due process.

This is the system which, although still a second-rate system of justice, reserved for foreigners regarded as terrorist suspects, or as “alien unprivileged enemy combatants,” who are not allowed to raise arms against US forces under any circumstances, has been amended over the years, after the Supreme Court ruled it illegal in June 2006, demolishing Cheney’s dream so that information derived through the use of torture is banned, as it is in federal court trials. As a result, the only essential difference between the Commissions and federal court trials is that the military judges in the former can use their discretion to decide whether or not to allow the use of information that may have been derived through coercion rather than torture.

This may have made a difference in Ghailani’s case, but it seems unlikely, given the Commissions’ track record, that it would necessarily have led to a harsher sentence than the one Ghailani will receive after his federal court trial. In addition, it is worth considering that Ghailani’s trial took place with barely a mention of his treatment in secret CIA prisons or in Guantanamo, when the precedents from the Commissions indicate that military defense lawyers may have fought more tenaciously to raise it as an issue.

Once it becomes apparent that critics of the verdict in Ghailani’s trial are actually seeking a return to the lawless fantasy land envisaged by Dick Cheney and David Addington, and believe — contrary to the evidence — that US law is soft and useless, it also becomes apparent that the silence of President Obama and Attorney General Eric Holder in response to these complaints is deeply troubling.

The Obama administration needs to put down those who are insulting US law through the prism of their own warped ideology, or there is no telling where the rot will stop. Fortunately, for now, few critics have rallied behind a small group of other critics — Benjamin Wittes of the Brookings Institution, Jack Goldsmith, former Assistant Attorney General in the Justice Department’s Office of Legal Counsel, and law professor Robert Chesney — who have taken another troubling unconstitutional line, suggesting that Congress should enact legislation to hold terror suspects indefinitely without even bothering to think about putting them on trial.

However, without decisive action in support of US law and the Constitution on the part of the government, it may be that the idea of avoiding trials altogether for terrorist suspects will gain in strength. In this, Wittes, Goldsmith and Chesney may find that they are encouraged, disturbingly, by the Obama administration itself, which has already endorsed indefinite detention without charge or trial for 48 of the remaining 174 prisoners in Guantánamo, on the advice of the interagency Guantánamo Review Task Force, which was established by President Obama last year to review the cases of the remaining prisoners.

Moreover, in its apparent paralysis regarding trials either in federal court or by Military Commission for 34 prisoners (who were recommended for trial by the Task Force), the Obama administration is close to finding that it has enshrined indefinite detention without charge or trial as official US policy unless it acts immediately to put other Guantánamo prisoners on trial in federal court — starting, I suggest, with Khalid Sheikh Mohammed and his four alleged co-conspirators in the 9/11 attacks, whose federal court trial was announced by Eric Holder almost exactly a year ago.

If senior officials believe in the ability of federal courts to try terrorist suspects, they need to find the courage to say so, to say so boldly and with a courage that has been sadly lacking, and to follow through on their beliefs without caving in to criticism from opponents whose entire point of view is fueled by blind vengeance and a thorough disdain for the law.

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 “The Rule of Law and the Ghailani Case.” Cross-posted on The Public Record, Cageprisoners and Uruknet.

Hicks’ memoir has prompted some of his opponents in Australia to argue that he should not benefit financially from the book’s publication, because of legislation that prevents anyone from profiting from the proceeds of crime, and the Associated Press reported on Sunday that the Australian police are considering whether Hicks “should be sued for any profits he makes from his autobiography.” This is an interesting argument, and one that I hope will be thoroughly challenged, as Hicks’ status as a former criminal is seriously in doubt. The plea deal that secured his return from Guantánamo (followed by a short prison term in Australia) was not only politically motivated — intended to help John Howard secure re-election (which failed), and, more importantly, to prevent Hicks from revealing the brutal treatment to which he was subjected in Afghanistan and in Guantánamo — but was also of dubious legality.

Hicks accepted a charge of providing material support to terrorism, but as numerous experts, including senior lawyers within the Obama administration, have explained (or conceded, in the government’s case), providing material support to terrorism is an invented war crime, inserted into the Military Commissions Act of 2006 by Congress (when the Commissions were revived, after the Supreme Court ruled them illegal), and retained in 2009 (in spite of the government’s complaints) when the Commissions were again revived. Challenges to the material support convictions are currently being considered by the US courts in the cases of two other prisoners who were tried by Military Commission, and as Hicks’ former lawyer, Adelaide-based Steve Kenny, explained in July this year, “It has always been my position that he never committed any crime. We looked at Australian law, international law and Afghani law, and we were unable to identify any breach of those laws. The law that he eventually pleaded guilty to was not actually an international war crime at all. In fact it was a crime that didn’t exist.”

“A blur of hardships”: an excerpt from Guantánamo: My Journey by David Hicks

I awoke on a concrete slab with the sun in my face. I looked around and saw that I was in a cage made out of cyclone fencing, the same as the boundary fence around my old primary school. Internal fences divided the cage into ten enclosures, and I was in one of the corner-end cells. Around me, I saw five other concrete slabs with what looked like bird cages constructed on top. A fence covered in green shadecloth and topped with rolls of razor wire was wrapped around these six concrete slabs, able to house sixty unfortunate human beings. Hanging on the inside of this fence were signs saying, “If you attempt escape, you will be shot,” complete with a featureless person with a target for a head.

All around the outside of the shadecloth, civilian and uniformed personnel cleared and flattened grass and trees. They poured cement and assembled the wire cages, calling them “blocks.” There was nothing much else around us except guard towers boasting large, painted American flags and manned by armed marines.

My block was only the second to have been built, but that would change over time. As this prison grew out of the grass, more “detainees,” as they liked to call us, rather than POWs, arrived. About a month later, around 360 of us lived in these outdoor enclosures. They were open to the wind, sun, dust and rain and offered no respite. The local wildlife was being disturbed as their homes were bulldozed to make room for the concrete blocks, and scorpions, snakes and 23 centimetre-long tarantulas tried to find shelter in what were now our enclosures.

My cage, like all the cages, was three steps wide by three steps long. I shared this space with two small buckets: one to drink out of, the other to use as a toilet. There was an “isomat” (a five-millimetre-thin foam mat), a towel, a sheet, a bottle of shampoo that smelt like industrial cleaner, a bar of soap (I think), a toothbrush with three-quarters of the handle snapped off and a tube of toothpaste. When I held this tube upside down, even without squeezing, a white, smelly liquid oozed out.

This bizarre operation was called Camp X-Ray. Our plane was the first to arrive on this barren part of the island, and we remained the only detainees for the first three or four days. We had been spaced apart because of the surplus of cages. Every hour of the day and night we had to produce our wristband for inspection, as well as the end of our toothbrush, in case we had “sharpened it into a weapon.” These constant disturbances prevented us from sleeping. We were not allowed to talk, or even look around, and had to stare at the concrete between our legs while sitting upright on the ground. If we did lie flat on the concrete, we had to stare at a wooden covering a foot or so above our cages, which served as some type of roof. Apart from blocking the sun for about two hours around noon, the roof offered no other benefit.

Sitting or lying in the middle of the cage, away from the sides, were the only two positions we were allowed to assume. We could not stand up unless ordered to, and the biggest sin was to touch the enclosing wire. If we transgressed any of these rules, even if innocently looking about, we were dealt with by the IRF team, an acronym for Instant Reaction Force. The Military Police nicknamed this procedure being “earthed” or “IRFed,” because they would slam and beat us into the ground.

I first witnessed the IRF team a day or two after my arrival. An MP stopped outside the cage of an Afghan, my closest neighbour at the time. The MP demanded to know what the Afghan had scratched into the cement. He had not scratched anything and could not even speak or understand English. I heard the MP read, “Osama will save us.” The detainee had no idea what the guard was on about, yet the MP was furious when he did not respond. “I’ll teach you to resist,” the MP threatened and stormed off. Suddenly six MPs in full riot gear formed a line outside his cage. The first one held a full-length shield. He entered the cage first, slamming the detainee, pinning him to the cement floor with the shield, while the others beat him in the torso and face. The last to enter the cage was a dog handler with a large German shepherd. The dog was encouraged to bark and growl only centimetres from the Afghan’s face while he was being beaten. In later cases, the dogs bit detainees.

When they had finished, they chained him up and carried him out. His face was covered in blood. A few hours later an MP washed the blood off the cement with a scrubbing brush and hose. To add to that injustice, an MP told me some weeks later that he himself had scratched that statement into the cement before any of us had arrived at Guantánamo, while they had been training and awaiting our arrival.

Every two or three days a planeload of detainees would arrive. They were always made to kneel and lean forward on the gravel while being yelled at and struck in the back of the head. They had to balance in this position while one detainee at a time was picked up from the line, escorted into a block and deposited into a cage. Those who were moved first were lucky not to have to endure the stress position for hours. It was around this time that helicopters hovered above, and very large groups of civilians walked through the camp to view us in our cages — specimens in an international makeshift zoo.

The first two weeks of Camp X-Ray was a blur of hardships: no sleeping, no talking, no moving, no looking, no information. Through a haze of disbelief and fear, pain and confusion, we wondered what was going to happen. To pass time and relieve the pressure on my ailing back, I chose to lie down rather than sit up. During the day I would look slightly to my right, focusing my vision just beyond the wooden roof, and lose myself in the sky beyond. It was an escape, so peaceful, so blue and full of sunlight. I gazed at the odd cloud and spied big, black birds circling high above, called vulture hawks. It was never long, though, before a hostile face blocked the view, screaming, “What are you looking at? Look up at the roof.” All I could do was sigh and avert my gaze from the infinite, blue sky to a piece of wood.

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.

Last week, however, when the House Committee on the Judiciary’s Constitution, Civil Rights, and Civil Liberties Subcommittee convened to hear further testimony about the Military Commissions, few media outlets noticed. This was a great shame, as one of the speakers was Lt. Col. (formerly Maj.) David Frakt of the US Air Force Reserves, whose testimony (PDF) was at least as riveting as that of his former adversary in the Military Commissions, Lt. Col. Darrel Vandeveld, the ex-prosecutor who resigned in September 2008. On July 8, Lt. Col Vandeveld told the committee that the Commissions were “broken beyond repair,” and “cannot be fixed, because their very creation — and the only reason to prefer military commissions over federal criminal courts for the Guantánamo detainees — can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation.”

The main thrust of Lt. Col. Frakt’s testimony, as an experienced lawyer who studied the Military Commissions Act of 2006 in depth and served on the Commissions from April 2008 as a military defense attorney (for two prisoners, Mohamed Jawad and Ali Hamza al-Bahlul), is that the MCA should be repealed and trials held in federal courts, which have a proven track record of dealing with cases related to terrorism. However, as he is pragmatic enough to realize that this may not happen, he provided the Committee with eleven detailed revisions to the MCA, which should be followed if, as anticipated, everyone involved in the decision-making process continues to believe that the tainted Commissions will be able to deliver justice.

These are worth looking at in detail (they are on pp. 8-15 of Lt. Col. Frakt’s testimony), but as I agree with his assertion that, essentially, the MCA is a flawed piece of legislation that resuscitated an even more flawed and rigged system conceived by former Vice President Dick Cheney and his close advisors, after the Supreme Court struck down the Commissions’ original incarnation in June 2006, and that it should be consigned to the trashcan of history, I’m reproducing below the section of Lt. Col. Frakt’s testimony in which he explains why (pp. 4-8), and his conclusion (pp. 15-17).

In these sections, Lt. Col. Frakt runs through a chronology of the Bush administration’s deliberate flight from the law, with a particular focus on how standards were deliberately dropped in an attempt to secure successful prosecutions, how criminal activities were confused with acts of war, and how the laws of war were twisted — by both the Bush administration and by Congress — to include crimes that have never been previously been covered by the laws of war. I doubt that you’ll find a better explanation of the legal failures of the Bush administration’s response to the 9/11 attacks anywhere else.

“The Abandonment of the Rule of Law”
An excerpt from Lt. Col. David Frakt’s testimony to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, Committee of the Judiciary, United States House of Representatives, July 30, 2009

In the run-up to this section, Lt. Col. Frakt stated, “As we ponder the questions before us, I think it is important to review where we are now and how we got to this point.”

One point on which all sides should be able to agree is that the military commissions of the Bush administration were a catastrophic failure. The military commissions clearly failed to achieve their intended purpose. After more than seven years and hundreds of millions of dollars wasted, the military commissions yielded only three convictions, all of relatively minor figures. Not a single terrorist responsible for the planning or execution of a terrorist attack against the United States was convicted. Two of the convicted, David Hicks and Salim Hamdan, received sentences of less than one year and were subsequently released. The third trial, of my client Mr. al-Bahlul [Ali Hamza al-Bahlul], though yielding a life sentence, was far from a triumph for the military commissions.

There were several problematic aspects of this trial, not the least of which was the fact that several members of Mr. Hicks’ jury were actually recycled for this military commission. More disturbing was the denial of Mr. al-Bahlul’s statutory right of self-representation. Mr. Al-Bahlul, a low-level al-Qaeda media specialist, wanted to represent himself before the military commissions and this request was granted by the military judge at the arraignment, Army Colonel Peter Brownback. Soon thereafter, Col. Brownback was involuntarily retired from Army and replaced. The new judge revoked Mr. al-Bahlul’s pro se status, although he knew that Mr. al-Bahlul had refused to authorize me, his appointed military defense counsel, to represent him. As a result, there was no defense presented; Mr. al-Bahlul was convicted of all charges and received the maximum life sentence.

Why, with the entire resources of the Department of Defense, the Justice Department and the national intelligence apparatus at their disposal, were the military commissions such an abysmal failure? The answer is simple: the military commissions were built on a foundation of legal distortions and outright illegality. The rules, procedures and substantive law created for the commissions were the product of, or were necessitated by, the wholesale abandonment of the rule of law by the Bush administration in the months after 9/11. In the United States of America, any such legal scheme is ultimately doomed to fail.

If we review the origins of the military commissions, a clear picture emerges of an intentional disregard for existing legal norms. Perhaps the first indication that the rule of law was to be abandoned was in President Bush’s Military Order of November 13, 2001. In this document, President Bush found: “it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” In other words, what we consider essential for a fair trial for us would not be required for them. How did the administration know, two months after 9/11, before a single major terrorist suspect had been caught, and before a single prosecutor had reviewed a single piece of evidence, that it would be impracticable to prosecute terrorism cases using existing rules and procedures? They didn’t, of course. But having made this unsupported finding, President Bush and his senior advisors set out to make it a reality.

Another major step in the abandonment of the rule of law came on February 7, 2002, when President Bush issued another order [PDF], this time announcing that the Geneva Conventions would not apply to those detained in the War on Terror, who were labeled with the new and misleading term “unlawful enemy combatants.” The President held not only that such persons were not entitled to be treated as prisoners of war, but also, shockingly, that they were not even legally entitled to be treated humanely. With a stroke of the pen, the President wiped out the principle source of the law of war and the entire existing legal framework for the treatment of persons captured in an armed conflict and replaced it with a policy preference for humane treatment, which could be readily discarded whenever it interfered with military or intelligence operations. The decision that humane treatment was not required created unnecessary confusion about what was permissible and cleared the way for the approval of a vast array of patently illegal and highly coercive “enhanced interrogation techniques” to be employed upon the detainees.

The abandonment of the rule of law was compounded by the decision to house the “unlawful combatants” at Guantánamo Bay, Cuba, and to turn the detention facilities there into a legal black hole, a place where detainees were not even entitled to be informed of the basis of their detention, much less challenge it. Indeed, the Bush administration, regrettably aided and abetted by Congress, made a determined (and, for several years, successful) effort to prevent detainees from gaining access to courts or legal representation. In an environment with no judicial oversight or meaningful avenues for redress, the detainees were simply at the mercy of their captors — and the captors were not in a merciful mood. The extraordinary pressure to produce “actionable intelligence” coupled with the vengeful mood of the times led inexorably to shameful abuses of detainees [Senate Armed Services Committee report, PDF].

In 2002 and 2003, as senior Bush administration officials drafted the rules for the President’s military tribunals, they were aware of several important pieces of information about the detainees at Guantánamo. First, despite claims by high-level officials, including Secretary Rumsfeld, that the detainees represented “the worst of the worst,” in reality, the vast majority of the detainees had no tangible connection with al-Qaeda, and even fewer had any provable role in any terrorist attack. Many of the detainees were completely innocent of any wrongdoing, and had simply been turned in for bounty, or were caught in the wrong place at the wrong time.

The worst that could be said about many of them was that they had fought against the US and coalition forces that had invaded Afghanistan, conduct that, under the laws of war, would not be considered a war crime. A small group of those captured were likely guilty of terrorism crimes, but not crimes of war. The administration was also keenly aware that, to the extent that there was some evidence of criminal acts by a small fraction of the detainees, much, if not most of this evidence had been developed through highly coercive interrogations, which would not be admissible in a regular court of law.

The drafters of the original military commission rules [PDF] resolved each of these problems by rewriting the law. First, the rules of evidence were rewritten to allow the introduction of coerced statements and to eliminate the rules barring the fruits of torture and abuse. Second, the drafters classified as “war crimes” conduct, such as conspiracy and terrorism crimes that are violations of regular criminal law but had never previously been recognized as covered by the laws of war, largely because the laws of war rightly apply to the narrow context of armed conflict.

They also created a number of “new” war crimes based on the alleged status of a person, rather than on conduct that actually violates the laws of war [PDF]. The most egregious examples of these were the invented crimes “Murder by an Unprivileged Belligerent” and “Destruction of Property by an Unprivileged Belligerent,” which appeared in the original commission’s list of offences. These provisions made killing US soldiers, destroying military property, or attempting to do so, a war crime. In other words, the US declared that it was a war crime to fight, regardless of whether the fighters comply with the rules of war.

After protracted litigation, the original military commissions were invalidated by the Supreme Court in Hamdan v. Rumsfeld [PDF] in the summer of 2006 before anyone was ever convicted. With nearly five years wasted, there was a great rush to put a new legal system in place. Within months “new and improved” military commissions were authorized by Congress through the Military Commissions Act of 2006 (MCA) [PDF]. While these legislatively created commissions were undoubtedly an improvement over those created by Presidential decree, the hastily drafted and poorly considered MCA still incorporated some of the key distortions and departures from the rule of law featured in the invalidated version. Most disturbingly, Congress retained the rules of evidence (with minor variations) that permitted coerced evidence to be introduced. Congress also retained the full list of war crimes (again with minor variations), including the invented ones, and even added new ones, such as the flexible catch-all “material support to terrorism.”

The Obama administration has now acknowledged that material support is not a traditional war crime, calling into question all three of the convictions thus far attained. (Mr. Hicks, Mr. Hamdan and Mr. al-Bahlul were all convicted of material support. For Mr. Hicks and Mr. Hamdan, it was the only crime of which they were convicted). Although the military commissions were purportedly modeled on the Uniform Code of Military Justice (UCMJ), the best features of that system, such as the robust pretrial investigation required by Article 32 of the UCMJ and equal access by the prosecution and the defense to evidence and witnesses, were removed or weakened. The implementing regulations produced by the Secretary of Defense [PDF], which could have corrected or mitigated some of the glaring problems with the legislation, served only to exacerbate them.

Despite the widespread criticism of the MCA by the international community, legal scholars and non-governmental organizations, identifying the myriad shortcomings of the military commissions, the Bush administration was determined to press ahead with the military commissions and convict as many detainees as possible. It was the hope and deliberate strategy of the administration that if the military commissions were well underway by the time the next administration assumed office, with several trials completed and convictions duly rendered (the administration did not foresee or accept the possibility of acquittals), the commissions would be difficult to derail.

This “spray and pray” strategy might have succeeded but for one factor the Bush administration never anticipated: many of the military lawyers assigned the role of prosecutors, defense counsel and judges in the military commissions refused to put aside their ethical obligations and their training in the rule of law. Many of these judge advocates, officers with decades of experience in the law of war, considered the military commissions an affront to the military justice system to which they had devoted their careers.

Ethical and courageous military prosecutors, such as former Chief Prosecutor Colonel Morris Davis and Lieutenant Colonel Darrel Vandeveld, who took their oaths to defend the Constitution seriously, resigned rather than be party to trials using coerced evidence or to allow political considerations to interfere with their prosecutorial judgment. Professional military judges refused to be bullied into endorsing the administration’s strained interpretations of the law of war. Tenacious military defense counsel challenged the government at every turn, exposing the many flaws in this concocted legal system and the disgraceful brutality with which their clients had been treated. Through patient, professional advocacy both inside and outside the commissions, these lawyers managed to put the brakes on the military commission freight train and slow the proceedings to the point where it was a simple matter for President Obama to suspend them almost immediately after assuming office. This suspension period allows us an opportunity for reasoned debate about the shortcomings of the military commissions and their efficacy and utility.

Although I have become known as a fierce critic of the military commissions, I want to make it clear that I am not opposed to military commissions as a general matter, but rather am opposed to military commissions in their current form. I am a strong proponent of military justice and have no concerns about the military’s ability to provide a fair trial, even for our worst enemies, given a fair set of rules and procedures. In my law review article [“An Indelicate Imbalance,” an article about the Commissions for the American Journal of Criminal Law in 2007] I did not propose to abolish the military commissions, but rather suggested a number of legislative and regulatory changes to convert them into a viable, acceptable system. After practicing in the military commissions, I developed some additional concerns with the military commissions which also would require legislative action to address […].

Although I still believe it is theoretically possible to amend the MCA to create valid commissions, the best solution would simply be to repeal the MCA and start over to create military commissions that are not just loosely based on the UCMJ and Manual for Court-Martial [980 pages, PDF], but are virtually identical. Any proposed deviation from court-martial procedure would have to be carefully scrutinized to ensure that it was truly necessary and appropriate and not merely an effort to favor the prosecution. Any deviations, individually and cumulatively, from the rules and procedures for general courts-martial should be minimal, and must not significantly detract from the overall fairness of the proceedings. In my view, had we adopted a military commissions scheme that truly mirrored the rules and procedures for general courts-martial, as was already authorized under federal law in 2001, we would not be in the position we find ourselves in today. The military commissions would have succeeded in providing fair trials and would not have been plagued by endless delays, challenges and setbacks.

*****

After running through his extensive list of proposed amendments, Lt. Col. Frakt nevertheless concluded by asking the members of the Committee to consider whether these would be sufficient to overcome an overarching problem with the Commissions, which has nothing to do with any kind of amendment, whether major or minor, and I conclude by reproducing his closing statements, as they return, with the utmost relevance, to the fundamental problems caused by the Bush administration’s insistence — reiterated by Congress when it passed the MCA — that criminal offenses could be regarded as violations of the laws of war.

Lt. Col. Frakt’s conclusion

The question this committee, and the rest of Congress, must consider is whether there is any point in continuing with military commissions. As President Obama has stated, military commissions are a legitimate forum in which to try offenses under the law of war, but this begs the question of whether there are any law of war offenses to try. If one were to review the charges brought against all of the approximately 25 defendants charged in the military commissions, as I have, one would conclude that 99% of them do not involve traditionally recognized war crimes. Rather, virtually all the defendants are charged with non-war crimes, primarily criminal conspiracy, terrorism and material support to terrorism, all of which are properly crimes under federal criminal law, but not the laws of war.

In fact, in my estimation, there has been only one legitimate war crime charged against any Guantánamo detainee, the charge of perfidy against Abdul Rahim al-Nashiri for his alleged role in the attack on the USS Cole in October 2000. But even though perfidy is a traditional offense under the law of war, convicting Mr. al-Nashiri of this offense requires accepting the dubious legal fiction that the United States was at war with al-Qaeda nearly a year before 9/11, for the law of war only applies during a war. In fact, most of the offenses with which the so-called “high-value detainees” are charged relate to events which occurred on or before 9/11, when the US was not involved in an armed conflict with al-Qaeda. Perhaps more to the point, Mr. al-Nashiri was also charged with several other non-law of war offenses arising out of the same conduct, including multiple charges carrying the death penalty, making the charge of perfidy redundant […].

If there are no real war crimes to prosecute, are there any good reasons to continue with military commissions? The Bush administration’s motive for creating military commissions was to establish a forum in which American standards of due process did not apply and convictions could be obtained for terrorism crimes (not law of war offenses) under summary procedures using evidence which would not be admissible in a regular court of law. The Obama administration has now rightly concluded that Constitutional due process standards should apply to military commissions, and that normal rules of evidence should apply. Modifying the military commissions to comport with due process and the rule of law will mean eliminating the very reason for their existence. Partially amending them with some minor cosmetic changes will result only in many more years of protracted litigation.

Among the over two hundred detainees still at Guantánamo, there are perhaps a few dozen who have committed serious offenses. I have yet to hear any compelling reason why any of these men could not be prosecuted under existing law in Federal Court. As the recent report by Human Rights First conclusively demonstrates [PDF], the federal courts are open, and have a long track record of successful prosecutions of terrorism cases. Military commissions have not proven to be faster, more efficient or less costly than the alternative. The logistical difficulties in trying cases in Guantánamo have proven to be incredibly vexing. With Guantánamo slated to be closed in the next six months, the military commissions will have to be relocated and a whole new infrastructure created to support the commissions. This could further delay the commissions for months or even years. Military lawyers, unlike federal prosecutors and federal public defenders, have no special expertise in prosecuting or defending complex international terrorist conspiracies. The entire military commissions experiment has been a massive drain on DoD resources and personnel at a time when the military can least afford it.

The only other reason I have heard advanced for the use of military commissions is the belief that a person who could not be successfully prosecuted in Federal Court because of evidentiary problems might be successfully prosecuted in a military commission. Those who make this argument are essentially conceding that military commissions do not and should not provide the same due process as a regularly constituted American court.

The desire to achieve convictions at all costs is simply not an acceptable basis for the creation of an alternative legal system. The reason that the military commissions failed — indeed, the primary mistake of the entire “War on Terror” — was the pervasive abandonment of the law by the prior administration. We must not repeat the mistakes of the past and continue to cut corners. We must remember that this war is ultimately a war about ideas and values. True American values guarantee justice and fairness for all, even for the vilified and unpopular. If there are terrorists and war criminals to be tried, let’s do it the old-fashioned way, in a fair fight in a real court with untainted evidence. America is better than the last eight years. It is time to prove it to the world, and to ourselves.

David Frakt is a law professor at Western State University College of Law and a Lieutenant Colonel in the USAF Reserves.

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.

Cross-posted on The Public Record and After Downing Street.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Predictable Chaos As Guantánamo Trials Resume (July 2009).

His case is enormously significant, as I explained in a recent article, The Dark Heart of the Guantánamo Trials, because it involved a plea bargain negotiated by Susan Crawford, the Commissions’ newly-appointed Convening Authority (the overseer of the trial system), which completely sidelined the prosecutors — and in particular, the chief prosecutor, Col. Morris Davis, who later resigned, citing political interference in the process and a desire on the part of those directing the trials to allow the use of evidence obtained through torture. Crawford, a protégée of Dick Cheney and a close friend of Cheney’s chief of staff, David Addington (the prime architect of the administration’s post-9/11 flight from the law) negotiated the plea in March 2007 as a favor to Australian Premier John Howard, following a visit from Cheney. In exchange for admitting to providing “material support for terrorism,” and dropping well-documented claims that he was abused in US custody, Hicks received a nine-month sentence, most of which was served in Australia.

2. Salim Hamdan. One of a pool of seven drivers for Osama bin Laden, the Yemeni — a father with two young daughters — was, like many of the prisoners, charged with conspiracy and providing material support for terrorism. After a two-week trial this summer, which was the Commissions’ first real test, a military jury cleared him of the conspiracy charge and gave him a five-and-a-half year sentence on the lesser charge of supporting terrorism. The judge, Capt. Keith Allred, then allowed credit for time served, which means that Hamdan’s sentence will be completed by the end of the year.

Critics of the system refused to accept the trial as legitimate (in particular, because the gray area regarding the admissibility of coerced evidence was never adequately addressed), but were delighted with the result. The government, however, which had been pressing for a 30-year sentence, was livid. After noting that Hamdan could still be held as an “enemy combatant” after his sentence is over (a notion which would surely shame all but the most hardened dictators), the Defense Department resorted to claiming that Allred was not entitled to reduce Hamdan’s sentence for time served, and called for the jury to be reconvened. Allred dismissed these claims in a terse judgment on October 30, when, having “read the filings and legal citations, as well as reviewing the sentencing hearing transcript” (as the Wall Street Journal explained), he declared, simply, “The prosecution motion to reconsider, reassemble, reinstruct and re-announce a sentence is denied.”

3. Ali Hamza al-Bahlul. Al-Bahlul’s trial — the second US “war crimes” trial since the Second World War — took place at Guantánamo in the week before the Presidential election. Unlike Salim Hamdan’s trial, however, in which justice could at least be seen to be done (even if it was refracted through a dark mirror of unspoken abuse), al-Bahlul, a Yemeni accused of producing videos for al-Qaeda and serving as a bodyguard for Osama bin Laden, refused to mount a defense, and his lawyer, Maj. David Frakt, respected his client’s wishes, and also refused to speak. As I pointed out in a recent article, Frakt was obliged to remain silent because of issues of compelled representation, which could lead to lawyers being punished in the real world outside Guantánamo for representing an unwilling client. As a result, al-Bahlul’s trial highlighted another grave problem with the Commissions: if a prisoner wished to represent himself, this was acceptable, but if he boycotted the proceedings entirely, his trial proceeded as a one-sided show trial.

On November 3, the military jury gave al-Bahlul a life sentence, but without a case for the defense, the administration was allowed to sidestep the question of al-Bahlul’s alleged torture in US custody, and was also allowed to ignore Maj. Frakt’s assertion, made before the trial began, that al-Bahlul “was not an operational combatant,” “had no role in planning terrorist activities,” and “did not engage in terrorist activities.” As I wrote at the time, “The administration will crow that it has achieved a significant victory in the ‘War on Terror,’ but al-Bahlul’s guilt should have been confirmed in a federal courtroom, where he would not have been able to score a propaganda victory for al-Qaeda by being convicted in a one-sided trial.”

4. Omar Khadr. A Canadian, Omar Khadr was just 15 years old when he was captured after a firefight in Afghanistan in July 2002, and, as a juvenile, should therefore have been rehabilitated rather then punished, according to the Optional Protocol to the UN Convention on the Rights of the Child (on the involvement of children in armed conflict). He is accused of throwing a grenade that killed a US soldier, although the disclosure of previously suppressed evidence in the last year indicates that another man threw the grenade. Because of obstruction by the prosecution, Khadr’s trial has been repeatedly delayed, and is now scheduled to begin on January 26, 2009, five days into the new US administration.

At the time of writing, there are hopes that the Canadian government will be obliged to demand his return to Canada, after it was revealed, in a Canadian court, that the government knew about his torture in Guantánamo and that their repeated claims that they had received assurances from the US authorities that he was being treated humanely were untrue. His civilian lawyer, Nate Whitling, told the court, “I don’t want to use the word ‘lie,’ but it was a demonstratively false statement that was made to the Canadian public.”

5. Mohamed Jawad. An Afghan, who was just 16 or 17 years old at the time of his capture, Jawad is accused of throwing a grenade that wounded two US soldiers and an Afghan interpreter in December 2002, although he has always claimed that Afghan police obtained his “confession” through torture.

In the last month, Jawad’s case has threatened the legitimacy of the entire Commission process, after his prosecutor, Lt. Col. Darrel Vandeveld, resigned. He explained that the system was designed to prevent the disclosure of evidence essential to the defense, and described how evidence proving that Jawad was a juvenile, that he was tricked into joining an insurgent group and was drugged before the attack, and that two other men had confessed to the crime, had been deliberately suppressed. Terrified that Vandeveld has more damaging revelations, the administration recently dropped the charges against five other prisoners — Noor Uthman Muhammed, Ghassan al-Sharbi, Jabran al-Qahtani, Sufyian Barhoumi and Binyam Mohamed — for whom Vandeveld was the prosecutor. The government added that it intended to refile charges against the five men in November, but did not explain how it intended to silence Vandeveld indefinitely.

All five were reportedly connected with Abu Zubaydah (photo, left), a training camp facilitator who is regarded by the US administration as a senior al-Qaeda operative, even though the FBI regards him only as a minor logistician with a personality disorder. The government has not explained why Zubaydah has not been charged, but in May it charged Muhammed, a Sudanese prisoner, with serving as the deputy emir and a weapons instructor at the Khaldan training camp in Afghanistan, even though Muhammed has insisted that Khaldan had nothing to do with either al-Qaeda or the Taliban. In June, al-Sharbi and al-Qahtani (both Saudis) and Barhoumi (an Algerian) were charged with various plots involving explosives, and Binyam Mohamed, a British resident whose lawyers have been engaged in a transatlantic struggle to secure evidence relating to the two years he spent being tortured in Morocco and in a secret CIA prison in Afghanistan, was charged with plotting to detonate a “dirty bomb” in a US city (the same non-existent plot that was used to hold US citizen Jose Padilla for three and a half years as an “enemy combatant” on the US mainland).

At the time of writing, the judge in Jawad’s case, Army Col. Stephen Henley, moved one step closer to dismissing the case by ruling that his “confession,” obtained in Afghan custody, was inadmissible, because it had been extracted through the use of torture (confirming Jawad’s repeated claims). As the Miami Herald reported, Henley found that there was “reason to believe Jawad was under the influence of drugs at the time of his capture and forced confession,” and also “accepted the accused’s account of how he was threatened, while armed senior Afghan officials allied with US forces watched his interrogation.” He stated that he believed Jawad’s account of an interrogator telling him, “You will be killed if you do not confess to the grenade attack. We will arrest your family and kill them if you do not confess.” He also made a point of stating that he was accepting Jawad’s account because the government had failed to provide “timely disclosure of evidence” for his trial, which is scheduled to begin on January 5, 2009.

Noting that Henley was explicitly rejecting the administration’s notorious attempts to redefine torture, Maj. David Frakt, Jawad’s tenacious defense attorney, congratulated the judge for “adopting a traditional legal definition of torture, rather than making one up,” and Lt. Col. Vandeveld also spoke out, telling the Associated Press that Jawad’s “confession” to Afghan officials was “among the most important evidence for his upcoming war crimes trial,” and adding, “To me, the case is not only eviscerated, it is now impossible to prosecute with any credibility.”

6. Ahmed al-Darbi. A Saudi, who is accused of plotting attacks on shipping for al-Qaeda, al-Darbi was kidnapped in Azerbaijan and rendered to Guantánamo in 2002, via the US prison at Bagram airbase, where he has claimed that he was severely abused. At his arraignment in April, he refused to take part in the Commissions, prompting his military-appointed lawyer, Army Lt. Col. Bryan Broyles, to comment that, in order to comply with established legal rules that prevent lawyers from representing clients who refuse their services (as in Ali Hamza al-Bahlul’s case), his role in al-Darbi’s forthcoming trial was now equivalent to that of a “potted plant.”

At a short pre-trial hearing in September, Broyles announced his resignation from the case, reiterating his complaints about compelled representation, and explaining that al-Darbi never came to trust him because “the attorney-client relationship is close to impossible to establish” in a system in which a lawyer is imposed on a prisoner, and that it was “compounded by the fact that counsel wear the same uniform as [the prisoner's] interrogators.” As a parting shot, Broyles was asked what he thought about the chief prosecutor’s claim that al-Darbi’s trial would be completed before the new administration takes office. “It’s not about timing,” he said, “it’s about doing justice.” While a new defense team was being arranged, al-Darbi was represented by his civilian lawyer, Ramzi Kassem.

7. Ibrahim al-Qosi. A Sudanese, who is accused of being a bodyguard and a driver for Osama bin Laden, and a quartermaster for al-Qaeda, al-Qosi was previously charged in the Commissions’ first aborted incarnation. In April, he also boycotted his pre-trial hearing, telling the judge, “I do not recognize the justice or the lawfulness of this court,” and adding, “What is happening in your courts is in fact a sham, which aims solely that the cases move at the pace of a turtle in order to gain some time to keep us in these boxes without any human or legal rights.” To the best of my knowledge, no date has yet been set for al-Qosi’s trial, even though it was one of the cases that the chief prosecutor, Col. Lawrence Morris, wanted to see completed before the new administration takes office in January 2009.

8. Khalid Sheikh Mohammed (KSM). Reportedly the third most important figure in al-Qaeda, after Osama bin Laden and Ayman al-Zawahiri, KSM, who was captured in Pakistan in March 2003, and the four men described below are among the 14 “high-value detainees” transferred to Guantánamo in September 2006 after being held for years in secret prisons run by the CIA. KSM confessed in his military tribunal in Guantánamo last year (convened to confirm that he was an “enemy combatant” who could be tried by Military Commission) that he was “responsible for the 9/11 operation, from A to Z.” He is one of three “high-value detainees” whom CIA director Michael Hayden admitted had been subjected to waterboarding (a torture technique that involves controlled drowning) while held in CIA custody.

KSM and his co-defendants were charged in February, and arraigned in June. In September, at a pre-trial hearing, KSM dominated the proceedings. Taking advantage of the fact that the Military Commissions Act allows prisoners to represent themselves (but only if they are willing to mount a defense, as revealed in the case of Ali Hamza al-Bahlul), he cheekily quizzed the judge, Marine Col. Ralph Kohlmann, about his beliefs, as part of the voir dire process (which allows lawyers to question the judge’s impartiality), and enjoyed a media platform which, ironically, would not have been available to him if he was being prosecuted in a courtroom on the US mainland.

9. Ramzi bin al-Shibh. A Yemeni, and reportedly a friend of the 9/11 hijackers, who helped coordinate the attacks with KSM after he was unable to enter the United States to train as a pilot for the operation, bin al-Shibh was captured in Pakistan in September 2002. After being held in secret CIA custody for four years, he refused to take part in his tribunal at Guantánamo, and only finally spoke at the pre-trial hearing in September. His lawyers, whom he is seeking to dismiss, are engaged in a legal tussle to secure an independent psychiatric evaluation of bin al-Shibh, who is receiving psychotropic drugs that are typically used for schizophrenia. At the hearing in September, Col. Kohlmann refused to allow the lawyers to visit Camp 7, the secret prison within Guantánamo where the “high-value detainees” are held, but on October 27 he relented, ruling that the lawyers should be allowed to visit the block to “inspect the defendant’s conditions of confinement as part of an inquiry into his mental health.”

10. Mustafa al-Hawsawi. A Saudi, who was captured with KSM, al-Hawsawi is accused of sourcing funding for the 9/11 attacks from Dubai. In his tribunal at Guantánamo, he admitted providing support for jihadists, including transferring money for some of the 9/11 hijackers, although he denied that he was a member of al-Qaeda. At the arraignment in June, it appeared that KSM and some of al-Hawsawi’s other co-defendants put pressure on him to refuse the services of his lawyer, Army Maj. Jon Jackson, but at the pre-trial hearing in September Jackson was still arguing his client’s corner. Explaining that his client “doesn’t understand about a quarter of the court proceedings because of incomprehensible interpretation,” he complained that the government had opposed a request for “transcripts of each day’s proceedings to be made available in English and Arabic so that they can go over each day’s events with their clients and make corrections for the record,” adding, “I could not believe my government would not provide transcripts in the native language of the accused that it wants to put to death.”

11. Ali Abdul Aziz Ali. Also known as Ammar al-Baluchi, he is a nephew of KSM, and was captured in Pakistan with Walid bin Attash (see below) in April 2003. In his tribunal at Guantánamo last year, he admitted transferring money on behalf of some of the 9/11 hijackers, but insisted that he was a legitimate businessman, who regularly transferred money for Arabs, without knowing what it would be used for. At the arraignment and the pre-trial hearing, he has spoken little, but has demonstrated a firm command of English, and a desire to highlight the inadequacies of the system and his torture at the hands of US forces. At the arraignment, he responded to Col. Kohlmann’s assurance of his right to legal assistance by stating, “Everything that has happened here is unfair and unjust,” and added, referring specifically to the offer of free legal representation, “Since the first time I was arrested, I might have appreciated that. The government is talking about lawyers free of charge. The government also tortured me free of charge all these years.”

12. Walid bin Attash. A Saudi, who lost a leg in Afghanistan before 9/11, bin Attash stated in his tribunal at Guantánamo that he was the link between Osama bin Laden and the Nairobi cell during al-Qaeda’s African embassy bombings in 1998, and admitted that he played a major part in the bombing of the USS Cole in 2000, explaining that he “put together the plan for the operation for a year and a half,” and that he bought the explosives and the boat, and recruited the bombers. Like KSM and Ali Abdul Aziz Ali, he has chosen to represent himself, although he is able to take advantage of the assistance of attorneys. In early October, Col. Kohlmann ruled that the men should be provided with “enough battery power to use their prison camp laptops [which contain the government’s unclassified evidence against them] 12 hours a day,” but stopped short of allowing them to “surf the Internet.”

Initially charged with the five men above, Mohammed al-Qahtani, a Saudi who was reportedly intended to be the 20th hijacker for the 9/11 attacks, but was refused entry into the United States by immigration officials, was tortured for several months at Guantánamo in late 2002 and early 2003. The charges against him were dropped in May, when the others were formally charged, either because evidence of his torture is admissible (whereas that obtained in secret prisons by the CIA is not), or because of a pronounced deterioration in his mental health since he was first charged, which led to a number of suicide attempts. It is unlikely that he will be charged again.

13. Ahmed Khalfan Ghailani. A Tanzanian, and one of the 14 “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006, Ghailani, who was captured after a gun battle in Gujrat, Pakistan in July 2004, is accused of being a coordinator of the African embassy bombings, and of running a document-forging operation for al-Qaeda in Afghanistan. In his tribunal, he described himself as a peripheral character in the African embassy bombings, who was duped by others around him, although he admitted forging documents for al-Qaeda in Afghanistan.

On October 22, Ghailani was formally arraigned. Judy Rabinovitz, an observer for the American Civil Liberties Union, reported that the occasion “was not particularly enlightening,” and that the judge “essentially followed a script,” advising Ghailani that he had “a right to obtain civilian counsel in addition to his assigned military counsel,” and “repeatedly asking [him] if he understood what was going on.” A trial date is scheduled for February 2009. As Rabinovitz also noted, Ghailani was indicted in the United States ten years ago for the same crimes with which he is now being charged, “and several of his co-defendants in the federal proceedings have already been convicted and sentenced,” whereas Ghailani faces a dubious trial following years of mistreatment in secret CIA custody.

14. Mohammed Kamin. An Afghan seized in 2003, Kamin’s case is one of the more farcical cases put forward for trial. He is not charged with harming, let alone killing US forces, and is, instead, accused of receiving training at “an al-Qaeda training camp.” For his arraignment in May, he refused to leave his cell, and was dragged to the court by guards, arriving with bruises, cuts and a swollen eye. The judge, Air Force Col. W. Thomas Cumbie, explained that he was handcuffed and shackled because he had “attempted to spit on and bite one of the guards” on his way to the courtroom. Kamin then refused to be represented by a US military lawyer, and called the charges “a lie and a forgery.”

On October 23, a pre-trial hearing took place, although Kamin was not present. Judy Rabinovitz noted, “The officer who had been responsible for bringing him to court said that when she went to Kamin’s cell to notify him of the hearing, he ripped up the notice, began kicking and hitting the cell door and stated that he was innocent and it was President Bush who should be on trial.” She added that a prosecution motion “to compel Kamin’s presence by ‘forcibly extracting’ him from his cell was denied after defense lawyers objected on the grounds that it would put Kamin and others at risk,” although it was clear that the motion was denied in particular because the judge did not want a repeat of May’s proceedings.

The rest of the hearing was farcical. Rabinovitz explained that a mental status evaluation had found that Kamin was competent to participate in the proceedings, even though the two military doctors “had never met or observed the defendant,” and one, Col. Elspeth Cameron Ritchie, “has been criticized for assisting in the interrogation process.” As with other cases — including that of Omar Khadr — the defense sought to appoint an independent psychiatric expert, a proposal which was vigorously opposed by the prosecution, and also raised the issue of obstruction, which was timely, in the wake of Lt. Col. Vandeveld’s resignation. Although they accused the intelligence agencies of a “systemic failure” to cooperate with their requests for discovery, and asked the judge to dismiss the case, “as a sanction for the government’s failure to comply with the discovery process in a timely manner, but also as a deterrent to the intelligence agencies that continue to drag their feet, jeopardizing the integrity of the process,” the judge refused.

15. Mohammed Hashim. Another minor Afghan insurgent (at best), Hashim was charged in June with spying for al-Qaeda in Afghanistan and conducting a rocket attack on US forces. As with the case of Mohammed Kamin, it is difficult to work out how the administration construes these charges as “war crimes,” and in Hashim’s case this is complicated by the fact that his publicly available testimony — which is sprinkled with implausible references to 9/11, Osama bin Laden and links between al-Qaeda and Saddam Hussein — suggests that he either has mental health problems, or has dreamt up the biggest lies possible to secure more favorable treatment. Despite this, Susan Crawford approved the charges against Hashim on October 21.

16. Abdul Rahim al-Nashiri. A Saudi, and another of the 14 “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006, al-Nashiri, who was seized in the United Arab Emirates in November 2002, was charged at the start of July for his alleged role in the attacks on the USS The Sullivans and the USS Cole in 2000, and the French tanker Limburg in 2002. What will undoubtedly complicate his case, should it come to trial, is the fact that he is one of three “high-value detainees” whom CIA director Michael Hayden admitted had been subjected to waterboarding in secret CIA custody, and in his tribunal at Guantánamo last year he made a point of mentioning that he had made up false confessions after being tortured. “From the time I was arrested five years ago,” he said, “they have been torturing me. It happened during interviews. One time they tortured me one way, and another time they tortured me in a different way. I just said those things to make the people happy. They were very happy when I told them those things.”

17. Abdul Ghani. Yet another minor Afghan insurgent, Ghani was charged at the end of July with firing rockets at US forces, planting “land mines and other explosive devices on more than one occasion for use against US and coalition forces,” attacking Afghan soldiers, and “accept[ing] monetary payments, including payment from al-Qaeda and others known and unknown, to commit attacks on US forces and bases.” As I wrote at the time, “Apart from the inclusion of the magic words ‘al-Qaeda,’ there was nothing in Abdul Ghani’s charge sheet to indicate that he should find himself in the same trial system as those accused of involvement in the 9/11 attacks, the African embassy bombings of 1998 or the bombing of the USS Cole in 2000, or even, in fact, that he should have been sent to Guantánamo at all.”

18. Obaidullah. If anything, the case against Obaidullah, another Afghan, is even less explicable. In September, he was charged with hiding explosives, which he “knew or intended” would be “used in preparation for and in carrying out a terrorist attack.” The charges were astonishing, because he was not actually accused of attacking US forces, and, according to the transcripts of his tribunal and review boards at Guantánamo, he made it clear that he had come up with false confessions while being threatened by US forces in a prison at the airport in Khost, in eastern Afghanistan.

19. Faiz al-Kandari. The first of two Kuwaitis to be put forward for trial, al-Kandari was charged with conspiracy and providing material support for terrorism on October 22. Seized during the Tora Bora campaign in December 2001, when members of al-Qaeda and the Taliban were holed up in the Afghan mountains near Pakistan, and numerous other civilians were attempting to flee the chaos of war, al-Kandari has always maintained that he traveled to Afghanistan to provide humanitarian aid, but is accused or providing instruction to al-Qaeda members and trainees at the al-Farouq camp (the main training camp for Arabs), serving as an adviser to Osama bin Laden, and producing “recruitment audio and video tapes which encouraged membership in al-Qaeda and participation in jihad,” even though he only arrived in Afghanistan a month before the 9/11 attacks.

20. Fouad al-Rabia. Also charged with conspiracy and providing material support for terrorism, al-Rabia, a businessman — and a father of four who was 42 years old when he was seized — is accused of raising funds for al-Qaeda, and being “in charge of an al-Qaeda supply depot at Tora Bora,” where he “distributed supplies to al-Qaeda fighters.” He has never denied meeting Osama bin Laden, but has explained that, as a good Muslim who undertook humanitarian aid missions every year, he was introduced to bin Laden in 2001 while visiting Afghanistan to research the opportunities for proving aid to the region.

He has also explained that he only ended up in Tora Bora as part of a vast exodus of people — civilians like himself, as well as members of al-Qaeda and the Taliban — who were fleeing the chaos of Afghanistan after the US-led invasion of October 2001, but had conceded that a senior figure in al-Qaeda forced him to look after the “issue counter,” where supplies — food and blankets, rather then weapons — were being handed out, in exchange for arranging for him to leave the mountains, when he was promptly sold by local villagers to the Northern Alliance.

In conjunction with the continuing setbacks described above, the one-sided show trial of Ali Hamza al-Bahlul, investigations into the alleged misconduct of the Commissions’ former legal adviser (described here), and the continuing threat to the credibility of the system that is posed by Lt. Col. Vandeveld, the latest charges do nothing to suggest that the life of the Military Commissions should be extended beyond January 20, 2009.

President Obama should press Congress to repeal the Military Commissions Act, as he promised, and should rapidly establish an objective and intelligent body capable of reviewing the cases of those facing (or scheduled to face) trial by Military Commission, stripping out the juveniles and insignificant Afghan insurgents (who should be freed) from those regarded as genuinely dangerous terrorists involved with al-Qaeda and/or the 9/11 attacks, who should be moved to the US mainland to face trials in federal courts.

After the crimes of the Bush years, no solution is perfect (and these trials will inevitably involve a messy compromise over the use of torture), but I can see no other practical solution. Talk of moving prisoners to the federal court system has already provoked a rash of commentators to step forward and talk about the need for new legislation creating another new trial system or providing a mandate for special “preventive detention” for “terror suspects,” but all such innovations should be resisted. I can only wonder how it is that those proposing such ideas have managed to learn nothing at all from the abuse of the Constitution over the last seven years.

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.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Four more charged, including Binyam Mohamed (June 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).

Brandon Neely served as a military police officer from 2000 to 2005, and worked at Guantánamo for six months in 2002 before being sent to Iraq, where, he said, he saw “a lot of bad and horrible things and have done them too while over there. I came back in March of 04 to a wife and 3 kids I didn’t even know. Not a day goes by that I don’t re-live the war in my head one way or another. I have come to terms with this. But the reasons we went to Iraq are totally wrong and the reasons continue to be wrong while we are there.”

The Army attempted to recall Brandon from his Inactive Ready Reserve (IRR) status to active duty in May 2007, but this is his explanation of what happened next: “I ignored all letters to my house. I refused to sign for anything at the house and refused to pick up mail at the post office. I was sent threatening letters and emails stating that my discharge would be changed if I did not respond. Well, I never responded and on June 23rd 2008 I received my honorable discharge from IRR in the mail. My advice would be: if you are recalled just ignore it, they never once came to my house or job.” Today, Brandon is a vocal opponent of the war and president of the Houston chapter of Iraq Veterans Against the War.

I recently received an email out of the blue from Brandon, and thought this would be a good opportunity to make his recollections more widely available.

Dear Mr. Worthington,
I just recently came across your web site and your book you wrote on Guantánamo Bay, Cuba and the prisoners that were held there. It’s nice to see that someone is helping to give a voice to these people who mostly were wrongfully held. I myself was at Camp X-Ray. I was with the 401st MP Company as a military police officer, the first company that was there that started the camp. I remember the day that they first arrived on the camp and remember a lot of the prisoners that were held — not by name but mostly by face. I just wanted to send you an email and let you know what you are doing is great and I hope one day Gitmo will be shut down.
Take care. Thanks, Brandon

This was my reply:

Brandon,
Thanks very much for getting in touch, and for providing such constructive comments. I thought your name was familiar, and have just Googled you and found out about your principled stand against the Iraq war. I noticed that you have been interviewed recently, and are presumably getting a lot of attention at the moment, so I wanted to say that I hope you get as much support as possible.
With best wishes,
Andy

And Brandon wrote back:

Thank you for the email and the support. I was recalled back to active duty in 2007 and just ignored it and in 2008 they just honorably discharged me from the army. I did that interview with Courage to Resist a couple weeks ago, not sure if you listened to it, but in the interview I talk a little about my time at Camp X-Ray and some of the talks I had with David Hicks. When I was in Gitmo I was 21. I was young and didn’t know what was going on really. You’re told one thing and go with it, but over time I realized that it was wrong. So many of those people were innocent. We as military police officers or guards never saw the interrogations — at least that’s how it was when I was there — but a lot of things that were really wrong happened in the camp from my point of view.

To complete this Veterans Day package, the following is a transcript of Brandon’s recollections of Guantánamo from his interview with Courage to Resist on October 8 (though the whole interview is worth listening to, as Brandon also explains what happened in Iraq to turn him against the war).

Courage to Resist: So you went to Guantánamo Bay, yes?

Brandon Neely: Yes, sir, we got there January [2002]. I can’t remember the exact date but it was about 48, 72 hours before any of the detainees showed up.

Courage to Resist: How long were you in Guantánamo?

Brandon Neely: About six months.

Courage to Resist: Were you troubled by anything you saw or experienced while you were there?

Brandon Neely: You know, when we first got there they put it into your head — I can remember them telling us, you know, these are the worst of the worst, these are the guys who plotted 9/11, these are the guys that, you know, raised all this havoc on your country. Being young, everybody was mad, upset, I guess you can say out to hurt, or for blood, or however you want to phrase it.

But after we were there a while and we started to get the detainees in — and I guess at first I didn’t think nothing about it — but after a while actually talking to some of these detainees — and there were a lot of young ones too — and some guys, they seemed like common people. And now I kind of keep up with the detainees’ [stories], and some of the guys that have been released, and they’re just common day folks, and I can remember when they came in.

You know, there was some stuff that happened there that wasn’t legit, that shouldn’t happen, but happened, and I really didn’t think too much about it. I thought about it, but I was young, I was doing what I was told, and I really just wanted to go home, and came home in June.

Courage to Resist: But it sounds like when you saw these guys coming in, they didn’t seem to be the stereotype of the evildoers you imagined.

Brandon Neely: No, and it was amazing because — I’m sure you’ve heard the story of David Hicks, one of the Australian guys. I remember when he first came in. As a matter of fact I was the guy that got him off the bus, took him through the whole process, and talking to him — I think it was him and two other British guys, and they also spoke real good English — and he told us, you know, that a lot of these guys in here aren’t guilty, and that the Northern Alliance captured and sold them to the US and they paid $1500 a head for them.

As it went along over the years, if you read in the papers — and all that stuff’s started coming to light now — all these guys are saying, yeah, well they captured me, because I was at the Pakistan/Afghanistan border and they sold me to the US for $1500.

Courage to Resist: Yes, well how many convictions have there been? Hasn’t there only been one conviction so far out of all of those hundreds of detainees?

Brandon Neely: One or two. I think David Hicks did actually plead guilty. And there was just a recent one. Other than that, there’s been nobody. [Note: See here for more on David Hicks' plea bargain, here for the second trial (of Salim Hamdan), and here for the third and most recent trial].

Courage to Resist: Nobody else convicted.

Brandon Neely: And there’s another thing. When we got there, there was no SOP or Standard Operating Procedure. We were told, “This has never been done before. They’re not Enemy Prisoners of War. There’s no standard procedure of how to run it.” They were kind of writing the book as they went, kind of a trial and error thing.

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.