Note

In the habeas corpus petitions submitted by prisoners at Guantánamo, District Court judges have, to date, ruled in 34 out of 47 cases that the government has failed to demonstrate that the men in question had any meaningful connection to either al-Qaeda or the Taliban.

In contrast to the Bush administration’s claims that the prison held “the worst of the worst,” the truth is that only a few dozen of the 779 men held had any involvement with terrorism, and these figures are reflected in the appraisal of the Obama administration’s interagency Task Force, which reviewed the cases of all the men still held last year, and advised that only 35 should face a trial of any kind.

However, despite these impressive results, a little-noticed aspect of the rulings is that, in the majority of the habeas petitions denied by the courts, the men in question do not appear to be terrorists either. Over eight years after Guantánamo opened, something is deeply wrong when prisoners can continue to be held indefinitely at Guantánamo, not because they were terrorists, but because the judges who are making these rulings are obliged to endorse their imprisonment if the government manages to demonstrate that they were somehow connected to the Taliban — or to al-Qaeda forces supporting the Taliban — at the time of the US-led invasion of Afghanistan in October 2001.

With a few exceptions (see, for example, the cases of Belkacem Bensayah and Hisham Sliti, and the case of Sufyian Barhoumi), the prisoners who have lost their habeas petitions did so because the judges concluded that, before the 9/11 attacks took place, they attended a military training camp in Afghanistan (primarily al-Farouq, which is regularly described as an “al-Qaeda training camp”), and that they then fought with the Taliban or with Arab forces supporting the Taliban (in what could be described as al-Qaeda’s military wing) in the Taliban’s long-running conflict with the Northern Alliance.

In the rules established by the courts to justify detention, prisoners lose their habeas petitions even if they only played a supporting role as a cook or a medic, and even if their support took place before the 9/11 attacks, and only essentially morphed into opposition to the US because they failed to teleport themselves out of Afghanistan when the US-led invasion began.

Even in cases where the prisoners followed up their basic training by traveling with the camp’s leaders or trainers to Afghanistan’s Tora Bora mountains (the site of a showdown between al-Qaeda and Taliban forces and the US military and its Afghan allies that took place in November and December 2001), it makes no sense that they should continue to be held indefinitely in a prison defined by its supposed association with terrorism, when they were clearly nothing more than foot soldiers in a specific armed conflict, who should have been held as prisoners of war, and protected from the abuse they endured by the Geneva Conventions.

The misconception at the heart of the “War on Terror”

In their arrogance and haste to declare a new kind of war, President Bush’s advisors equated al-Qaeda with the Taliban, failing to distinguish between a government (however reviled) and a small, if influential terrorist group, and deliberately choosing to regard a criminal enterprise (the 9/11 attacks) as an act of war. The confusion and lawlessness engendered by this “new paradigm” has polluted the last eight and a half years of US history, and much of this can be traced to the administration’s dismissal of the Geneva Conventions.

Anyone seized in wartime is automatically protected by Common Article 3 of the Geneva Conventions, which prohibits “cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” However, when senior officials and lawyers in the Bush administration decided that the Geneva Conventions did not apply to either al-Qaeda or the Taliban, they not only paved the way for the torture regime that followed, but also reinforced the confusion that prevails to this day, and that continues to infect the habeas cases.

Logically, those engaged in the military conflict in Afghanistan (the Taliban, and al-Qaeda forces supporting the Taliban) were soldiers, whereas those in al-Qaeda who were responsible for terrorist attacks were criminals. However, by equating al-Qaeda with the Taliban, the terrorists and the soldiers came to be regarded as one and the same. This confusion began with the Authorization for Use of Military Force, passed by Congress in the wake of the 9/11 attacks, which authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons,” and the detention policies that followed were approved by the Supreme Court in Hamdi v. Rumsfeld in June 2004, when the Court ruled that “Congress has clearly and unmistakably authorized detention” of individuals covered by the AUMF.

The Obama administration retains the AUMF as its basis for the detention of prisoners at Guantánamo, and as a result the Taliban government, which “harbored” al-Qaeda, remains on a par with al-Qaeda, maintaining the illusion that international terrorist plots and the war in Afghanistan were, or are fundamentally identical.

Redefining soldiers as soldiers

The solution to the problem posed by those who have lost their habeas petitions, but were never involved in any kind of terrorist activity, ought to be straightforward: redefine the soldiers who have lost their petitions as prisoners of war, rather than relying on the Authorization for Use of Military Force to justify their detention as “enemy combatants” (or, as they are now called, “alien unprivileged enemy belligerents”). If this happened, lawyers could then begin arguing if it is appropriate to continue holding, as prisoners of war, men whose conflict with the US related not to a terrorist ideology with no fixed end date, or to an ongoing insurgency, but to a specific armed conflict, which, at the latest, came to an end in November 2004, when Hamid Karzai was officially elected as the post-Taliban President of Afghanistan.

Unfortunately, such a move seems unlikely, given that the Obama administration has chosen confusion over clarity, and has decided that, instead of trying terrorists in federal court trials and holding soldiers as prisoners of war, it prefers a two-tier system of justice (both federal court trials and a revival of the widely reviled Military Commissions), and also asserts its right to continue holding men indefinitely whether they lose their habeas petitions or not.

The cases of Suleiman al-Nahdi and Fahmi al-Assani

A demonstration of these problems can be found in the cases of two Yemenis, Suleiman al-Nahdi and Fahmi al-Assani. Judge Gladys Kessler denied the habeas petitions of both men in February, but although her findings of fact are acceptable — she concluded that both men attended the al-Farouq training camp in Afghanistan and then traveled with others to Tora Bora, where they were, to some degree, involved in the conflict with the US and its Afghan allies — my concerns about the justification for their continued detention in Guantánamo mirror those already expressed in the cases of the other soldiers (or those providing support to soldiers) who have already lost their habeas petitions: Muaz al-Alawi, Ghaleb al-Bihani (a cook), Hedi Hammamy, Adham Ali Awad and Fawzi al-Odah, Musa’ab al-Madhwani, Mukhtar al-Warafi (a medic) and Yasin Ismail.

In the unclassified opinions (PDFs here and here), Judge Kessler established that both men had been influenced by a fatwa to visit Afghanistan for training, and that their travel had been facilitated by a man described by the government as “an al-Qaeda recruiter, travel facilitator, and commander in Osama bin Laden’s 55th Arab Brigade.” Judge Kessler accepted that al-Assani, who had been rejected for military training in Yemen, may well have undertaken his visit “to receive military training, and not to fight,” as something that was “important in coming of age,” but turned down a similar claim by al-Nahdi, noting that he had trained for a month in Yemen, and that he had made “somewhat contradictory statements” when explaining his motives.

Both men, however, were judged to have entered into the “command structure” of al-Qaeda during their subsequent journey to Afghanistan, which involved staying in a guesthouse in Karachi (reportedly run by Sharqwi Abdu Ali al-Hajj, also known as Riyadh the Facilitator, whose torture in US custody was referred to in a recent unclassified opinion), being escorted by bus to another house in Quetta, and crossing the Afghan border on motorbikes, as well as in Afghanistan — at another guesthouse, and, finally, at al-Farouq.

Judge Kessler was understandably wary of claims made by both men that they did not know that the camp was associated with al-Qaeda, but I find her assertion that al-Qaeda leaders permitted al-Nahdi “to be in the close presence of Osama bin Laden” and al-Assani to be “in close proximity to Osama bin Laden” while he visited the camp to deliver a speech to be rather overblown, as there does not appear to be any suggestion that new recruits had anything resembling contact with bin Laden during these visits.

Nevertheless, there is a clear logic to Judge Kessler’s ruling that what happened after al-Farouq demonstrated “membership and substantial support” of al-Qaeda — or, more accurately, of al-Qaeda’s military activities in support of the Taliban — on the part of al-Nahdi, who apparently “executed orders to guard a rear-echelon position at Tora Bora.” In a review board at Guantánamo, he explained that the leaders of al-Farouq “ordered us to move from one place to another. They told us to go to Tora Bora so that is where we went.” Judge Kessler also noted that al-Nahdi had stated that “[a]t the time, you could not ask them why and where you were going. You cannot refute them. You had to do what they told you to do.”

In al-Assani’s case, these elements of membership and support were demonstrated through his statements that “he and a group of fifty men, led by [redacted], the commander of al-Farouq,” left the camp together (after 9/11), and received additional training, including “long-distance walking,” in a location outside Kabul for ten to 15 days. He added that they then traveled to “a forested area around Jalalabad,” where they stayed for two days before moving into the Tora Bora mountains, where they “were split into groups of eight to ten people.”

On leaving Tora Bora, al-Nahdi traveled with a group, which, “after walking for five hours, was bombed by Coalition forces,” which led to him being “injured by shrapnel and shortly thereafter captured by Coalition forces.” Al-Assani also traveled as part of a group, and, as Judge Kessler explained, “was injured after his group was bombed … was escorted and turned over to Afghan forces, and eventually — after over a month of recuperation in a hospital — was turned over to US custody.” Judge Kessler concluded that both men had followed commands until their capture, and noted that neither man had made any serious attempt to flee, even while acknowledging that this “might have been dangerous and difficult.”

All of the above may well demonstrate, as Judge Kessler, concluded, that both men were sufficiently involved with al-Qaeda to justify their ongoing detention according to the rules established in previous cases, but there is something rather pathetic about al-Nahdi’s claim that many of the men at Tora Bora, “including himself, were scared, and only wanted to go home after the fighting began,” and the report of his attempt to leave (which, Judge Kessler noted, demonstrated only that he “acted in proper ‘command mode’”), when he “asked his commander … if he could leave, and after being rebuked did not attempt to do so.”

In most respects, however, these were straightforward opinions, lacking the false confessions that have crippled the government’s arguments in other cases. The only example of a false confession cropped up in al-Assani’s case, through an allegation made by one of his fellow prisoners, who, as Judge Kessler noted, ”identified [him] as one of fifty individuals who served as Osama bin Laden’s bodyguards.” She was withering in her dismissal of this allegation, noting that “there is some question as to [his] credibility,” taking exception to his claim that al-Assani and these other 49 men received ”specialized training” (as this “do[es] not appear to fit what is know about al-Assani”), and, in particular, pouring scorn on the notion that a “brand-new recruit” like al-Assani would have been chosen for the job:

It seems exceedingly unlikely that Osama bin Laden would, in the wake of the September 11, 2001 attacks, when he was probably the most hunted man in the world, call on an unknown, brand-new recruit with two weeks of rifle training to serve as his bodyguard.

Despite this, there is a great and unjustifiable gulf between Judge Kessler’s description of al-Assani as “an unknown, brand-new recruit with two weeks of rifle training” when it came to allegations that he was a bodyguard for bin Laden, and the complete irrelevance of this description when it came to ruling on whether he could legitimately be slung back into the black hole of Guantánamo, reserved for those who have lost their habeas petitions.

Nevertheless, as Judge Kessler explained, in identical passages in both unclassified opinions:

[I]t bears emphasis that the Government is not required to prove that Petitioner had reason to know specifically that Coalition forces would enter the conflict in Afghanistan, or that Petitioner had the specific intent to fight against the United States and its allies. Instead, the knowledge or intent that must be shown relates to Petitioner’s decision to become part of or to substantially support al-Qaeda and/or the Taliban. Thus, even a recently recruited, low-ranking Taliban and/or al-Qaeda member who had no reason to suspect the United States’ entrance into the conflict is detainable, so long as the decision to “function[] or participate [] within or under the command structure of the organization” was made with some knowledge or intent, and so long as the individual was functioning or participating within the command structure at the time of capture.

These passages leapt out at me as I read the opinions, to the extent that I almost wondered whether Judge Kessler was trying to make a subtle point about the real — as opposed to the legal — insignificance of “recently recruited, low-ranking Taliban and/or al-Qaeda member[s].” In the end, however, I can only accept her unclassified opinions at face value, and repeat what I proposed at the start of this article: that “unknown, brand-new recruit[s] with two weeks of rifle training” and “recently recruited, low-ranking Taliban and/or al-Qaeda member[s]” should not be used as part of the rationale for Guantánamo’s continued existence as a prison for terrorists. In equating al-Qaeda with the Taliban, the Bush administration endorsed a misguided policy (accepted by the Obama administration), which asserts, incorrectly, that the Taliban were working for al-Qaeda, when the reality is that outside of a small circle of men involved in international terrorism, the majority of the men associated with al-Qaeda in Afghanistan were working with the Taliban in the specific context of an armed conflict that mutated from a civil war to a war against the US when the US-led invasion began on October 7, 2001.

Instead of being detained indefinitely at Guantánamo as “unprivileged enemy belligerents,” al-Nahdi and al-Assani should be prisoners of war, entitled to the protections of the Geneva Conventions, and not held, for the most part, like convicted criminals in maximum-security isolation cells, with no family visits allowed, and few, if any, of the comforts and distractions that even the most vilified convicted criminals on the US mainland receive as a matter of course. They are not terrorists, and should not continue to be treated as though they are.

(‘’)

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

As published exclusively on Truthout. Cross-posted on Uruknet.

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

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

Last November, US District Court Judge Gladys Kessler granted the habeas corpus petition of Farhi Saeed bin Mohammed, a 48-year old Algerian, held in Guantánamo, who was seized in Pakistan in December 2001 after fleeing the chaos in Afghanistan following the US-led invasion, and has been in US custody ever since.

As I explained in an article at the time, bin Mohammed is one of many essentially stateless refugees in Guantánamo, a drifter, who, after serving as a conscript in the Algerian army from 1981 to 1983, “fled his homeland and lived between Britain, France and Italy as an itinerant laborer in the 1990s before going to Afghanistan months before the 9/11 attacks.”

The government clearly struggled to link bin Mohammed to any kind of militant activity. He persistently claimed that he had traveled to Afghanistan to find a wife (apparently a Swedish woman recommended by a Moroccan friend in England), and in its first unclassified summary of evidence at Guantánamo, compiled in 2004, the Pentagon had so little information about him that the authorities resorted to claiming that he visited two “known extremist mosques” in London in an attempt to portray him as a danger.

In the years that followed, new allegations, culled from the interrogations of other prisoners, led the government to claim, in 2005, that he “received weapons training at the Bagram Front,” and that “Another detainee identified [him] as an individual who trained at the Algerian camp and they eventually traveled to Kandahar,” and, in 2007, to claim that he “reportedly attended training at al-Qaeda’s Durunta and al-Farouq Training Camps,” and was, therefore, “a suspected member of al-Qaeda.”

Despite this, these claims were obviously so weak that, in September 2007, a military review board at Guantánamo approved bin Mohammed’s release, although he remained in the prison because, as his lawyer Jerry Cohen explained, he “fears return to his homeland,” and “seek[s] resettlement in a third country, where he would like to work in construction and marry.”

Two years and two months after this decision was reached — and with no third country willing to offer bin Mohammed a new home — Judge Kessler finally ruled on his long-standing habeas corpus petition, which, like hundreds of other petitions, had been frozen while the Supreme Court and Congress fought over the prisoners’ rights. The Supreme Court had given the prisoners habeas corpus rights in June 2004, but Congress had attempted to strip them of these rights in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, and it was not until June 2008 that the Supreme Court ruled again on their status, deciding that Congress had acted unconstitutionally, and this time making sure that their habeas rights were constitutionally guaranteed.

The ensuing habeas rulings have, in general, been a triumph for the prisoners, who have won 34 of the 47 cases so far decided, thereby clearing them, in an objective and authoritative forum, of the “taint” of terrorism associated with Guantánamo, although it should also be noted that they have not always led to the prisoners’ release. At the time of writing, eleven of those who won their habeas petitions are still held (including Farhi Saeed bin Mohammed).

In an attempt to raise awareness of his plight, this article analyzes Judge Kessler’s unclassified opinion in bin Mohammed’s case (PDF), which is particularly noteworthy because most of the information relied upon by the government to justify his detention came from Binyam Mohamed, the British resident, seized in Pakistan in April 2002, and rendered by the CIA to Morocco, where he was tortured for 18 months.

In February this year, Judge Kessler’s ruling regarding the use of Binyam Mohamed’s testimony played a crucial role in the High Court in the UK, where the publication of the unclassified opinion was used to demolish a claim by the British government, maintained for 18 months, that a summary by two High Court judges of information passed to the British intelligence services by their US counterparts, describing the treatment that Binyam Mohamed endured in US custody in Pakistan, could not be released because it would threaten the intelligence-sharing relationship between the US and the UK. Conceding defeat, foreign secretary David Miliband noted that the court only ordered the release of the intelligence summary “because in its view their substance had been put into the public domain by a decision of a US court in another case” (that of Farhi Saeed bin Mohammed), and added that “Without that disclosure, it is clear that the court of appeal would have overturned the divisional court’s decision to publish the material.”

As a result, this article should also be helpful because it presents the first detailed public analysis of Judge Kessler’s ruling on the false confessions extracted from Binyam Mohamed that was central to the disclosure of British complicity in his torture by US agents, which has ensured that, when it comes to accountability for crimes committed in the “War on Terror,” the UK is some way ahead of the US in holding senior officials responsible for their actions.

Farhi Saeed bin Mohammed’s story

As described by Judge Kessler in her unclassified opinion, the government’s case against bin Mohammed rested on seven claims: that there was some significance to his use, prior to his detention, of a false name and a false passport; that his visits to two mosques in London were significant; that his travel to Afghanistan was facilitated by a recruiter at one of these mosques, as part of a “terrorist network”; that his stay at an Algerian guesthouse in Jalalabad was significant; plus “whether or not [he] trained at a terrorist camp,” and “whether or not [he] participated in battle.”

In addressing most of these claims, Judge Kessler maintained a healthy degree of skepticism about bin Mohammed’s counter-claims, in particular, dismissing his account of traveling to Afghanistan to find a Swedish woman to marry so that he could legally stay in Europe. This, she explained at one point, was “patently fantastic.”

However, although she recognized that his use of false names and his use of a false passport in his travels between France, Italy and the UK was, as he claimed, “essential for him to survive as an undocumented alien trying to find work and a home in Europe,” and was not, as the government contended, proof that he was “a deceitful person” per se, she conceded that it “demonstrate[d] his willingness and ability to lie to the authorities and evade compliance with the law when it suited his purposes.”

This alone, however, was not enough to justify his detention, and nor, it transpired, was the weight that the government tried to give to his visits to the Finsbury Park mosque, and his more regular visits to the Baker Street mosque. Again, she seemed inclined to accept his claim that they were “simply centers of worship and community for him,” as they would be for any Muslim visitor to London, and not to follow the “guilt by mosque” scenario put forward by the government, which considered both mosques as “critical posts within an al-Qaeda recruiting network” — and, by inference, all who attended them as al-Qaeda supporters or sympathizers. As bin Mohammed explained in one of his interrogations, “[T]here was no sign on the mosque that said extremist mosque.”

However, she did accept that bin Mohammed was recruited — by a man named Abdul Rahim, who “allegedly was a recruiter for al-Qaeda” — who “conceived, planned and funded [his trip] to Afghanistan” in June 2001, and provided contacts who took him from Islamabad to Peshawar, and then across the border to Jalalabad. It is here, at the “Algerian house” run by Abu Jaffar al-Jazeeri, and his assistant Abdul Hafiz, that bin Mohammed’s story started to look particularly shaky. The government contended that the guesthouse was run “to facilitate the transfer of recruits to training camps in the region,” and presented evidence, drawn from the cases of other prisoners (some still held; others released as long ago as 2004), to demonstrate that, by their reckoning, everyone who stayed at the house did indeed travel to training camps.

If confirmed in bin Mohammed’s case, this would undoubtedly have led to Judge Kessler denying his habeas petition, because it would have demonstrated an unmistakeable involvement with the command structure of al-Qaeda or the Taliban that would have justified his ongoing detention. However, it was not entirely certain that everyone who attended the house was required to attend a training camp. As one former prisoner explained, in a passage of enormous significance for bin Mohammed, “occupants of the guesthouse were ‘encouraged to attend training in one of the camps,’ but not ‘pressured’ to do so.”

At this point in the unclassified opinion, Judge Kessler “fully credit[ed] the Government’s argument that [bin Mohammed] was recruited and traveled via a terrorist pipeline,” and also fund that the government had “provided credible evidence that Mohammed arrived at the Jalalabad guesthouse as part of a recruiting network, and stayed with other individuals who went on to train with al-Qaeda.”

However, when it came to the most important allegations –- that bin Mohammed himself attended a training camp, and that he engaged in battle –- she was not persuaded. Denying the government’s allegation that he engaged in battle, she noted that the allegation “rests only on highly speculative evidence,” drawn from a solitary mention of it during the interrogation of a Moroccan prisoner, and that “There is no eye-witness account of [him] engaging in battle.”

As for the claim that bin Mohammed attended a training camp, this came from the interrogations of Binyam Mohamed, and what Judge Kessler discovered clearly shocked her so much that she not only devoted 30 pages of her 80-page opinion to his case, but also laid out the information in a forum and a format that was to prove invaluable to the British courts — and so damaging to David Miliband and the British government — in February this year.

In some ways, this is rather surprising, as an account of Binyam’s torture, which he delivered to his attorney, Clive Stafford Smith, over three long days in Guantánamo in the summer of 2005, was first published in the Guardian on August 2, 2005, having miraculously passed the Pentagon’s censors. However, the importance of the respectability accorded to information cited by a judge in a US court should be borne in mind, as, indeed, should the additional details about Binyam Mohamed’s interrogations that Judge Kessler made available through her access to materials that have never before been publicly disclosed.

The torture of Binyam Mohamed

Judge Kessler’s extraordinary tour through Binyam Mohamed’s long ordeal began because she was asked to accept an allegation put forward by the government, relating to a statement he had made after arriving at Guantánamo in September 2004, after two and a half years’ imprisonment — first in Pakistan (for three months), then in Morocco (for eighteen months), then in the CIA’s “Dark Prison” in Afghanistan (for four months) and then in the US prison at Bagram airbase in Afghanistan (for another four months).

Drawing on the long statement he made to Clive Stafford Smith, and other material including the account he gave to the Mail on Sunday after his release, Judge Kessler related how, after he was seized as he attempted to fly out of Karachi on April 10, 2002, he was held in Pakistani custody, but FBI agents were given access to him. In a passage that reflected the contents of the documents that the British government tried to suppress for 18 months in the UK, Judge Kessler noted that, between April 20 and April 27, 2002, “[j]ust weeks after his capture, his torture began.” As she explained:

The FBI questioned him about his activities, and, unsatisfied with his answers, threatened to transfer him to other countries where he would experience harsh treatment. Then, the FBI agents would leave the room and Pakistanis entered. They beat him with a leather strap, and staged a mock execution where a guard pointed a semi-automatic weapon at Binyam Mohamed’s chest for several minutes, and stood over him motionless. The guard relented, left the room, and FBI personnel re-entered the room for further questioning.

She then proceeded to relate the story of his rendition to Morocco and his torture there, running through the familiar details of the Moroccan interrogators’ particular brutality, including regular and savage beatings, during which he was “fed information about himself and told to verify it,” the regular sessions in which his penis was cut with a scalpel, and the sustained sleep deprivation and the use of drugs that led to him experiencing “emotional breakdowns.”

Judge Kessler also made a point of stating that he was “told that the British government knew of his situation and sanctioned his detention,” and that he “was told that the United States wanted a story from him, and that he had been linked to important figures in al-Qaeda, including Khalid Sheikh Mohammed, Abu Zubaydah, Ibn Sheikh al-Libi [aka Ibn al-Shaykh al-Libi], and Jose Padilla.”

Although these purported connections were, for the most part, absurd, it is no coincidence that these men were mentioned to him, as they tie in with the torture of Abu Zubaydah, seized just two weeks before him, on March 28, 2002, who was the first subject of an experimental torture program that only gained official approval on August 1, 2002, when John Yoo and Jay S. Bybee of the Justice Department’s Office of Legal Counsel, which is responsible for interpreting the law as it applies to the executive branch, issued two memos that purported to redefine torture and to approve its use by the CIA.

In Judge Kessler’s account, Binyam “was told to say, among other things, that he met [Osama] bin Laden five or six times, that he advised him on places to attack, and that he conferred with bin Laden’s deputies.” She also noted, “He was given names of people he allegedly knew, and told to confess to being ‘an al-Qaeda operations man.’”

She proceeded to describe how, on January 21 or 22, 2004, he was flown to Afghanistan, and repeated the story about how, after he was stripped, “one female soldier was assigned to take pictures of him,” who “expressed horror at the scars on his penis.” She then described his time in the “Dark Prison” near Kabul, where guards “bombarded his cell with loud music,” and where he was hung from the walls, starved, and beaten. As she also explained, “While undergoing this treatment, it appeared that Binyam Mohamed attempted to be forthright with CIA interrogators and renounce the story he had been coached to adopt.” However, “This resulted in his ‘being chained to the rails for a fortnight.’ He stated that he tried to tell the truth because ‘the CIA interrogators looked understanding.’”

Judge Kessler also noted that Binyam “maintains that he was fed information about individuals in pictures.” This has been a familiar ploy in the “War on Terror,” as I noted most recently with reference to the December 2009 habeas ruling in the case of Saeed Hatim, a Yemeni, which contained false allegations made by Sharqwi Abdu Ali al-Hajj, better known as Riyadh the Facilitator, an allegedly significant prisoner who, like Binyam Mohamed, was subjected to rendition and torture, and who has stated that he made false allegations based on photographs.

In Binyam’s case, when presented with these photographs, Judge Kessler noted, “When he tried to be compliant and provide made-up information about the pictured men, his interrogator was initially happy, but then ‘did [his] homework’ and threatened to torture him further if he lied again. They simply wanted him to repeat what they told him to say. This included an admission of his involvement in a dirty bomb plot [a spectral plot, as admitted by deputy defense secretary Paul Wolfowitz in June 2002, which, nonetheless, haunted Binyam until his release from Guantánamo in February 2009].”

For the reasons outlined above, Judge Kessler refused to accept the government’s contention that, when moved to Bagram in May 2004, Binyam “implicated [Farhi Saeed bin Mohamed] in training activities.” All of the above was specifically cited to prove why this statement could not be trusted, with Judge Kessler repeatedly noting that Binyam was “tortured and forced to admit to a host of allegations, most of which he has since denied,” and that he was “‘fed a large amount of information’ while in detention, and that he resorted to making up some stories.”

With reference to bin Mohammed, Judge Kessler noted that, “after being released from Guantánamo Bay, he [Binyam] signed a sworn declaration claiming that he never met [bin Mohammed] until they were both detained at Guantánamo Bay, thereby disavowing the statements he made at Guantánamo Bay about training with [him]” — a reference, it transpired, to the claim aired in the allegations against bin Mohammed in 2005, in which it was Binyam who had stated that “Another detainee identified [him] as an individual who trained at the Algerian camp and they eventually traveled to Kandahar.”

Even without this disavowal, Judge Kessler was in no mood to accept the government’s claims that Binyam’s statements regarding bin Mohammed, made at Bagram in July 2004 and at Guantánamo in October and November 2004, were reliable because the Special Agent who interviewed him “built a rapport that allowed the detainee to voluntarily provide accurate information.” As she explained, in an understated manner, before launching into the excerpts from his diary, “The Government’s claims of reliability are undermined by the sworn declaration of Binyam Mohamed that he was brutalized for years while in United States custody overseas at foreign facilities.”

In a section of the opinion entitled, “Legal Analysis,” Judge Kessler not only spent some time analyzing scientific research into the effects of prolonged torture, concluding that “Binyam Mohamed’s will was overborne by his lengthy prior torture, and therefore his confessions … do not represent reliable evidence,” but also reminded the government that the UN Convention Against Torture (to which the US is a signatory) “requires that governments which are party to it ‘ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.’”

She added, in a passage that ought to have significance if Binyam’s story is ever subjected to scrutiny in a US court examining the crimes committed by those who authorized his torture, “The government does not challenge or deny the accuracy of Binyam Mohamed’s story of brutal treatment.” It is, of course, to be hoped that this will one day be the case, because, as I explained in an article in March, following the whitewash of a scathing internal report into the conduct of the lawyers who wrote the “torture memos”:

As the UN Convention Against Torture stipulates (Article 2.2), “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

The UN Convention also stipulates (Article 4. 1) that signatories to the Convention “shall ensure that all acts of torture are offences under its criminal law” and requires each State, when torture has been exposed, to “submit the case to its competent authorities for the purpose of prosecution” (Article 7.1). As with Article 2.2, there are no excuses for not taking action, and that includes political expediency, or, as Barack Obama described it, “a belief that we need to look forward as opposed to looking backwards.”

Will Farhi Saeed bin Mohammed be released?

Compared to the significance of Binyam Mohamed’s story, as exposed in a US court opinion by Judge Kessler, Farhi Saeed bin Mohammed’s story tends to pale into relative insignificance. This should not be the case, however. Although Judge Kessler was, to some extent, cautious in granting his habeas petition, noting that the government had proved its case in relation to his use of a false name and a false passport, his attendance at mosques which were “well-known to have radical, fundamentalist clerics advocating jihad,” his recruitment and travel to Afghanistan “along routes well-traveled by those wishing to fight with al-Qaeda and/or the Taliban against the United States and its allies,” and his stay in a guesthouse “with direct ties to al-Qaeda and its training camps,” she was unable to conclude that he had “function[ed] or participat[ed] within or under the command structure” of al-Qaeda, which would have been required to authorize his ongoing detention. Bin Mohammed, she wrote, “had simply not yet reached that point in his journey to become a part of al-Qaeda,” however much the government wished that he had. “The Government,” she added, “ha[d] failed to provide reliable evidence that [he] received any training in weaponry or fighting, or that he engaged in actual fighting of any kind on behalf of al-Qaeda and/or the Taliban.” In her concluding comments, she stressed:

Whether or not one believes that [bin Mohammed] was a potential danger to the security of this country, or whether or not one speculates that [he] would have attended a training camp and then fought with al-Qaeda and/or the Taliban if the opportunity presented itself, is not relevant.

On that basis, while the bigger questions regarding Binyam Mohamed’s torture, and accountability for those who authorized it, remain unanswered, but must be pursued, the questions in Farhi Saeed bin Mohammed’s case, over four months after he won his habeas petition, are rather more simple, even if no answers have been forthcoming either: when will he be released, will a third country be found that will accept him, or will the Obama administration try to send him back to Algeria, despite his fears for his safety?

(‘’)

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

As published exclusively on Cageprisoners. Cross-posted on Eurasia Review, Uruknet, CounterCurrents, Islam Daily and Blog from Middle East.

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

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

Last December, I wrote about the case of Saeed Hatim, a Yemeni in Guantánamo whose habeas corpus petition had been granted by Judge Ricardo Urbina. At the time, Judge Urbina’s unclassified opinion had not been made publicly available, so all I had to go on were Hatim’s own statements at Guantánamo. In publicly available documents, he told his interrogators that he wanted to find a way to fight in Chechnya but concluded that he needed to train in Afghanistan. However, although he admitted attending the al-Farouq camp (associated with Osama bin Laden in the years before 9/11), he said that he “did not like anything about the training,” that he faked a fever so that he could leave the camp, and, after some time hanging around behind the Taliban’s front lines, made his way to the Pakistani border, where he surrendered to the Pakistani police, and was then handed over to US forces.

As I also mentioned at the time, “I await Judge Urbina’s ruling with some interest, primarily … to discover whether this account bears any resemblance to the story uncovered by the judge in what, despite the persistent fog of classified evidence that clouds so many of the Guantánamo cases, will undoubtedly be the first time that something close to an objective analysis of his case has been undertaken, after eight years in US custody.”

As part of a project aimed at analyzing all the Guantánamo habeas cases, I have now had the opportunity to study Judge Urbina’s unclassified opinion (PDF). Although the broad outline of Hatim’s story was the same as he reported in Guantánamo, and Judge Urbina noted that “The government’s allegations rest[ed] almost entirely upon admissions made by the petitioner himself,” what was missing — and was only brought to light in Judge Urbina’s courtroom — was Hatim’s contention that he made these admissions “only because he had previously been tortured while in US custody.” In addition, the judge noted that “The government’s justification for detention also rests heavily on a third-party identification by a GTMO detainee whose reliability has been seriously called into question by the court as well as by GTMO intelligence officers.”

In dissecting and dismissing the government’s claims that Hatim “trained with, lived with, operated under the command of, and worked for al-Qaeda and Taliban forces and their affiliates,” Judge Urbina had to decide whether to accept Hatim‘s own claim that, although “he fled to Pakistan out of fear for his personal safety, [he] maintains that there is no basis for his detention because there is no evidence that he was connected to the September 11, 2001 attacks, was part of al-Qaeda or the Taliban or engaged in hostilities against the United States or its coalition partners.”

The government’s case relied on claims that Hatim trained at al-Farouq, stayed in al-Qaeda and Taliban guesthouses, “operated under the command of al-Qaeda and the Taliban at the battlefront against the Northern Alliance,” and was identified by a fellow prisoner as having fought at the battle of Tora Bora, a showdown between al-Qaeda and US forces in November and December 2001.

The unreliable witness, who made false claims against 60 prisoners

The last of these was easily dismissed, because the only statement presented by the government to justify its Tora Bora claim was made by one of Hatim’s fellow prisoners at Guantánamo, who, as Judge Urbina explained, “has exhibited an ongoing pattern of severe psychological problems while detained at GTMO.” The judge cited an interrogator, who, in May 2002, stated, “I do not recommend [redacted] for further exploitation due in part to mental and emotional problems [and] limited knowledgeability,” and also noted that he had attempted to hang himself in his cell in February 2003, and had again tried to commit suicide in March 2003, “saying that he had received ‘command hallucinations’ to do so.”

He also noted that the Guantánamo hospital record stated that the witness “had ‘vague auditory hallucinations’ and that his symptoms were consistent with a ‘depressive disorder, psychosis, post traumatic stress, and a severe personality disorder,’” and concluded by “refus[ing] to credit what is arguably the government’s most serious allegation in this case based solely on one statement, made years after the events in question, by an individual whose grasp on reality appears to have been tenuous at best.”

The use of unreliable witnesses is no surprise, sadly, as the records of the habeas cases to date are littered with claims made by witnesses whose unreliability was called into question by the authorities at Guantánamo but is still cynically used by the Justice Department.

However, this particular witness is noteworthy because, in June 2007, the Office of Administrative Review of the Detention of Enemy Combatants (OARDEC), which compiled the evidence against the prisoners for their tribunals and review boards, “warned that because [his] first-hand knowledge had come into serious question since 2005, all information provided by [him] should be adequately verified through independent sources,” because this statement was made in 2006, and because, as Judge Urbina also explained, “the personal representative of another GTMO detainee determined that none of the detainees that [the witness] had identified as having trained at al-Farouq were even in Afghanistan during the time that [he] said they attended the camp.”

This, rather shockingly, is a reference to the personal representative in the case of Farouq Ali Ahmed (aka Farouq Saif), a Yemeni released last December, who uncovered the extent of false claims made by the unreliable witness back in 2004, when he discovered that he had made false claims about attending al-Farouq in the cases of 60 prisoners in total — and the presumption, therefore, is that the government continues to rely on these discredited claims in dozens of other habeas cases that have not yet seen the light of day.

I confess that I find the repeated use of this discredited witness (and others identified in other habeas cases) to be alarming, because they indicate a deep cynicism on the part of the Justice Department, which appears to be hoping that it can manage to fool the judges, rather than dropping all the claims made by this man unless, as OARDEC advised, they can be “adequately verified through independent sources.”

Saeed Hatim’s torture claims

Just as disturbing, however, are Saeed Hatim’s claims that he only confessed to attending al-Farouq because he was tortured. As Judge Urbina explained:

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

This is not the first time that a prisoner has alleged that he made up a false story under torture and/or threats, and that he repeated it in his tribunal because he feared reprisals if he changed his story. Last September, I was genuinely disturbed — despite studying Guantánamo incessantly for four years — to discover that this had happened in the case of a Kuwaiti, Fouad al-Rabiah, who had been trained to repeat a false confession about meeting Osama bin Laden and running a supply counter at Tora Bora, even though he was, in fact, nothing more than a humanitarian aid worker caught in the wrong place at the wrong time.

In Saeed Hatim’s case, I had not expected such claims to surface, as it seemed plausible that he had attended al-Farouq, had managed to leave by feigning illness, and had then been captured after traveling independently to the Pakistani border. However, Judge Urbina made it clear that, because the government “does not refute the petitioner’s allegations of coercion or the widespread allegations of torture of other detainees prior to their arrival at GTMO”:

Hatim’s unrefuted allegations of torture undermine the reliability of the statements made subsequent to his detention at Kandahar. Thus, the government faces a steep uphill climb in attempting to persuade the court that the petitioner’s detention is justified based on the allegation that he trained at al-Farouq, given that the sole evidence offered in support of that allegation is tainted by torture.

Judge Urbina added that, even if Hatim had attended al-Farouq, there was “scant evidence” that he “actually participated in al-Qaeda’s command structure by receiving and executing orders,” and that this interpretation was reinforced by his departure from the camp, and also because no third-party witness “indicate[d] that [he] was even seen at al-Farouq, much less that he was seen following orders on al-Qaeda’s behalf.”

He then proceeded to dismiss claims that Hatim had participated in al-Qaeda’s command structure either behind the front lines or in the guesthouses in which he had stayed, concluding that “the government has offered the court an inherently flawed justification for detention.”

No escape from Guantánamo

Despite this, Saeed Hatim remains in Guantánamo, over four months after Judge Urbina told the government in no uncertain terms that it had “failed to carry its burden of persuading the court that [his] detention is lawful.” The government has not appealed Judge Urbina’s ruling, as it has in other cases it has lost, but this may well be because officials are secure that Saeed Hatim’s release from Guantánamo will not be happening anytime soon.

When Saeed Hatim won his habeas petition, on December 15, 2009, the prospects of release for Guantánamo’s Yemenis looked less bleak than they had for many years. Alla Ali bin Ali Ahmed, who had won his habeas petition in May 2009, had been successfully repatriated in September, breaking through a long-standing reluctance, on the part of both George W. Bush and Barack Obama, to release any of Guantánamo’s population of nearly 100 Yemenis, which was based, apparently, on fears that the Yemeni government was unable to guarantee that they would be monitored adequately on their release.

Just before Christmas, it seemed that further progress had been made, as six more Yemenis were released, but when, on Christmas Day, a Nigerian, Umar Farouk Abdulmutallab, tried to blow up a plane, and it was revealed that he had apparently been groomed in Yemen, President Obama capitulated to the tsunami of hysteria that greeted this news by suspending the release of any more cleared prisoners to Yemen for the foreseeable future.

Almost immediately afterwards, the President’s interagency Task Force, which had been reviewing the prisoners’ cases all year in a parallel universe with scant regard for the judges in the prisoners’ habeas petitions, revealed that “at least 110 detainees” had been cleared for release, and that this number included about 30 Yemenis, who were “eligible for immediate repatriation or resettlement in a third country,” and about 30 other Yemenis, who were “placed in a category of their own, with their release contingent upon dramatically stabilized conditions in their home country.”

As a result of Obama’s capitulation, of course, not a single one of these 60 men is leaving Guantánamo anytime soon, and it seems clear, therefore, that it doesn’t matter whether Saeed Hatim — or any other Yemeni, for that matter — wins his habeas petition, as they will remain in Guantánamo until someone in the administration decides that releasing them is politically appropriate.

This not only makes a mockery of habeas corpus; it also demonstrates to the prisoners that, regardless of anyone’s best intentions, their fate is dependent not on notions of justice, but, as it was under George W. Bush, on the political winds that blow through Washington D.C. And if no one in the administration finds the will to do what is correct, rather than what is politically expedient, they may find that those winds are forever blowing against them, ensuring that the exit door out of Guantánamo remains firmly shut.

(‘’)

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

As published exclusively on the website of the Future of Freedom Foundation. Cross-posted on The Public Record, Campaign for Liberty, CounterCurrents, Eurasia Review, Uruknet and Doom Daily.

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

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

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Note: This article is published as part of “Guantánamo Habeas Week” (introduced here, and also see the articles here and here), which also features an interactive list of all 47 rulings to date (with links to my articles, the judges’ unclassified opinions, and more).

On February 24, as I reported in an article entitled, “The Black Hole of Guantánamo,” Judge Henry H. Kennedy Jr. granted the habeas corpus petition of Uthman Abdul Rahim Mohammed Uthman, a Yemeni who was seized crossing the border from Afghanistan to Pakistan in December 2001. In the absence of the judge’s unclassified opinion explaining why he had ordered his release, I provided only a brief explanation of what was publicly known of his story, stating:

As I explained in my book The Guantánamo Files, Uthman, who was 22 years old at the time of his capture, “said that he had traveled between Kabul and Khost teaching the Koran from March to December 2001.” Although he “admitted that he had stayed at a Taliban house in Quetta, Pakistan, which was the normal entry point for volunteers who had come to fight with the Taliban,” he stated that this was “only because he had been told that it was the only way for him to enter Afghanistan.”

Judge Kennedy’s opinion was released a month ago (PDF), but was then abruptly withdrawn, and, perhaps with unnecessary delicacy, I held off from analyzing it, waiting for it to be reissued, as I was uncertain how much would be redacted. When the revised opinion was finally released on April 21 (PDF), I realized that the name of a criminal investigator with the Naval Criminal Investigative Service had been removed, as had other named operatives, but that other key elements had not; specifically, the names of two other prisoners who alleged that Uthman “acted as a bodyguard for Osama bin Laden.” These two men are Sharqwi Abdu Ali al-Hajj and Sanad Yislam Ali al-Kazimi, and in the most important part of the opinion, Judge Kennedy stated:

The Court will not rely on the statements of Hajj or Kazimi because there is unrebutted evidence in the record that, at the time of the interrogations at which they made the statements, both men had recently been tortured.

The torture of Sharqwi Abdu Ali al-Hajj

This, alarmingly, was something of an understatement. Al-Hajj (also identified as Abdu Ali Sharqawi, but more commonly known as Riyadh the Facilitator) was seized in a house raid in Pakistan in February 2002 and was then rendered to Jordan, one of at least 15 prisoners whose torture was outsourced to the Jordanian authorities between 2001 and 2004, where he was held for nearly two years before being transferred to the CIA’s “Dark Prison” near Kabul, and then, via Bagram, to Guantánamo.

As Judge Kennedy explained, he told his lawyer, Kristin B. Wilhelm, that, “while held in Jordan, he ‘was regularly beaten and threatened with electrocution and molestation,’ and he eventually ‘manufactured facts’ and confessed to his interrogators’ allegation ‘in order to make the torture stop.’” In the “Dark Prison,” he added, he was “kept in complete darkness and was subject to continuous loud music.”

Al-Hajj’s descriptions of the “Dark Prison” correspond with those of numerous other prisoners, including the British resident Binyam Mohamed, whose descriptions were included in my article, “A History of Music Torture in the ‘War on Terror.’” However, what is missing from the analysis of his time in Jordan is a more sustained narrative of torture, false confessions and his torturers’ regular contact with the CIA, which emerged in a letter given to Joanne Mariner of Human Rights Watch during a visit to Jordan in 2008, which had been written by al-Hajj during his detention, around October 2002. In this note, which was smuggled out of the prison, he explained that he “was held as a secret prisoner by the Jordanian intelligence service: unregistered, cut off from all communication and hidden during visits by representatives of the International Committee of the Red Cross,” and gave the following “short summary of my sufferings,” as reported by Mariner:

“They beat me up in a way that does not know mercy,” Sharqawi wrote, referring to his Jordanian captors, “and they’re still beating me. They threatened me with electricity, with snakes and dogs … [They said] we’ll make you see death.” Sharqawi described his interrogations, explaining that the Jordanians were feeding his responses back to the CIA. “Every time that the interrogator asks me about a certain piece of information, and I talk,” Sharqawi said, “he asks me if I told this to the Americans. And if I say no he jumps for joy, and he leaves me and goes to report it to his superiors, and they rejoice.”

In Human Rights Watch’s final report, “Double Jeopardy,” the extent to which he was interrogated about other men — using photos that, in Afghanistan and Guantánamo, were apparently described as “the family album” — was revealed in the following passage, which not only explains the pressures that led to him providing a false allegation against Uthman Abdul Rahim Mohammed Uthman in Bagram, but also indicates how hundreds — or thousands — of other false allegations may have been extracted:

I was being interrogated all the time, in the evening and in the day. I was shown thousands of photos, and I really mean thousands, I am not exaggerating … And in between all this you have the torture, the abuse, the cursing, humiliation. They had threatened me with being sexually abused and electrocuted. I was told that if I wanted to leave with permanent disability both mental and physical, that that could be arranged. They said they had all the facilities of Jordan to achieve that. I was told that I had to talk, I had to tell them everything.

The torture of Sanad al-Kazimi

The story of Sanad al-Kazimi’s false confession is just as distressing. Seized in the United Arab Emirates in January 2003, he was subsequently handed over to US forces, who rendered him to an unidentified secret CIA prison, and then to the “Dark Prison” and Bagram, and, as Judge Kennedy explained, he told his lawyer, Martha Rayner, that, “while [he] was detained outside the United States, his interrogators beat him; held him naked and shackled in a cold dark cell; dropped him into cold water while his hands and legs were bound; and sexually abused him. Kazimi told Rayner that eventually “[h]e made up his mind to say ‘Yes’ to anything the interrogators said to avoid further torture.”

After this he was relocated to the “Dark Prison,” where, he said, “he was always in darkness and … was hooded, given injections, beaten, hit with electric cables, suspended from above, made to be naked, and subjected to continuous loud music. Kazimi reportedly tried to kill himself on three occasions. He told Rayner that he realized ‘he could mitigate the torture by telling the interrogators what they wanted to hear.’”

At Bagram, he continued, “he was isolated, shackled, ‘psychologically tortured and traumatized by guards’ desecration of the Koran’ and interrogated ‘day and night, and very frequently.’ [He] told Rayner that he ‘tried very hard’ to tell his interrogators in Bagram the same information he had told his previous interrogators ‘so they would not hurt him.’”

This is damning enough, but back in August 2007, Jane Mayer of the New Yorker spoke to Ramzi Kassem, another of al-Kazimi’s lawyers, who, as I explained in an article at the time, added further details, telling her that:

[Al-Kazimi] was “suspended by his arms for long periods, causing his legs to swell painfully … It’s so traumatic, he can barely speak of it. He breaks down in tears.” He also said that al-Kazimi “claimed that, while hanging, he was beaten with electric cables,” and explained that he also told him that, while in the “Dark Prison,” he “attempted suicide three times, by ramming his head into the walls”: “He did it until he lost consciousness. Then they stitched him back up. So he did it again. The next time he woke up, he was chained, and they’d given him tranquillizers. He asked to go to the bathroom, and then he did it again.” On this last occasion, Kassem added, he “was given more tranquillizers, and chained in a more confining manner.”

The story of Uthman Abdul Rahim Mohammed Uthman

These accounts, sadly, fit a pattern of torture and false confessions that only becomes clearer as time passes and more evidence is revealed, and they also confirm that the two men described above were amongst the 94 prisoners — many still unaccounted for — who were held in secret CIA prisons and subjected to particularly brutal treatment (PDF). Compared to them, Uthman’s own story is easily overshadowed.

This is perhaps understandable, as nothing in the government’s supposed evidence thoroughly refutes his own assertions that he was in Afghanistan as a missionary, because the entire case against him is based on allegations made by other prisoners (in addition to al-Hajj and al-Kazimi), or attempts to infer guilt by association on the part of the government that make him something of a cipher in his own case.

Throughout the rest of the judge’s opinion, further attempts by the government to prove that Uthman was a bodyguard for bin Laden, that he trained in an al-Qaeda camp and was present at the battle of Tora Bora (where al-Qaeda and the Taliban fought the US military and its Afghan proxies in November and December 2001) are bedeviled with identifications based on a photograph and a variety of kunyas (nicknames) that Judge Kennedy found unconvincing. The only allegations given any substantial weight are claims that an individual who “supported jihad” financed his trip, that he followed a route that was typically used by al-Qaeda recruits, and that he was seen in two guesthouses in Afghanistan that were reportedly associated with al-Qaeda.

Other prisoners drift in and out of this narrative — Abdul Hakim Bukhari, a Saudi (released from Guantánamo in September 2007) who arrived in Afghanistan after the 9/11 attacks for jihad but was imprisoned as a spy, who unconvincingly alleged that Uthman “was a member of the Osama bin Laden … security detail” before 9/11, when Bukhari wasn’t in the country and could have had no such knowledge; and Richard Belmar, a British citizen (released in January 2005), who was seized in Pakistan in February 2002, and who, “when shown a picture of Uthman,” stated that he “’may have been a lower amir,’ or leader, ‘in the Kandahar guest house,’” even though, as seems apparent, Belmar was not in Kandahar at the same time as Uthman.

The judge refused to disregard this statement entirely, but, to be honest, it is difficult to see why not, as its basis in reality appears to be as flimsy as everything else thrown at Uthman by the government in the hope that some of it would stick, and, moreover, Belmar stated on his release that, on one occasion in Bagram, “a handgun was forced into his mouth,” and he explained, “It tasted cold, bitter. I thought, ‘Yeah, this is getting serious, there’s a good chance they will pull the trigger.’”

Elsewhere, the government resorted to trying out guilt by association, claiming that, because Uthman was seized in the vicinity of Tora Bora with approximately 30 other men, “a few of whom he knew from Yemen,” who “were admitted — or at least, alleged, al-Qaeda members, some of whom were likely coming from Tora Bora,” the Court should draw an inference that Uthman’s missionary story was a lie.

The truth, to be honest, is difficult to establish, as Judge Kennedy recognized. The group of approximately 30 men with whom Uthman was seized have long been referred to by the government as the “Dirty Thirty,” and portrayed, as in Uthman’s case, as bodyguards for bin Laden. Until this case came to court, it had been presumed that the bodyguard allegations came solely from Mohamed al-Qahtani, the supposed 20th hijacker for the 9/11 attacks, whose torture at Guantánamo is well-known (and was admitted by Pentagon official Susan Crawford in January 2009), but al-Qahtani is mysteriously absent from Uthman’s case, as are alleged al-Qaeda member Ibrahim al-Qosi (currently facing a trial by Military Commission) and convicted al-Qaeda member Ali Hamza al-Bahlul, who were also captured at this time.

It may dismay the government to have to concede that it is all but impossible to establish that everyone seized at this time was part of al-Qaeda, and that some of the men may have been missionaries or humanitarian aid workers, attempting to flee the chaos of post-invasion Afghanistan as part of general Arab exodus, but it is not beyond the bounds of reason that this is the case, as Judge Kennedy accepted in his conclusion, when he stated:

In sum, the Court gives credence to evidence that Uthman (1) studied at a school at which other men were recruited to fight for al-Qaeda; (2) received money for his trip to Afghanistan from an individual who supported jihad; (3) traveled to Afghanistan along a route also taken by al-Qaeda recruits; (4) was seen at two al-Qaeda guesthouses in Afghanistan; and (5) was with al-Qaeda members in the vicinity of Tora Bora after the battle that occurred there.

Even taken together, these facts do not convince the Court by a preponderance of the evidence that Uthman received and executed orders from al-Qaeda. Although this information is consistent with the proposition that Uthman was a part of al-Qaeda, it is not proof of that allegation. As explained, the record does not contain reliable evidence that Uthman was a bodyguard for Osama bin Laden or fought for al-Qaeda. Certainly, none of the facts respondents have demonstrated are true are direct evidence of fighting or otherwise “receiv[ing] and execut[ing] orders” … and they do not, even together, paint an incriminating enough picture to demonstrate that the inferences respondents ask the Court to make are more likely accurate than not. Associations with al-Qaeda members, or institutions to which al-Qaeda members have connections, are not alone enough to demonstrate that, more likely than not, Uthman was part of al-Qaeda.

In granting Uthman’s habeas petition, Judge Kennedy added that, “at first blush,” some of the government’s evidence was “quite incriminating of Uthman and supportive of the position that he is lawfully detained,” but that, on close examination, there was “reason to not credit some of it at all and reason to conclude that what remains is not nearly as probative of respondent’s position as they assert.”

An alarming conclusion

This is indeed the case, but what is missing from Judge Kennedy’s conclusion, but is glaringly obvious from his opinion as a whole, is that the shadows that surround the barely fleshed-out figure of Uthman are populated not by reliable witnesses, but by a procession of torture victims or other prisoners worn out by endless interrogation, who, when shown photographs, invented stories to get the torture to stop, or to get the interrogators off their back.

As a demonstration of how to produce false confessions to incriminate insignificant prisoners at Guantánamo, it would be hard to find a document that more perfectly expresses the brutal pointlessness of the “War on Terror” than this opinion, and when the bigger picture is examined — Sharqwi Abdu Ali al-Hajj‘s statement that, in Jordan, “I was shown thousands of photos, and I really mean thousands” — the scale of this shocking witch-hunt is explicitly revealed.

Beyond Guantánamo, where habeas judges are not empowered to tread, who knows how many other men were seized because of false confessions made through the use of torture?

(‘’)

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

As published on the Huffington Post, AlterNet, CounterPunch, Antiwar.com and ZNet. Cross-posted on Prison Planet, Uruknet, Deep Journal, New Left Project, BreaktheChains, Doom Daily, Truth is Contagious and Grande Strategy.

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

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

Note

Despite the Bush administration’s fearsome rhetoric regarding Guantánamo — that it contained “the worst of the worst” terrorists, who, as a result, should be held indefinitely without charge or trial — attempts to back up these allegations with evidence have, for the most part, failed dismally. This is partly because the majority of the men held were not seized by US forces on the battlefield, as alleged, but were rounded up by the US military’s allies, in Pakistan as well as Afghanistan, at a time when bounty payments averaging $5,000 a head were being paid for al-Qaeda or Taliban suspects. However, the failures can also be ascribed to overreaction on the part of the Bush administration, and to a system of torture and coercion — and, in some cases, bribery — designed to produce confessions that, as a result, are overwhelmingly unreliable.

By the time George W. Bush left office in January 2009, 532 of the 779 prisoners held at Guantánamo had been released, and only three men had been tried and convicted of any crimes. These took place in the Military Commission trial system established by Vice President Dick Cheney in November 2001, which was revived by Congress in 2006 after the Supreme Court ruled it illegal, and the results were as follows:

• David Hicks, an Australian, accepted a plea bargain in March 2007, admitting to “providing material support to terrorism” in exchange for dropping his well-documented claims that he was abused in US custody. As a result, he received a nine-month sentence and was returned to Australia, where he is now a free man.

• In August 2008, Salim Hamdan, a driver for Osama bin Laden, was convicted of providing material support to terrorism, and given a five-and-a-half year sentence. Allowing for time already served since he was first charged, he served just five months, returning to Yemen in November 2008, where he, like Hicks, is now a free man.

• The third man to be convicted, Ali Hamza al-Bahlul, received a life sentence in November 2008 for producing a recruitment video for al-Qaeda, but his trial was a hopelessly one-sided affair, in which he refused to mount a defence, and the verdict is currently being appealed.

In addition, by the time Bush left office, judges in the US District Courts had also begun considering the habeas corpus petitions of the prisoners. The prisoners’ right to ask a judge why they were being held was unprecedented in wartime, but the Supreme Court granted the prisoners habeas rights in June 2004, because the justices recognized that they were not being held as prisoners of war protected by the Geneva Conventions, but as “enemy combatants,” who had been given no way of challenging their detention if they claimed that they had been seized by mistake. Congress subsequently stepped in to take away these rights, but they were reaffirmed in June 2008, when the Supreme Court ruled that Congress had acted unconstitutionally.

The first rulings were made in the four months before Bush left office, and the District Court judges empowered to rule on the prisoners’ detention had more bad news for the government. The Courts delivered rulings on the habeas corpus petitions of 26 prisoners, granting the petitions of 23 of these men, and only refusing them in three cases.

Under President Obama, the Courts have delivered 21 more rulings, and although the balance has swung slightly less against the government, with the prisoners winning eleven of these petitions, and the government winning ten, the only valid conclusions that can be drawn again reflect badly on the government (see “Guantánamo Habeas Results: Prisoners 34, Government 13” for links to all these rulings).

In the cases won by the prisoners, judges have demonstrated, time and again, that the government’s supposed evidence is largely unreliable, and consists primarily of information extracted through the torture or coercion of the prisoners themselves, or through the torture, coercion or bribery of other prisoners. Moreover, even in the cases won by the government, little evidence has been produced to demonstrate that the men in question were anything more than low-level Taliban recruits, who had traveled to Afghanistan to take part in a long-running civil war (in which the enemy was the Northern Alliance, who were also Muslims), and who should, as result, have been held as prisoners of war, protected by the Geneva Conventions from “cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.”

Despite the government’s many setbacks, senior officials in the Obama administration, which has largely been content to consider the Bush administration’s body of tortured, coerced or bribed evidence against the men as somehow reliable, must have been hoping for confirmation of its policies on March 22, when Judge James Robertson delivered his ruling on the habeas corpus petition of Mohamedou Ould Slahi (described in court documents as Mohamedou Ould Salahi).

The case of Mohamedou Ould Salahi

A Mauritanian, Salahi had been seized by the Mauritanian authorities in November 2001, at the request of the US, and had then been rendered by the CIA to a prison in Jordan, as part of a project of outsourcing torture to allies in the Middle East and North Africa (including Egypt, Morocco and Syria) that was prevalent until the CIA brought torture in-house, and established its own secret torture prisons.

After eight months in Jordan, he was flown to Guantánamo (via Bagram, in Afghanistan), where he was subjected to another round of torture between June and September 2003, after which he became so compliant that, as the Washington Post reported last month, he has come to be regarded by the authorities as one of “the most significant informants ever to be held at Guantánamo,” living in his own well-equipped cell, where he has a television and “a well-stocked refrigerator,” and access to a garden, which he shares with another informer, Tarek El-Sawah (identified as Tariq al-Sawah), where the two men reportedly “grow mint for tea.”

Despite the torture, and the well-known fact that, in May 2004, Lt. Col. Stuart Couch of the Marine Corps, who had been assigned his case as a prosecutor the year before, resigned rather than pursuing the case, stating that, “in addition to legal reasons, he was ‘morally opposed’ to the interrogation techniques” used on Salahi, the Obama administration — and, specifically, the Justice Department — was confident that it had a case.

Once described as the “highest-value detainee at the facility,” Salahi was obviously no stranger to al-Qaeda. His cousin and brother-in-law is Mahfouz Walad al-Walid (better known as Abu Hafs al-Mauritania), a religious scholar regarded by US authorities as a spiritual advisor to Osama bin Laden, and he also lived in Germany, where he met Ramzi bin al-Shibh (who reportedly helped Khalid Sheikh Mohammed plan the 9/11 attacks) and several of the 9/11 hijackers, and, briefly, in Canada, where he moved in circles that included Ahmed Ressam, the failed “Millennium Bomber.” He was also in contact, at various points in the 1990s, with a handful of other men who were later convicted for terrorist activities.

However, as Judge Robertson explained in his unclassified opinion (PDF), issued on April 9, “Associations alone are not enough … to make detention lawful.” Although he accepted, as Salahi himself admitted, that “he traveled to Afghanistan in early 1990 to fight jihad against communists and that there he swore bayat to al-Qaeda,” he also, essentially, accepted Salahi’s assertion that “his association with al-Qaeda ended after 1992, and that, even though he remained in contact thereafter with people he knew to be al-Qaeda members, he did nothing for al-Qaeda after that time.” This was in marked contrast to the government’s claim that he “was so connected to al-Qaeda for a decade beginning in 1990 that he must have been ‘part of’ al-Qaeda at the time of his capture.”

No knowledge of “Millennium Plot,” no knowledge of 9/11

In dealing with the various components of the government’s allegations, Judge Robertson’s unclassified opinion contains two particularly important concessions by the government. The first is that, although Salahi was originally seized in connection with Ahmed Ressam’s thwarted “Millennium Plot,” the government now “does not allege that Salahi participated in the Millennium Plot.” The second — even more extraordinarily, given how Salahi has been sold to the public over the years — is that the government now “acknowledg[es] that Salahi probably did not even know about the 9/11 attacks.”

These are crucial concessions, of course, which fatally undermine any claim that Salahi was a significant al-Qaeda operative, but in granting his habeas petition, Judge Robertson was also obliged to dismiss a number of other allegations. He began by noting that the case “relies heavily on statements made by Salahi himself, but the reliability of those statements — most of them now retracted by Salahi ­– is open to question.” He added that, “until very recently, the government has focused entirely on its assertion that Salahi was ‘part of’ al-Qaeda, relying on evidence of Salahi’s pre-capture support of al-Qaeda only to bolster that assertion,” but that, “In an eleventh hour brief, the government has invoked the ‘purposeful[] and material[] support’ standard that was approved in Al-Bihani v. Obama [PDF].”

This is a reference to a disturbing Court of Appeals ruling in January, in which two of the three judges on the panel denied the appeal of Ghaleb al-Bihani, a Yemeni cook for Arab forces supporting the Taliban, who lost his habeas petition in January 2009. In this contentious ruling, the two judges claimed that the President’s war powers are not “limited by the international laws of war,” provoking dissent from the third judge, who noted that, in 2004, Justice Souter of the Supreme Court had explicitly stated, “[W]e understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.” In addition, the judges insisted that the government’s power to detain “includes those who are part of forces associated with al-Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against US Coalition partners” (emphasis added).

However, Judge Robertson ruled that this latter claim was “a non-starter,” stating that, “although Salahi may very well have been an al-Qaeda sympathizer, and the evidence does show that he provided some support to al-Qaeda, or to people he knew to be al-Qaeda, [s]uch support was sporadic … and, at the time of his capture, non-existent.” He added, “In any event, what the standard approved in Al-Bihani actually covers is ‘those who purposefully and materially supported such forces in hostilities against US Coalition partners,’” and “The evidence in this record cannot possibly be stretched far enough to fit that test.”

As a result, Judge Robertson examined the evidence submitted by the government to ascertain whether it met the existing test, first formulated by Judge John D. Bates in another habeas case (PDF): “whether the individual functions or participates within or under the command structure of the organization — i.e., whether he receives and executes orders or directions.”

After noting that “the question of when a detainee must have been a ‘part of’ al-Qaeda to be detainable is at the center of this case,” and pointing out that the government “had to show that he was still (or again) within its command structure when he was captured in November 2001,” Judge Robertson noted, almost in passing, that “the al-Qaeda that Salahi joined in 1991 was very different from the al-Qaeda that turned against the United States in the latter part of the 1990s,” and proceeded to dismiss the government’s claim that it was up to Salahi to prove that he had dissociated himself from al-Qaeda after 1992. In doing so, he took another swipe at the Court of Appeals’ ruling in Al-Bihani, in which the court indicated that “there is nothing unconstitutional about shifting the burden to a detainee to rebut a credible government showing ‘with more persuasive evidence,’” by stating, with palpable incredulity:

If that is the rule, one might reasonably ask, how can Guantánamo detainees — locked up for years on a remote island, cut off from the world, without resources, with only such access to intelligence sources and witnesses as the government deigns to give them — how can such people possibly carry the burden of rebuttal, even against weak government cases? The answer, unfortunately for detainee petitioners, is that they are indeed at a considerable disadvantage, and that successful rebuttals of credible government cases will be rare events. The Court of Appeals has acknowledged this imbalance and approved it: “[P]lacing a lower burden on the government defending a wartime detention — where national security interests are at their zenith and the rights of the alien petitioner at their nadir — is permissible.”

In response, Judge Robertson made a point of noting that a habeas court must, since the Al-Bihani ruling, “consider the government’s factual showing of probable cause and look to the petitioner for rebuttal when that showing is both credible and significant,” but added, “It is only fair to the petitioner, however — and, considering the government’s built-in advantage, not unfair to the government — to view the government’s showing with something like skepticism, drawing only such inferences as are compelled by the quality of the evidence.”

Dissecting the evidence

That evidence, as Judge Robertson noted at the outset, “relies heavily on statements made by Salahi himself,” and, as he explained, there is “ample evidence in this record that Salahi was subjected to extensive and severe mistreatment at Guantánamo from mid-June 2003 to September 2003,” as I explained in a recent article, “Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit.” He added that “Salahi made most, if not all, of the statements that the government seeks to use against him during the mistreatment or during the 2 years following it.” and that, as a result, Salahi’s own position is that “every incriminating statement he made while in custody must therefore be disregarded.”

While not entirely agreeing that every statement must be disregarded, Judge Robertson was clearly skeptical of the government’s claim that some statements should be acceptable because there was “a clean break” after the acknowledged abuse, and was also skeptical of an allied claim that some statements were corroborated by “the statements of other persons (some of them detainees).” After noting that Salahi attacked these corroborating statements as “unreliable hearsay, or subject to the same coercive tactics described above, or both,” the judge explained that his approach was “to formally ‘receive’ all the evidence offered by either side, and to give it the weight I believe it deserves.”

In a timeline, running from 1998, when Salahi began studying at the University of Duisberg in Germany, until his capture in November 2001, Judge Robertson accounted for the years in Afghanistan (1990-92) Salahi’s return to Germany to compete his studies in March 1992, when his wife joined him, and his employment during that period, with various companies in Germany. He also laid out every other claim that, between March 1993 and the time of his capture, he traveled with Abu Hafs to Sudan (in 1993) and twice transferred sums of $4,000 for him (in 1997 and 1998), was involved with Ramzi bin al-Shibh and some of the 9/11 hijackers, and with Ahmed Ressam and other terrorist suspects in Canada (during his brief stay there from November 1999 to January 2000), and that he had some involvement with individuals who were later convicted of charges related to terrorism, including Karim Mehdi, a Moroccan convicted of an alleged bomb plot on the French island of Réunion in 2003, who received a nine-year prison sentence in France in October 2006, Christian Ganczarski, a Polish-born German citizen, who received an 18-year sentence in France in February 2009, in connection with the bombing of a synagogue in Tunisia in April 2002, and Christopher Paul, a US citizen who received a 20-year sentence in Ohio, on charges related to terrorism, in February 2009.

This is an impressive list, of course, and one that, on the surface at least, seems to implicate Salahi in a number of terrorist plots, and to give weight to the government’s claim that he “actively recruited” for al-Qaeda from 1991 until at least 1999, but on examining the evidence Judge Robertson was not convinced.

In dealing with the “most damaging allegation” against Salahi — that, “in October 1999, he encouraged Ramzi bin al-Shibh, [and 9/11 hijackers] Marwan al-Shehhi, and Ziad Jarrah to join al-Qaeda” — Judge Robertson drew less than expected on bin al-Shibh’s dubious role in fostering this claim (during the four years that he was held in secret CIA prisons and subjected to the US torture program), and more on the unreliability of Salahi’s own statements, and those of Karim Mehdi.

As Judge Robertson explained, “Under coercive interrogation, Salahi confessed to facilitating travel for ‘several of the 9/11 hijackers to Chechnya,’ justifying his assistance as ‘just’ jihad.” As I explained in my book The Guantánamo Files, “even if it were true, it proves only that he was a recruiter for a war in Chechnya that was regarded by many Muslims as a legitimate struggle, who sent would-be recruits for training in long-established training camps in Afghanistan, and does not connect him in any meaningful way to 9/11.” However, as the judge noted, “Salahi’s testimony now is that he did nothing more than give bin al-­Shibh and his friends lodging for one night.”

Further evidence is supposed to have come from Karim Mehdi, who alleged that Salahi “encouraged them to travel to Afghanistan for training ­– rather than Chechnya as they had intended; that he housed them for at least one night [and] that he gave them instructions for traveling to Afghanistan and contacts for their arrival; and that he drove them to the train station the next morning.”

However, Salahi countered by stating that “the two men accompanying bin al-Shibh were not al-Shehhi and Jarrah, and that he did not convince bin al­Shibh to travel to Afghanistan instead of Chechnya,” and also by arguing that Mehdi’s statements “are too unreliable to serve as corroboration,” because they were “coerced by mistreatment,” including sleep deprivation, and because Mehdi “was fed information by his interrogators” and “has admitted to lying.”

In an explanation of this latter point, Judge Robertson noted that “some of Mehdi’s information is inconsistent with the statements of Salahi … Mehdi said that they [Salahi, bin al-Shibh and the hijackers] met more often than twice, including a meeting that took place at Salahi’s house at a time when Salahi was in custody. Upon learning that fact, Mehdi withdrew his statement about the meeting.” He added that “Mehdi’s statements indicate only that Salahi knew bin al-Shibh and Jarrah were going to Afghanistan for training, not that Salahi encouraged them to do so.”

Beyond this central claim, dismissed by the judge, the most persuasive other piece of evidence is a fax sent by Salahi to Christopher Paul in January 1997, asking this “man of great respect in al-Qaeda” for advice on how to “facilitate getting brothers to fight.” Although Salahi rather feebly tried to claim that he had not sent this fax, Judge Robertson found that it “appears to be authentic,” but refused to draw an inference from it beyond stating that it demonstrated that Salahi “continued to be in touch with people he knew to be al-Qaeda members, and that he was willing to refer would-be jihadists to them when the opportunity arose.”

After concluding that the government “has not credibly shown Salahi to have been a ‘recruiter,’” Judge Robertson turned his attention to claims that he had been involved in al-Qaeda telecommunications projects — for Abu Hafs in Sudan, and for Christian Ganczarski in Afghanistan. However, the judge did not give much weight to either allegation, and also dismissed allegations of his involvement with Karim Mehdi, Christopher Paul and two “important figures in al-Qaeda’s Montreal cell” as “too brief and shallow to serve as an independent basis for detention,” adding that much of Salahi’s behaviour “tend[s] to support [his] submission that he was attempting to find the appropriate balance — avoiding close relationships with al-Qaeda members, but also trying to avoid making himself an enemy.”

Moreover, although Judge Robertson acknowledged that there were “unanswered questions” about Salahi’s relationship with Abu Hafs, and noted that he once stated, under interrogation, that he “would have done almost anything that was asked of him,” he dismissed claims that the two money transfers were significant, noting, “Two money transfers in modest amounts a year apart would not even amount to material support (if support were the issue here, which it is not),” and also recognized that, around November 1999, when Abu Hafs “encourag[ed] him to return to Afghanistan, and sent him two passports and money for the trip,” he refused, because he was about to travel to Canada. It should also be noted — although Judge Robertson did not pick up on it — that, according to the 9/11 Commission Report (PDF, p. 252), Abu Hafs was opposed to the 9/11 attacks and “wrote Bin Laden a message basing opposition to the attacks on the Qur’an.”

Judge Robertson’s conclusion

In a final statement, Judge Robertson summed up his findings as follows:

The government’s problem is that its proof that Salahi gave material support to terrorists is so attenuated, or so tainted by coercion and mistreatment, or so classified, that it cannot support a successful criminal prosecution. Nevertheless, the government wants to hold Salahi indefinitely, because of its concern that he might renew his oath to al-Qaeda and become a terrorist on his release. That concern may indeed be well-founded. Salahi fought with al-Qaeda in Afghanistan (20 years ago), associated with at least half-a-dozen known al-Qaeda members and terrorists, and somehow found and lived among or with al-Qaeda cell members in Montreal. But a habeas court may not permit a man to be held indefinitely upon suspicion, or because of the government’s prediction that he may do unlawful acts in the future — any more than a habeas court may rely on its prediction that a man will not be dangerous in the future and order his release if he was lawfully detained in the first place. The question, upon which the government had the burden of proof, was whether, at the time of his capture, Salahi was a “part of” al-Qaeda. On the record before me, I cannot find that he was.

What will happen to Salahi now?

Despite Judge Robertson’s thorough repudiation of the government’s claims, it is clear that Salahi will not be released anytime soon — if at all. Almost as soon as the ruling was announced, Attorney General Eric Holder responded to shrieks of alarm raised by Republican lawmakers (who couldn’t care what a judge had actually decided based on the evidence) by announcing that the government would appeal, and it may well be that, whatever happens, Salahi will remain as one of 47 prisoners that President Obama’s interagency Task Force recommended should be held indefinitely without charge or trial.

The very fact that this is being contemplated is a disgrace, of course, but what Salahi’s case reveals, above all, is how the Bush administration’s detention policies have fundamentally warped notions of justice, so that even those who claim to respect the rule of law are happy to hold a man forever, even if he wins a habeas petition, and also how they have had a baleful effect on the United States’ ability to recruit and protect informers.

On this first point, Judge Robertson explained that, although there was insufficient evidence to justify Salahi’s ongoing detention, the evidence of his activities in Canada “might well be enough to support a criminal charge of providing material support to al-Qaeda, if Salahi were criminally charged, and if the evidence were admissible in a criminal proceedings.” That is a big “if,” of course, given the inadmissibility of most of Salahi’s statements, but it should demonstrate, above all, how counter-productive was the use of torture on a man who was no more than a peripheral figure in al-Qaeda, beyond the easily-obscured fact that such treatment is illegal under domestic and international law.

Just as significant, however, are the revelations about Salahi (and Tarek El-Sawah) contained in the Washington Post article mentioned above. After noting, “The US government has rewarded them for their cooperation but has refused to countenance their release,” the Post’s reporter, Peter Finn, wrote, “Some military officials believe the United States should let them go — and put them into a witness protection program, in conjunction with allies, in a bid to cultivate more informants.” Finn spoke to W. Patrick Lang, a retired senior military intelligence officer, who explained, “I don’t see why they aren’t given asylum. If we don’t do this right, it will be that much harder to get other people to cooperate with us. And if I was still in the business, I’d want it known we protected them. It’s good advertising.”

Good advertising, indeed, and a point that echoes what veteran FBI interrogator Jack Cloonan told Jane Mayer of the New Yorker back in 2006. Reflecting on the self-defeating nature of brutality, Cloonan, an old school interrogator, who succeeded in securing confessions without the use of torture, told Mayer that resorting to such tactics would cut off “the possibility that other people with useful information about al-Qaeda [would] consider becoming informants.” As he explained, “You think all of this stuff about torture is going to make people want to come to us? That’s why I get upset when I hear people talking about stress positions, loud music, and dogs.”

Had he known what we know now, he would surely have added that publicizing the fact that Salahi was one of “the most significant informants ever to be held at Guantánamo,” but then insisting that he be held forever, is even more counter-productive. In Guantánamo, however, common sense has evaporated, and all that is left for those who have aided the United States are illusory escape routes that lead only to indefinite detention.

(‘’)

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

As published exclusively on Cageprisoners. Cross-posted on The Public Record.

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

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

On March 25, as I explained in a recent article, “Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit,” Chief Judge Royce C. Lamberth of the District Court in Washington D.C. denied the habeas corpus petition of Mukhtar al-Warafi, a Yemeni who was 27 years old when he was seized in northern Afghanistan in November 2001. As I explained in that article, according to the available records:

[Al-Warafi] survived a massacre in a mud-walled fortress, Qala-i-Janghi, where hundreds of prisoners — mostly, but not all foot soldiers for the Taliban — had been taken after surrendering to the Northern Alliance. According to a statement read out by a military officer assigned to represent him at a review board at Guantánamo, al-Warafi studied medical procedures in Yemen, “had nothing to do whatsoever with the Taliban,” and went to Afghanistan “to help provide medical assistance to the poor and the public.”

As I also noted, “It is certain that Judge Lamberth will not have been convinced by al-Warafi’s story, and will not have accepted his statement that, although he admitted traveling to Khawaja Ghar in Afghanistan and carrying an AK-47, he said that he had it for self-defense and that it was given to him by a doctor he worked with at a clinic, nor his statement that he provided first aid at the al-Ansar clinic in Kunduz, for all types of people, but not ‘to wounded soldiers.’”

Now that Judge Lamberth’s unclassified opinion has been made publicly available (PDF), it is indeed fair to say that he was not entirely convinced by al-Warafi’s explanation of how he came to be in Afghanistan, and what he was doing there. It remains, nonetheless, a depressing outcome, for a variety of reasons that I will elucidate below, but which, to provide a brief flavor of what is wrong with much of the existing framework for detaining men at Guantánamo on a legal basis, involves a familiar failure to distinguish between those involved with al-Qaeda (a terrorist organization) and the Taliban (the government of Afghanistan at the time of the US-led invasion of Afghanistan).

More shockingly, the ruling also relies on a refusal to exclude from detention those who worked as medical personnel, because of legislation passed by Congress under George W. Bush (which still applies under Barack Obama), and which prevents those seeking habeas relief from calling upon the protections of the Geneva Conventions.

In addition, in his concluding remarks, Judge Lamberth also echoed another judge who, last December, made a point of injecting dissent into his own ruling by stating that he did not believe that the man whose ongoing detention he had just approved constituted a threat to the security of the United States.

For the judges ruling on the habeas cases, the advice — or lack of it — given to them by the Supreme Court, when, in June 2008, it granted the prisoners constitutionally guaranteed habeas corpus rights, has led to certain difficulties, particularly regarding the extent of involvement with al-Qaeda or the Taliban that is required to continue to deprive prisoners of their liberty.

Different definitions have been put forth, but in common with many other judges, Judge Lamberth explained that he was drawing on the detention standard put forward by Judge John D. Bates in Hamlily v. Obama (PDF), which only authorizes the ongoing detention of prisoners who were “part of the Taliban, al-Qaeda or associated enemy forces.”

Mukhtar al-Warafi’s story

To establish that al-Warafi fit this description, Judge Lamberth (photo, left) ran through more of his story than has previously been revealed, explaining how he was born in Taiz, Yemen, and how he “has only a few years of formal education and has worked since a young age” in “a variety of odd jobs, including stints as a waiter, a dishwasher, a custodian, and, for a short while, a lab assistant at his brother’s medical clinic in Taiz,” where “he learned several basic medical skills, including how to administer IVs and take blood samples.”

In the spring of 2001, he “read two fatwas at the Jamal al-Din Mosque in Taiz,” which “discussed the Taliban and its victories in Afghanistan and encouraged individuals to assist the Taliban,” and in August 2001, after borrowing $400 from his father (telling him that he was making a pilgrimage to Mecca), he set off, locating the Taliban office in Quetta, Pakistan (as advised by one of the fatwas) and entering Afghanistan, where he made his way to the front line at Khawaja Ghar in northern Afghanistan.

He only “spent approximately one to two weeks” at the front, where “he received training on an AK-47, but did not engage in any active combat,” and then, when “A superior … sought volunteers to serve as medics at a nearby clinic,” he “volunteered and was transferred to a clinic run by a Saudi doctor, Dr. Abdullah Aziz,” who taught him “how to clean wounds, draw blood, and recognize the symptoms of malaria.”

After 25 days at the clinic, where he “treated approximately six to seven sick and wounded Taliban fighters per day,” he was transferred to the al-Ansar clinic in Kunduz, also run by Dr. Aziz, where he “treated wounded and sick Taliban fighters.” He then spent a month at a hospital, “because the area in which the al-Ansar clinic was located had become too dangerous as the Northern Alliance advanced toward Kunduz,” and on November 23, 2001, as the Taliban surrendered, traveled to Mazar-e-Sharif with other men, as part of a deal negotiated by a man named Thakker, described as his “Taliban commander,” whereby he and the others were led to believe that they would be returned to their home countries.

Instead, they were taken to Qala-i-Janghi by the Northern Alliance’s General Dostum, and, when the prisoners staged an uprising, Dr. Aziz and hundreds of other prisoners were killed, and al-Warafi was shot in the arm and only survived because he hid in the basement with about 100 other men. When these men finally surrendered, after being bombed and flooded, they were taken to the shockingly cruel and overcrowded Sheberghan prison, and al-Warafi was then taken by US forces to Kandahar, where he remained for three months until his transfer to Guantánamo.

Justifiably detaining a medic

At the heart of Judge Lamberth’s contention that al-Warafi can continue to be detained is a cluster of contradictions in his own statements, essentially undermining claims that he “traveled to Afghanistan to provide medical assistance” because of other statements admitting that he “went to Afghanistan to fight against the Northern Alliance after reading two fatwas in Yemen.”

To these can be added the judge’s perhaps understandable conclusion that, even while working as a medic, al-Warafi was still working “within the command structure of the Taliban,” and that his surrender at Mazar-e-Sharif was also undertaken as part of the same command structure. As a result, Judge Lamberth was entitled — indeed, obliged — to conclude that he can be considered as “part of the Taliban”.

This may well be the case, but it is still depressing that a man who, at most, spent a week with a gun on the front line and “did not engage in combat” can continue to be deprived of his liberty in Guantánamo after more than eight years of imprisonment without charge or trial.

Even more depressing, however, is the fact that, under Article 24 of the First Geneva Convention (Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field), medics like al-Warafi are supposed to qualify as “non-detainable medical personnel.” The Convention explicitly states that medical personnel “exclusively engaged in … treatment of the wounded or sick, or in the prevention of disease” are not detainable, except as necessary to treat other prisoners.

However, as Judge Lamberth explained, this provision was eradicated in Section 5 of the Military Commissions Act of 2006 (PDF, p. 32), passed by Congress under George W. Bush, which cynically insists, “No person may invoke the Geneva Conventions … in any habeas corpus proceeding … as a source of rights in any court of the United States.”

As he added in a footnote, “In Boumediene v. Bush, the Supreme Court declared Section 7 of the Military Commissions Act … unconstitutional because it ‘effects an unconstitutional suspension of the writ [of habeas corpus.]’” However, “The Court left the remaining provisions of the act intact,” and therefore, “Section 5 of the Military Commissions Act remains constitutional and does not effect a suspension of the writ of habeas corpus.”

There is, of course, a dark irony to the fact that the limitless detention of a medic is justified on the basis of legislation passed by Congress under George W. Bush (and retained, largely intact, by Obama), because stripping prisoners of the protections of the Geneva Conventions was one of the hallmarks of the Bush administration’s extraordinary arrogance, and was supposed to have been banished.

Moreover, the realization that the Bush administration’s lawlessness lives on, and, for the first time, has explicitly prevented a medic from receiving anything approaching justice, is even more darkly ironic when one considers that US medical personnel at Guantánamo — and elsewhere in the “War on Terror” — have been involved in torture, but, unlike Mukhtar al-Warafi, who tended to soldiers in wartime, appear not to be regarded as remotely accountable for their actions.

In that analogy, however, is contained the kernel of the injustice of the phony “War on Terror” — not the criminal side of things, which should have involved the detention and prosecution of genuine terrorist suspects in federal courts, but the manner in which warfare itself has been refashioned, so that those on one side — the US military and its allies — can do no wrong, whereas those on the other side are not afforded the most minimal rights, and even a medic becomes a terrorist.

To be fair to Judge Lamberth, it’s clear that he was not entirely happy with following the letter of the law to reach his conclusion that Mukhtar al-Warafi can continue to be detained indefinitely at Guantánamo. In his concluding remarks, he echoed comments made in December by Judge Thomas E. Hogan, when he denied the habeas petition of Musa’ab al-Madhwani, a Yemeni seized in Karachi, Pakistan, in September 2002, who was tortured in the CIA’s “Dark Prison” before his transfer to Guantánamo.

On that occasion, Judge Hogan noted that he was “not convinced that it is more likely than not that [p]etitioner is a threat to the security of the United States.” After quoting Judge Hogan, Judge Lamberth added, pointedly:

Petitioner was a low-level member or associate of the Taliban. He spent no more than a few weeks at the front line, and there is no evidence that he “planned in, participated in, or knew of any terrorist plots.” The Court hopes that this Memorandum does not foreclose the government from continuing to review petitioner’s file and assess whether he continues to pose a threat to the national security of the United States.

Anyone interested in justice — and not in the perpetuation of a flawed system based on the Bush administration’s cruel and inept overreaction to the 9/11 attacks — must be hoping that Judge Lamberth’s words have been noted in the corridors of power.

(‘’)

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

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

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

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

Please support my work!

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

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

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

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

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

The 47 Guantánamo Habeas Corpus Results

October 2008

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

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

November 2008

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

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

December 2008

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

January 2009

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

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

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

March 2009

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

April 2009

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

May 2009

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

June 2009

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

July 2009

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

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

August 2009

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

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

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

September 2009

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

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

November 2009

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

December 2009

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

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

February 2010

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

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

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

March 2010

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

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

April 2010

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

(‘’)

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

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

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

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

Please support my work!

In an attempt to raise awareness of the importance of the rulings being made in US courts on the habeas corpus petitions of the prisoners held at Guantánamo (as authorized by a significant Supreme Court ruling in June 2008), I’m devoting most of my work this week to articles covering the 47 cases decided to date (34 of which have been won by the prisoners), as a series entitled, “Guantánamo Habeas Week.” Note (April 23): Given the scope of this project, I’ve now expanded it to “Guantánamo Habeas Fortnight.”

Although I have covered the 47 cases in detail over the last 19 months, I had not, until now, followed the example of the Center for Constitutional Rights, the Washington Independent and the Miami Herald, who have all produced “Habeas Corpus Scorecards.” As a result, this series kicks off with my own list, providing links to my analyses of the rulings, to the judges’ own unclassified opinions, and, where relevant, to my articles covering the prisoners’ release from Guantánamo, and progress reports on a handful of appeals.

Throughout the week, following an article examining the case of Yasin Ismail, a Yemeni who recently lost his habeas petition (whose publication slightly preempted the start of this series), I’ll be publishing two articles analyzing the unclassified opinions in the cases of Mohamedou Ould Salahi (aka Slahi), a Mauritanian who recently won his habeas petition despite being considered one of the most significant prisoners in Guantánamo, and Mukhtar al-Warafi, a Yemeni who lost his habeas petition (I wrote about the initial rulings here). I will also analyze the judge’s opinions in the cases of four more Yemenis: Saeed Hatim, who won his habeas petition in December last year, Uthman Abdul Rahim Mohammed Uthman, who won his habeas petition in February, and Suleiman al-Nahdi and Fahmi al-Assani, who lost their habeas petitions in February (the Hatim ruling was initially discussed here, and the other three were discussed here). If time allows, I will also examine a few other opinions that were not available when I wrote articles based on the judges’ verdicts. Note (May 4): See here for an article analyzing the unclassified opinion in the case of Farhi Saeed bin Mohammed (which includes a lengthy analysis of the torture of Binyam Mohamed).

I remain impressed that the judges involved have ruled in the prisoners’ favor in 34 of the 47 cases (that’s 72 percent of the total), especially as they have exposed, in the most objective manner available, the lack of oversight in the Justice Department (first under Bush and now under Obama) regarding pursuing cases that should have been dropped, as well as persistent obstruction by the Justice Department when it comes to providing material necessary for the prisoners’ defense.

Moreover, the judges’ rulings have also revealed the alarming flimsiness of most of the material presented by the government as evidence. Primarily, the judges have exposed that the government has been relying, to an extraordinary extent, on confessions extracted through the torture or coercion of the prisoners themselves, or through the torture, coercion or bribery of other prisoners, either in Guantánamo, the CIA’s secret prisons, or proxy prisons run on behalf of the CIA in other countries.

Sadly, these rulings have not, for the most part, been covered by the mainstream media with anything like the dedication that they deserve. This is distressing, because the rulings are, to be frank, the single most important collection of documents analyzing the failures of the Bush administration’s “War on Terror” detention policies — and Obama’s refusal, or inability to thoroughly repudiate them.

As part of the judges’ revelations that the majority of the supposed evidence is actually based on the torture, coercive interrogations or voluntary “confessions” of the prisoners (in exchange for better conditions of confinement), what has also emerged, to reinforce research undertaken by myself and by staff and students at the Seton Hall Law School, is that the majority of the prisoners were not, for the most part, seized by US forces “on the battlefield,” as senior Bush administration officials claimed, but were, instead, mainly rounded up by the US military’s allies in Afghanistan and Pakistan, at a time when bounty payments were widespread, and were never adequately screened at the time of capture to determine whether or not they had ever been engaged in any kind of combat.

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

And in the meantime, of course, the real terror suspects — 35 of those held, according to the Obama administration’s interagency Task Force, which reviewed their cases last year — await either civilian court trials (Eric Holder’s preference) or trials by Military Commission (following one of Obama’s weakest concessions to Congressional cooperation), and 47 others, judged by the Task Force as prisoners who should continue to be held indefinitely, because of fundamental weaknesses in the supposed evidence against them, must wait and see if the courts agree with the government’s assessment when their own habeas petitions are examined by District Court judges.

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Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

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

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

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