The sentence was the first under President Obama and only the fourth in the long and troubled history of the Military Commissions at Guantánamo. The trial system was dragged from the history books by Vice President Dick Cheney in November 2001, ruled illegal by the US Supreme Court in June 2006, revived by Congress later that year, suspended by President Obama on his first day in office, and then revived last November, in a move that was widely criticized as part of a hideously compromised three-tier system of justice for the Guantánamo prisoners, involving federal court trials or Military Commissions for 35 prisoners in total, and indefinite detention without charge or trial for 48 others.

As Reuters explained, al-Qosi, who is Sudanese, met Osama bin Laden in Sudan, traveled with him to Afghanistan, and “acknowledged that he knew al-Qaeda was a terrorist group when he ran one of the kitchens in bin Laden’s Star of Jihad compound in Afghanistan.” He also “admitted helping the al-Qaeda leader escape US forces in the Tora Bora mountains of Afghanistan,” but added that he “had no involvement in or prior knowledge of terrorist attacks.” Putting these admissions in context, Renee Schomp, a Program Associate for Human Rights First’s Law and Security Program, stated:

[A]l-Qosi pled guilty to living on a compound with supporters of Osama bin Laden in Jalalabad, Afghanistan and acting as a cook. His wife and children were with him until about November 2001. Al-Qosi’s guilty plea states that his activities in Afghanistan were the sole means of support for them. Al-Qosi never acted as a bodyguard or security guard for bin Laden, but for 12-18 months he served on defensive lines in a mortar crew — before the “war on terror” began, and not against US forces.

Crucially, al-Qosi’s sentence was part of a plea bargain whose full details have not yet been made publicly available. According to the Dubai-based al-Arabiya TV network, his sentence was capped at two years, although it is clear from the negotiations during his trial — in which the prosecution and the defense called for the military jury to deliver a sentence of between 12 and 15 years — that the jury had not been given any information about the plea deal, and that, essentially, all the details had been worked out behind the scenes to use the jury to deliver a sentence that appeared to validate the system, even though it did no such thing.

What was also apparent during al-Qosi’s sentencing was typical confusion — of the kind that has undermined the Commissions throughout their troubled history — regarding practical considerations; in this case, where his sentence will be served.

As Reuters reported, al-Qosi’s sentencing “hit a snag” because of the military’s inability to develop a coherent policy regarding his desire not to be held in solitary confinement. His plea deal “required the convening authority overseeing the trial [Retired Vice Adm. Bruce MacDonald, who replaced President Bush’s appointee Susan Crawford in March this year] to recommend that Qosi serve his time in Camp Four, where detainees live communally under fewer restrictions than in the other camps.” However, “military rules forbid housing convicted criminals with other detainees.”

Of the three men previously convicted, only one, Ali Hamza al-Bahlul, is still held, and he is serving a life sentence in solitary confinement. Asked to explain the circumstances of al-Bahlul’s confinement, Navy Cmdr. Brad Fagan stated, “He is separated from the general population,” but “declined to elaborate” except to say that “he’s by himself.”

Al-Qosi’s judge, Air Force Lt. Col. Nancy Paul, was clearly unimpressed by the military’s inability to establish a policy regarding the circumstances in which convicted prisoners are to be held. As Reuters explained, “an assistant defense secretary ordered two years ago that the army and the military’s Southern Command, which oversees the Guantánamo base, develop a detailed plan for housing prisoners after their conviction.” As Judge Paul noted, however, “This has not been done.” She added that the absence of an official policy was “especially troubling” because of the possibility of another conviction in the trial of Omar Khadr, the Canadian who was just 15 years old when he was seized in Afghanistan in July 2002.

As a compromise, Judge Paul ruled that al-Qosi’s plea agreement “was valid because it called only for a recommendation that he be housed in the communal camp, and did not guarantee he would be.” She ordered him to “remain in Camp Four for 60 days while the military worked out where he would serve the rest of his sentence.”

Press reports also noted that, at the end of his sentence, al-Qosi will be repatriated to Sudan, where, as the Wall Street Journal explained, the Sudanese National Intelligence and Security Service stated, in correspondence introduced at al-Qosi’s trial by one of his military defense lawyers, Maj. Todd Pierce, that “it would put Mr. Qosi in mandatory ‘rehabilitation,’ monitor his phone calls and email, and deploy ‘informants’ to ensure he ‘no longer [adheres] to a radical ideology.’”

The Wall Street Journal added that the Sudanese intelligence agency reported that its program, used to deal with nine Sudanese prisoners previously released from Guantánamo (between 2004 and 2008), was “85% effective,” and also suggested that the US government “has been working with the Sudanese government to repatriate detainees from Guantánamo Bay.” These men were not named in the report, but there are only two other Sudanese prisoners in Guantánamo, in addition to Ibrahim al-Qosi.

The other two Sudanese prisoners

The first, Ibrahim Idris, who has sometimes been listed as a Yemeni, is clearly of no great significance. Accused of attending al-Farouq (the training camp associated with Osama bin Laden in the years before the 9/11 attacks), and of fighting with the Taliban for two years, he attended a military review board in December 2007, in which he stated that he had actually been seized in Pakistan, where he had traveled for 40 days to work as a missionary. “No disrespect to the interrogators,” he explained. “I said what I had to say, and they made me say things that weren’t true.” This may or may not be accurate (although it is certainly possible), but no information has emerged in the last eight years to indicate that he was involved in any way with terrorist activities.

The case of the other Sudanese prisoner, Noor Uthman Muhammed, who was involved with the Khaldan training camp as a trainer, and who appears to have run the camp when its leader was away, is clearly more problematical for the government. Muhammed was one of 29 prisoners put forward for a trial by Military Commission under President Bush between 2007 and 2008, and was one of five prisoners whose military trials under President Obama were announced by Attorney General Eric Holder last November. Progress in his case has been slow in the months since, with inconclusive wrangling over his defense team’s request for his evaluation by an independent psychologist, but it would be surprising if the government were to be in any great hurry to proceed with the trial, as his case involves two men whose stories the government would prefer to keep hidden. The first is Ibn al-Shaykh al-Libi, the camp’s leader, and the second is Abu Zubaydah, the camp’s mentally troubled gatekeeper.

Al-Libi, who died in mysterious circumstances in a Libyan jail last May, was the notorious CIA “ghost prisoner” who produced a false confession about links between al-Qaeda and Saddam Hussein, while being tortured in Egypt on behalf of the CIA, which was used to justify the US-led invasion of Iraq in March 2003, and Abu Zubaydah, as has become increasingly apparent over the last few years, is the supposed “high-value detainee,” for whom the CIA’s torture program was initially developed, who, in fact, was not part of al-Qaeda and had no knowledge of al-Qaeda’s terrorist plans.

In general, the government has spent the last few years removing all mention of Zubaydah from other prisoners’ cases, and Muhammed’s proposed trial is therefore a potentially disturbing aberration. As McClatchy Newspapers explained in an article on July 1 this year, when Muhammed boycotted a pre-trial hearing, “Declassified documents say Abu Zubaydah has told interrogators that the Khaldan training camp that Noor allegedly ran was a rival to training camps run and sanctioned by bin Laden, wasn’t associated with al-Qaeda, that it was first set up by the US-backed resistance to the Soviet invasion of Afghanistan and was committed to a defensive, not offensive, jihad.”

As McClatchy also noted, there was “little likelihood” that Muhammed would be tried in the near future, because, in April this year, his judge, Navy Capt. Moira Modzelewski, “said it would take her until January or February to sift through classified evidence the prosecution intends to use against him and that the trial couldn’t begin before she’d done that.”

Pre-trial hearings are scheduled to continue next month, but with al-Qosi’s example, it may make more sense for the government to try to work out a plea bargain in Muhammed’s case that would bypass the potential embarrassment of an actual trial.

Whether any of these proposals have anything to do with justice is debatable. As Melina Milazzo, Pennoyer Fellow with Human Rights First’s Law and Security Project, stated after al-Qosi’s sentence was announced, Judge Paul’s decision that “it was in the best interest for both the government and al-Qosi that the details of his plea agreement should continue to be sealed until after his confinement was completed” was “unprecedented in both US federal court as well as US court martial,” adding, “Moreover, shrouding his plea agreement in secrecy does little to provide much needed transparency to a grossly opaque system.”

Noticeably, however, it is pragmatism and diplomacy rather than justice that have largely enabled prisoners to leave Guantánamo, and if President Obama is at all serious about closing the prison, then he should be aware that the Sudanese government has at least provided him with an opportunity to close one more chapter in Guantánamo’s sordid history by facilitating the repatriation of all three of the remaining Sudanese prisoners.

Note: The courtroom sketch above is by Janet Hamlin, and is courtesy of Janet Hamlin Illustration.

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

As published exclusively on Cageprisoners.

For a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Predictable Chaos As Guantánamo Trials Resume (July 2009), David Frakt: Military Commissions “A Catastrophic Failure” (August 2009), 9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please? (September 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Military Commissions Revived: Don’t Do It, Mr. President! (November 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), Rep. Jerrold Nadler and David Frakt on Obama’s Three-Tier Justice System For Guantánamo (November 2009), Guantánamo: Idealists Leave Obama’s Sinking Ship (November 2009), Chaos and Confusion: The Return of the Military Commissions (December 2009), Afghan Nobody Faces Trial by Military Commission (January 2010), Lawyers Appeal Guantánamo Trial Convictions (February 2010), When Rhetoric Trumps Good Sense: The GOP’s Counter-Productive Call for Military Commissions (March 2010), David Frakt’s Damning Verdict on the New Military Commissions Manual (May 2010), Prosecuting a Tortured Child: Obama’s Guantánamo Legacy (May 2010), The Torture of Omar Khadr, a Child in Bagram and Guantánamo (May 2010), Bin Laden Cook Accepts Plea Deal at Guantánamo Trial (July 2010), Defiance in Isolation: The Last Stand of Omar Khadr (July 2010), Omar Khadr Accepts US Military Lawyer for Forthcoming Trial by Military Commission (July 2010), A Letter from Omar Khadr in Guantánamo (July 2010).

The existence of the prisons was first revealed in the Washington Post on November 2, 2005, although the Post refrained from “publishing the names of the Eastern European countries involved in the covert program, at the request of senior US officials.” However, on November 6, 2005, Human Rights Watch identified the countries as Poland and Romania, and stated that it had seen “flight records showing that a Boeing 737, registration number N313P — a plane that the CIA used to move several prisoners to and from Europe, Afghanistan, and the Middle East in 2003 and 2004 — landed in Poland and Romania on direct flights from Afghanistan on two occasions in 2003 and 2004.”

Although the Polish and Romanian governments denied the claims, Swiss Senator Dick Marty, a Rapporteur for the Council of Europe, concluded in a report in June 2007 (PDF), based on two years’ research and interviews with over 30 current and former members of the intelligence services in the United States and Europe, that he had enough “evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania.” Marty also identified both sites, noting that the flights to Romania flew into the Mihail Kogalniceanu military airfield, and also explained how the flights were disguised using fake flight plans.

In September 2008, a Polish intelligence official confirmed that between 2002 and 2005 the CIA had held terror suspects inside a military intelligence training base in Stare Kiejkuty in north eastern Poland. He said that only the CIA had access to the prison, and that, although Prime Minister Leszek Miller and President Aleksander Kwasniewski knew about it, “it was unlikely either man knew if the prisoners were being tortured because the Poles had no control over the Americans’ activities.”

It was not until March 23, 2009, however, that the first details of specific flights into Szymany were officially confirmed in Poland, when the Polish Air Navigation Service Agency released information about a Lockheed L100-30 Hercules, registration number N8213G, which had flown in on February 4, 2003. This was followed up on September 16 with far more incriminating records, demonstrating that a notorious “torture jet,” a Gulfstream V, registration number N379P, had flown into Szymany on six occasions between February 8 and September 22, 2003 (see here and here), and on June 2 this year, a further release identified a Gulfstream IV, registration number N63MU, which had flown in on July 28, 2005.

Friday’s revelations by the Polish Border Guard Office are, however, even more significant, firstly because they include, for the first time, confirmation that N63MU flew into Poland on December 5, 2002, and secondly, because they provide details of the number of passengers on seven of the flights, as follows:

December 5, 2002: 8 passengers delivered
February 8, 2003: 7 passengers delivered; 4 others flown to an unknown destination
March 7, 2003: 2 passengers delivered
March 25, 2003: 1 passenger delivered
May 6, 2003: 1 passenger delivered
July 30, 2003: 1 passenger delivered
September 22, 2003: 0 passengers delivered; 5 flown to Romania

Who are the “high-value detainees” held in Poland?

In identifying these 20 passengers, the documents provide more questions than answers, as it is not known how many of them were prisoners, and how many were US government operatives accompanying them.

However, what can be stated with certainty is that three of the men who arrived on December 5, 2002 were the “high-value detainees” Abu Zubaydah, Abd al-Rahim al-Nashiri and Ramzi bin al-Shibh, who had all been held previously in a secret CIA prison in Thailand.

In the CIA Inspector General’s Report on “Counterterrorism Detention and Interrogation Activities (September 2001-October 2003),” published in May 2004, but only made publicly available last August (PDF), it was stated that the “enhanced interrogation of al-Nashiri continued through 4 December 2002” and that, “after being moved, al-Nashiri was thought to have been withholding information”, indicating that it was at this time that he was rendered to Poland.

Moreover, in research for a “Joint Study on Global Practices in Relation to Secret Detention in the Context of Counter-Terrorism,” published by the United Nations in February this year (PDF, or see my cross-post here), an analyst

identified a flight from Bangkok to Szymany, Poland, on 5 December 2002 (stopping at Dubai) … though it was disguised under multiple layers of secrecy, including charter and sub-contracting arrangements that would avoid there being any discernible “fingerprints” of a United States Government operation, as well as the filing of “dummy” flight plans.

This, clearly, is the flight identified in the newly released documents as having flown into Poland via Dubai.

In addition, according to information provided to ABC News by “[c]urrent and former CIA officers” in December 2005, seven other “high-value detainees,” as well as Zubaydah, al-Nashiri and bin al-Shibh, were held in Poland, while an eleventh, Hambali, was held elsewhere (possibly on the British island of Diego Garcia, in the Indian Ocean, which is leased to the US). ABC News identified these men as Khalid Sheikh Mohammed, Waleed bin Attash, Ibn al-Shaykh al-Libi, Abdul Rahim al-Sharqawi, Mohammed Omar Abdel-Rahman, Hassan Ghul and Ahmed Khalfan Ghailani.

Of these seven, Hassan Ghul (whose whereabouts are still unknown, although he was reportedly held in a Pakistani prison in 2006) and Ahmed Khalfan Ghailani (who was one of 14 “high-value detainees” transferred to Guantánamo in September 2006) were seized in 2004, outside of the period from December 2002 to September 2003 covered by the documents, but the other five may all have been held in Poland at this time.

In April 2009, Der Spiegel reported that Khalid Sheikh Mohammed (another of the 14 HVDs, and the alleged mastermind of the 9/11 attacks) was flown to Szymany on March 7, 2003, and if this is the case (and the date, noticeably, corresponds with one of the dates in the newly released documents), then it is possible that Mustafa al-Hawsawi, who was seized with him on March 1, 2003 (and who was also transferred to Guantánamo in September 2006), was the other passenger who arrived with him on that date — although it is also, of course, possible that the second passenger was an interrogator or a psychologist.

As for the others identified by ABC News, Waleed bin Attash (another of the 14 HVDs), seized in Karachi, Pakistan on April 29, 2003, could be the passenger delivered on May 6, and Mohamed Omar Abdel-Rahman, one of the sons of Omar Abdel-Rahman, the “Blind Sheikh,” imprisoned in the US, could have been on any of the flights. Seized in Quetta in February 2003, his detention has never been officially acknowledged by the US authorities, and his current whereabouts are unknown.

More contentious are the claims that Ibn al-Shaykh al-Libi and Abdul Rahim al-Sharqawi were held in Poland. Al-Libi, the emir of the Khaldan training camp in Afghanistan, which was closed down by the Taliban in 2000 after he refused to cede control of it to Osama bin Laden, was, notoriously, rendered by the CIA to Egypt soon after his capture in Afghanistan in December 2001, where, under torture, he came up with the false allegation that Saddam Hussein was working on a chemical weapons program with al-Qaeda, which was used to justify the invasion of Iraq in March 2003.

According to an account by the journalist Stephen Grey, al-Libi was rendered back to Afghanistan in November 2003, and according to another account, by a Libyan who talked to al-Libi in a prison in Tripoli before his suspicious death last May, he was rendered from Egypt to prisons in Mauritania, Morocco and Jordan, before his return to Afghanistan, where he was held in three separate prisons run by, or under the control of the CIA, before his eventual return to Libya (possibly in 2006). As a result, although it’s possible that he was also held in Poland for a while, it is by no means certain.

As for al-Sharqawi (also identified as Sharqwi Abdu Ali al-Hajj or Abdu Ali Sharqawi), the available reports suggest that, after he was seized in a house raid in Pakistan in February 2002, he was rendered to Jordan, where he was held for nearly two years — and tortured on behalf of the CIA — before being transferred to the CIA’s “Dark Prison” near Kabul, and then, via Bagram, to Guantánamo, where he arrived in September 2004. As with al-Libi, however, it is possible that at some point he was transferred to Poland.

A program still shrouded in secrecy

Given the intense secrecy that still surrounds the “high-value detainee” program, all that we can state with certainty is that, in May 2005, Assistant Attorney General Stephen G. Bradbury of the Office of Legal Counsel stated in a memo (updating the notorious “torture memos” of August 1, 2002, by John Yoo and Jay S. Bybee) that the CIA had, by that point, “taken custody of 94 prisoners [redacted] and ha[d] employed enhanced techniques to varying degrees in the interrogations of 28 of these detainees.” These figures do not include prisoners rendered to prisons in other countries that were not directly under CIA control.

As these are essentially the only details about the program’s scope that have ever been made publicly available, it is impossible to state with any certainty how many of these 94 prisoners were held in Poland. However, research undertaken for the UN’s secret detention report indicated that the majority of the 94 were probably held in secret prisons in Afghanistan, and the figure of ten men in Poland that was cited by ABC News is close to the figure quoted by Dick Marty, who noted that “a single CIA source told us that there were ‘up to a dozen’ high-value detainees in Poland in 2005, but we were unable to confirm this number.” If this is the case, then the 20 passengers referred to in the newly released documents may include just eight prisoners, with two more — Hassan Ghul and Ahmed Khalfan Ghailani — arriving in 2004, and the rest being interrogators and psychologists.

One more question, however, concerns the origin of one of the flights. Although the first flight came from Bangkok via Dubai, and the rest appear to have flown directly from Kabul, Afghanistan, the flight on February 8, 2003, which contained seven passengers, and left the next day with four passengers (again, perhaps US personnel) arrived from Rabat, Morocco. Given that Morocco was one of a handful of countries (along with Jordan, Egypt and Syria) that were used either as proxy torture prisons or in order to “disappear” prisoners entirely, it is possible that the flight picked up three prisoners in Morocco, and flew them on to Poland.

If this is the case, then three possible candidates are Abu Zubair al-Haili, a Saudi seized in Morocco in June 2002, who was known as “the Bear,” because of his size, and who was reported to be “one of the top 25 al-Qaeda leaders,” and to have had “a very close relationship to Abu Zubaydah,” plus two other Saudis seized with him. The whereabouts of all three men have never been explained by either the US or the Moroccan authorities, although in September 2002 the Independent reported that al-Haili was “in US custody.”

Romania’s role in the CIA’s secret prison program

The final piece of the jigsaw revealed by the new Polish documents concerns Romania, as it seems clear that, on September 22, 2003, five prisoners were taken from the Polish prison to what may, at the time, have been a new project in Romania. In his report for the Council of Europe (PDF), Dick Marty stated:

For reasons of both security and capacity, the CIA determined that the Polish strand of the HVD program should remain limited in size. Thus a “second European site” was sought to which the CIA could transfer its detainees with “no major logistical overhaul”. Romania, used extensively by United States forces during Operation Iraqi Freedom in early 2003, had distinct benefits in this regard: as a member of the CIA’s Counterterrorist Centre remarked about the location of the proposed detention facility, “our guys were familiar with the area.”

Marty added:

Romania was developed into a site to which more detainees were transferred only as the HVD program expanded. I understand that the Romanian “black site” was incorporated into the program in 2003, attained its greatest significance in 2004 and operated until the second half of 2005. The detainees who were held in Romania belonged to a category of HVDs whose intelligence value had been assessed as lower but in respect of whom the Agency still considered it worthwhile pursuing further investigations.

While this avenue remains to be explored, the UN secret detention report suggested that three of the men held in Romania may have been the Yemenis Salah Nasser Salim Ali (seized in Indonesia in August 2003), Mohammed Farag Ahmad Bashmilah (seized in Jordan in October 2003) and Mohammed al-Asad (seized in Tanzania in December 2003), who, after being held in secret prisons in Afghanistan, were transferred in April 2004 to “an unknown, modern facility apparently run by United States officials, which was carefully designed to induce maximum disorientation, dependence and stress in the detainees … Research into flight durations and the observations of Mr. al-Asad, Mr. Ali, and Mr. Bashmilah suggest that the facility was likely located in Eastern Europe.”

All three were eventually transferred to Yemeni custody in May 2005, but they were clearly more fortunate than the other men rendered to Romania, whose stories have never emerged, and are as unknown as those of the five men transferred from Poland to Romania on September 22, 2003, whose existence has just been revealed.

In conclusion, while the release of these documents provides only a tantalizing glimpse into a program that is still shrouded in secrecy, it also provides some much needed information to be used in an attempt to compel the Polish government, the Romanian government, and, most of all, the US government, to stop pretending either that these prisons did not exist, or that “we need to look forward as opposed to looking backwards,” and to come clean about both the prisons and the men held there.

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

As published exclusively on Truthout.

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

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

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

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

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

How the case against Abu Zubaydah collapsed

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

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

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

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

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

The Circuit Court’s reliance on discredited intelligence

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

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

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

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

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

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

Dubious allegations about Abu Zubaydah’s “militia”

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

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

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

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

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

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

Ulterior motives?

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

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

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

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

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

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

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

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

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

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

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

C.  Proxy detention sites

141. Since 2005, details have emerged of how the United States was not only secretly capturing, transferring and detaining people itself, but also transferring people to other States for the purpose of interrogation or detention without charge. The practice had apparently started almost simultaneously with the high-value detainee programme. The British Government transmitted to the experts a summary of conclusions and recommendations of the Intelligence and Security Committee report on rendition (2007), in which it was noted that “the Security Service and SIS were … slow to detect the emerging pattern of “renditions to detention” that occurred during 2002” [The summary was sent in response to a questionnaire on allegations of rendition and detention sent by the Working Group on Enforced and Involuntary Disappearances, dated 8 July 2009]. The CIA appears to have been generally involved in the capture and transfer of prisoners, as well as in providing questions for those held in foreign prisons. Beyond that, a clear pattern is difficult to discern: some prisoners were subsequently returned to CIA custody (and were  generally sent on to Guantanamo), while others were sent back to their home countries, or remained in the custody of the authorities in third countries.

142. The Government of the United States has acknowledged that “some enemy combatants have been transferred to their countries of nationality for continued detention” [E/CN.4/2004/3, para. 69]. In its report to the Committee against Torture on 13 January 2006, the Government attempted to deflect criticism of its policy of sending detainees to countries with poor human rights records, including those where they might face the risk of torture, declaring that “the United States does not transfer persons to countries where the United States believes it is ‘more likely than not’ that they will be tortured … The United States obtains assurances, as appropriate, from the foreign government to which a detainee is transferred that it will not torture the individual being transferred” [CAT/C/48/Add.3/Rev.1, para. 30. See also the reply of the Government to a general allegation regarding the its involvement in one case of extraordinary rendition transmitted by the Working Group on Enforced or Involuntary Disappearances, in which it affirmed that “the United States does not transport individuals from one country to another for the purpose of interrogation using torture. Furthermore, the United States has not transported individuals, and will not transport individuals to a country where the Government believes they will be tortured” (A/HRC/10/9, para. 425)]. Various United Nations bodies, including the experts and the Committee against Torture, have criticized heavily this policy of “extraordinary rendition” in a detailed way in the past, defining it as a clear violation of international law. They also expressed concern about the use of assurances [See A/HRC/6/17/Add.3, para. 36; A/HRC/4/40, paras. 43 and 50; E/CN.4/2004/3, para. 69; A/HRC/4/41, para. 458 and A/60/316, para. 45; CAT/C/USA/CO/2, paras. 20-21; and A/60/316, E/CN.4/2006/6 and A/HRC/4/40, paras. 52-56].

143. Given the prevailing secrecy regarding the CIA rendition programme, exact figures regarding the numbers of prisoners transferred to the custody of other Governments by the CIA without spending any time in CIA facilities are difficult to ascertain. Equally, little is known about the number of detainees who have been held at the request of other States, such as the United Kingdom and Canada. While several of these allegations cannot be backed up by other sources, the experts wish to underscore that the consistency of many of the detailed allegations provided separately by detainees adds weight to the inclusion of Jordan, Egypt, Morocco, the Syrian Arab Republic, Pakistan, Ethiopia and Djibouti as proxy detention facilities where detainees have been held on behalf of the CIA. Serious concerns also exist about the role of Uzbekistan as a proxy detention site.

1.  Jordan

144. At least 15 prisoners, mostly seized in Karachi, Pakistan, or in the Pankisi Gorge in Georgia, claim to have been rendered by the CIA to the main headquarters of the General Intelligence Department of Jordan in Amman, between September 2001 and 2004. They include three men and one juvenile subsequently transferred to Guantanamo via Afghanistan:

• Jamal Mar’i, a Yemeni, and the first known victim of rendition in the wake of the attacks of 11 September 2001. Seized from his house in Karachi, on 23 September 2001, he was held for four months in Jordan before being flown to Guantanamo, where he remains [PDF, pp. 130-44] [Postscript: he was freed in December 2009].

• Mohamedou Ould Slahi, a Mauritanian, was rendered to Jordan after handing himself to Mauritanian authorities on 28 November 2001. Mr. Slahi was held in Jordan for eight months, and described what happened to him as “beyond description”. He was then transferred to Afghanistan, where he spent two weeks, and arrived in Guantanamo, where he remains, on 4 August 2002 [PDF, pp. 28-38; PDF, pp. 184-218][Postscript: he won his habeas petition in March 2010].

• Ali al-Hajj al-Sharqawi, a Yemeni, was rendered to Jordan after his capture in Karachi on 7 February 2002. Flown to Afghanistan on 8 January 2004, he was held there for eight months, then flown to Guantanamo on 20 September 2004. Still held at Guantanamo, he has stated that he was continuously tortured throughout his 23 months in Jordan. [Postscript: his torture was referred to by a US judge in this habeas petition].

• Hassan bin Attash, a Saudi-born Yemeni, was 17 years old when he was seized in Karachi on 11 September 2002 with Ramzi bin al-Shibh. He was held in Jordan until  8 January 2004, when he was flown to Afghanistan with Ali al-Hajj al-Sharqawi. He was then delivered to Guantanamo with al-Sharqawi on 20 September 2004. Still held at Guantanamo, he has stated that he was tortured throughout his time in Jordan.

145. Also held were Abu Hamza al-Tabuki, a Saudi seized by United States agents in Afghanistan in December 2001 and released in Saudi Arabia in late 2002 or early 2003, and Samer Helmi al-Barq, seized in Pakistan on 15 July 2003, who was kept for three months in a secret prison outside Pakistan, before being transferred to Jordan on 26 October 2003. He was released on bail in January 2008 [Others reportedly held in Jordan are Jamil Qasim Saeed Mohammed, a Yemeni student rendered from Karachi on 23 October 2001, who has not been heard of since; Ibrahim al- Jeddawi, a Saudi seized in Yemen (or Kuwait) in the first half of 2002, who was reportedly transferred to Saudi custody; at least five other men (three Algerians, a Syrian and a Chechen), seized in Georgia in 2002; an Iraqi Kurd, possibly seized in Yemen; and a Tunisian, seized in Iraq. The current whereabouts of all these men is unknown. According to former prisoners interviewed by Human Rights Watch, Ramzi bin al-Shibh, seized with Hassan bin Attash and one of 14 “high-value detainees” transferred to Guantanamo in September 2006, was also held in Jordan for an unspecified amount of time, as was Ibn al-Sheikh al-Libi, seized in Afghanistan in late 2001, who was subjected to multiple renditions. See also para. 146. For Samer Helmi al-Barq, see Amnesty International, submission to the United Nations Universal Periodic Review, February 2009 (PDF)].

2.  Egypt

146. At least seven men were rendered to Egypt by the CIA between September 2001 and February 2003, and another was rendered to Egypt from the Syrian Arab Republic, where he had been seized at the request of the Canadian authorities:

• Abdel Hakim Khafargy, an Egyptian-born, Munich-based publisher, was allegedly seized in Bosnia and Herzegovina on 24 September 2001, and rendered to Egypt a few weeks later, after being held by United States forces at its base in Tuzla. He was returned to Germany two months later [PDF].

• Mamdouh Habib, an Australian seized in Pakistan in November 2001, was rendered to Egypt three weeks later and held for six months. Transferred to Guantanamo in June 2002, he was released in January 2005. He claims to have been tortured throughout his time in Egypt [For recent developments, see this article].

• Muhammad Saad Iqbal Madni, a Pakistani-Egyptian national, was seized by the Indonesian authorities in Jakarta on 9 January 2002, flown first to Egypt and then to Bagram, where he was held for 11 months. He arrived in Guantanamo on 23 March 2003 and was released in August 2008. Mr. Madni indicated that, during his detention in Cairo, he was subjected to ill-treatment, including electroshocks applied to his head and knees and, on several occasions, he was hung from metal hooks and beaten. Furthermore, he reported that was denied medical treatment for the blood in his urine [Interview with Muhammad Saad Iqbal Madni (annex II, case 15)].

• As confirmed by the Government of Sweden in its response to a letter sent by the experts, following a decision made by the Government to refuse asylum in Sweden to the Egyptian citizens Mohammed Alzery and Ahmed Agiza and to expel them, they were deported to Egypt by the Swedish Security Police with the assistance of the United States authorities (CIA). Both have said that they were tortured in Egyptian custody [Agiza v Sweden, communication 233/2003 (CAT/C/34/D/233/2003); and Alzery v Sweden, communication 1416/2006 (CCPR/C/88/D/1416/2005)]. Alzery was released on 12 October 2003 without charge or trial, but was placed under police surveillance. Ahmed Agiza had already been tried and sentenced in absentia by an Egyptian military court at the time of the decision by the Government of Sweden to deport him. In April 2004, the court’s decision was confirmed and Agiza was convicted on terrorism charges following a trial monitored by Human Rights Watch, which described it as “flagrantly unfair”.

• Ibn al-Sheikh al-Libi, a Libyan, an emir of the Khaldan training camp in Afghanistan, was seized by Pakistani officials in late 2001 while fleeing Afghanistan and was rendered to Egypt where, under torture, he claimed that there were links between Al-Qaida and Saddam Hussein, which were used by the United States administration to justify the invasion of Iraq. Also held in secret CIA detention sites in Afghanistan, and possibly in other countries, he was returned to the Libyan Arab Jamahiriya in 2006, where he reportedly died by committing suicide in May 2009.

• Hassan Mustafa Osama Nasr (also known as Abu Omar), an Egyptian, was kidnapped in Milan on 17 February 2003, and rendered to Egypt, where he was held for four years (including 14 months in secret detention) before being released [For more details on this case, in particular with regard to the abduction of Abu Omar in Milan and the ensuing judicial proceedings in Italy, see the section on Italian complicity in the renditions programme below]. Allegations of ill-treatment in Egyptian detention include being hung upside down and having had electric shocks applied to his testicles [PDF, p, 4].

The eighth man, Ahmad Abou El-Maati, a Canadian-Egyptian national, was seized at Damascus airport on his arrival from Toronto on 11 November 2001. He was held in the Far Falestin prison in the Syrian Arab Republic until 25 January 2002, when he was transferred to Egyptian custody, where he remained in various detention sites (including in secret detention until August 2002) until his release on 7 March 2004. During the initial period of his detention in Egypt, he was subjected to heavy beatings and threats of rape against his sister. At a later stage during the secret detention phase, he was handcuffed with his hands behind his back practically continuously for 45 days in a solitary confinement cell, which he described as being very painful and which made it hard to use the toilet and wash. He was also subjected to sleep deprivation [Internal inquiry into the actions of Canadian officials in relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin, pursuant to an Order in Council dated 11 December 2006.  See also Commission of inquiry into the actions of Canadian officials in relation to Maher Arar, report of the fact finder of 14 October 2005].

3.  Syrian Arab Republic

147. At least nine detainees were rendered by the CIA to the Syrian Arab Republic between December 2001 and October 2002, and held in Far Falestin, run by Syrian Military Intelligence. All those able to speak about their experiences explained that they were tortured. As in the case of Egypt (see para. 146 above), other men were seized at the request of the Canadian authorities:

• Muhammad Haydar Zammar, a German national, was seized in Morocco on 8 December 2001, and rendered by the CIA to Far Falestin on 22 December 2001. In October 2004, he was moved to an “unknown location”; in February 2007, he received a 12-year sentence from the Higher State Security Court. He was convicted of being a member of the banned Muslim Brotherhood, a crime punishable by death in the Syrian Arab Republic [See A/HRC/7/4/Add.1., this Amnesty International appeal, and CAT/C/49/Add.4]. In its reply for the present study, the Government of Morocco indicated that the police had arrested Mr. Zammar following information that he had been implicated in the events of 11 September 2001. The Government also stated that Mr. Zammar had not been subjected to secret or arbitrary detention in Morocco, and that he had been transferred to the Syrian Arab Republic on 30 December 2001, in the presence of the Syrian Ambassador accredited to Morocco.

• Three detainees were rendered to the Syrian Arab Republic on 14 May 2002: Abdul Halim Dahak, a student seized in Pakistan in November 2001, Omar Ghramesh and an unnamed teenager, the latter being seized with Abu Zubaydah in Faisalabad, Pakistan, on 28 March 2002 [Stephen Grey, Ghost Plane: The Inside Story of the CIA’s Rendition Programme, Hurst & Co., 2006), pp. 4, 54 and 284]. All had been tortured. Their current whereabouts are unknown.

• Noor al-Deen, a Syrian teenager, was captured with Abu Zubaydah and rendered to Morocco, then to the Syrian Arab Republic. His current whereabouts are unknown.

• According to Abdullah Almalki (see para. 148 below), two other prisoners, Barah Abdul Latif and Bahaa Mustafa Jaghel, were also transferred from Pakistan to the Syrian Arab Republic, the first in February/March 2002, the second in May 2002. Both had been tortured. Their current whereabouts are unknown.

• Yasser Tinawi, a Syrian national seized in Somalia on 17 July 2002, was flown to Ethiopia by United States agents, who interrogated him for three months. On 26 October, he was flown to Egypt; on 29 October 2002, he arrived in the Syrian Arab Republic. In March 2003, he received a two-year sentence from a military court.

• Maher Arar, a Canadian-Syrian national, was seized at John F. Kennedy airport in New York on 26 September 2002, held for 11 days in the Metropolitan Detention Centre in Manhattan, then rendered to the Syrian Arab Republic on 8 October, via Jordan [A/HRC/4/33/Add.3, paras. 33, 43-45, footnote 11], where he was held in secret detention at Far Falestin until later that month. Jordan alleged that Mr. Arar had arrived in Amman as an ordinary passenger, but was asked to leave the country because his name was on a list of wanted terrorists, and given a choice of destination. It also alleged that he had asked to be voluntarily taken by car to the Syrian Arab Republic. During his period at Far Falestin, he was severely beaten with a black cable and threatened with electric shocks: “The pattern was for Mr. Arar to receive three or four lashes with the cable then to be questioned, and then for the beating to begin again.” The torture allegations were found to be completely consistent with the results of the forensic examinations conducted in Canada. On 14 August 2003, Mr. Arar was moved to Sednaya prison and released on 29 September. The official inquiry in the Arar case also stressed the catastrophic impact of the described events in terms of his and his family’s economic situation and his family life in general.

148. When Ahmad Abou El-Maati (see para. 146) was held in Far Falestin in the Syrian Arab Republic, he was held in solitary confinement in poor conditions and subjected to ill-treatment, including blindfolding, forced to remove almost all his clothes, beaten with cables, forcible shaving and had ice-cold water poured on him. Abdullah Almalki, a Canadian-Syrian national, also spent time in secret detention in the Syrian Arab Jamahiriya, in Far Falestin, from 3 May to 7 July 2002, when he received a family visit. On 25 August 2003, he was sent to Sednaya prison. He was released on 10 March 2004. He returned to Canada on 25 July 2004 after being acquitted of all charges by the Syrian State Supreme Security court [Internal inquiry, paras. 10-38] .

149. Another Canadian, Muayyed Nureddin, an Iraqi-born geologist, was detained on the border of the Syrian Arab Republic and Iraq on 11 December 2002, when he returned from a family visit in northern Iraq. He was secretly detained for a month in Far Falestin, then released on 13 January 2003 [Internal inquiry, paras. 10-38].

150. In its response to the questionnaire sent by the experts, the Government of the Syrian Arab Republic stated that the country had no secret prisons or detention centres. There were no cases of secret detention, and no individuals had been arrested without the knowledge of the competent authorities. No authorization had been granted to the security service of any foreign State to establish secret detention facilities in the Syrian Arab Republic. A number of foreign individuals had been arrested in the country at the request of other States, and had been informed of the legal basis for the arrests and their places of detention. The above-mentioned States were also informed of whether the individuals concerned had been brought before the Courts or transferred outside of the country. Individuals belonging to different terrorist groups had been prosecuted and detained in public prisons, in compliance with relevant international standards. They would be judged by the competent judicial authorities. Court proceedings would be public and be held in the presence of defence lawyers, families, human rights activists and foreign diplomats. Some would be publicized through the media. The Interpol branch within the Security Service of the Ministry of the Interior was cooperating with international Interpol branches with regard to suspected terrorist and other criminal activities.

4.  Morocco

151. At least three detainees were rendered to Morocco by the CIA between May and July 2002, and held in Temara prison, including the following:

• Abou Elkassim Britel, of Moroccan origin and an Italian citizen through marriage and naturalization, was seized in Lahore, Pakistan, on 10 March 2002. He stated that he was tortured in Pakistani custody. On 23 May 2002, he was rendered by the CIA to Morocco, where he was held in secret detention until February 2003, and where he alleged he was also tortured. He was released in February 2003, but in May 2003 was seized again, held for another four months in Temara, then sentenced to 15 years in prison, which was reduced to nine years on appeal [Interview with Khadija Anna L. Pighizzini, wife of Abou Elkassim Britel (annex II, case 7)]. In its submission for the present study, the Government of Morocco stated that Mr. Britel had not been subjected to “arbitrary detention or torture” between May 2002 and February 2003, or between May and September 2003.

• Binyam Mohamed, an Ethiopian national and British resident, was seized in Karachi, Pakistan, on 10 April 2002. He was held for approximately three months, during which time he was subjected to torture. On 21 July 2002, he was rendered by the CIA to Morocco, where he was held for 18 months in three different unknown facilities. During that period, he was allegedly threatened, subjected to particularly severe torture and other forms of ill-treatment; deprived from sleep for up to 48 hours at a time; and his prayers were interrupted by turning up the volume of pornographic movies. In January 2004, he was flown to the CIA “dark prison” in Kabul, and in May he was moved to Bagram. He was flown to Guantanamo on 20 September 2004, and was released in February 2009 [Interview with Binyam Mohamed (annex II, case 18); see also the finding of two British High Court judges that the treatment to which he had been subjected presented an “arguable case of torture, or cruel, inhuman or degrading treatment” (PDF)] [The third prisoner is Noor al-Deen (see para. 147), who was moved to the Syrian Arab Republic in 2003].

5.  Pakistan

152. From December 2001 until the summer of 2002, when the majority of the detainees who ended up in Guantanamo were seized, detention facilities in Pakistan, where several hundred detainees were held before being transferred to Kandahar or Bagram, were a crucial component of what was then, exclusively, a secret detention programme. Many of these men, seized near the Pakistani border, or while crossing from Afghanistan to Pakistan, were held in prisons in Kohat and Peshawar, but others were held in what appear to be impromptu facilities, which were established across the country in numerous locations. The then President of Pakistan, Pervez Musharraf, stated that:

Since shortly after 9/11, when many Al-Qaida members fled Afghanistan and crossed the border into Pakistan, we have played multiple games of cat and mouse with them. The biggest of them all, Osama bin Laden, is still at large at the time of this writing, but we have caught many, many others. Some are known to the world, some are not. We have captured 672 and handed over 369 to the United States. We have earned bounties totalling millions of dollars [Pervez Musharraf, In The Line Of Fire: A Memoir, Free Press, 2006].

153. Two former prisoners, Moazzam Begg and Omar Deghayes, described their experiences of secret detention in Pakistan to the experts:

Omar Deghayes, a Libyan national and British resident, was arrested in April 2002 at his home in Lahore after a hundred people in black tracksuits surrounded the house. In the presence of an American officer, he was then taken, handcuffed and hooded, to a police station and, shortly afterwards, to an old fortress outside Lahore, where he was held with other men from Palestine, Tunisia, the Libyan Arab Jamahiriya and Egypt, and beaten and kicked, and heard electroshocks and people screaming. According to his account, “the place was run by Pakistanis and appeared to be a maximum security prison for extremist opponents that were traded with different States such as Libya and the United States.” He also stated that he was tortured for a month without any contact with the external world, and that the ill-treatment included punching, beating, kicking, stripping, being hit in the back with wooden sticks, and stress positions for up to three days and three nights. In mid-May, two Americans in plain clothes visited, took photographs and asked questions. He was then moved to a place in Islamabad, which looked like a barracks, where he was held incommunicado for one month without access to a lawyer or ICRC, and was interrogated in a nearby house by American officers, who identified themselves as CIA, and, on one occasion, by a British agent from MI6. He said that torture took place in the barracks but not during the interrogations, and that he was subjected to drowning and stress positions, and recalled a room full of caged snakes that guards threatened to open if he did not speak about what he had done in Afghanistan. He then met with British and American officers, who finally “acquired” him with other detainees, and took him to Bagram, where he was heavily tortured and sexually abused by American soldiers. He was flown to Guantanamo in August 2002, and released in December 2007 [Interview with Omar Deghayes (annex II, case 8)].

Moazzam Begg, a British citizen, moved to Kabul, with his wife and three children, to become a teacher and a charity worker in 2001. After leaving Afghanistan in the wake of the United States-led invasion, on 31 January 2002, he was abducted from a house in Islamabad, where he was living with his family, and taken to a place in Islamabad (not an official detention facility), where those who held him were not uniformed officers and there were people held in isolation. Held for three weeks, he was moved to a different venue for interviews with American and British intelligence officers, but his wife did not know where he had been taken, and he was denied access to a lawyer or consular services. He was then taken to a military airport near Islamabad and handed over to American officers. He was held in Afghanistan and Guantanamo for three years, and was released in January 2005 [Interview with Moazzam Begg (annex II, case 6)].

6.  Ethiopia

154. The Government of Ethiopia served as the detaining authority for foreign nationals of interest to United States and possibly other foreign intelligence officers between 30 December 2006 and February 2007 [For allegations in interviews conducted by Federal Bureau of Investigation officers, see for example the case of Meshal vs Higgenbotham. See also Human Rights Watch, “Why am I still here?: the 2007 Horn of Africa renditions and the fate of those still missing” (PDF)]. On 2 May 2007, a number of special procedures addressed the Government of Ethiopia, adding the following details:

In December 2006, the conflict between the militias of the Council of Somali Islamic Courts and the Transitional Federal Government of Somalia, supported by armed forces of Ethiopia, caused a large flow of refugees seeking to cross the border from Somalia into Kenya. On 2 January 2007, Kenyan authorities announced the closure of the border for security reasons. Since then, it is reported that the Kenyan security forces have been patrolling the border and have arrested a number of those seeking to cross it. Kenya has deported at least 84 of those arrested back to Somalia, from where they were taken to Ethiopia [A/HRC/7/3/Add.1, para. 71].

155. The experts interviewed two of those captured between December 2006 and February 2007: Bashir Ahmed Makhtal (mentioned in the Special Rapporteur’s communication) and Mohamed Ezzoueck. The latter, a British national, was detained on 20 January 2007 in Kiunga village, Kenya, after crossing the Somali-Kenyan border and then transferred to Nairobi, where he was held in three different locations. Mr. Ezzoueck reported having been detained in Kenya for about three weeks and then transferred to Somalia, where he was held for a few days before being transferred, via Nairobi, back to London. According to his testimony, he was interrogated by a Kenyan army major and Kenyan intelligence service officers, FBI officers and British security services officers, and repeatedly asked about his involvement with terrorist groups, including Al Qaida [Interview with Mohamed Ezzouek (annex II, case 10)]. Mr. Makhtal, an Ethiopian-born Canadian, was arrested on the border between Kenya and Somalia on 30 December 2006 by intelligence agents and held at a police detention centre. He was subsequently transferred by car to a prison cell in Gigiri police station in Nairobi. On 21 January 2007, the Kenyan authorities sent him to Mogadishu. On the following day, he was taken to Addis Ababa by an Ethiopian military plane. He was then held for approximately 18 months incommunicado in Mekalawi federal prison, often in solitary confinement and in poor conditions, then ultimately sentenced to life imprisonment by the High Court of Ethiopia [Interview with Bashir Makhtal (annex II, case 16)].

156. In a letter dated 23 May 2007, the Government of Ethiopia informed the relevant special procedures mandate holders that the Transitional Federal Government of Somalia had handed over to Ethiopia 41 individuals captured in the course of the conflict in Somalia; most of these detainees had been released. Only eight of the detainees remained in custody by order of the court. The Government also noted that “the allegation that there are more than seventy others in addition to those named in the communication is false, as are the allegations that the detainees are held incommunicado, and that they might be at risk of torture” [A/HRC/7/3/Add.1, para. 71]. However, in September 2008, Human Rights Watch published a report stating that at least 10 detainees were still in Ethiopian custody, and the whereabouts of others were unknown [PDF].

7.  Djibouti

157. The experts received information proving that a detainee in the CIA secret detention programme, Mohammed al-Asad, had been transferred by Tanzanian officials by plane to Djibouti on 27 December 2003 [High Court of Tanzania at Dar es Salaam, criminal application No. 23 of 2004, Abdullah Salehe Mohsen al-Asad vs. Director of Immigration Services ex parte Mohamed Abdullah Salehe Mohsen Al-Asaad counter affidavit, 30 June 2004]. In Djibouti, Mr. al-Asad was detained for two weeks in secret detention, where he was interrogated by a white English-speaking woman and a male interpreter, mostly on his connections to the al-Haramain foundation. The woman identified herself as American. Mr. al-Asad’s own recollection is consistent with his having been held in Djibouti. One of his guards told him that he was in Djibouti and there was a photograph of President Guelleh on the wall of the detention facility. After approximately two weeks, Mr. al-Asad was taken to an airport in Djibouti, where a team of individuals dressed entirely in black stripped him, inserted an object in his rectum, diapered and photographed him, and strapped him down in a plane. The detention site may have been in Camp Lemonier, which allegedly has been used on a short-term or transitory basis for several detainees being transferred to secret detention elsewhere.

8.  Uzbekistan

158. No confirmation has ever been provided by either the Government of the United States or that of Uzbekistan that detainees were rendered to proxy prisons in Uzbekistan. In May 2005, however, the New York Times spoke to “a half-dozen current and former intelligence officials working in Europe, the Middle East and the United States” who stated that the United States had sent terror suspects to Uzbekistan for detention and interrogation. A United States intelligence official estimated that the number of terrorism suspects sent by the United States to Tashkent was in the dozens. The New York Times also obtained flight logs, showing that at least seven flights were made to Uzbekistan from early 2002 to late 2003” by two planes associated with the CIA rendition programme (a Gulfstream jet and a Boeing 737), and noted that, on 21 September 2003, both planes had arrived at Tashkent. According to the newspaper, the flight logs showed that “the Gulfstream had taken off from Baghdad, while the 737 had departed from the Czech Republic”. On 14 August 2009, the BBC interviewed Ikrom Yakubov, an Uzbek intelligence officer who has been granted political asylum in the United Kingdom, who stated that the United States had rendered terrorist suspects for questioning to Uzbekistan, but added, “I don’t want to talk about it as there might be serious concerns for my life in the future to discuss renditions.” On 22 August 2009, the story resurfaced once more, when Der Spiegel reported that, in an arrangement between the private security firm Blackwater and the CIA, Blackwater and its subsidiaries had been commissioned “to transport terror suspects from Guantanamo to interrogations at secret prison camps in Pakistan, Afghanistan and Uzbekistan”.

D.  Complicity in the practice of secret detention

159. After September 2006, the direct role of the CIA in secret detentions seemed to have shrunk significantly, with “current and former American Government officials” explaining in May 2009 to the New York Times that, in the last two years of the Bush administration, the Government of the United States had started to rely heavily on the foreign intelligence services to capture, interrogate and detain all but the highest level terrorist suspects seized outside the battlefields of Iraq and Afghanistan. According to the newspaper, “in the past 10 months, … about a half-dozen mid-level financiers and logistics experts working with Al-Qaida have been captured and are being held by intelligence services in four Middle Eastern countries after the United States provided information that led to their arrests by local security services”. Instead of actively detaining persons in secret, the United States — and many other countries — became complicit in the practice of secret detention. For the purposes of the present study, the experts state that a country is complicit in the secret detention of a person in the following cases:

(a) When a State has asked another State to secretly detain a person (covering all cases mentioned in paras. 141-158 above);

(b) When a State knowingly takes advantage of the situation of secret detention by sending questions to the State detaining the person or by soliciting or receiving information from persons who are being kept in secret detention. This includes at least the following States:

• The United Kingdom of Great Britain and Northern Ireland, in the cases of several individuals, including Binyam Mohamed [Interview with Binyam Mohamed (annex II, case 18)], Salahuddin Amin, Zeeshan Siddiqui, Rangzieb Ahmed and Rashid Rauf [PDF]. In its submission for the present study, the British Government referred to ongoing and concluded judicial assessment of the cases and stressed the work of the parliamentary Intelligence and Security Committee, as well as its policy of clear opposition to secret detention [According to the Government of the United Kingdom, the judge in Mr Ahmed’s case stated, “I specifically reject the allegations that the British authorities were outsourcing torture”. The judge examined Mr. Amin’s allegations and found that there was no evidence to suggest that the British authorities had been complicit in his unlawful detention or ill-treatment in Pakistan];

• Germany, in the case of Muhammad Haydar Zammar, who was reportedly interrogated on at least one occasion, on 20 November 2002, by agents of German security agencies while he was secretly held in the Syrian Arab Republic [See “Kanzleramt dealte mit Syriens Geheimdienst”, Der Spiegel, 19 November 2005]. The Government reported having been  informed about four cases of renditions or enforced disappearances concerning the Federal Republic of Germany: the cases of Khaled El-Masri, Murat Kurnaz, Muhammad Haydar Zammar and Abdel Halim Khafagy, which occurred between September 2001 and the end of 2005. However, the German authorities did not directly or indirectly participate in arresting these persons or in rendering them for imprisonment. In the cases of El-Masri and Khafagy, the German missions responsible for consular assistance had no knowledge of their imprisonment and were therefore unable to ensure that their rights were observed or guarantee consular protection; in the cases of Zammar and Kurnaz, the German authorities worked intensively to guarantee consular protection. However, they were denied access to the detainees and were thereby prevented from effectively exercising consular protection [Response to a questionnaire on allegations of rendition and detention sent by the Working Group on Enforced and Involuntary Disappearances, 30 September 2009]. In a letter dated 9 December 2009, the German Federal Ministry of Justice further reported that it had become aware of the case of Mr. Kurnaz on 26 February 2002, when the Chief Federal Prosecutor informed the Ministry that it would not take over a preliminary investigation pending before the Prosecution of the Land of Bremen. The Office of the Chief Federal Prosecutor had received a report from the Federal Criminal Police Office on 31 January 2002 that, according to information by the Federal Intelligence Service, Mr. Kurnaz had been arrested by United States officials in Afghanistan or Pakistan. In the case of Mr. El-Masri, on 8 June 2004, the Federal Chancellery and the Federal Foreign Office received a letter from his lawyer that Mr. El-Masri had been abducted in the former Yugoslav Republic of Macedonia on 31 December 2003, presumably transferred to Afghanistan and kept there against his will until his return to Germany on 29 May 2004. The Federal Ministry of Justice was informed about these facts on 18 June 2004. The experts note, however, that according to the final report of a Parliamentary Commission of Inquiry, the Government became aware of the case of Mr. El-Masri on 31 May 2004, when the Ambassador of the United States informed the Federal Minister for the Interior of Germany [PDF];

• Canada, for providing intelligence to the Syrian Arab Republic in the cases of Maher Arar, Ahmad el-Maati, Abdullah Almaki and Muayyed Nureddin. In its submission for the present study, the Government denied that any of the named individuals was detained or seized by a State at the request of Canada. The experts welcome the fact that all the above-mentioned cases have been the subject of extensive independent inquiry processes within Canada and that, in the case of Mr. Arar, substantive reparations has been provided to the victims;

• Australia, for providing intelligence to interrogators in the case of the secret detention of Mamdouh Habib. Mr Habib also alleges that an Australian official was present during at least one of his interrogation sessions in Egypt. The experts understand that Mr. Habib is currently suing the Government of Australia, arguing that it was complicit in his kidnapping and subsequent transfer to Egypt. In its submission for the present study, the Government denies that any Australian officer, servant and/or agent was involved in any dealings with or mistreatment of Mr. Habib, and refers to ongoing litigation;

(c) When a State has actively participated in the arrest and/or transfer of a person when it knew, or ought to have known, that the person would disappear in a secret detention facility or otherwise be detained outside the legally regulated detention system. This includes at least the following States:

• Italy, for its role in the abduction and rendition of Hassan Mustafa Osama Nasr (also known as Abu Omar), an Egyptian kidnapped by CIA agents on a street in Milan in broad daylight on 17 February 2003. He was transferred from Milan to the NATO military base at Aviano by car, and then flown, via the NATO military base of Ramstein in Germany, to Egypt, where he was held for four years (including 14 months in secret detention) before being released. The European Parliament considered it “very likely, in view of the involvement of its secret services, that the Italian Government of the day was aware of the extraordinary rendition of Abu Omar from within its territory” [European Parliament Committee report, paras. 50 and 54]. Prosecutors opened an investigation and charged 26 United States citizens (mostly CIA agents) with abduction, as well as members of the Italian military secret services (SISMI) with complicity in the abduction, among them the head of SISMI [Reply of the Government of Italy to the joint request for relevant information by the four experts (see annex I)]. The Italian Ministry of Justice, however, refused to forward the judiciary’s requests for extradition of the CIA agents to the Government of the United States; as a result, the United States citizens were tried in absentia. On 4 November 2009, the court found 23 of them guilty. The court also convicted two SISMI agents and sentenced them to three years imprisonment for their involvement in the abduction. The then commander of SISMI and his deputy, however, were not convicted, the court having dismissed the cases against them on the grounds that the relevant evidence was covered by State secret [The executive branch of the Government of Italy successfully raised the issue of State secret before the Constitutional Court; see the reply of the Government of Italy to the joint request for relevant information by the four experts (annex I)]. In its submission for the present study, the Government of Italy notes that the case is continuing at the appeal level, which prevents it from drawing any conclusions prior to a definitive verdict;

• Kenya, for detaining 84 persons in various secret locations in Nairobi before transferring them on three charter flights between 20 January and 10 February 2007 to Somalia. They were subsequently transferred to Ethiopia, where they were kept in secret detention. They were not provided with an opportunity to challenge their forcible physical removal at any stage (see also paras. 154-156 above) [See also Meshal vs Higgenbotham; Redress and Reprieve report, “Kenya and counter terrorism: a time for change”, February 2009 (PDF), and Human Rights Watch, “Why am I still here?” (PDF). The experts have received allegations of cooperation with United States intelligence that dates back to 2003; see interview with Suleiman Abdallah (annex II, case 2)].

(d) A specific form of complicity in this context are these cases where a State holds a person shortly in secret detention before handing them over to another State where that person will be put in secret detention for a longer period. This includes at least the following countries:

• The former Yugoslav Republic of Macedonia, for its role in the case of Khaled El-Masri [Interview with Khaled el-Masri (annex II, case 9)];

• Malawi, for allegedly holding Laid Saidi in secret detention for a week;

• The Gambia: during an interview with the experts, Bisher al-Rawi reported that, on 8 November 2002, he was arrested upon arrival at Banjul airport by the Gambian Intelligence Agency, then taken to an office and later to a house located in a Banjul residential place before he was handed over to the CIA and rendered to Afghanistan.

(e) When a State has failed to take measures to identify persons or airplanes passing through its airports or airspace after information of the CIA programme involving secret detention had already been revealed. The issue of rendition flights was, and still is, the subject of many separate investigations at the national or regional level. Therefore, the experts decided to refrain from going into the details of this issue [See, inter alia, the European Parliament Committee report, 18 June 2009 (PDF); the statement of the Foreign Secretary to the House of Commons on United States rendition flights, 21 February 2008, and Dick Marty,”Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report” (PDF)].

E.  Secret detention and the Obama administration

160. In its response to the questionnaire sent by the experts, the United States stated that:

The Obama Administration has adopted the following specific measures:

• Instructed the CIA to close as expeditiously as possible any detention facilities that it currently operated as of January 22, 2009 and ordered that the CIA shall not operate any such detention facility in the future.

• Ordered that the Guantanamo Bay detention facility be closed as soon as practicable.

• Required the International Committee of the Red Cross (ICRC) to be given notice and timely access to any individual detained in any armed conflict in the custody or under the effective control of the United States Government, consistent with Department of Defense regulations and policies.

• Ordered a comprehensive review of the lawful options available to the Federal Government with respect to detention of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.

• Reaffirmed that all persons in U.S. custody must be treated humanely as a matter of law.

• Mandated that detention at Guantanamo conform to all applicable laws governing conditions of confinement, including Common Article 3 of the Geneva Conventions, and directed a review of detention conditions at Guantanamo to ensure such compliance.

• Ordered a review of U.S. transfer policies to ensure that they do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control. The resulting Task Force on transfer practices recommended to the President in August that (1) the State Department be involved in evaluating all diplomatic assurances; (2) the Inspectors General of the Departments of State, Defense, and Homeland Security prepare an annual report on all transfers relying on assurances; and (3) mechanisms for monitoring treatment in the receiving country be incorporated into assurances.

• Announced the transfer of at least 7 detainees from military custody to U.S. criminal law enforcement proceedings, and transferred 25 detainees to date to third-countries for repatriation or resettlement.

• Worked with Congress to revise U.S. laws governing military commissions to enhance their procedural protections, including prohibiting introduction of evidence obtained as a result of cruel, inhuman, or degrading treatment.

• Expanded the review procedures for detainees held by the Department of Defense in Afghanistan in order to enhance the transparency and fairness of U.S. detention practices. Detainees are permitted an opportunity to challenge the evidence that is the basis for their detention, to call reasonably available witnesses, and to have the assistance of personal representatives who have access to all reasonably available relevant information (including classified information). Proceedings generally shall be open, including to representatives of the ICRC, and possibly to non-governmental organizations.

• Established more tailored standards and rigorous procedures for evaluating assertions of the State secrets privilege, including establishing an internal accountability mechanism, ensuring that the privilege is never asserted to avoid embarrassment or conceal violations of law, and creating a referral mechanism to the Office of Inspector General where the privilege is asserted but there is credible evidence of a violation of law. These standards and procedures were established in order to strike a better balance between open government and the need to protect vital national security information.

• The Department of Justice initiated a preliminary criminal investigation into the interrogation of certain detainees.

These measures cumulatively seek to reaffirm the importance of compliance with the rule of law in U.S. detention practices, to ensure U.S. adherence to its international legal obligations, and to promote accountability and transparency in this important area of national security policy.

161. The experts welcome the above commitments. They believe, however, that clarification is required as to whether detainees were held in CIA “black sites” in Iraq and Afghanistan or elsewhere when President Obama took office, and, if so, what happened to the detainees who were held at that time. Also, the experts are concerned that the executive order instructing the CIA “to close any detention facilities that it currently operates” does not extend to the facilities where the CIA detains individuals on “a short-term transitory basis”. The order also does not seem to extend to detention facilities operated by the Joint Special Operation Command.

162. The experts also welcome in particular the new policy implemented in August 2009, under which the military must notify ICRC of detainees’ names and identification number within two weeks of capture. Nevertheless, there is no legal justification for this two-week period of secret detention. According to article 70 of the Third Geneva Convention, prisoners of war are to be documented, and their whereabouts and health conditions made available to family members and to the country of origin of the prisoner within one week. Article 106 of the Fourth Geneva Convention (governing the treatment of civilians) establishes virtually identical procedures for the documentation and disclosure of information concerning civilian detainees. Furthermore, it is obvious that this unacknowledged detention for one week can only be applied to persons who have been captured on the battlefield in a situation of armed conflict. This is an important observation, as the experts noted with concern news reports quoting current Government officials saying that “the importance of Bagram as a holding site for terrorism suspects captured outside Afghanistan and Iraq has risen under the Obama administration, which barred the Central Intelligence Agency from using its secret prisons for long-term detention”.

163. The situation at the Bagram Theater Internment Facility remains of great concern. In March 2009, United States district Court Judge John D. Bates ruled that the habeas corpus rights granted to the Guantanamo detainees by the Supreme Court in June 2008 extended to non-Afghan detainees who had been seized in other countries and rendered to Bagram because “the detainees themselves as well as the rationale for detention are essentially the same”, and because the review process established at the prison “falls well short of what the Supreme Court found inadequate at Guantánamo”. The four petitioners were among the 94 prisoners that Assistant Attorney General Stephen G. Bradbury admitted were held in CIA custody between 2001 and 2005. Judge Bates found that, in holding detainees at Bagram not as prisoners of war but as “unlawful enemy combatants”, the Bush administration had put in place a review process, the Unlawful Enemy Combatant Review Board, in which “detainees cannot even speak for themselves; they are only permitted to submit a written statement. But in submitting that statement, detainees do not know what evidence the United States relies upon to justify an ‘enemy combatant’ designation — so they lack a meaningful opportunity to rebut that evidence”.

164. The above-mentioned ruling has been appealed by the current United States administration, even though Judge Bates noted that habeas rights extend neither to Afghan detainees held at Bagram, nor to Afghans seized in other countries and rendered to Bagram. In its appeal against Judge Bates’ ruling, the United States administration notified the court that it was introducing a new review process at Bagram, “modifying the procedures for reviewing the status of aliens held by the Department of Defense at the Bagram Theater Internment Facility” [PDF]. However, the experts are concerned that the new review system fails to address the fact that detainees in an active war zone should be held according to the Geneva Conventions, screened close to the time and place of capture if there is any doubt about their status, and not be subjected to reviews at some point after their capture to determine whether they should continue to be held. The experts are also concerned that the system appears to aim specifically to prevent United States courts from having access to foreign detainees captured in other countries and rendered to Bagram. While the experts welcome the fact that the names of 645 detainees at Bagram are now known, they urge the Government of the United States to provide information on the citizenship, length of detention and place of capture of all detainees currently held at Bagram Air Base.

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

See here for the Bagram prisoner list. For a sequence of articles discussing the use of torture in secret prisons, see: Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two) (April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison (May 2009), WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), What The British Government Knew About The Torture Of Binyam Mohamed (August 2009), UK Judges Order Release Of Details About The Torture Of Binyam Mohamed By US Agents (October 2009), Dark Revelations in the Bagram Prisoner List (January 2010), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), and also see the extensive Binyam Mohamed archive.

In the last few months, there have been a few improvements — hearings, releases, even the promise of imminent trials — but behind this veneer of respectability, the US government’s unilateral reworking of the Geneva Conventions continues unabated, and evidence has recently surfaced of a secret prison within Bagram, where a torture program that could have been lifted straight from the Bush administration’s rule book is still underway.

From December 2001 to November 2003, the US prison at Bagram airbase was used by the US military to process prisoners for Guantánamo, and in those early days it played host to a murderous regime that, in the last half of 2002, led to the deaths of at least two — and possibly as many as five — prisoners. Throughout this period, and after the transfer of regular prisoners to Guantánamo came to an end, Bagram — or, in some cases, a facility within Bagram — was where prisoners regarded as more significant than the general population, who had mostly passed through a number of other secret prisons run by the CIA, were also held, and for the last six and a half years Bagram has, in addition, been the US military’s frontline prison in the Afghan war zone.

Shining a light on these stories has been immensely difficult, of course. From time to time, reports surfaced of Afghan prisoners released from the facility, who described the abusive regime at the prison, but the stories of the prisoners regarded as more significant have remained mostly hidden, surfacing only in reports from those who were transferred to Guantánamo, through information released by their lawyers (after passing the Pentagon’s censors), and, on the odd occasion, through other means — as, for example, in a handful of habeas corpus petitions, in this report on the multiple renditions of Ibn al-Shaykh al-Libi, who was finally returned to Libya, where he died in a prison last May, and in the leaked report by the International Committee of the Red Cross on the 14 “high-value detainees” transferred to Guantánamo from secret prisons in September 2006 (PDF).

Last August, the New York Times brought Bagram’s secret prison to light, reporting that Special Operations forces were running secret prisons, known, perhaps euphemistically, as “temporary screening sites,” at Bagram, and also in Balad, Iraq (a replacement for the notorious Camp Nama, where abuse was rife). The Times explained that, according to three military officials, “As many as 30 to 40 foreign prisoners have been held at the camp in Iraq at any given time, adding that “they did not provide an estimate for the Afghan camp but suggested that the number was smaller.”

The Times report coincided with an apparent shift in US policy, with the Pentagon announcing that the military would be allowing representatives of the International Committee of the Red Cross to have access to prisoners held in the secret prisons at Bagram and Balad. As the Times described it, “the military must notify the Red Cross of the detainees’ names and identification numbers within two weeks of capture, a notification that before happened only after a detainee was transferred to a long-term prison.”

Under previous rules, those imprisoned in the Special Operations prisons could be held incommunicado for up to two weeks, in defiance of internationally agreed standards governing the detention of prisoners. As the Times explained, “Formerly, the military at that point had to release a detainee; transfer him to a long-term prison in Iraq or Afghanistan, to which the Red Cross has broad access; or seek one-week renewable extensions from Defense Secretary Robert M. Gates or his representative.” Announcing the new policy, a senior Pentagon official added that the “option to seek custody extensions” had been eliminated.

Voices from Bagram’s secret prison

Although the New York Times report was important, it was largely overlooked at the time, and it was not until November that the existence of the secret prison burst out of the shadows, when both the New York Times and the Washington Post interviewed former prisoners. The Times spoke to Hayatullah, a 33-year old pharmacist, who was seized from his shop in Kandahar in July 2007, and released in October 2009; Gulham Khan, a 25-year old sheep delivery man, who was seized by US forces in three helicopters at a village in the desert outside Ghazni in late October 2008, and released in early September 2009; and Hamidullah, a 42-year old spare auto-parts dealer, who was seized from his house in Kandahar in a midnight raid in June 2009 and released in late October. All told similar stories, and this was Hayatullah’s description of the secret prison:

They took me to a place that was completely dark except for one bulb. It was hard to know whether it was night, day or afternoon, I had no idea when to pray because I could not tell the time. There are no windows. That was the Tor jail. I was there for 40 days. At that Tor jail everybody was separate. Each in a concrete room. The walls and ceilings were concrete, but the detainees who had been there a long time told me it had been made of black wood before it was concrete and that’s why they called it the black jail. It’s difficult to know how many of us there were in that place. When you are taken to the interrogation office, you are blindfolded and there is a hood on your head. No one has permission to come to Tor jail. Neither the ICRC [International Committee of the Red Cross] or others.

The Post spoke to three teenagers — 17-year old Issa Mohammad, Abdul Rashid, “who said he is younger than 16,” and Sayid Sardar Ahmad, also 17 — at “the Afghan-run Juvenile Rehabilitation Center in Kabul, where they were transferred after their detention at Bagram and a brief stay in … Pul-i-Charkhi,” the main Afghan prison in Kabul. Rashid, a woodcutter from Khost province, told the Post that he was “arrested in the spring with his cousin and father during a US military raid,” and said of his interrogation, “That was the hardest time I have ever had in my life. It was better to just kill me. But they would not kill me.” He also explained that he “lived in a small concrete cell that was slightly longer than the length of his body. Food was tossed in a plastic bag through a slot in the metal door.” Mohammad, a vegetable farmer from Kandahar province, told the Post that he was also arrested during a US military raid, and spent two weeks in the secret prison, where “interrogation sessions lasted hours, with one man ‘yelling at me and also punching and slapping my face.’”

Both Mohammed and Rashid also explained that, “when they tried to sleep, on the floor, their captors shouted at them and hammered on their cells,” and the Post also spoke to two other former prisoners, Malik Mohammad Hassan, a tribal elder from the Jalalabad area, and Mohammad Mukhtar, a former teacher, who were held “for some time” in the prison, and who described “[s]imilar living conditions, particularly the lengthy sleep deprivation and intense cold.” Hassan told the Post, “This is something nobody can bear. It’s extraordinary. They treated us like wild animals.”

New revelations about the secret prison

On April 15 this year, the BBC followed up on these reports, speaking to a number of former prisoners who confirmed that the prison consists of windowless concrete cells, permanently illuminated, and that prisoners are subjected to sleep deprivation. A man called Sher Agha, who spent six days in the prison in autumn 2009, told the BBC, “They call it the Black Hole,” adding, “When they released us they told us we should not tell our stories to outsiders because that will harm us.” Like all the men interviewed by the BBC, he also explained that the cells were “very cold.”

Describing the process of sleep deprivation, another former prisoner, Mirwais, who said he was held for 24 days in the secret prison, stated, “I could not sleep, nobody could sleep because there was a machine that was making noise. There was a small camera in my cell, and if you were sleeping they’d come in and disturb you.”

On May 11, the BBC explained that the existence of the prison had been confirmed by the International Committee of the Red Cross. An ICRC representative also confirmed the change implemented in August 2009, as described above. Asked about the status of prisoners held “in a separate structure at Bagram,” the spokesman explained, “The ICRC is being notified by the US authorities of detained people within 14 days of their arrest. This has been routine practice since August 2009 and is a development welcomed by the ICRC.”

Despite this, the BBC reported that, although the existence of the facility had been disclosed in the New York Times report last August, a military spokesperson maintained that the main prison at Bagram, now identified as “the Detention Facility in Parwan,” was “the only detention facility on the base.” However, the day after, in a detailed article in the Atlantic, Marc Ambinder thoroughly demolished this claim.

Ambinder began by explaining how it had been previously reported that the secret prison, which is “beige on the outside with a green gate,” was “operated by members of a Joint Special Operations Command (JSOC) group,” which was allegedly outside of the jurisdiction of Vice Admiral Robert Harward, the commander in charge of detention operations in Afghanistan. However, he added, “JSOC, a component command made up of highly secret special mission units and task forces, does not operate the facility. Instead, it is manned by intelligence operatives and interrogators who work for the … Defense Counterintelligence and Human Intelligence Center (DCHC),” a branch of the Defense Intelligence Agency (DIA), the Pentagon’s main military intelligence department.

Complicating matters further, Ambinder also explained that DCHC “perform interrogations for a sub-unit of Task Force 714, an elite counter-terrorism brigade,” which, last year, was described to Spencer Ackerman of the Washington Independent by a National Security Council staffer as “‘small groups of Rangers going wherever the hell they want to go’ in Afghanistan and operating under legal authority granted at the end of the Bush Administration that President Obama has not revoked.”

Describing the process through which prisoners end up at the “black prison,” Ambinder added, “Usually, captives are first detained at one of at least six classified Field Interrogation Sites in Afghanistan, and then dropped off at the DIA facility — and, when the interrogators are finished, transferred to the main prison population at the Bagram Theater Internment Facility.” This provides an additional insight into the web of other secret, frontline facilities feeding into Bagram that I touched upon in an article earlier this year entitled, “Bagram: Graveyard of the Geneva Conventions,” and which were also exposed in an article by Anand Gopal for TomDispatch.com.

Pentagon spokesman Bryan Whitman attempted to dismiss Ambinder’s claim, stating that “DoD does operate some temporary screening detention facilities which are classified to preserve operational security,” but that “both the [Red Cross] and the host nation have knowledge of these facilities.” However, Ambinder’s report painted a bleaker picture, involving torture techniques contained in a little-known appendix to the current Army Field Manual.

Although President Obama issued an executive order on his second day in office, in January 2009, requiring interrogations to conform to the Army Field Manual (PDF), which prohibits physical violence and “enhanced interrogation,” Ambinder reported that, in the “black jail,” prisoners are subjected to sleep deprivation and isolation based on the Field Manual’s Appendix M (which Jeff Kaye has been writing about since last January), and which, under controlled circumstances, allows a range of Bush-era “enhanced interrogation techniques” to be used, including sleep deprivation and isolation. Ambinder also explained that when Appendix M techniques are being used, the man responsible for overseeing them is Gen.James Clapper (Ret.), the undersecretary of defense for intelligence.

Underscoring the difference between the general prison population at Bagram and those held by the DIA’s Defense Counterintelligence and Human Intelligence Center, Ambinder added that prisoners “designated as prisoners of war cannot be subjected to Appendix M measures.” To be strictly accurate, Marc Ambinder should have referred to prisoners “held in conditions that vaguely approximate those of prisoners of war,“ because President Obama has maintained the Bush administration’s unilateral reworking of the Geneva Conventions.

This will be discussed in the second part of this article, but for now the distinction between the general population of Guantánamo and those subjected to torture techniques in Bagram’s “black prison” — based on Marc Ambinder’s disturbing revelations about Appendix M and the activities of the Defense Counterintelligence and Human Intelligence Center — should be sufficient to rouse progressive critics of President Obama’s policies to demand transparency regarding the “black prison,” and to call for an end to this disturbing continuation of the Bush administration’s detention and interrogation policies.

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

As published exclusively on Cageprisoners. Cross-posted on Countercurrents, The Public Record, Uruknet, United Progressives and The World Can’t Wait.

For other articles relating to Bagram, see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), When Torture Kills: Ten Murders In US Prisons In Afghanistan (July 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), Andy Worthington Discusses Bagram on al-Jazeera (September 2009), A Letter From Afghanistan: Bagram, Afghan suffering and the futility of war (October 2009), Dark Revelations in the Bagram Prisoner List (January 2010), Bagram: Graveyard of the Geneva Conventions (February 2010), The Black Hole of Bagram (May 2010). Also see: Bagram: The First Ever Prisoner List (The Annotated Version).

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).

In September 2006, he resurfaced in Guantánamo, when President Bush announced that he was one of 14 “high-value detainees,” previously held in secret CIA prisons, whose existence had been resolutely denied by the administration until that point.

In a speech on September 6, 2006, Bush finally conceded that “a small number of suspected terrorist leaders and operatives captured during the war [on terror] have been held and questioned outside the United States, in a separate program operated by the Central Intelligence Agency,” and claimed that when Abu Zubaydah, who he described as “a senior terrorist leader and a trusted associate of Osama bin Laden,” became “defiant and evasive” after his capture, “the CIA used an alternative set of procedures. These procedures were designed to be safe, to comply with our laws, our Constitution, and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful.”

This was a reference to the CIA’s torture program for “high-value detainees,” which was first publicly revealed when a memo that purported to redefine torture so that it could be used by the CIA, written by Justice Department lawyer John Yoo and issued in August 2002, was leaked in the wake of the Abu Ghraib scandal in 2004. 

However, another narrative had already appeared to challenge the one put forward by the President. In June 2006, Ron Suskind’s book The One Percent Doctrine was published, which explained, as I described it in an article a year ago, that:

Zubaydah “turned out to be mentally ill and nothing like the pivotal figure they supposed him to be,” in the words of Barton Gellman, who reviewed Suskind’s book for the Washington Post in 2006. He “appeared to know nothing about terrorist operations,” and was, instead, the “go-to guy for minor logistics — travel for wives and children and the like” …

Suskind described how, through a close scrutiny of his diaries, in which FBI analysts found entries in the voices of three people — a boy, a young man and a middle-aged alter ego — which recorded in numbing detail, over the course of ten years, “what people ate, or wore, or trifling things they said,” Dan Coleman, the FBI’s senior expert on al-Qaeda, told his superiors, “This guy is insane, certifiable, split personality.”

Since then, more and more compelling evidence has emerged to demonstrate that Abu Zubaydah was indeed nothing more than a “safehouse keeper” with mental health problems, who “claimed to know more about al-Qaeda and its inner workings than he really did,” and a “kind of travel agent” for would-be jihadists, who “was not even an official member of al-Qaeda.” This included Abu Zubaydah’s own testimony at his Combatant Status Review Tribunal at Guantánamo in 2007, when he stated that he was tortured by the CIA to admit that he worked with Osama bin Laden, but insisted, “I’m not his partner and I’m not a member of al-Qaeda.”

Moreover, following on from Ron Suskind’s explanation of how “The United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered,” further confirmation was also provided that his torture yielded no significant information and led only to vast amounts of the intelligence agencies’ time being wasted on false leads. A year ago, summing up the results of Zubaydah’s torture, a former intelligence official stated, bluntly, “We spent millions of dollars chasing false alarms.”

In addition, the details of the torture program that was specifically developed for use on Abu Zubaydah have also been revealed — primarily through a leaked International Committee of the Red Cross report (PDF), based on interviews with the “high-value detainees,” including Abu Zubaydah, and also through other Justice Department “torture memos” released by the Obama administration last April. The grim list of techniques includes waterboarding (a form of controlled drowning), confinement in tiny, coffin-like boxes, prolonged sleep deprivation, prolonged isolation, and the use of violence and stress positions, sustained nudity, loud music and noise.

Given all these facts — that the Bush administration implemented torture for use on a man whose importance was hideously overstated, which led to no useful intelligence and a hideous waste of the agencies’ time — Abu Zubaydah’s story is one of the most distressing examples of hubris in the whole of the Bush administration’s brutally inept “War on Terror,” but his story has not come to an end, of course, and his continued detention, and the Obama administration’s attempts to justify it, continue to throw up new revelations, as was made clear just last week when a court submission filed by the government in September 2009 was unclassified.

In response to 213 requests by Abu Zubaydah’s lawyers for discovery in his habeas corpus petition, the government itself provided the most comprehensive rebuttal to date of the kind of claims put forward by the Bush administration in defense of its torture program, and, specifically, its claims regarding Abu Zubaydah, on the basis that requests for discovery are only relevant when they refer to claims made by the government.

In seeking to turn down the lawyers’ requests, the government revealed that it “has not contended … that Petitioner was a member of al-Qaeda or otherwise formally identified with al-Qaeda” and “has not contended that Petitioner had any personal involvement in planning or executing either the 1998 embassy bombings in Nairobi, Kenya, and Dar-es-Salaam, Tanzania, or the attacks of September 11, 2001.”

Instead, the government now claims that the ongoing detention of Abu Zubaydah “is based on conduct and actions that establish Petitioner was ‘part of’ hostile forces and ‘substantially supported’ those forces,” and that he “facilitat[ed] the retreat and escape of enemy forces” after the US-led invasion of Afghanistan in October 2001.

In response, as Jason Leopold reported for Truthout:

Zubaydah’s attorneys claim that “the persons whom [Zubaydah] assisted in escaping Afghanistan in 2001 included ‘women, children, and/or other non-combatants’” and that the government has evidence to support those assertions. The lawyers also questioned the government’s history of falsehoods about their client.

“The Government’s accounts frequently have been at variance with the actual facts, and the government has generally been loath to provide the facts until forced to do so,” said Zubaydah’s attorney, Brent Mickum, in an interview. “When the Government was forced to present the facts in the form of discovery in Zubaydah’s case, it realized that the game was over and there was no way it could support the Bush administration’s baseless allegations. So it changed the charges.”

Mickum continued, “I’m not surprised at all that the Government has dropped the old charges against our client and is alleging new charges against him. That is their tried-and-true modus operandi … [W]hen their case falls apart, they re-jigger the evidence, and come up with new charges and [say] ‘we will defend the new charges with the same zeal we defended the earlier bogus charges.’”

Since taking up Abu Zubaydah’s case and filing a habeas corpus petition in February 2008, his lawyers have always maintained not only that their client was not a member of al-Qaeda, but also that Khaldan, the training camp for which he was the “safehouse keeper,” was closed down by the Taliban in 2000 after the camp’s leader refused to allow it to come under the control of Osama bin Laden. Even the government now accepts that Khaldan was “organizationally and operationally independent of al-Qaeda,” and as Brent Mickum told Jason Leopold, reviewing all of the above, “We have never deviated from that position, and now the government admits that we were correct all along.”

These extensive concessions on the part of the government seem only to reveal that the Justice Department is painting itself into a corner with Abu Zubaydah, engaged in a slow-moving legal process, which senior officials must be hoping can be strung out indefinitely. Otherwise, profoundly difficult truths will emerge — about the extent of Abu Zubaydah’s torture, its particular futility, and, it should be noted, his relationship to Ibn al-Shaykh al-Libi, the emir of Khaldan who turned down Osama bin Laden.

Rendered to Egypt after his capture at the end of 2001, al-Libi was tortured until he confessed that Saddam Hussein was helping al-Qaeda obtain chemical weapons, a wildly improbable scenario, which, nevertheless, was used to justify the invasion of Iraq in March 2003. What makes the revival of al-Libi’s story particularly unappealing for the US government is that, after years of detention in secret prisons, he was returned to Libya, where, last May, he conveniently died in prison — reportedly by committing suicide — just three days before the US embassy reopened in Tripoli after being closed for 40 years.

When it comes to dealing with Khaldan, the stories of Abu Zubaydah and Ibn al-Shaykh al-Libi not only demonstrate the Bush administration’s legacy at its most toxic and self-defeating, but also at its most cruel and pointless, from which, it seems clear, there is no easy way out.

(‘’)

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.

As published exclusively on the website of the Future of Freedom Foundation. Cross-posted on The Public Record, Eurasia Review, Uruknet and New Left Project.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison , Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010). Also see the extensive archive of articles about the Military Commissions.

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), When Torture Kills: Ten Murders In US Prisons In Afghanistan (July 2009), US Torture Under Scrutiny In British Courts (July 2009), What The British Government Knew About The Torture Of Binyam Mohamed (August 2009), Torture in Bagram and Guantánamo: The Declaration of Ahmed al-Darbi (September 2009), UK Judges Order Release Of Details About The Torture Of Binyam Mohamed By US Agents (October 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Dark Revelations in the Bagram Prisoner List (January 2010), and also see the extensive Binyam Mohamed archive.

And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), The Trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Guantánamo’s shambolic trials (February 2008), Torture allegations dog Guantánamo trials (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim (Lt. Col. Darrel Vandeveld on Mohamed Jawad, January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Bush Era Ends With Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), Torture In Guantánamo: The Force-feeding Of Hunger Strikers (June 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (Fouad al-Rabiah, September 2009), UK Court Orders Release Of Torture Evidence In The Case Of Shaker Aamer, The Last British Resident In Guantánamo (December 2009), Shaker Aamer: UK Government Drops Opposition To Release Of Torture Evidence (December 2009), Afghan Nobody Faces Trial by Military Commission (January 2010), Murders at Guantánamo: Scott Horton of Harper’s Exposes the Truth about the 2006 “Suicides” (January 2010), Two Algerian Torture Victims Are Freed from Guantánamo (January 2010), and the extensive archive of articles about the Military Commissions.

Some activists were still burnt out from campaigning for Barack Obama, others thought the new President had waved a magic wand and miraculously cured all America’s ills, while others, to the right of common sense and decency, were beginning to mobilize in opposition to a President who, to be frank, should have been more of a disappointment to those who thought that “hope” and “change” might mean something than to those who supported the Bush administration’s view of the world. Obama escalated the war in Afghanistan, endorsed indefinite detention without charge or trial for prisoners at Guantánamo, and shielded Bush administration officials and lawyers from calls for their prosecution for turning America into a nation with secret prisons, an extraordinary rendition program, and a detention policy for terror suspects based on the use of torture.

Nevertheless, the Republicans’ assault on decency, common sense and the law, in relation to terrorism, escalated in the wake of the failed Christmas Day plane bombing, with a high-level revolt against trying those accused of involvement in the 9/11 attacks in federal courts, and a renewed onslaught on President Obama’s already tattered plans to close Guantánamo. On the anniversary of the war, headlines were dominated not by anti-war protests, but by the disgusting behavior of the Tea Party activists, whose bitter, negative campaigning against Obama, which has always demonstrated a thinly-veiled racism, plumbed new depths when protestors hurled racist and homophobic abuse at members of Congress.

African-American Congressman Emanaul Cleaver (D-MO) was spat on by a Tea Party protester, Congressman John Lewis (D-GA), a protégé of Dr. Martin Luther King Jr., was called a “nigger,” and gay Congressman Barney Frank (D-MA) was called a “faggot.” Congressman James E. Clyburn (D-SC), who helped lead sit-ins in South Carolina in the 1960s during the civil rights movement, told NBC News:

It was absolutely shocking to me. Last Monday, I stayed home to meet on the campus of Pomford University, where 50 years ago, as of last Monday, March 15th, I led the first demonstrations in South Carolina, the sit-ins. Quite frankly I heard some things today that I haven’t heard since that day. I heard people saying things today I’ve not heard since March 15th, 1960 when I was marching to try and get off the back of the bus. This is incredible, shocking to me.

It is enough of a sign of madness that the Tea Party brigade, who oppose healthcare reform, have been sold a lie by the very corporations who mercilessly exploit them, essentially by stirring up fears of “communism” and “socialism” that Europeans and sensible Americans find bewildering and illogical, but it is no less dispiriting that their pointless hatred overshadowed countrywide calls for the immediate withdrawal of troops from Iraq and Afghanistan.

The war in Afghanistan may originally have had some sort of acceptable rationale, but it was a lost cause almost as soon as it began, when America failed to win the crucial struggle for hearts and minds, killing thousands of Afghan civilians in bombing raids, imprisoning others in vile conditions in prisons at Kandahar and Bagram (where some died), and sending others to Guantánamo.

Another major reason for the failure in Afghanistan was the administration’s intention — instigated as early as November 2001 — to move on to Iraq, and while the Chilcot Inquiry in Britain revisited the roots of the Iraq war in recent months, demonstrating, without a shadow of a doubt, that it was an illegal war decided as early as April 2002, when Prime Minister Tony Blair committed the UK to full participation, an often overlooked side-effect of this decision involved, in the most cynical manner, the exploitation of prisoners seized in the “War on Terror” to provide cover for the planned invasion.

As I explained in an article last April, entitled, “Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low”:

In case anyone has forgotten, when Ibn al-Shaykh al-Libi, the head of the Khaldan military training camp in Afghanistan, was captured at the end of 2001 and sent to Egypt to be tortured, he made a false confession that Saddam Hussein had offered to train two al-Qaeda operatives in the use of chemical and biological weapons. Al-Libi later recanted his confession, but not until Secretary of State Colin Powell — to his eternal shame — had used the story in February 2003 in an attempt to persuade the UN to support the invasion of Iraq.

That attempt, of course, was successful, but it is no less shocking now than it was then that those who manipulated Powell — Vice President Dick Cheney and his close circle of advisors — used the CIA’s post-9/11 torture program not to protect American from terrorists, but to launch an illegal war. As I also explained last April, with reference to an interview conducted by Jane Mayer of the New Yorker with Dan Coleman of the FBI, an old-school interrogator opposed to the use of torture, who was pulled off al-Libi’s case when senior officials decided to send him to Egypt:

As Mayer explained, Coleman was “disgusted” when he heard about the false confession, telling her, “It was ridiculous for interrogators to think Libi would have known anything about Iraq. I could have told them that. He ran a training camp. He wouldn’t have had anything to do with Iraq. Administration officials were always pushing us to come up with links, but there weren’t any. The reason they got bad information is that they beat it out of him. You never get good information from someone that way.”

As I also explained:

This, I believe, provides an absolutely critical explanation of why the Bush administration’s torture regime was not only morally repugnant, but also counter-productive, and it’s particularly worth noting Coleman’s comment that “Administration officials were always pushing us to come up with links, but there weren’t any.” However, I realize that the failure of torture to produce genuine evidence — as opposed to intelligence that, though false, was at least “actionable” — was exactly what was required by those, like Dick Cheney, Donald Rumsfeld, Paul Wolfowitz, “Scooter” Libby and other Iraq obsessives, who wished to betray America doubly, firstly by endorsing the use of torture in defiance of almost universal disapproval from government agencies and military lawyers, and secondly by using it not to prevent terrorist attacks, but to justify an illegal war.

This was a point that Col. Lawrence Wilkerson, Colin Powell’s Chief of Staff, confirmed to me in an interview last year. Speaking about the Bush administration’s focus on interrogating prisoners seized in the “War on Terror,” Col. Wilkerson told me:

[T]hey wanted to put together a pattern, a map, a body of evidence, if you will, from all these people, that they thought was going to tell them more and more about al-Qaeda, and increasingly more and more about the connection between al-Qaeda and Baghdad.

I even think that probably, in the summer of 2002, well before Powell gave his presentation at the UN in February 2003, their priority had shifted, as their expectation of another attack went down, and that happened, I think, rather rapidly. I’ve just stumbled on this. I thought before that it had persisted all the way through 2002, but I’m convinced now, from talking to hundreds of people, literally, that that’s not the case, that their fear of another attack subsided rather rapidly after their attention turned to Iraq, and after Tommy Franks, in late November [2001] as I recall, was directed to begin planning for Iraq and to take his focus off Afghanistan.

I commend the actions of the anti-war protestors in Washington D.C. on Saturday who, as the Associated Press explained, “stopped at the offices of military contractor Halliburton — where they tore apart an effigy of former Vice President and Halliburton Chief Executive Dick Cheney,” but as this anniversary passes and Dick Cheney remains free to continue espousing his vile, self-serving rhetoric, the sad truth is that, seven years on, Cheney’s crimes cannot be viewed in isolation, but must stand as an indictment of everyone, from the President down, via lawmakers, the media and the American people, who are prepared to accept this darkest of truths: that in 2002, the Vice President of the United States used an illegal torture program not to protect Americans from future terrorist attacks, but to launch an illegal war that, to date, has led to the loss of 4,386 American lives and the lives of at least 100,000 Iraqis, and possibly as many as a million.

(‘’)

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.

As published on the Huffington Post, CounterPunch and ZNet. Cross-posted on Common Dreams, The Public Record, World Can’t Wait, New Left Project, Revista Amauta, Good Pork Bad Pork and the Tehran Times.

The 226-page report, published on Wednesday in an advance unedited version, is the culmination of a year-long Joint Study by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the Working Group on Arbitrary Detention, and the Working Group on Enforced or Involuntary Disappearances. It will be presented to the UN Human Rights Council in March.

The advance unedited version of the report is available here: UN Secret Detention Report.

In an introduction, the UN experts established that:

a person is kept in secret detention if State authorities acting in their official capacity, or persons acting under the orders thereof, with the authorization, consent, support or acquiescence of the State, or in any other situation where the action or omission of the detaining person is attributable to the State, deprive persons of their liberty; where the person is not permitted any contact with the outside world (“incommunicado detention”); and when the detaining or otherwise competent authority denies, refuses to confirm or deny or actively conceals the fact that the person is deprived of his/her liberty, hidden from the outside world, including, for example, family, independent lawyers or non-governmental organizations, or refuses to provide or actively conceals information about the fate or whereabouts of the detainee.

After running through the historical background to secret detention — both in a legal context, and through numerous examples from the twentieth century — the report focuses primarily on secret detention in the last nine years, providing a detailed account of US policies in the wake of the terrorist attacks of September 11, 2001, and also running through the practice of secret detention in 25 other countries, including Algeria, China, Egypt, India, Iraq, Iran, Israel, Libya, Pakistan, Russia, Saudi Arabia, Sri Lanka, Sudan, Syria, Uganda and Zimbabwe.

These sections contain valuable summaries, explaining how, in many cases, terrorism is used as a cover for secret detention policies of a political nature. However, the heart of the report is a detailed analysis of the Bush administration’s “War on Terror” policies.

Of particular concern to the authors of the Joint Study — beyond the overall illegality of the entire project conceived and executed by the Bush administration — is the fate of dozens of men held in secret prisons run by the CIA, or transferred by the CIA to prisons in other countries. Based on figures disclosed in one of the Office of Legal Counsel’s notorious “torture memos” (PDF), written in May 2005 by Assistant Attorney General Stephen Bradbury, the CIA had, by May 2005, “taken custody of 94 prisoners [redacted] and ha[d] employed enhanced techniques to varying degrees in the interrogations of 28 of these detainees.”

The 28 men subjected to “enhanced techniques” are clearly the “high-value detainees” — including Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, Abu Zubaydah and twelve others — who were transferred to Guantánamo in September 2006, but no official account has ever explained what happened to the other 14 “high-value detainees,” or, indeed, to the majority of the other 66 men.

The report also establishes that, at a minimum, many dozens of other prisoners were rendered to prisons in other countries.

In tracking these men, the report traces the development of the US secret detention program, drawing on new research into flight records to demonstrate that rendition flights, carefully disguised in the records, flew to Poland, Romania and Lithuania. The report also touches on the existence of a secret facility within Guantánamo, exposed by Scott Horton for Harper’s Magazine last week, which prompted the experts to note that they were “very concerned about the possibility that three Guantánamo detainees (Salah Ahmed Al-Salami, Mani Shaman Al-Utaybi and Yasser Talal Al-Zahrani) might have died during interrogations at this facility, instead of in their own cells, on 9 June 2006.”

Also mentioned are two little-reported facilities in the Balkans — Camp Bondsteel in Kosovo and Eagle Base in Tuzla, Bosnia-Herzegovina — and a claim that Diego Garcia in the Indian Ocean (a British territory leased to the US) was used in 2005-06 to hold Mustafa Setmariam Nasar, a joint Syrian-Spanish national.

Accounting for other prisoners, the report focuses on a number of secret prisons in Afghanistan; in particular, the “Dark Prison,” the “Salt Pit,” and a secret facility within Bagram airbase. Of the 94 men mentioned by Stephen Bradbury — minus the 14 transferred to Guantánamo in September 2006 — the report establishes that eight were released, that 23 others were transferred to Guantánamo (mostly in 2004), that four escaped from Bagram in July 2005, that four others are still in Bagram (three of whom are awaiting a US appeals court ruling on their successful habeas corpus petition last March), and that five others were returned to Libya in 2006.

These five include Ibn al-Shaykh al-Libi, the CIA’s most notorious “ghost prisoner,” who falsely confessed, under torture in Egypt, that there were connections between al-Qaeda and Saddam Hussein, which were subsequently used to justify the invasion of Iraq. After multiple renditions to other countries (which I exposed last June), al-Libi’s return to Libya came to a dark end last May, when he died under mysterious circumstances.

Discussing the other prisoners, whose current whereabouts are unexplained, the experts noted, “It is probable that some of these men have been returned to their home countries, and that others are still held in Bagram.” As I explained in an article last week, following the publication of the first ever list of prisoners held in Bagram (PDF), it appears that a handful of these men may indeed be in Bagram, but not all of them, and it is, therefore, imperative that the publication of this list leads to pressure on the Obama administration to reveal details of all the “disappeared” detainees.

The report also examines the cases of 35 men rendered by the CIA to Jordan, Egypt, Syria and Morocco, between 2001 and 2004. As with the “ghost prisoners” in Afghanistan, many of these men later surfaced in Guantánamo, or were freed, but the whereabouts of others — particularly those in Syria, and, probably, other completely unknown men rendered to Egypt — have never been disclosed, even though some of the prisoners rendered to Syria were flown there as long ago as 2002, and, in at least two cases, were only teenagers at the time.

There are also sections on secret detention in Ethiopia, Djibouti and Uzbekistan, and the experts also criticized other countries for their involvement in the program, including Australia, Canada, Germany, Italy, Kenya and the UK. According to Reuters, throughout the report, 66 countries in total are implicated in one way or another in secret detention practices — either independently, or as part of the US-led “War on Terror.”

In concluding their review of US detention policies since 9/11, the experts welcomed President Obama’s commitment to revoke and repudiate many of the Bush administration’s policies, including the closure of all CIA black sites, but requested clarification “as to whether detainees were held in CIA ‘black sites’ in Iraq and Afghanistan or elsewhere when President Obama took office, and, if so, what happened to the detainees who were held at that time.” They were also “concerned that the Executive Order which instructed the CIA ‘to close any detention facilities that it currently operates’ does not extend to the facilities where the CIA detains individuals on ‘a short-term transitory basis,’” and, in the light of suggestions by Scott Horton that the secret facility at Guantánamo may have been run by the Joint Special Operations Command (JSOC), noted that the order “does not seem to extend to detention facilities operated by” JSOC.

These were not their only concerns. Although they welcomed the implementation in August 2009 of a new policy whereby the International Committee of the Red Cross must be notified of all prisoners’ names within two weeks of capture, they noted that “there is no legal justification for this two-week period of secret detention,” because the Geneva Conventions allow only a week, and also because of their fears that some prisoners are being held who were not captured on the battlefield, and who may, as I noted in an article in September, in fact be prisoners who have been rendered to facilities outside of the military’s control (at Bagram in Afghanistan and Camp Nama in Iraq). The experts explained that they had “noted with concern news reports which quoted current government officials saying that ‘the importance of Bagram as a holding site for terrorism suspects captured outside Afghanistan and Iraq has risen under the Obama administration, which barred the Central Intelligence Agency from using its secret prisons for long-term detention.’”

The experts’ final concern was with Bagram’s new review system for prisoners. They noted that the decision to replace the existing system, which the judge in the habeas cases last March described as a process that “falls well short of what the Supreme Court found inadequate at Guantánamo,” was still inadequate. As they explained:

[T]he new review system fails to address the fact that detainees in an active war zone should be held according to the Geneva Conventions, screened close to the time and place of capture if there is any doubt about their status, and not be subjected to reviews at some point after their capture to determine whether they should continue to be held.

They were also “concerned that the system appears to specifically aim to prevent US courts from having access to foreign detainees captured in other countries and rendered to Bagram,” and, despite welcoming the release of the names of 645 prisoners at Bagram (an annotated version is here), urged the US government “to provide information on the citizenship, length of detention and place of capture of all detainees currently held within Bagram Air Base.”

While the report spreads its net wide, the US administration’s response to its findings about the Bush administration’s legacy of “disappeared” prisoners, and its focus on the gray areas of Obama’s current policies, is particularly anticipated. So far, however, there has been silence from US officials, and only the British, moaning about “unsubstantiated and irresponsible” claims, have dared to challenge their well-chronicled complicity in the secret detention policies underpinning the whole of the “War on Terror, which do not appear to have been thoroughly banished, one year after Barack Obama took office.

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.

As published exclusively on Truthout.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison , Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009). Also see the extensive archive of articles about the Military Commissions.

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), When Torture Kills: Ten Murders In US Prisons In Afghanistan (July 2009), US Torture Under Scrutiny In British Courts (July 2009), What The British Government Knew About The Torture Of Binyam Mohamed (August 2009), Torture in Bagram and Guantánamo: The Declaration of Ahmed al-Darbi (September 2009), UK Judges Order Release Of Details About The Torture Of Binyam Mohamed By US Agents (October 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Dark Revelations in the Bagram Prisoner List (January 2010), and also see the extensive Binyam Mohamed archive.

And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), The Trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Guantánamo’s shambolic trials (February 2008), Torture allegations dog Guantánamo trials (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim (Lt. Col. Darrel Vandeveld on Mohamed Jawad, January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Bush Era Ends With Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), Torture In Guantánamo: The Force-feeding Of Hunger Strikers (June 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (Fouad al-Rabiah, September 2009), UK Court Orders Release Of Torture Evidence In The Case Of Shaker Aamer, The Last British Resident In Guantánamo (December 2009), Shaker Aamer: UK Government Drops Opposition To Release Of Torture Evidence (December 2009), Afghan Nobody Faces Trial by Military Commission (January 2010), Murders at Guantánamo: Scott Horton of Harper’s Exposes the Truth about the 2006 “Suicides” (January 2010), Two Algerian Torture Victims Are Freed from Guantánamo (January 2010), and the extensive archive of articles about the Military Commissions.

Sharifullah, the US ally who had guarded Hamid Karzai

The first of the four Afghans, Sharifullah, who was 22 years old at the time of his capture, was seized by US forces from an Afghan military compound with another man, Amir Jan Ghorzang (identified by the Pentagon as Said Amir Jan), who was released from Guantánamo in September 2007. Both men were accused of hoarding explosives for the Taliban and being involved in various plots, but insisted that they were loyal government soldiers. In Guantánamo, Sharifullah explained that he was one of the first recruits in the new Afghan army, trained by British officers, and added that he had then spent seven months as part of a group that was responsible for guarding President Karzai. When he was unable to get a promotion, however, he returned to Jalalabad, where he had just taken up a new position as an officer when he was seized.

Amir Jan Ghorzang (photo, left) was the more vociferous of the two in Guantánamo, lamenting the fact that the US soldiers who had seized them had been duped by traitors who were taking money from both the US military and al-Qaeda, and were passing off innocent men as members of al-Qaeda and the Taliban. “I’m here because somebody got paid some dollars,” he explained, adding that he had been imprisoned by the Taliban for five years, because of his opposition to them, and had also worked for Haji Qadir, a commander who fought with the Americans during the battle of Tora Bora, a showdown between al-Qaeda and US-backed Afghan forces in December 2001.

The cases of both men — as with many other men who had been working for the Karzai government, but had been betrayed by rivals — revealed how little the US authorities were concerned with establishing the truth about their allegations, as it would have been easy to track down witnesses in Afghanistan who could have verified their stories (as reporters for McClatchy Newspapers did in 2008, when they interviewed Ghorzang). Nevertheless, he was, in the end, more fortunate than Sharifullah, whose continued presence in Guantánamo for two years and three months after his release was, frankly, inexplicable. As Ghorzang explained in the following exchange in Sharifullah’s tribunal, when he was called as a witness:

Sharifullah: Do you know that I was involved to work in the new government? Was I honestly working and working for the new government?
Ghorzang: You were working with the new government and he was involved with the Karzai government, in support of the Karzai government.

Mohammed Hashim: the fantasist put forward for a trial by Military Commission

The story of the second man, Mohammed Hashim, remains as bewildering now as it was when he was put forward for a trial by Military Commission at Guantánamo in May 2008, and I wrote an article entitled, “Afghan fantasist to face trial at Guantánamo,” in which I stated that the decision “appear[ed] to plumb new depths of misapplied zeal.” Hashim, who was about 26 years old at the time of his capture, was first seized by Afghan forces after he was found taking measurements near the home of Mullah Omar, the Taliban’s reclusive leader, and asking locals about security arrangements. Subsequently released, he was then seized again and handed over (or sold) to US forces.

If there was something about the circumstances of his initial capture that should have set alarm bells ringing, regarding his mental health, these were ignored when the US authorities decided to charge him with “conducting reconnaissance missions against US and coalition forces,” and “participating in a rocket attack venture on at least one occasion against US forces for al-Qaeda,” and ignored the fact that, at his tribunal, his testimony revealed that he was (as I described it) “either one of the most fantastically well-connected terrorists in the very small pool of well-connected terrorists at Guantánamo, or, conversely, that he [was] a deranged fantasist. From the resounding silence that greeted his comments at his tribunal, I can only conclude that the tribunal members, like me, concluded that the latter interpretation was the more probable.”

After explaining that he had spent five years with the Taliban, because he needed the money, Hashim proceeded to claim that:

he knew about the 9/11 attacks in advance, because a man that he knew, Mohammad Khan, “used to tell me all these stories and all the details about how they were going to fly airplanes into buildings. He didn’t tell me the details, that it was New York, but he said they had 20 pilots and they were going to orchestrate the act.” What rather detracted from the shock value of this comment was Hashim’s absolutely inexplicable claim that his friend Khan, who had told him about the 9/11 plan, was with the Northern Alliance, the Taliban’s opponents, who were also implacably opposed to al-Qaeda.

Hashim also claimed that he and another man had been responsible for facilitating Osama bin Laden’s escape from Afghanistan, and that, afterwards, he had worked as a spy, and had heard about how the Syrian government had been sending weapons to Saddam Hussein, which had then been sent to Afghanistan via Iran. As I explained at the time, the cumulative effect of Hashim’s statements was that it was “impossible not to conclude that [his] story was, if not the testimony of a fantasist, then a shrewd attempt to avoid brutal interrogations by providing his interrogators with whatever he thought they wanted to hear.”

A darker truth, of course, may be that his rambling statement actually revealed the themes pursued relentlessly by the interrogators at Guantánamo: not only “what do you know about the 9/11 attacks?” and “when did you last see bin Laden?” but also, at the insistence of Vice President Dick Cheney, “what was the connection between al-Qaeda and Saddam Hussein?” As we know from the interrogations of the CIA’s most famous “ghost prisoner” Ibn al-Shaykh al-Libi, who confessed under torture in Egypt that there were connections between al-Qaeda and Saddam Hussein, which was later used as part of the justification for the invasion of Iraq, securing this sort of information was regarded as critical in the run-up to the invasion, even though the administration claimed that its embrace of torture (or, rather, the euphemistically named “enhanced interrogation techniques”) was designed to prevent further terrorist attacks.

Abdul Hafiz: the wrong man with a satellite phone

The third man, Abdul Hafiz, who was 42 years old when he was seized in 2003 from his village near Kandahar, was accused in his tribunal of working for a Taliban militia group and of being involved in two killings in Kabul. It was also alleged that he was captured with a satellite phone linked to one of the killings, and that he “attempted to call an al-Qaeda member who is linked to the murder of an ICRC [International Committee of the Red Cross] worker.”

In response, Hafiz, who described himself as “handicapped” and who repeatedly stated that he has problems with his memory, claimed that his name was Abdul Qawi, and that he had been confused with Abdul Hafiz, because Hafiz, for whom he had been working, had given him the phone at a checkpoint. As he stated, “He told me that he did not have any documents to have the phone with him. So he said, ‘You can have my phone because you are handicapped and I don’t think they will search you.’” He added that he did not even know how to use the phone.

Describing Hafiz as someone who supported the new government of Hamid Karzai and was “preaching in the village to bring the peace,” he said, “I was working for him to bring peace … He gave me the telephone in the morning and told me to keep it in my pocket. He told me to work and preach to the people not to fight. That war is not good. This is the reason that I lost my leg. Fighting is not good. War does not have good consequences.”

He also explained, “I was just in my home when they captured me and brought me here. I didn’t do anything,” and expressed frustration at not being able to see classified documents containing evidence against him, saying, “In our culture, if someone is accused of something, they are shown the evidence.” At his review in 2005, he presented the board with letters from his family — all addressed to Abdul Qari, not Abdul Hafiz — including one from his brother, which read, “My respectful brother, you didn’t have any relationship with any political people. We were hoping that you would get released very, very soon. We do not understand why you’re still detained there without a crime.” He was clearly so desperate to be freed from Guantánamo and not to be “amongst these beasts and these people” (as he described his fellow prisoners at one point), that he even offered to present the board with a letter from his wife, even though “It is a big shame in our culture to read my wife’s letter to you, but now I am in a very tough situation.”

Mohamed Rahim: a spectacular case of mistaken identity

If the continued imprisonment of Abdul Hafiz (or Abdul Qari) appeared to be inexplicable, there was, on the surface at least, more of a case against Mohamed Rahim, the fourth prisoner released at the weekend, but this too collapses spectacularly under scrutiny. A resident of a village near Ghazni, Rahim was accused, in his tribunal, of being the chief of logistics for a company providing support directly to the Taliban government, of working for the Taliban Intelligence Office, and of controlling a large weapons cache for the Taliban. In response, he explained that he had been forced to work for the Taliban, and that, because he “was sick” and unable to fight, he was made to work in an administrative post. He denied the allegation that he worked for the Taliban Intelligence Office, calling it an “outrageous” accusation, and also denied controlling a weapons cache. “This doesn’t make sense,” he said. “I was captured in my house. I have no information on these weapons.”

By the time of his next review, in 2005, numerous other allegations had been added, including a claim that he was “identifiable as a former companion of bin Laden during the jihad against the Russians,” and another that he “was among a group protecting bin Laden at his last meeting at Tora Bora.” It was also suggested that he “was entrusted by bin Laden to exfiltrate his guard forces from Afghanistan back to their countries of origin,” and that “bin Laden and his companions spent the night in a house belonging to an Afghan acquaintance of the Detainee.”

There was more in this vein, including a claim that he “attempted to export gems from Afghanistan to Germany in order to raise revenue to finance al-Qaeda,” but what was completely overlooked by his review board — and presumably, by those who were supposed to be capable of analyzing the intelligence relating to the Guantánamo prisoners — is that when he stated, “I am a sick poor farmer with enemies,” he was telling the truth for one particularly glaring reason, which only emerged in passing in his review, when his Designated Military Officer (a soldier assigned to him in place of a lawyer) pointed out that he was Hazara.

One of four main population groups in Afghanistan — the others being Pashtuns, Tajiks and Uzbeks — the Hazara, Shia Muslims who are at least partly of Mongol origin, were despised by the Sunni Taliban, who slaughtered them in their thousands. As a result, it is not only appropriate to conclude that the allegations against Rahim were invented by his enemies, but also to conclude that his enemies in Guantánamo came up with the outrageous claims that he was intimately associated with Osama bin Laden.

Release or imprisonment in Afghanistan?

With the exception of Mohamed Jawad, who was released in August after he won his habeas corpus petition, these men are the first Afghans released since January 2009, when Haji Bismullah, who worked for the government of Hamid Karzai as the chief of transportation in a region of Helmand province, was released. Of the 219 Afghans once held at Guantánamo, there are now just 21 remaining in the prison, but it is uncertain whether the four men just released will regain their freedom, or whether, in common with all the Afghan releases since August 2007 (except Jawad, whose case attracted international scrutiny), they will be imprisoned on arrival in Kabul, in a wing of the main prison, Pol-i-Charki, which was refurbished by the US military, and which, although nominally under Afghan control, is reportedly overseen by Americans.

After all this time, and with such scandalous stories of ineptitude on the part of the United States, I would say that the least these men deserve is to be freed outright, and allowed to be reunited with their families.

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

As published on the Huffington Post, CounterPunch, Antiwar.com and ZNet. Cross-posted on The Public Record and uruknet.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 30 prisoners released from February to early December 2009, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; ; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs to Bermuda, 1 Iraqi, 3 Saudis (here and here); August 2009 — 1 Afghan (Mohamed Jawad), 2 Syrians to Portugal; September 2009 — 1 Yemeni, 2 Uzbeks to Ireland (here and here); October 2009 — 1 Kuwaiti, 1 prisoner of undisclosed nationality to Belgium; October 2009 — 6 Uighurs to Palau; November 2009 — 1 Bosnian Algerian to France, 1 unidentified Palestinian to Hungary, 2 Tunisians to Italian custody, December 2009 — 1 Kuwaiti (Fouad al-Rabiah).