A former gang member and a convert to Islam, Padilla was arrested at Chicago’s O’Hare Airport, in connection with an alleged “dirty bomb plot” that never existed, on May 8, 2002, as he returned from Pakistan. Held for a month as a material witness, he was then designated an “enemy combatant” by President George W. Bush, and held in complete isolation in a military brig for the next three and half years — a process that also involved prolonged sensory deprivation. According to the psychiatrist Dr. Angela Hegarty, who spent 22 hours with Padilla in 2006, “What happened at the brig was essentially the destruction of a human being’s mind.”

In November 2005, fearing that Padilla might successfully challenge the government’s argument that it had the right to hold a US citizen indefinitely without charge or trial on the US mainland, and subject him to torture, the Bush administration suddenly indicted Padilla on charges of conspiracy “to murder, kidnap and maim people overseas,” and transferred him out of the brig. However, the injustice did not come to an end, as the courts then took over.

The charges against Padilla were based on the Bush administration’s claim that, along with alleged facilitators Adham Amin Hassoun and Kifah Wael Jayyousi, he was part of a Florida-based plot to aid Islamic extremists in holy wars abroad, and his trial took place in the summer of 2007. However, the judge, Marcia Cooke, refused to allow Padilla or his lawyers to make any mention of what had happened in the three and a half years that he was held in a legal black hole.

On August 16, 2007, the jury found him guilty, and on January 22, 2008, he received a sentence of 17 years and 4 months. This was in spite of the fact that the conspiracy in which he was reportedly involved had not taken place, and he had been involved in only seven of the hundreds of phone calls monitored by the FBI between his two co-defendants (who also received prison sentences). It also came about in spite of the fact that all that could be confirmed of his intent, in physical terms, was his signature on an application form for a military training camp in Afghanistan that he may or may not have actually attended.

Padilla appealed against his sentence, and so did the Bush administration, whose position — that his sentence was too lenient — was adopted by the Obama administration, which has repeatedly clung to the same position maintained by its predecessor when it comes to “national security” issues involving terrorism.

Two weeks ago, the latest phase in this alarming saga of paranoia, torture and injustice took place in Florida, when the Court of Appeals for the Eleventh Circuit not only backed the government against Padilla, but went so far as to vacate the original sentence (PDF), in effect telling the judge that she had been too lenient, and that she should revisit her ruling and hand down a much longer sentence.

The majority judges in the three-judge panel — the notoriously right-wing judges Joel F. Dubina and William Prior — claimed that Padilla’s original sentence was “substantively unreasonable because it does not adequately reflect his criminal history, does not adequately account for his risk of recidivism, was based partly on an impermissible comparison to sentences imposed in other terrorism cases, and was based in part on inappropriate factors.”

The dissenting judge, Rosemary Barkett, was thoroughly critical of her colleagues’ actions, specifically noting that:

In reversing Padilla’s sentence, the majority fails to adhere to the principles articulated by the Supreme Court and this Circuit requiring appellate courts to accord the trial judge the “considerable discretion” granted district courts in sentencing and to guard against substituting its judgment for that of the trial judge.

Continuing, she referred to a precedent from the Eleventh Circuit, in which, in a case in 2009, it was noted:

We may vacate a sentence because of the variance only if we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the … factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case. However, that we might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal.

Judge Barkett also took exception to her colleagues’ arguments that the trial judge had erred when she refused to give Padilla a sentence that was a minimum of 30 years, as they thought appropriate according to sentencing guidelines. Spelling out what judicial discretion means, she again referred to the precedent from the Eleventh Circuit in 2009, in which it was noted:

The district court must evaluate all of the … factors when arriving at a sentence, but is permitted to attach great weight to one factor over others. In assessing the factors, the sentencing court should remember that each convicted person is an individual and every case is a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.

Primarily, however, Judge Barkett was concerned to point out that a sentence less than the full maximum could be justified when, as in Padilla’s case, “the trial judge correctly concluded that a sentence reduction is available to offenders who have been subjected to extraordinarily harsh conditions of pre-trial confinement.”

Judge Cooke may have refused to allow any discussion of Padilla’s torture in his trial, but she did note that the conditions in which he was held “were so harsh that they warrant consideration,” and, as Judge Barkett noted, Padilla had been able to highlight his torture when he was being sentenced which was so harrowing that it was not easy to ignore, As she wrote in her dissenting opinion:

Padilla presented substantial, detailed, and compelling evidence about the inhumane, cruel, and physically, emotionally, and mentally painful conditions in which he had already been detained for a period of almost four years. For example, he presented evidence at sentencing of being kept in extreme isolation at the military brig in South Carolina where he was subjected to cruel interrogations, prolonged physical and mental pain, extreme environmental stresses, noise and temperature variations, and deprivation of sensory stimuli and sleep.

Judge Barkett also highlighted one more area in which her Eleventh Circuit colleagues had crossed a line, which concerned their allegations about his perceived susceptibility to recidivism. Even though, after serving his sentence, Padilla would be “in his mid-fifties,” and “subject to a twenty-year term of supervised release,” her fellow judges nevertheless concluded that Judge Cooke “erred in determining that Padilla will not pose a high risk of recidivism.”

Even though there was no evidence to support the judges’ fears, and even though they explicitly stated in their opinion that a trial judge is allowed to “find that recidivism generally decreases with age,” she noted that the majority “not only rejects that presumption for Padilla, but goes one step further and decides that trial judges may no longer consider, for anyone convicted of a terrorism-related offense, the likelihood that the risk of recidivism will decrease with age.”

Judge Barkett’s dissenting opinion was important, but unfortunately it did nothing to stem the institutionalized paranoia and injustice that has plagued Jose Padilla since he was imprisoned as an “enemy combatant” in May 2002.

I have never understood how far too many Americans accepted the torture of Jose Padilla — an American citizen on US soil, and not even a foreigner held at Guantánamo — without recognizing that, although a Latino Muslim convert was today’s “enemy combatant,” tomorrow it might be some other demonized American.

I was also astonished when no one cared that Padilla’s torture was not mentioned in his trial, and he received a sentence of seventeen years and four months for little more than a thought crime.

The ruling by the Court of Appeals for the Eleventh Circuit two weeks ago only adds to the bitter legacy of Jose Padilla’s brutalization at the hands of his own government, revealing how, for terror suspects held as “enemy combatants” — like Padilla, or, again, the prisoners at Guantánamo — all sense of proportion can be dismissed, even by those who should know better.

For these scaremongers, who are found in Congress as well as the courts, the end result of their sustained hysteria about terrorism is a twisted version of reality in which it is legitimate to complain that sentences are not long enough, and that the crime of terrorism is so unique and dangerous that judges can argue that there is no possibility of being reformed — even when, as in Jose Padilla’s case, the US government actually spent three years destroying his mind through torture, rendering him largely incapable of anything, and without anyone responsible for that being held accountable.

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

As published exclusively on Truthout.

Manning, whose 23rd birthday was on Friday, has been held in solitary confinement for seven months since he was seized in Kuwait, where he was held for the first two months prior to his transfer to a military prison in Quantico, Virginia.  According to David House, a computer researcher from Boston who visits him twice a month, his “prolonged confinement in a solitary holding cell … is unquestionably taking its toll on his intellect.” House explained how Manning “was no longer the characteristically brilliant man he had been, despite efforts to keep him intellectually engaged.”

However, what was particularly revealing about House’s comments was his denial of the authorities’ statement that Manning “was being kept in solitary for his own good,” based on a claim that he was initially held on suicide watch. As he explained, “I initially believed that his time in solitary confinement was a decision made in the interests of his safety. As time passed and his suicide watch was lifted, to no effect, it became clear that his time in solitary — and his lack of a pillow, sheets, the freedom to exercise, or the ability to view televised current events — were enacted as a means of punishment rather than a means of safety.”

The key elements here are the elements of profound isolation and suffering identified by House — not just the solitary confinement, with no other human being for company, but also the refusal to allow Manning to have a pillow, sheets, or any access to the outside world through the reporting of current affairs.

It is these factors that mark out his conditions of detention as sharing some key elements with the conditions endured by the three “enemy combatants” held on the US mainland under the Bush administration — the US citizens Yasser Hamdi and Jose Padilla, and the US legal resident Ali al-Marri.

Hamdi, initally held at Guantanamo, was kept in isolation from May 2002 until he won a case before the Supreme Court on June 28, 2004, leading to his release in Saudi Arabia three months later. Padilla, held from May 2002 until he was transferred into federal custody on January 3, 2006 (and subsequently tried and convicted in August 2007, and given a sentence of 17 years and four months in January 2008 for conspiring to kill people in an overseas jihad and to fund and support overseas terrorism), was held for 21 months in total isolation. Al-Marri, who was initially arrested in December 2001, was held alone for five years and eight months (including 16 months in total solitary confinement) before President Obama moved him into the federal court system in February 2009, leading to a trial and an eight-year sentence after a plea deal eight months later.

As I explained in an article two years ago:

As was recently revealed through the disclosure of military documents following a Freedom of Information request (PDF), al-Marri, along with two American citizens also held as “enemy combatants” — Yaser Hamdi and Jose Padilla — was subjected to the same “Standard Operating Procedure” that was applied to prisoners at Guantánamo during its most brutal phase, from mid-2002 to mid-2004. This involved the use of “enhanced interrogation techniques,” including prolonged isolation, painful stress positions, exposure to extreme temperature, sleep deprivation, extreme sensory deprivation, and threats of violence and death.

Although the treatment of prisoners at Guantánamo was disturbingly harsh, it can be argued — with some confidence, I believe — that the treatment of al-Marri, Hamdi and Padilla was worse than that endured by the majority of the Guantánamo prisoners, as all three suffered in total isolation … Held alone in cellblocks that were otherwise unoccupied, al-Marri, Hamdi and Padilla had to survive without even the small comforts available to most of the Guantánamo prisoners, who, when not held in isolation as a punishment or as a prelude to interrogation, could at least communicate with the prisoners in the cells adjacent to them, and could take advantage of what lawyer Clive Stafford Smith has called the “incredible prisoner bush telegraph,” through which information is conveyed around the prison.

In the case of Hamdi (who was picked up in Afghanistan in November 2001 and initially held in Guantánamo until it was discovered that, although he had lived in Saudi Arabia since he was a child, he was born in Baton Rouge and was an American citizen), the effects of this near-total isolation were already apparent in June 2002, just a month after his transfer from Guantánamo. As one of the officers responsible for him explained in an email to his superiors, “with no potential end in sight and no encouraging news and isolated from his countrymen, I can understand how he feels … I will continue to do what I can to help this individual maintain his sanity, but in my opinion we’re working with borrowed time.”

In the case of Jose Padilla, who was held in strict solitary confinement for 21 months, the effects of his isolation were so intense that it has been reported that he literally lost his mind (his warders described him as “so docile and inactive that he could be mistaken for ‘a piece of furniture’”) [Further details of Padilla's harrowing mental collapse can be found here].

Al-Marri’s experience was similar. As his lawyers explained in May [2008], in court documents protesting his treatment (PDF), for the 16 months that he was held incommunicado, “He was denied any contact with the world outside, including his family, his lawyers, and the Red Cross. All requests to see, speak to, or communicate with Mr. al-Marri were ignored or refused. Mr. al-Marri’s only regular human contact during that period was with government officials during interrogation sessions, or with guards when they delivered trays of food through a slot in his cell door, escorted him to the shower, or took him to a concrete cage for ‘recreation.’ The guards had duct tape over their name badges and did not speak to Mr. al-Marri except to give him orders.”

There is, at present, no suggestion that Bradley Manning has been subjected to a wide range of “enhanced interrogation techniques,” but prolonged isolation is confirmed, and depriving him of a pillow, sheets, or any access to the outside world through the reporting of current affairs are all elements of discomfort and further isolation that were key to the program of belittling and punishing “enemy combatants,” and, crucially, “softening them up” or “breaking” them for interrogation. It is, sadly, all too easy to imagine that other techniques designed to disorientate Manning and to further erode his will — involving elements of sleep deprivation, threats and sensory deprivation — could also be applied, or are, perhaps, already being apllied, especially if, as has been suggested by the Independent, the authorities are hoping to cut a plea deal with him, reducing a 52-year sentence in exchange for a confession that Julian Assange of WikiLeaks, whom the US is seeking to extradite to the US, was not just a passive recipient of the information leaked by Manning, but was instead a conspirator.

Assange, who was released on bail in the UK on Thursday, after being imprisoned for nine days following an extradition request from Sweden relating to rape charges, denies knowing Manning at all. After his release from Wandsworth prison, he said, “I had never heard of the name Bradley Manning before it was published in the press. WikiLeaks technology [was] designed from the very beginning to make sure that we never know the identities or names of people submitting us material.”

In contrast, however, as the Independent explained, “Adrian Lamo, a former hacker who had been in contact with Pte. Manning and eventually turned him in to the government, has told the FBI that Mr. Assange had given the young soldier an encrypted internet conferencing service as he was downloading government files and a dedicated server for uploading them to WikiLeaks. Mr. Lamo claims that Pte. Manning had ‘bragged’ about this to him. In one email, now in the possession of the Justice Department, the soldier allegedly wrote: ‘I can’t believe what I’m confessing to you … I’m a source, not quite a volunteer, I mean, I’m a high-profile source … and I’ve developed a relationship with Assange.’”

As this story continues to develop, further clues about the kinds of pressure exerted on Manning can be gleaned from David House’s description of the lengths to which the authorities are going to harass those who know Manning. House told the Guardian that “many people were reluctant to talk about Manning’s condition because of government harassment, including surveillance, warrantless computer seizures, and even bribes,” stating, “This has had such an intimidating effect that many are afraid to speak out on his behalf”

The Guardian added, “Some friends report being followed extensively. Another computer expert said the army offered him cash to — in his words — ‘infiltrate’ the WikiLeaks website.” He said, “I turned them down. I don’t want anything to do with this cloak and dagger stuff.”

House also explained how, on November 3, he “found customs agents waiting for him when he and his girlfriend returned to the US after a short holiday in Mexico. His bags were searched and two men identifying themselves as Homeland Security officials said they were being detained for questioning and would miss their connecting flight. The men seized all his electronic items and he was told to hand over all passwords and encryption keys — which he refused. The items have yet to be returned.”

In conclusion, then, anyone concerned with justice needs to keep a close eye on Bradley Manning’s case, not just because any pressure exerted on Manning to implicate Julian Assange in his decision to leak classified US documents would have a disastrous impact on freedom of speech, and would, possibly, pave the way for an unprecedented assault on the freedom of the Internet, where alternative voices to the mainstream are needed more than ever, but also because of the suspicion that, in exerting pressure on Manning, the Obama administration has crossed a line and is drawing inspiration from the discredited — if not thoroughly repudiated — practices of the Bush administration.

Note: Anyone interested in supporting Bradley Manning — and contributing to his legal fund — should visit the website of the Bradley Manning Support Network.

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), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

Cross-posted on The Public Record, The Smirking Chimp, Uruknet, Ron Paul Forums and Dandelion Salad.

Led by the Times, whose headline today is, “George W. Bush: waterboarding saved London from attacks,” newspapers and broadcasters have uncritically parrotted the former US President’s claims, failing to mention that waterboarding is torture, and that torture is a crime, for which Bush can and should be prosecuted, and also failing to mention the lack of evidence for his claim that the use of waterboarding saved London from any planned terrorist attacks.

All of these problems are highlighted in the Times‘ front-page article, whose first few paragraphs are available online (the rest is hidden behind Rupert Murdoch’s unpopular firewall). Reporter Ben Macintyre, observing the protocol that, since 9/11, has led to the mainstream media refusing to recognize waterboarding as an ancient torture technique, whose use — in the Vietnam War, for example — led to the prosecution of the US military officer involved, described how Bush “offered a vigorous defence of the coercive interrogation technique,” to which three supposed “high-value detainees” — Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri — were subjected, and “denied that waterboarding, which simulates drowning, amounted to torture.”

“Coercive interrogation technique” is, of course, Bush-speak for “torture,” and is all part of the pretence that a technique known to the honest torturers of the Spanish Inquisition as “tortura del agua” can be repackaged, with the advice of corrupt lawyers in the Justice Department, as an “enhanced interrogation technique” that is legally permissible. In addition, waterboarding is not, as the Times claimed, a process that “simulates drowning,” but is actually a form of controlled drowning, which is rather a different matter.

In the US, the former President has so far managed to escape accountability for his actions, after an internal Justice Department report — examining the behaviour of the lawyers who twisted the law out of shape in a clumsy and disgraceful attempt to redefine torture so that it could be used by CIA operatives under Bush’s command — was whitewashed in February this year. Although the original report concluded that the lawyers in question — John Yoo and Jay S. Bybee — were guilty of “professional misconduct,” a senior DoJ fixer, David Margolis, was allowed to override those conclusions, claiming that Yoo and Bybee had only exercised “poor judgment.”

Critics of these conclusions include President Obama and the US Attorney General Eric Holder, who have both stated that waterboarding is torture, and Lt. Gen. Michael D. Maples, the director of the Defense Intelligence Agency, who told the Senate Armed Services Committee in February 2008 (PDF, p. 31), after CIA director Gen. Mike Hayden first admitted that three prisoners had been waterboarded, that he believes waterboarding violates Common Article 3 of the Geneva Conventions, the baseline protection for all prisoners in wartime (which the Bush administration chose to ignore from February 2002 until June 2006, when the US Supreme Court compelled them to reinstate it). Common Article 3 prevents “cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.”

This is the exchange between Sen. Carl Levin and Lt. Gen. Maples:

SEN. LEVIN: General, do you believe that waterboarding is consistent with Article 3 of the Geneva Conventions?
LTG MAPLES: No, sir, I don’t.
SEN. LEVIN: Do you believe it’s humane?
LTG MAPLES: No, sir. I think it would go beyond that bound.

In addition, Bent Sørensen, a former member of the United Nations Committee Against Torture, and now a Senior Medical Consultant to the International Rehabilitation Council for Torture Victims, stated unequivocally in February 2008:

It’s a clear-cut case: Waterboarding can without any reservation be labeled as torture. It fulfils all of the four central criteria that according to the United Nations Convention Against Torture (UNCAT) defines an act of torture. First, when water is forced into your lungs in this fashion, in addition to the pain you are likely to experience an immediate and extreme fear of death. You may even suffer a heart attack from the stress or damage to the lungs and brain from inhalation of water and oxygen deprivation. In other words there is no doubt that waterboarding causes severe physical and/or mental suffering — one central element in the UNCAT’s definition of torture. In addition the CIA’s waterboarding clearly fulfills the three additional definition criteria stated in the Convention for a deed to be labeled torture, since it is 1) done intentionally, 2) for a specific purpose and 3) by a representative of a state — in this case the US.

As well as failing to mention any of these criticisms — by people whose knowledge of the law was considerably deeper than that of George W. Bush — the Times also uncritically reported the former President’s claim that the interrogations of Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri “helped break up plots to attack American diplomatic facilities abroad, Heathrow airport and Canary Wharf in London, and multiple targets in the United States,” even though no evidence has ever been presented to back up these claims.

Critics believe, with considerable justification, that these “plots,” like the “dirty bomb plot” to attack New York — in which British resident Binyam Mohamed and US citizen Jose Padilla were implicated (by Abu Zubaydah), and which had involved nothing more than some casual browsing on the Internet — were similarly spectral, and, as I explained in an article last Friday, “No appetite for prosecution: In memoir, Bush admits he authorised the use of torture, but no one cares,” which cast a critical eye on Bush’s culpability for torture and his dubious claims regarding intelligence, four days before today’s tsunami of uncritical reporting in the British media, the British journalist David Rose explained in an article for Vanity Fair in December 2008 that, “according to a former senior CIA official, who read all the interrogation reports on KSM, ‘90 percent of it was total f*cking bullsh*t,’” and a former Pentagon analyst added, “KSM produced no actionable intelligence. He was trying to tell us how stupid we were.”

The story of Abu Zubaydah, meanwhile, is even more illuminating, as he was not, as alleged, a high-ranking al-Qaeda member, but was, instead, the mentally troubled gatekeeper of the Khaldan training camp in Afghanistan that was closed down by the Taliban because its emir, Ibn al-Shaykh al-Libi, refused to cooperate with Osama bin Laden.

As I have explained previously, Dan Coleman, the FBI’s senior expert on al-Qaeda, has explained how he and others at the FBI concluded not only that Zubaydah had severe mental problems — particularly because of a head injury that he had suffered in 1992 — but also that this led to him being regarded with particular 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?”

Moreover, Coleman’s analysis was, essentially, reinforced by a Justice Department official who told the Washington Post in 2009:

[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.”

A more honest appraisal of the result of Abu Zubaydah’s torture would note that it began before George W. Bush received the Justice Department’s legally twisted approval for it, and that, as Ron Suskind explained in his 2006 book, The One Percent Doctrine, so misplaced was the CIA’s belief in Zubaydah’s importance that when they subjected him to waterboarding and other forms of torture, he “confessed” to all manner of supposed plots — against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, and the Statue of Liberty — and, as a result, “thousands of uniformed men and women raced in a panic to each target … The United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered.”

Even more disturbingly, a far clearer example of how torture work in practice — to produce false confessions — is to be found in the story of Ibn al-Shaykh al-Libi, conveniently ignored by George W. Bush and his courtiers in the mainstream media. Seized in December 2001, al-Libi was sent to Egypt by the CIA where, under torture — including, it seems, waterboarding — he falsely confessed that Saddam Hussein was advising al-Qaeda members on the use of chemical weapons. This claim made its way into Colin Powell’s presentation to the United Nations before the Iraq invasion in March 2003, and, as well as demonstrating how torture is only reliable for producing false intelligence, it also highlights something else that George W. Bush would like to have ignored while he brags about how, “Had I not authorized waterboarding on senior al-Qaeda leaders, I would have had to accept a greater risk that the country would be attacked.”

As Powell’s former Chief of Staff, Col. Lawrence Wilkerson, explained to me last year, the truth is that, far from fearing another terrorist attack, the Bush administration had actually decided by December 2001 to shift its focus to Iraq, and was therefore using torture to try to justify the invasion of Iraq. Bush may not have been driving this policy, which, as he indicates in his book, was in the hands of Dick Cheney, but as Commander-in-Chief he bears the ultimate responsibility not only for authorizing torture, but also for what seems to be to be the treasonous policy of torturing “terror suspects” to justify the illegal invasion of a sovereign country, while lying to his countrymen that he was doing it to keep them safe.

As a result, all those media outlets queuing up to join the Times in sitting at Bush’s feet and uncritically reporting his lies, evasions and self-deceptions about torture ought to be ashamed. The former President is a war criminal, and not some kind of flawed hero returning from the wilderness to salvage his legacy.

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

As published exclusively on Cageprisoners. Cross-posted on The Public Record, Manchester Stop the War Coalition, Uruknet, Dandelion Salad and The Land of the Not So Free.

For a selection 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), UN Human Rights Council Discusses Secret Detention Report (June 2010), UN Secret Detention Report (Part Two): CIA Prisons in Afghanistan and Iraq (June 2010), UN Secret Detention Report (Part Three): Proxy Detention, Other Countries’ Complicity, and Obama’s Record (June 2010), and also see the extensive Binyam Mohamed archive.

Judge Huvelle’s ruling came in spite of additional evidence submitted by the families (PDF), drawing on the accounts of four US soldiers who were present in Guantánamo at the time of the deaths, and who have presented a number of compelling reasons why the official story of the men’s triple suicide (as endorsed by a Naval Criminal Investigative Service report in 2008) is a cover-up. That story, written by Scott Horton, was published by Harper’s Magazine in January this year, and I covered it here, and also in an update in June, although it has largely been ignored in the mainstream US media.

The case, Al-Zahrani v. Rumsfeld, was initially filed in January 2009, and primarily involved the families of the dead men seeking to claim damages through the precedent of a case known as Bivens, decided by the Supreme Court in 1971, in which, for the first time, damages claims for constitutional violations committed by federal agents were allowed. The families claimed relief under the Fifth Amendment Due Process Clause (preventing individuals from being deprived of life, liberty, or property without “due process of law”) and the Eighth Amendment (which prohibits the infliction of “cruel and unusual punishments”), as well as submitting a claim, under the Alien Tort Claims Act, “alleging torture, cruel, inhuman and degrading treatment, and violations of the Geneva Conventions.”

Despite the families’ claims, the case was dismissed by the District Court on February 16, 2010, for two particular reasons. One involved a handful of legal precedents — including Rasul v. Myers, a case brought in 2006 by four former Guantánamo detainees from the UK, which was finally turned down by the Supreme Court in December 2009. In the hope of making tortuous legal reasoning comprehensible to the lay reader, these rulings essentially provide precedents for preventing the courts from providing a Bivens remedy and entitle the defendants to “qualified immunity against plaintiffs’ constitutional claims.”

Rather more readily comprehensible, and deeply shocking, is a clause in the Military Commissions Act, passed by Congress in the fall of 2006 and unchanged in the legislation revived under President Obama in 2009, which, as well as creating — or bringing back to life — the much-criticized Military Commission trial system for Guantánamo prisoners that was ruled illegal by the Supreme Court in June 2006, also granted blanket immunity to anyone involved in any activities relating to the detention and treatment of prisoners held in the “War on Terror.”

As Judge Huvelle explained in her opinion:

Specifically, the Court found that the section of the MCA removing from the courts ‘jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement’ of an alien detained and determined to be an enemy combatant by the United States is still valid law.

With these precedents, there was, to be blunt, little hope that Judge Huvelle would grant the complaint filed by the families of Yasser al-Zahrani and Salah al-Salami, even though the families had made an emotional appeal, pointing out:

The fact that Defendants fought to keep secret virtually all information concerning the cause and circumstances of Al-Zahrani and Al-Salami’s deaths from their families, the public and the courts until compelled by FOIA litigation in 2008, and that details of an elaborate, high-level cover-up of likely homicide at a “black site” at Guantánamo are only now emerging nearly four years after the fact, should disturb the Court and caution it against permitting unspecified national security concerns to trump all other factors in this case without question.

Perhaps more to the point, the families of al-Zahrani and al-Salami attempted to persuade Judge Huvelle that “Courts have allowed Bivens claims by detainees in the post-9/11 context to proceed … despite the presence of national security factors,” citing, amongst other cases, Ertel v. Rumsfeld, an ongoing case in Chicago “permitting US citizens detained by the United States in Iraq [former contractors Donald Vance and Nathan Ertel] to bring Bivens claims against Donald Rumsfeld for authorizing their detention and abuse,” and Padilla v. Yoo, another ongoing case (in California), in which Jose Padilla, a US citizen detained as an “enemy combatant” in the United States as part of the “war on terror,” was permitted “to bring a Bivens suit against John Yoo [the lawyer who wrote the Bush administration’s notorious “torture memos”] for authorizing his detention and torture.”

The families also urged the court to “scrutinize bald assertions of national security and secrecy because the government’s account of the risks has in many cases been overblown,” adding, “As an apt case in point, after years of dire warnings to justify the indefinite detention of Guantánamo detainees and forestall court review, the government has by now released the majority of detainees without incident, including approving dozens of detainees for transfer on the eve of habeas review.” For reference, the families drew again on the case of Jose Padilla, citing Padilla v. Hanft, and “observing that the government had ‘steadfastly maintain[ed] that it was imperative in the interest of national security’ to hold Padilla in military custody for three and a half years, yet abruptly changing course on the doorstep of Supreme Court review, seeking to move him into criminal custody, at a ‘substantial cost to the government’s credibility before the courts.’” They also cited the case of Yasser Hamdi, a US citizen held briefly in Guantánamo, who was also held as an “enemy combatant” on the US mainland. In Hamdi’s case, the Bush administration argued that “military necessity required Hamdi’s indefinite detention, yet [the authorities] releas[ed] him to Saudi Arabia seven months later.”

Despite all these arguments, Judge Huvelle was clear in her ruling that, although the allegations were of a “highly disturbing nature,” that alone “cannot be a sufficient basis in law” for the case to be heard. She also explained that the legal precedents established that “matters relating to the conditions of detention in Guantánamo remain the purview of Congress alone — not the courts — due to national security concerns,” as AFP explained.

“The question before the court,” she said, “is not whether homicide ‘exceeds the bounds of permissible official conduct in the treatment of detainees in US custody and demands accountability’ or whether the families of Al-Zahrani and Al-Salami deserve a remedy. Rather, the question is ‘who should decide whether such a remedy should be provided.’”

Following the ruling, Yasser al-Zahrani’s father Talal, spoke for everyone disturbed by the revelations of Joe Hickman and his colleagues, when he stated, “The courts should be investigating my son’s death and holding those responsible accountable. President Obama should be defending human rights and the democratic values the US preaches to the world, rather than going to court to defend the lies and gruesome crimes of the Bush administration.”

Pardiss Kebriaei of the Center for Constitutional Rights, which filed the lawsuit with William Goodman of Goodman & Hurwitz, P.C. and the International Human Rights Law Clinic at the Washington College of Law, added, “The very secrecy of Guantánamo is what allowed the government to torture and illegally imprison innocent men there for years, as we now know from leaked government memos, whistleblowers, and repeated wins in court in detainees’ habeas cases. Yet the court’s decision today allows secrecy to continue to shroud the truth about these deaths, in the face of compelling evidence of a four-year cover-up of murder.”

With this ruling, it is uncertain how the families of Yasser al-Zahrani and Salah al-Salami can continue their quest for truth and justice, as it appears certain that Congress has no desire to investigate the circumstances of the men’s deaths. Sadly, only one major media outlet, AFP, covered the latest ruling, demonstrating how the story of the men’s deaths is viewed as such a toxic issue by most of the mainstream media that it is being ignored. If you care about what appears to be a particular vile cover-up by parts of the US administration, please do all you can to help to keep this story alive.

Below, I publish the sections of the families’ complaint, submitted as part of the “Motion for Reconsideration,” filed on May 3, 2010, that Judge Huvelle turned down last week, which spell out the deeply distressing story exposed by Harper’s Magazine in January this year.

Excerpts from the “Motion of Reconsideration in Light of Newly Discovered Evidence,” Al-Zahrani v. Rumsfeld, Submitted May 3, 2010

In early 2009, as Plaintiffs’ Amended Complaint was pending before this Court, a former soldier by the name of Joe Hickman approached the law school of Seton Hall University, which had produced several reports dealing with the deaths and whose work Hickman had followed. Hickman was a decorated Army officer who had served a distinguished tour of duty at Guantánamo from March 2006 to March 2007 and had been on duty as sergeant of the guard the night Al-Zahrani and Al-Salami died. Hickman said he had decided to come forward with his story because what he had seen “was “haunting me” and he thought that “with a new administration and new ideas I could actually come forward.” While he did not want to speak to the press, he felt that “silence was just wrong.”

On January 18, 2010, Hickman’s account and interviews from three other soldiers under his supervision — Specialist Tony Davila, Army Specialist Christopher Penvose, and Army Specialist David Caroll — were reported by Harper’s Magazine. The article, which serves as the source for this motion and Plaintiffs incorporate in full herein, was the first time Plaintiffs and their counsel became aware of the soldiers’ accounts.

Those accounts are dramatically at odds with the official version of events on June 9-10, 2006. The soldiers describe a cover-up initiated by the authorities within hours of the deaths and say they were affirmatively told not to speak out. Despite having first-hand observations of camp activity that night, they were never approached or interviewed for the NCIS investigation. While the official account of the deaths concluded that Al-Zahrani, Al-Salami and the third deceased, Mani Al-Utaybi, had hanged themselves in their cells, the soldiers’ accounts strongly suggest that the men were transported from their cells to an undisclosed, unofficial “black site” nicknamed “Camp No” that was outside the perimeter of the main prison camp, and died there or from events that transpired there.

Specifically, according to the soldiers’ reported accounts:

• Between approximately 6-8 p.m. on June 9, Hickman observed the van used to transport detainees drive up to the camp where the deceased were held three separate times in short succession. Each time, guards escorted a detainee from the camp to the van and drove away in the direction of Camp No. By the third time he saw the van approach the deceased’s camp, Hickman decided to drive ahead of the vehicle in the direction of Camp No to confirm where it was going. From his vantage point shortly thereafter, he saw the van approach and turn toward Camp No, eliminating any question in his mind about its destination.

• Camp No is an unnamed and officially unacknowledged facility located outside the perimeter of the area enclosing the prison complex at Guantánamo. Guards nicknamed the facility “Camp No” because anyone who asked if it existed would be told, “No, it doesn’t.” Hickman was never briefed about the site, despite frequently being put in charge of security for the entire prison. He reported once hearing a “series of screams” coming from the facility.

• At approximately 11:30 p.m., from his position in a watch tower, Hickman watched the van he had seen transporting the detainees to Camp No return to the camp. This time, the van backed up to the entrance of the medical clinic, as if to unload something.

• At approximately 11:45 p.m., nearly an hour before the NCIS claims the first dead body was discovered in the cells, Army Specialist Christopher Penvose was approached by a senior navy officer who appeared to be extremely agitated and instructed Penvose to go the prison chow hall, identify a specific officer who would be dining there, and relay a specific code word. Penvose did as he was instructed. The petty officer leapt up from her seat and immediately ran out of the chow hall.

• At approximately 12:15 a.m. on June 10, Hickman and Penvose reported that the camp was suddenly flooded with lights and the scene of a frenzy of activity. Hickman headed to the medical clinic, which appeared to be the center of activity, and was told by a medical corpsman there that three dead prisoners had been delivered to the clinic, that they had died because they had rags stuffed down their throats, and that one of them was severely bruised.

• According to Specialist Tony Davila, guards he talked to also said the men had died as the result of having rags stuffed down their throats.

• While the NCIS report’s narrative is that the deceased were found dead in their cells and transported from there to the medical clinic, Penvose, who was on guard duty in a watch tower at the time the deceased would have been transported to the clinic, had an unobstructed view of the walkway between the camp and the clinic, which was the path by which any detainee would be delivered to the clinic. Penvose reported that he saw no detainees being moved from the camp to the clinic.

• Army Specialist David Caroll, who was also on guard duty in another watch tower at the time the NCIS report says the deceased would have been transported to the clinic, also had an unobstructed view of the alleyway that connected the men’s specific cell block to the clinic. He similarly reported that he had seen no detainees transferred from the cell block to the clinic that night.

• By dawn, the news had circulated through the prison that three detainees had committed suicide by swallowing rags.

• On the morning of June 10, Defendant Mike Bumgarner, Commander of the Joint Detention Group at Guantánamo at the time, called a meeting of the guards during which he announced that three detainees had committed suicide during the night by swallowing rags, causing them to choke to death. Defendant Bumgarner said that the media would instead report that the detainees had committed suicide by hanging themselves in their cells. He said that it was important that the guards make no comments or suggestions that in any way undermined the official report, and reminded them that their phone and email communications were being monitored. This account of the meeting was corroborated by various guards in independent interviews conducted by Harper’s.

• On the evening of June 10, Defendant Harry Harris, Commander of the Joint Task Force at Guantánamo and Defendant Bumgarner’s superior at the time, read this statement to reporters: “An alert, professional guard noticed something out of the ordinary in the cell of one of the detainees. … When it was apparent that the detainee had hung himself, the guard force and medical teams reacted quickly to attempt to save the detainee’s life. The detainee was unresponsive and not breathing. [The] guard force began to check on the health and welfare of other detainees. Two detainees in their cells had also hung themselves.”

• In a press interview at the time, Defendant Bumgarner, contrary to his own admonition to the guards, let slip that each deceased detainee “had a ball of cloth in their mouth either for choking or muffling their voices.”

• As soon as Defendant Bumgarner’s interview was published, Defendant Harris called him for a meeting and told him that the article “could get me relieved.” The same day, an investigation was launched to determine whether classified information had been leaked from Guantánamo. Defendant Bumgarner was subsequently suspended.

• Hickman and Davila later learned that Defendant Bumgarner’s home was raided by the FBI over a concern that he had taken classified materials and was planning to send them to the media or use them for writing a book.

• The only apparent discrepancy between Defendant Bumgarner’s interview and the official Pentagon narrative was on one point: that the deaths had involved cloth being stuffed into the detainees’ mouths.

• For several months after Hickman first came forward, he and his attorneys attempted to pursue an investigation through the Department of Justice. Their first meeting was on February 2, 2009, where they related a detailed account of Hickman’s observations and later handed over a list of corroborating witnesses with contact information. The Justice Department ultimately closed its investigation on November 2, 2009, concluding without explanation that “the gist of Sergeant Hickman’s information could not be confirmed” and his conclusions “appeared” to be unsupported.

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

As published exclusively on Cageprisoners. Cross-posted on Common Dreams, The Smirking Chimp, The Public Record and Uruknet.

For a sequence of articles dealing with the hunger strikes and deaths at Guantánamo, see Suicide at Guantánamo: the story of Abdul Rahman al-Amri (May 2007), Suicide at Guantánamo: a response to the US military’s allegations that Abdul Rahman al-Amri was a member of al-Qaeda (May 2007), Shaker Aamer, A South London Man in Guantánamo: The Children Speak (July 2007), Guantánamo: al-Jazeera cameraman Sami al-Haj fears that he will die (September 2007), The long suffering of Mohammed al-Amin, a Mauritanian teenager sent home from Guantánamo (October 2007), Guantánamo suicides: so who’s telling the truth? (October 2007), Innocents and Foot Soldiers: The Stories of the 14 Saudis Just Released From Guantánamo (Yousef al-Shehri and Murtadha Makram) (November 2007), A letter from Guantánamo (by Al-Jazeera cameraman Sami al-Haj) (January 2008), A Chinese Muslim’s desperate plea from Guantánamo (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), The forgotten anniversary of a Guantánamo suicide (May 2008), Binyam Mohamed embarks on hunger strike to protest Guantánamo charges (June 2008), Second anniversary of triple suicide at Guantánamo (June 2008), Guantánamo Suicide Report: Truth or Travesty? (August 2008), The Pentagon Can’t Count: 22 Juveniles Held at Guantánamo (November 2008), Seven Years Of Guantánamo, And A Call For Justice At Bagram (January 2009), British torture victim Binyam Mohamed to be released from Guantánamo (January 2009), Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), Obama’s “Humane” Guantánamo Is A Bitter Joke (February 2009), Forgotten in Guantánamo: British resident Shaker Aamer (March 2009), Guantánamo’s Long-Term Hunger Striker Should Be Sent Home (March 2009), Guantánamo, Bagram and the “Dark Prison”: Binyam Mohamed talks to Moazzam Begg (March 2009), Forgotten: The Second Anniversary Of A Guantánamo Suicide (May 2009), Yemeni Prisoner Muhammad Salih Dies At Guantánamo (June 2009), Death At Guantánamo Hovers Over Obama’s Middle East Visit (June 2009), Guantánamo’s Hidden History: Shocking Statistics of Starvation (June 2009), Binyam Mohamed: Was Muhammad Salih’s Death In Guantánamo Suicide? (June 2009), Torture In Guantánamo: The Force-feeding Of Hunger Strikers (for ACLU, June 2009), Murders at Guantánamo: Scott Horton of Harper’s Exposes the Truth about the 2006 “Suicides” (January 2010), Torture in Afghanistan and Guantánamo: Shaker Aamer’s Lawyers Speak (February 2010), The Third Anniversary of a Death in Guantánamo (May 2010), Omar Deghayes and Terry Holdbrooks Discuss Guantánamo (Part Three): Deaths at the Prison (June 2010), Suicide or Murder at Guantánamo? (1st anniversary of Mohammed al-Hanashi’s death, June 2010).

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

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

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

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

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

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

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

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

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

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

Farhi Saeed bin Mohammed’s story

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

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

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

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

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

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

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

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

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

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

The torture of Binyam Mohamed

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Will Farhi Saeed bin Mohammed be released?

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

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

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

(‘’)

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

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

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

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

The judges were Lord Justice Thomas and Mr. Justice Lloyd Jones, and their attempt to inform the public came in a judgment that followed a judicial review of Mohamed’s case during the summer of 2008, which was itself triggered by the British government’s refusal to release 42 documents in its possession regarding his detention in Pakistan.

August 2008: The quest to reveal information about US torture begins

In their judgment last August, the judges made it clear that they were appalled by the global torture program in which they had found themselves unexpectedly immersed. In one of the most extraordinary stories in the “War on Terror,” Mohamed, a British resident picked up in Pakistan in April 2002, had been rendered by CIA agents to Morocco in July 2002, where he had spent 18 months being tortured, had then been rendered to Afghanistan, to the “Dark Prison” outside Kabul, a secret prison run by the CIA, where he had spent another four months, and had then been flown to Guantánamo, where he remained while the judges grappled with the largely classified evidence of a global web of kidnapping and torture.

In a remarkable ruling, the judges roundly condemned the British government for sending an agent to Pakistan to interview Mohamed in May 2002, when he was being held incommunicado (which was illegal), and for providing and receiving intelligence about him for at least eight months after his disappearance from Pakistan, even though the British intelligence services claimed not to know where he was being held, and should not have been involved without receiving cast-iron assurances about his welfare. In the judgment, they stated explicitly that, “by seeking to interview BM [Mohamed] in the circumstances found and supplying information and questions for his interviews, the relationship between the United Kingdom Government and the United States authorities went far beyond that of a bystander or witness to the alleged wrongdoing.”

As I explained in an article last November:

The judges also seized on an admission, made on behalf of the foreign secretary, David Miliband, that Mohamed had “established an arguable case” that, until his transfer to Guantánamo, “he was subject to cruel, inhuman and degrading treatment by or on behalf of the United States,” and was also “subject to torture during such detention by or on behalf of the United States,” and ruled that, because the information obtained from Mohamed was “sought to be used as a confession in a trial [by Military Commission at Guantánamo] where the charges … are very serious and may carry the death penalty,” and that it is “a long-standing principle of the common law that confessions obtained by torture or cruel, inhuman or degrading treatment cannot be used as evidence in any trial,” the British government was required to hand over the evidence — 42 documents in total — to his lawyers.

In the end, however, the judges stopped short of ordering the government to release the 42 documents — and also stopped short of including in their judgment a seven paragraph summary of these documents — bowing to pressure from David Miliband, who, in the absence of any other straws to which to cling, urged them not to order disclosure of the documents because of national security concerns; specifically, that to do so might damage the intelligence-sharing relationship between the UK and the US.

Developments in the US, and an unusual request from the British judges

Much has changed in the 14 months since this initial judgment. Last October, in the United States, the Justice Department responded to similar pressure to release the documents, applied by a judge in Mohamed’s habeas corpus petition, by dropping the central allegation against him — that he was involved, with US citizen Jose Padilla, in a plot to detonate a radioactive “dirty bomb” in New York — and, in November, the Defense Department shelved Mohamed’s proposed trial by Military Commission, which focused on the same spurious claims.

To anyone who had been studying the case closely, this was a relief, as, back in June 2002, before Mohamed’s rendition to Morocco, and just a month after Padilla’s capture (and before his long isolation and torture on the US mainland), Paul Wolfowitz, the deputy to US defense secretary Donald Rumsfeld, admitted that “there was not an actual plan” to set off a “dirty bomb” in America, that Padilla had not begun trying to acquire materials, and that intelligence officials had stated that his research had not gone beyond surfing the Internet.

Despite these developments in the US, the British judges found themselves engaged in a far more intractable struggle with their own government. In two hearings that followed their August judgment, the foreign secretary produced correspondence from US State Department officials, clearly threatening the intelligence-sharing arrangement between the US and the UK should the documents be released.

In a first letter, dated August 21, 2008, John Bellinger, the US State Department’s Legal Adviser, stated that disclosure of the documents — or of the information they contained — was “likely to result in serious damage to US national security and could harm existing intelligence sharing arrangements between our two governments,” and in a second letter, dated September 5, 2008, Stephen Mathias, the State Department’s Assistant Legal Adviser, went one step further, suggesting that there would be “serious and lasting damage to the US-UK intelligence sharing relationship,” should the documents — or the information they contained — be disclosed.

Even so, the judges were reluctant to give up, and, in November, took the highly unusual step of soliciting responses from the media regarding their decision to bow to pressure from the government and not release their summary of the documents, by stressing that “the issue is one of considerable importance in the context of open justice,” and noting that, in the opinion of the Special Advocates (lawyers assigned to represent Mohamed in the closed sessions of the judicial review, which included most of the cross-examination of the British agent who had interviewed him in Pakistan), the government’s Public Interest Immunity Certificate (the document urging non-disclosure) “failed to address, in the light of allegations made by BM [Mohamed], the abhorrence and condemnation accorded to torture and cruel, inhuman or degrading treatment.”

In seeking to reopen their judgment, the judges recognized that the requirements of “open justice” needed to be offset against two factors in the government’s favor. The first, as they described it in their most recent judgment last Friday (PDF), was the “principle of control over evidence,” and, as they explained:

There can be no doubt that there is a general principle or convention that intelligence information received by one State from another will not be released into the public domain or otherwise used without the consent of the state supplying it.

However, as they also noted, although States would “normally be expected to resist the making of a court order for disclosure,” the “principle of control over evidence … cannot be considered an absolute principle,” because “court ordered disclosure is well understood by the Governments of the United States and the United Kingdom to be an exception to the principle of control.”

The second factor that needed to be considered was the explicit threat provided by the United States, regarding the intelligence sharing relationship between the US and the UK, and it is on this point that, since the election of Barack Obama as the 44th President of the United States, the British government has, to be blunt, struggled to establish that the new administration has made the same threats as the Bush administration.

The key question of how the Obama administration regards the disclosure of US torture

In response to the judges’ request for input from the media regarding the seven paragraph summary, the journalist David Rose made a submission on November 30, in which he “pointed out that the position had changed significantly with the election of ‘a US President avowedly determined to eschew torture and inhuman and degrading treatment,’” and added that the new administration was “unlikely to protest at further confirmation that its predecessor saw the inhuman and degrading treatment of detainees as acceptable.”

On December 18, the foreign secretary responded, stating that “the situation has not changed since the election of Barack Obama.” He added, “The concern relates to the disclosure of closed information,” and also claimed, “The Secretary of State’s assessment of the likelihood of and severity of the damage to national security has not changed.”

Mohamed’s lawyers then responded by stating that the foreign secretary’s assertion “needed to be proved by evidence,” but, as the judges noted, “Unfortunately, the letter [from Mohamed’s lawyers] was not copied to the court. No response was made by the Treasury Solicitor on behalf of the Foreign Secretary. That omission proved, in the event, to be regrettable.”

As a result — unaware that the government’s assertions had been challenged — the judges issued a fourth judgment on February 4, 2009, in which, yet again, they reluctantly defended the government’s position. However, it appears, from last Friday’s judgment, that they almost immediately regretted making this decision, for the following reasons.

Firstly, David Rose responded immediately by asking the Foreign and Commonwealth Office “how the Foreign Secretary could know that the threat made by the Bush Administration … was being maintained by the Obama Administration.” In response, a spokesman for the foreign secretary conceded, “We have not approached the new Administration about these paragraphs,” leading the judges to conclude, as they explained last Friday, that:

… when questions were asked of the Foreign Secretary, both in the media and in Parliament, as to whether there was any change of position of the Obama Administration, his response was made in relation to the general principle of control over intelligence and not in relation to the specific statement made by the Bush Administration that it would reconsider its intelligence sharing relationship.

In the meantime, in a move that appeared to have been designed to take the heat off both the British and American governments, Binyam Mohamed was actually released from Guantánamo, arriving back in the UK on February 23, but the case, of course, had a lumbering legal life of its own, and refused to go away.

As the judges noted, statements made by spokesmen on behalf of President Obama in this period never “went beyond restating the general principle of control over intelligence,” and they cited a letter dated March 24, 2009, in which Daniel Bethlehem QC, the FCO’s Legal Adviser, referred to a statement made by the Press Office of the National Security Council on February 4, in which it was stated, “The United States thanks the UK government for its continuing commitment to protect sensitive national security information and preserve the long-standing relationship that enables both countries to protect their citizens.”

As the judges added, “No statement reiterated the position taken by the Bush Administration that if we did make the seven redacted paragraphs public, then there would be consequences in the form of a reconsideration of the intelligence sharing relationship.”

Moreover, by April 22, during another hearing, it became clear to the judges that, “despite the meetings that had taken place between officials and Ministers of the United Kingdom and United States, no one on behalf of the United Kingdom Government had, in the period between the handing down of our [fourth] judgment on 4 February 2009 and the hearing before us on 22 April 2009, asked the Obama Administration whether, in the event of our making the information in the redacted paragraphs public, his Administration would reconsider the intelligence sharing relationship.” In the most crucial lines, they added, “It appears to be the position that it was assumed, in the absence of a statement by the Obama Administration, that the position had not changed, but no one sought any confirmation.”

As a result, the judges stated that, in response to David Rose’s submission on November 30, 2008, “all the Foreign Secretary could properly have stated to the court (because he had no basis for saying any more) was that he did not expect there would be any change in the position of the Obama Administration,” adding, “He should have informed the court that he did not know what the position of the Obama Administration was as to the specific consequences of publication.”

The judges’ decision to reopen their judgment

This, in turn, led to the judges’ decision to reopen their fourth judgment on May 6, and, through a discussion of other submissions made during the April 22 hearing (in last Friday’s judgment), they also made it clear that they had been persuaded that “President Obama had publicly expressed very different views on issues of torture, interrogation techniques and transparency from those of officials of the Bush Administration, including Mr. Bellinger, legal adviser to the State Department, and Secretary of State Rice.”

They also attached particular importance to Obama’s decision, on April 16, to release “a number of memoranda issued by the United States Department of Justice’s Office of Legal Counsel dealing with the treatment of al-Qaeda detainees” (generally known as the “torture memos”), clearly agreeing with Mohamed’s lawyers, who told the court on April 22 that, “in the light of the making public of these memoranda, it was quite impossible to contend that the Obama Administration would ever have contemplated reconsidering the intelligence sharing relationship with United Kingdom if we made the redacted paragraphs public.”

It also transpired that the judges had been influenced by “an interim statement” made by the Obama administration, which “made clear that the United States Government was ‘considering the decision on the public disclosure of the US intelligence information that is summarized in the seven paragraphs,’” but had not yet made a decision.

However, just before the judges decided to reopen their judgment, the Treasury Solicitor, acting on behalf of the foreign secretary, submitted a two paragraph summary of a letter, dated April 30, “from an entity of the United States Government to an entity of the United Kingdom Government (the details were redacted), which, it was claimed, established that the Obama administration was following its predecessor’s line, and maintaining that disclosure of the judges’ summary would have serious consequences for the intelligence sharing relationship between the US and the UK.

Even at the time, based on the limited information available, Mohamed’s lawyers established that, in fact, “the two paragraphs stated what could happen, [and] did not state what would happen,” and, in the months since, this interpretation has become even clearer. Despite requests by the judges for disclosure of the identity of the agency that sent the letter, and for disclosure of the full contents of the letter, which, in their opinion, could not justifiably be suppressed due to national security concerns, it took until July 15 for the FCO to admit that the letter had been sent by the CIA to the British intelligence services, and it took until the judgment last Friday for the full contents of the letter to be revealed, in which, as the judges explained succinctly, “no threat was made.”

In a key passage, the CIA letter stated:

The seven paragraphs at issue are based upon classified information shared between our countries. Public disclosure of this information reasonably could be expected to cause serious damage to the United Kingdom’s national security. Specifically, the disclosure of this information may result in a constriction of the US-UK relationship, as well as UK relationships with other countries.

This reinforced what Mohamed’s lawyers had stated back in May, but in the most shocking passage in the whole judgment, the judges explained that representatives of the foreign secretary and the intelligence services had told the judges that they “were better placed in interpreting the letter than other persons and the court,” and, remarkably, that the foreign secretary’s view, “based on such advice, was that ‘could’ should be read as meaning ‘would,’” and that, therefore, the letter “contained an explicit statement of consequences.”

This, of course, was too much for the judges, who responded by stating that both the CIA’s letter — and a follow-up, dated June 30, from General James L. Jones, the Assistant to the President for National Security Affairs, to his British counterpart, confirming that the CIA’s April 30 letter “reflected the views of the United States Administration” — were “written in plain English,” and that they “do not require expert interpolation to be placed between the drafter and the court.”

With this dismissal of the government’s claims, it remained only for the judges to dismiss an additional claim that Secretary of State Hillary Clinton had stated that “there was no difference between the position of the Bush and Obama Administrations as to the consequences that would follow,” should the judges’ summary be released. This they did by pointing out that the minutes of a meeting on May 12, which were relied upon by the government for its claim, actually demonstrate that Secretary Clinton had been discussing the 42 documents, “which contain intelligence information,” and not the judges’ seven paragraph summary, which, as they have maintained all along, “do not contain anything of an intelligence or secret nature.”

And so, with further mention of “the exceptional circumstances of the present case,” with its “unprecedented” proceedings, concerning “matters of great public importance,” the judges ruled that, following President Obama’s release of the “torture memos,” it “is now impossible to contend that details of the interrogation methods are themselves matters of intelligence,” and that, because no threat had been demonstrated by the British government, “a vital public interest requires, for reasons of democratic accountability and the rule of law in the United Kingdom, that a summary of the most important evidence relating to the involvement of the British security services in wrongdoing be placed in the public domain in the United Kingdom.”

They concluded, “We shall therefore re-issue our first judgment with the paragraphs restored.”

Devastating admissions beyond the scope of the judgment

This is not the end of the story, of course. The government, predictably, has appealed yet again, but whilst it is, of course, vital for “open justice” that the judge’s redacted paragraphs are restored, it should be noted, in conclusion, that the entire sordid story of cooperation between the US and the UK in the torture of Binyam Mohamed goes deeper than this judgment allowed the judges to delve.

As they noted in passing (and as I explained at length in an article in August, “What The British Government Knew About The Torture Of Binyam Mohamed”), new revelations this summer confirm that the British intelligence services had been sharing intelligence with their US counterparts until May 2004 (and not February 2003, as previously stated), and that, far from not knowing where Mohamed was being held between July 2002 and January 2004, the British government had actually sent an agent to Morocco to interview him. In their judgment, the judges noted, with apparent regret, that, had these facts surfaced earlier, they would have led to further cross-examination of the agent who interviewed Mohamed in Pakistan, and that it was “inevitable that we would have made further findings, some of which we would have put into the open judgment.”

This is perhaps something of an understatement. This summer it also transpired that the British government had sent a spy to Morocco to interview Mohamed, as well as a British agent. As the government struggles to continue its 14-month mission to suppress evidence of US torture in Pakistan (and its complicity in it), it should also be bracing itself for fresh challenges regarding the apparent perjury of the agent who was cross-examined by the judges in the summer of 2008, and for further challenges regarding its increasingly obvious complicity in the long ordeal of Binyam Mohamed in Morocco and Afghanistan, which indicate that much more “wrongdoing” is at stake than was conceived of by Lord Justice Thomas and Mr. Justice Lloyd Jones, when they wrote last August that “the relationship between the United Kingdom Government and the United States authorities went far beyond that of a bystander or witness to the alleged wrongdoing.”

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

As published exclusively on Truthout.

For other articles relating to Binyam Mohamed, see the following: Urgent appeal for British resident Binyam Mohamed, “close to suicide” in Guantánamo (December 2007), Guantánamo: Torture victim Binyam Mohamed sues British government for evidence (May 2008), Binyam Mohamed’s letter from Guantánamo to Gordon Brown (May 2008), Guantánamo trials: critical judge sacked, British torture victim charged (June 2008), Binyam Mohamed: UK court grants judicial review over torture allegations, as US files official charges (June 2008), Binyam Mohamed’s judicial review: judges grill British agent and question fairness of Guantánamo trials (August 2008), High Court rules against UK and US in case of Guantánamo torture victim Binyam Mohamed (August 2008), In a plea from Guantánamo, Binyam Mohamed talks of “betrayal” by the UK (September 2008), US Justice Department drops “dirty bomb plot” allegation against Binyam Mohamed (October 2008), Meltdown at the Guantánamo Trials (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), A History of Music Torture in the “War on Terror” (December 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), British torture victim Binyam Mohamed to be released from Guantánamo (January 2009), Don’t Forget Guantánamo (February 2009), The Betrayal of British Torture Victim Binyam Mohamed (February 2009), Hiding Torture And Freeing Binyam Mohamed From Guantánamo (February 2009), Binyam Mohamed’s Coming Home From Guantánamo, As Torture Allegations Mount (February 2009), Binyam Mohamed’s statement on his release from Guantánamo (February 2009), Who Is Binyam Mohamed? (February 2009), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009), Guantánamo, Bagram and the “Dark Prison”: Binyam Mohamed talks to Moazzam Begg (March 2009), Obama’s First 100 Days: Mixed Messages On Torture (May 2009), UK Government Lies Exposed; Spy Visited Binyam Mohamed In Morocco (May 2009), Daily Mail Pulls Story About Binyam Mohamed And British Spy (May 2009), Government Bans Testimony On Binyam Mohamed And The British Spy (May 2009), More twists in the tale of Binyam Mohamed (in the Guardian, May 2009), Outsourcing torture to foreign climes (in the Guardian, May 2009), Binyam Mohamed: Was Muhammad Salih’s Death In Guantánamo Suicide? (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009), US Torture Under Scrutiny In British Courts (July 2009), Former prisoners launch the Guantánamo Justice Centre in London (August 2009).

In his testimony to the Senate Committee, Maj. Burney wrote that “a large part of the time we were focused on trying to establish a link between al-Qaeda and Iraq and we were not successful in establishing a link between al-Qaeda and Iraq. The more frustrated people got in not being able to establish that link … there was more and more pressure to resort to measures that might produce more immediate results.”

In an article to follow, I’ll look at how Maj. Burney — almost accidentally — assumed a pivotal role in the implementation of torture techniques in the “War on Terror,” but for now I’m going to focus on the significance of his comments, which are, of course, profoundly important because they demonstrate that, in contrast to the administration’s oft-repeated claims that the use of “enhanced interrogation techniques” foiled further terrorist attacks on the United States, much of the program was actually focused on trying to establish links between al-Qaeda and Saddam Hussein that would justify the planned invasion of Iraq.

Maj. Burney’s testimony provides the first evidence that coercive and illegal techniques were used widely at Guantánamo in an attempt to secure information linking al-Qaeda to Saddam Hussein, but it is not the first time that the Bush administration’s attempts to link a real enemy with one that required considerable ingenuity to conjure up have been revealed.

Ibn al-Shaykh al-Libi: the tortured lie that underpinned the Iraq war

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.

It’s wise, I believe, to resuscitate al-Libi’s story right now for two particular reasons. The first is because, when he was handed over to US forces by the Pakistanis, he became the first high-profile captive to be fought over in a tug-of-war between the FBI, who wanted to play by the rules, and the CIA — backed up by the most hawkish figures in the White House and the Pentagon — who didn’t. In an article published in the New Yorker in February 2005, Jane Mayer spoke to Jack Cloonan, a veteran FBI officer, who worked for the agency from 1972 to 2002, who told her that his intention had been to secure evidence from al-Libi that could be used in the cases of two mentally troubled al-Qaeda operatives, Zacarias Moussaoui, a proposed 20th hijacker for the 9/11 attacks, and Richard Reid, the British “Shoe Bomber.”

Crucially, Mayer reported, Cloonan advised his colleagues in Afghanistan to interrogate al-Libi with respect, “and handle this like it was being done right here, in my office in New York.” He added, “I remember talking on a secure line to them. I told them, ‘Do yourself a favor, read the guy his rights. It may be old-fashioned, but this will come out if we don’t. It may take ten years, but it will hurt you, and the bureau’s reputation, if you don’t. Have it stand as a shining example of what we feel is right.’”

However, after reading him his rights, and taking turns in interrogating him with agents from the CIA, Cloonan and his colleagues were dismayed when, in spite of developing what they believed was “a good rapport” with him, the CIA decided that tougher tactics were needed, and rendered him to Egypt. According to an FBI officer who spoke to Newsweek in 2004, “At the airport the CIA case officer goes up to him and says, ‘You’re going to Cairo, you know. Before you get there I’m going to find your mother and I’m going to f*** her.’ So we lost that fight.” Speaking to Mayer, Jack Cloonan added, “At least we got information in ways that wouldn’t shock the conscience of the court. And no one will have to seek revenge for what I did.” He added, “We need to show the world that we can lead, and not just by military might.”

In November 2005, the New York Times reported that a Defense Intelligence Agency report had noted in February 2002, long before al-Libi recanted his confession, that his information was not trustworthy. As the Times described it, his claims “lacked specific details about the Iraqis involved, the illicit weapons used and the location where the training was to have taken place.” The report itself stated, “It is possible he does not know any further details; it is more likely this individual is intentionally misleading the debriefers. Ibn al-Shaykh has been undergoing debriefs for several weeks and may be describing scenarios to the debriefers that he knows will retain their interest.”

Had anyone asked Dan Coleman, a colleague of Cloonan’s who also had a long history of successfully interrogating terrorist suspects without resorting to the use of torture, it would have been clear that torturing a confession out of al-Libi was a counter-productive exercise.

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.”

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.

Where are Ibn al-Shaykh al-Libi and the other 79 “ghost prisoners”?

In addition, a second reason for revisiting al-Libi’s story emerged two weeks ago, when memos approving the use of torture by the CIA, written by lawyers in the Justice Department’s Office of Legal Counsel in 2002 and 2005, were released, because, in one of the memos from 2005, the author, Principal Deputy Assistant Attorney General Steven G. Bradbury, revealed that a total of 94 prisoners had been held in secret CIA custody. As I noted at the time, what was disturbing about this revelation was not the number of prisoners held, because CIA director Michael Hayden admitted in July 2007 that the CIA had detained fewer than 100 people at secret facilities abroad since 2002, but the insight that this exact figure provides into the supremely secretive world of “extraordinary rendition” and secret prisons that exists beyond the cases of the 14 “high-value detainees” who were transferred to Guantánamo from secret CIA custody in September 2006.

Al-Libi, of course, is one of the 80 prisoners whose whereabouts are unknown. There are rumors that, after he was fully exploited by the administration’s own torturers (in Poland and, almost certainly, other locations) and by proxy torturers in Egypt, he was sent back to Libya, to be dealt with by Colonel Gaddafi. I have no sympathy for al-Libi, as the emir of a camp that, at least in part, trained operatives for terrorist attacks in their home countries (in Europe, North Africa and the Middle East), but if there is ever to be a proper accounting for what took place in the CIA’s global network of “extraordinary rendition,” secret prisons, and proxy prisons, then al-Libi’s whereabouts, along with those of the other 79 men who constitute “America’s Disappeared” (as well as all the others rendered directly to third countries instead of to the CIA’s secret dungeons), need to be established.

Torturing Abu Zubaydah “to achieve a political objective”

Al-Libi’s story is, of course, disturbing enough as evidence of the utter contempt with which the Bush administration’s warmongers treated both the truth and the American public, but as David Rose explained in an article in Vanity Fair last December, al-Libi was not the only prisoner tortured until he came up with false confessions about links between Saddam Hussein and al-Qaeda.

According to two senior intelligence analysts who spoke to Rose, Abu Zubaydah, the gatekeeper for the Khaldan camp, made a number of false confessions about connections between Saddam Hussein and al-Qaeda, above and beyond one particular claim that was subsequently leaked by the administration: a patently ludicrous scenario in which Osama bin Laden and Abu Musab al-Zarqawi (the leader of al-Qaeda in Iraq) were working with Saddam Hussein to destabilize the autonomous Kurdish region in northern Iraq. One of the analysts, who worked at the Pentagon, explained, “The intelligence community was lapping this up, and so was the administration, obviously. Abu Zubaydah was saying Iraq and al-Qaeda had an operational relationship. It was everything the administration hoped it would be.”

However, none of the analysts knew that these confessions had been obtained through torture. The Pentagon analyst told Rose, “As soon as I learned that the reports had come from torture, once my anger had subsided I understood the damage it had done. I was so angry, knowing that the higher-ups in the administration knew he was tortured, and that the information he was giving up was tainted by the torture, and that it became one reason to attack Iraq.” He added, “It seems to me they were using torture to achieve a political objective.”

This is the crucial line, of course, and its significance is made all the more pronounced by the realization that, as one of Bradbury’s torture memos also revealed, Zubaydah was subjected to waterboarding (an ancient torture technique that involves controlled drowning) 83 times in August 2002. The administration persists in claiming that this hideous ordeal produced information that led to the capture of Khalid Sheikh Mohammed and Jose Padilla, but we have known for years that KSM was seized after a walk-in informer ratted on him, and those of us who have been paying attention also know that, in the case of Padilla, the so-called “dirty bomber,” who spent three and a half years in solitary confinement in a US military brig until he lost his mind, there never was an actual “dirty bomb” plot. This was admitted, before his torture even began, by deputy defense secretary Paul Wolfowitz, who stated, in June 2002, a month after Padilla was captured, “I don’t think there was actually a plot beyond some fairly loose talk.”

All this leaves me with the uncomfortable suspicion that what the excessive waterboarding of Abu Zubaydah actually achieved — beyond the “30 percent of the FBI’s time, maybe 50 percent,” that was “spent chasing leads that were bullshit,” as an FBI operative explained to David Rose — were a few more blatant lies to fuel the monstrous deception that was used to justify the invasion of Iraq.

A single Iraqi anecdote, and a bitter conclusion

It remains to be seen if further details emerge to back up Maj. Burney’s story. From my extensive research into the stories of the Guantánamo prisoners, I recall only that one particular prisoner, an Iraqi named Arkan al-Karim, mentioned being questioned about Iraq. Released in January this year, al-Karim had been imprisoned by the Taliban before being handed over to US forces by Northern Alliance troops, and had been forced to endure the most outrageous barrage of false allegations in Guantánamo, but when he spoke to the review board that finally cleared him for release, he made a point of explaining, “The reason they [the US] brought me to Cuba is not because I did something. They brought me from Taliban prison to get information from me about the Iraqi army before the United States went to Iraq.”

However, even without further proof of specific confessions extracted by the administration in an attempt to justify its actions, the examples provided in the cases of Ibn al-Shaykh al-Libi and Abu Zubaydah should be raised every time that Dick Cheney opens his mouth to mention the valuable intelligence that was extracted through torture, and to remind him that, instead of saving Americans from another terror attack, he and his supporters succeeding only in using lies extracted through torture to send more Americans to their deaths than died on September 11, 2001.

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 see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on CounterPunch (as “Cheney’s Twisted World”), Antiwar.com (as “Torture ‘to Achieve a Political Objective’”), the Huffington Post and ZNet.

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, CIA Torture Began In Afghanistan 8 Months before DoJ Approval (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) (all May 2009), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA), and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 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), 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), and the extensive archive of articles about the Military Commissions.

Moreover, the sources cited by the Post maintained that his torture in secret CIA custody, which began shortly after his capture in March 2002 and transfer to a secret prison in Thailand, and was the first implementation of a torture program for “high-value detainees” that was endorsed at the highest levels of the Bush administration, was so worthless that “not a single significant plot was foiled” as a result of it.

Abu Zubaydah’s story

Clearly following up on the graphic descriptions of torture in Mark Danner’s recent article for the New York Review of Books, analyzing a leaked Red Cross report based on interviews with the 14 “high-value detainees” (including Zubaydah and Khalid Sheikh Mohammed, the self-confessed 9/11 mastermind), who were transferred to Guantánamo from secret CIA custody in September 2006, the Post’s article established that Zubaydah, “born in 1971 in Saudi Arabia to a Palestinian father and a Jordanian mother, according to court papers,” traveled to Afghanistan in 1991 to support the mujahideen fighting the Communist government that was clinging to power in the wake of the Soviet withdrawal in 1989, but was “seriously wounded by shrapnel from a mortar blast in 1992, sustaining head injuries that left him with severe memory problems, which still linger.”

In 1994, while based in Pakistan, Zubaydah began fundraising and coordinating recruits for the Khaldan training camp, in eastern Afghanistan. Although regularly described by the Bush administration as an al-Qaeda training camp, it is clear from numerous sources, including the 9/11 Commission Report, that Khaldan and another camp, Durunta, “were not al-Qaeda facilities,” although there was apparently some contact with Osama bin Laden when it came to exploiting promising recruits.

After his capture, in a house raid in Faisalabad, Pakistan, on March 28, 2002, Zubaydah was flown to a CIA-run “black site” in Thailand, where the FBI began interrogating him using old-school, torture-free methods, which had a proven track record. Within a matter of weeks, however, the FBI agents were shamefully discarded by the administration’s most senior officials, who believed that another major attack was imminent, and that only the use of torture would persuade a significant captured terrorist — as Zubaydah was presumed to be — to talk. The job of interrogating Zubaydah was handed over to the CIA, whose new repertoire of techniques consisted primarily of torture, including waterboarding (a form of controlled drowning), confinement in tiny, coffin-like boxes, extreme violence, prolonged isolation, and the use of sustained nudity and loud music and noise.

And yet, as the Post described it, 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.”

Despite this, officials recalled that the pressure for information “from upper levels of the government,” where meetings were held daily to assess the terrorist threat, was “tremendous.” “They couldn’t stand the idea that there wasn’t anything new,” one of the Post’s sources said. “They’d say, ‘You aren’t working hard enough.’ There was both a disbelief in what he was saying and also a desire for retribution — a feeling that ‘He’s going to talk, and if he doesn’t talk, we’ll do whatever.’”

“Whatever” was, of course, the torture program, which “prompted a sudden torrent of names and facts,” although, as the Post’s article makes clear, nothing of value was gained through Zubaydah’s torture. “Nearly all of the leads attained through the harsh measures quickly evaporated,” former officials explained, “while most of the useful information from Abu Zubaydah — chiefly names of al-Qaeda members and associates — was obtained before waterboarding was introduced.”

The only useful lead cited — that of Jose Padilla, who had reportedly planned to detonate a radioactive “dirty bomb” in New York — is itself extremely dubious, as deputy defense secretary Paul Wolfowitz admitted in June 2002, shortly after Padilla was seized at Chicago’s O’Hare Airport, and before he was declared an “enemy combatant” and imprisoned and tortured for three and a half years on the US mainland, that “there was not an actual plan” to set off a “dirty bomb,” and that his research had not gone much further than surfing the internet. Summing up the results of Zubaydah’s torture, a former intelligence official stated, bluntly, “We spent millions of dollars chasing false alarms.”

Ron Suskind’s exposure of the Abu Zubaydah story

None of this was, strictly speaking, news, although the Post is to be congratulated for securing further evidence to back up what was already known. Abu Zubaydah’s relative insignificance and the pointlessness of his torture was first revealed in 2006, in Ron Suskind’s book The One Percent Doctrine. Far from being “al-Qaeda’s chief of operations and top recruiter,” who would be able to “provide the names of terrorists around the world and which targets they planned to hit” (as TIME magazine — following the government line — described him after his capture), 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,” reinforcing what former officials explained to the Post for Sunday’s article.

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.”

Suskind also provided a colorful description of the results of Zubaydah’s torture, when he produced his “torrent” of false leads, explaining that he “confessed” to all manner of supposed plots — against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, and the Statue of Liberty — and that, as a result, “thousands of uniformed men and women raced in a panic to each target … The United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered.”

In key passages, Suskind explained, how, from early on, President Bush was briefed that Zubaydah was not as significant as had been presumed, a judgment that was “echoed at the top of CIA and was, of course, briefed to the President and Vice President,” but that this did nothing to prevent Bush, just a few weeks after his capture, from portraying Zubaydah as “one of the top operatives plotting and planning death and destruction on the United States.” According to Suskind, Bush told CIA director George Tenet, “I said he was important. You’re not going to let me lose face on this, are you?” He added that the President “was fixated on how to get Zubaydah to tell us the truth,” and asked, “Do some of these harsh methods really work?” As Suskind described it, “Interrogators did their best to find out,” introducing the torture techniques whose clinically regulated horrors were exposed so memorably by Mark Danner, and also by Jane Mayer in her book The Dark Side.

The FBI’s Dan Coleman speaks out

Suskind’s book was not the only occasion when Zubaydah’s story was publicized. In December 2007, when the story first broke that the CIA had illegally destroyed videotapes of interrogations including those of Zubaydah, Dan Coleman spoke out again, revisiting the CIA’s introduction of the torture program, after the successes recorded by the FBI, and telling the Washington Post how, when CIA operatives began holding him naked in his cell, “subjecting him to extreme cold and bombarding him with loud rock music,” FBI operatives who witnessed it said, “You’ve got to be kidding me. This guy’s a Muslim. That’s not going to win his confidence. Are you trying to get information out of him or just belittle him?”

Coleman also reiterated his skepticism about Zubaydah’s supposed importance, describing him as a “safehouse keeper” with mental problems, who “claimed to know more about al-Qaeda and its inner workings than he really did,” pointing out that his diaries were “full of flowery and philosophical meanderings, and made little mention of terrorism or al-Qaeda,” and explaining how he and others at the FBI had concluded not only that he had severe mental problems — particularly because of the 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?”

Abu Zubaydah’s own testimony — and that of Guantánamo prisoner Khalid al-Hubayshi

In my book The Guantánamo Files, and in an article last April, The Insignificance and Insanity of Abu Zubaydah, I also examined Zubaydah’s story, revisiting his 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, as Sunday’s Post article confirmed, “I’m not his partner and I’m not a member of al-Qaeda.” He added that his only role was to operate a guest house used by those who were training at Khaldan, and he also confirmed senior officials’ analysis of his relationship with bin Laden, saying, “Bin Laden wanted al-Qaeda to have control of Khaldan, but we refused since we had different ideas.” Further confirming points made in the Post’s article, he explained that he opposed attacks on civilian targets, which brought him into conflict with bin Laden, and although he admitted that he had been an enemy of the US since childhood, because of its support for Israel, pointed out that his enmity was towards the government and the military, and not the American people.

Another source, who confirmed much of what the senior officials — and Zubaydah himself — said, was Khalid al-Hubayshi, a Saudi prisoner released from Guantánamo in 2005, who had spent some time at the Khaldan camp, and knew Zubaydah. Al-Hubayshi told his tribunal in 2004 that, far from being a mastermind, Zubaydah was responsible for “receiving people and financing the camp,” that he once bought him travel tickets, and that he was the man he went to when he needed a replacement passport. He also confirmed that Zubaydah did not have a long-standing relationship with bin Laden. When asked, “When you were with Abu Zubaydah, did you ever see Osama bin Laden?” he replied, “In 1998, Abu Zubaydah and Osama bin Laden didn’t like each other.” He added, “In 2001, I think the relationship was okay,” and explained that bin Laden put pressure on Zubaydah to close Khaldan, essentially because he wanted to run more camps himself.

It would, of course, be difficult to overestimate what a blow Zubaydah’s story is to the Bush administration’s supposed justification for turning its back on its obligations under the UN Convention Against Torture, but the Post’s article is of particular importance for two other reasons.

What will happen to Abu Zubaydah now?

The first of these concerns Zubaydah’s current status. He was noticeably missing from the 27 prisoners charged in the Military Commission trial system at Guantánamo (before Barack Obama suspended the trials on his second day in office), but no previous reports have addressed what may happen to him now. The Post reported that some US officials “are pushing to have him charged now with conspiracy,” but that others, including CIA officials, want him sent to Jordan, where he has been accused of involvement with plots to attack a hotel and Christian holy sites. The Post explained that these officials “fear the consequences of taking a man into court who was waterboarded on largely false assumptions, because of the prospect of interrogation methods being revealed in detail and because of the chance of an acquittal that might set a legal precedent.”

On the other hand, Zubaydah’s lawyers want him to be transferred to a country other than Jordan, perhaps Saudi Arabia, where he has relatives. Law professor Joseph Margulies, one of his attorneys, explained, “The government doesn’t retreat from who KSM [Khalid Sheikh Mohammed] is, and neither does KSM. With Zubaydah, it’s different. The government seems finally to understand he is not at all the person they thought he was. But he was tortured. And that’s just a profoundly embarrassing position for the government to be in.”

The “ghost prisoners” captured with Abu Zubaydah

The most extraordinary revelation in the Post’s article, however, concerns Noor al-Deen, a Syrian teenager who was captured with Zubaydah in Pakistan. According to the former officials who spoke to the Post, al-Deen, who, like Zubaydah, suffered gunshot wounds during his capture, “worshiped the older man as a hero.” Former CIA interrogator John Kiriakou explained that al-Deen was terrified, and feared that he was about to be executed. “He was frightened — mostly over what we were going to do with him,” Kiriakou said. “He had come to the conclusion that his life was over.”

Unlike the handful of other men seized with Zubaydah, who ended up being sent to Guantánamo (without extensive stays in secret CIA custody), al-Deen and another man, Omar Ghramesh, were subjected to “extraordinary rendition” and sent to third countries to be interrogated. Aspects of Ghramesh’s story have been known about for several years, via Abdullah Almalki, a joint Syrian-Canadian national, who was seized by Syrian intelligence agents in May 2002, at the request of the Canadian authorities, and imprisoned and tortured for 22 months in the notorious military prison known as the “Palestine Branch,” before being released without charge. In 2006, Almalki was interviewed by Stephen Grey for his book Ghost Plane, and explained that two suspects seized with Zubaydah — Omar Ghramesh and an unnamed teenager — were rendered to the “Palestine Branch” on May 14, 2002, along with Abu Abdul Halim Dalak, a student seized in Pakistan in November 2001. Ghramesh explained that in Pakistan US agents had shown him photos of Abu Zubaydah looking battered and bruised, and had told him, “If you don’t talk, this is what will happen to you.”

Until now, the identity of the “unnamed teenager” was unknown, but it is now apparent that he was Noor al-Deen. The Post explained that the US officials had stated that, “perhaps because of his youth and agitated state,” al-Deen “readily answered US questions,” confirming that Zubaydah “was a well-known functionary with links to al-Qaeda, but he knew little detailed information about the group’s operations.” Nevertheless, his questioning “went on for months,” first in Pakistan, then in Morocco, and then in Syria.

The Post noted that “attempts to firmly establish his current whereabouts were unsuccessful,” but in truth the disappearance of Noor al-Deen — and of Omar Ghramesh and Abu Abdul Halim Dalak — is actually a more important story than that of Abu Zubaydah. I do not state this to play down the significance of Zubaydah’s futile and counter-productive torture, because it remains, I believe, a key element in demolishing the myths that former Bush administration officials — and especially Dick Cheney — are still using in an effort to shield themselves from prosecution, but because these three men are just a few of the hundreds — or thousands — of men whose whereabouts must be accounted for if Barack Obama is to succeed in his mission “to regain America’s moral stature in the world.”

Unlike the prisoners in Guantánamo, who have at least had some kind of opportunity to challenge the basis of their detention, through two significant Supreme Court rulings granting them habeas corpus rights, these men — genuinely, America’s Disappeared — have effectively vanished off the face of the earth, and are about as far from having any rights as it is possible for a human being to be.

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 see here for my definitive Guantánamo prisoner list, published in March 2009.

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

Note: The Washington Post’s article referred to Abu Zubaydah (whose real name is Zayn al-Abidin Muhammad Husayn — or Hussein) as Abu Zubaida.

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), 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) (all May 2009), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA), and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 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), 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), and the extensive archive of articles about the Military Commissions.

President Obama clearly regarded al-Marri’s imprisonment as significant, as he issued a Presidential memorandum on his second day in office ordering the Justice Department to review the Qatari national’s case, and the announcement that al-Marri was to be moved out of his seemingly endless legal limbo and into the federal court system demonstrated that, in this specific case at least, the President was sticking to his word.

However, what worried al-Marri’s lawyers — and those, like myself, who have been following his case closely — was that the President’s decision would also bring to an end al-Marri’s pending Supreme Court challenge, in which the nation’s most powerful judges were scheduled to review whether or not the President — any President, not just a member of the Bush family — had the right to designate as an “enemy combatant” any American, whether a citizen or a resident, and to imprison them indefinitely without charge or trial.

This was not merely an academic exercise. When al-Marri’s case was reviewed by the 4th Circuit Appeal Court last July, a majority of the judges decided that the President was indeed entitled to subject Americans to arbitrary imprisonment, despite the complaints of the dissenting judges, led by Judge Diana Gribbon Motz, who argued that, if the ruling were allowed to stand, it “would effectively undermine all of the freedoms guaranteed by the Constitution.”

The 4th Circuit majority also ignored the complaints of al-Marri’s lawyers, even though they were clearly more aware of the restraints on executive power that had been enforced by Congress in the wake of the 9/11 attacks than most of the judges. In a brief to the court, the lawyers pointed out that the President lacked the legal authority to designate and hold al-Marri as an “enemy combatant” for two particular reasons: firstly, because the Constitution “prohibits the military imprisonment of civilians arrested in the United States and outside an active battlefield,” and secondly, because, although a district court had previously held that the President was authorized to detain al-Marri under the Authorization for Use of Military Force (the September 2001 law authorizing the President to use “all necessary and appropriate force” against those involved in any way with the 9/11 attacks), Congress explicitly prohibited “the indefinite detention without charge of suspected alien terrorists in the United States” in the Patriot Act, which followed five weeks later.

When the Obama administration announced its decision to move al-Marri to the federal court system, Justice Department officials also asked the Supreme Court to dismiss the pending case as “moot,” and on Friday the justices agreed, although, to their great credit, they also made a point of overruling (“vacating”) the horrendous decision made by the 4th Circuit Appeals Court last summer.

As a result, you may be thinking that the President no longer has the power to hold Americans without charge or trial as “enemy combatants,” but if this is the case then you may be — and should be — dismayed to learn that a previous ruling to this effect still stands, which was not addressed by the Supreme Court, and which has not been addressed by the Obama administration either.

In February 2005, in the case of Jose Padilla, an American citizen who was also held in prolonged solitary confinement as an “enemy combatant,” District Court Judge Henry F. Floyd ruled against the government, and ordered Padilla’s release. Noting that the power to suspend the writ of habeas corpus “belongs solely to Congress” under the Constitution, Judge Floyd declared, “Since Congress has not acted to suspend the writ, and neither the President nor this Court have the authority to do so,” Padilla had to be released. “It is true,” he added, “that there may be times during which it is necessary to give the Executive Branch greater power than at other times. Such a granting of power, however, is in the province of the legislature and no one else — not the Court and not the President … Simply stated, this is a law enforcement matter, not a military matter.” Echoing the decision taken by President Obama’s Justice Department in the case of Ali al-Marri, Judge Floyd added that the government could avoid releasing Padilla if it filed criminal charges against him, or acted to hold him as “a material witness.”

However, Judge Floyd’s ruling only stood for seven months. On September 9, 2005, three 4th Circuit judges — J. Michael Luttig, M. Blane Michael and William B. Traxler Jr. — overturned it (PDF), based on their belief (contested by Padilla’s lawyers, and also, as noted above, by al-Marri’s) that Congress had granted these sweeping and otherwise unconstitutional powers to the President as part of his wartime prerogative under the Authorization for Use of Military Force.

As with al-Marri, this ruling was never tested in the Supreme Court. Just before a review was scheduled to begin, the Bush administration got cold feet, and moved Padilla into the federal court system, where, in August 2007, he was convicted of providing material support for terrorism in a lop-sided trial — in which all mention of his long years of torture in solitary confinement were excluded by the judge — and, in January 2008, received a sentence of 17 years and three months.

In many ways, of course, history is repeating itself with al-Marri, even though the man at the top has changed, but what is most worrying is that the Padilla ruling still stands. Without the Supreme Court being given the opportunity to rule decisively on this question, what is needed is a clear repudiation of the policy by the Obama administration.

Instead, the Justice Department explained, in a brief filed with the Supreme Court last Wednesday, that, while the government “did not defend its power to detain Mr. Marri at present” (as Glenn Greenwald described it for Salon), “it left open the possibility that he or others might be subject to military detention as enemy combatants in the future.” In the Justice Department’s exact words, “Any future detention — were that hypothetical possibility ever to occur — would require new consideration under then-existing circumstances and procedure.”

It’s one thing, I suppose, to keep your options open, but quite another to defend the indefensible. Instead of fudging, in anticipation of future emergencies, President Obama and Attorney General Holder need to spell our clearly that no President will ever again imprison Americans as terror suspects beyond the law. Otherwise, Barack Obama’s fine words, in August 2007, when he declared, “We will again set an example to the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary,” will be meaningless, and Judge Rogers’ opinion — that the very constitutional foundations of the Republic had been fatally undermined — will be as applicable to the Obama administration as it was to that of George W. Bush.

Note: The photo at the top of the article, which was taken recently, is the first photo of an “enemy combatant” that the US administration has allowed to be released publicly. Taken by a representative of the International Committee of the Red Cross, it was released to al-Marri’s family, and was then published in the New Yorker. Jane Mayer noted that a source had indicated that “This change in policy regarding the release of detainee photos may soon extend to Guantánamo.”

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

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

For a sequence of articles on Ali al-Marri’s case, see The Ordeal of Ali al-Marri (June 2007), The torture of Ali al-Marri, the last “enemy combatant” on the US mainland (November 2007), Court Confirms President’s Dictatorial Powers in Case of US “Enemy Combatant” Ali al-Marri (July 2008), The Last US Enemy Combatant: The Shocking Story of Ali al-Marri (December 2008), Ending The Cruel Isolation Of Ali al-Marri, The Last US “Enemy Combatant” (March 2009), Dictatorial Powers Unchallenged As US “Enemy Combatant” Pleads Guilty (May 2009).

Also see related articles on Jose Padilla: Jose Padilla: More Sinned Against Than Sinning (August 2007), Why Jose Padilla’s 17-year prison sentence should shock and disgust all Americans (January 2008), US Justice Department drops “dirty bomb plot” allegation against Binyam Mohamed (October 2008), Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (April 2009).

And yet, this is exactly what has happened in the case of Ali Saleh Kahlah al-Marri. A Qatari national — and legal US resident — al-Marri had studied computer science in Peoria, Illinois in the 1980s, had graduated in 1991, and had legally returned to the United States on September 10, 2001 to pursue post-graduate studies, bringing his family — his wife and five children — with him. Three months later, on December 12, 2001, he was arrested at his home by the FBI, and taken to the maximum security Special Housing Unit at the Metropolitan Correctional Center in New York, where he was held in solitary confinement as a material witness in the investigation into the 9/11 attacks.

In February 2003, al-Marri was charged with credit card fraud, identity theft, making false statements to the FBI, and making a false statement on a bank application, and was moved back to a federal jail in Peoria, but on June 23, 2003, a month before he was due to stand trial, the charges were suddenly dropped when President Bush declared that he was an “enemy combatant,” who was “closely associated” with al-Qaeda, and had “engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism.” Also asserting that he possessed “intelligence,” which “would aid US efforts to prevent attacks by al-Qaeda,” the President ordered al-Marri to be surrendered to the custody of the Defense Department, and transported to the Consolidated Naval Brig in Charleston, South Carolina.

Al-Marri had already been held for 18 months, and had suffered in the Metropolitan Correction Center, where, in the wake of the 9/11 attacks, Muslim immigrants — 762 of the 1,200 men in total who were rounded up for investigation — were subjected to physical and verbal abuse, held in conditions of confinement that were “unduly harsh,” and often denied basic legal rights and religious privileges, according to a 2003 report by the Justice Department. However, his ordeal began in earnest at the brig.

The Consolidated Naval Brig, Charleston, South Carolina.

As was recently revealed through the disclosure of military documents following a Freedom of Information request (PDF), al-Marri, along with two American citizens also held as “enemy combatants” — Yaser Hamdi and Jose Padilla — was subjected to the same “Standard Operating Procedure” that was applied to prisoners at Guantánamo during its most brutal phase, from mid-2002 to mid-2004. This involved the use of “enhanced interrogation techniques,” including prolonged isolation, painful stress positions, exposure to extreme temperature, sleep deprivation, extreme sensory deprivation, and threats of violence and death.

Although the treatment of prisoners at Guantánamo was disturbingly harsh, it can be argued — with some confidence, I believe — that the treatment of al-Marri, Hamdi and Padilla was worse than that endured by the majority of the Guantánamo prisoners, as all three suffered in total isolation. The exceptions to this are the handful of Guantánamo prisoners who also endured years of solitary confinement — including the released British national Moazzam Begg, and British resident Shaker Aamer, who is still held at the prison, and has been in solitary confinement since August 2005.

Held alone in cellblocks that were otherwise unoccupied, al-Marri, Hamdi and Padilla had to survive without even the small comforts available to most of the Guantánamo prisoners, who, when not held in isolation as a punishment or as a prelude to interrogation, could at least communicate with the prisoners in the cells adjacent to them, and could take advantage of what lawyer Clive Stafford Smith has called the “incredible prisoner bush telegraph,” through which information is conveyed around the prison.

In the case of Hamdi (who was picked up in Afghanistan in November 2001 and initially held in Guantánamo until it was discovered that, although he had lived in Saudi Arabia since he was a child, he was born in Baton Rouge and was an American citizen), the effects of this near-total isolation were already apparent in June 2002, just a month after his transfer from Guantánamo. As one of the officers responsible for him explained in an email to his superiors, “with no potential end in sight and no encouraging news and isolated from his countrymen, I can understand how he feels … I will continue to do what I can to help this individual maintain his sanity, but in my opinion we’re working with borrowed time.”

In the case of Jose Padilla, who was held in strict solitary confinement for 21 months, the effects of his isolation were so intense that it has been reported that he literally lost his mind (his warders described him as “so docile and inactive that he could be mistaken for ‘a piece of furniture’”). Al-Marri’s experience was similar. As his lawyers explained in May this year, in court documents protesting his treatment (PDF), for the 16 months that he was held incommunicado,

He was denied any contact with the world outside, including his family, his lawyers, and the Red Cross. All requests to see, speak to, or communicate with Mr. al-Marri were ignored or refused. Mr. al-Marri’s only regular human contact during that period was with government officials during interrogation sessions, or with guards when they delivered trays of food through a slot in his cell door, escorted him to the shower, or took him to a concrete cage for “recreation.” The guards had duct tape over their name badges and did not speak to Mr. al-Marri except to give him orders.

Noting his exposure to the “enhanced interrogation techniques” mentioned above, al-Marri’s lawyers also explained that interrogators told him that “they would send him to Egypt or to Saudi Arabia to be tortured and sodomized and forced to watch as his wife was raped in front of him.” They also threatened to make him “disappear so that no one would know where he was,” and on several occasions stuffed his mouth with cloth and gagged him with duct tape. “One time,” the lawyers noted, “when Mr. al-Marri managed to loosen the tape … interrogators re-taped his mouth even more tightly. Mr. al-Marri started to choke until a panicked agent from the FBI or Defense Intelligence Agency removed the tape.” On other occasions, “for periods of up to eight days at a time, Mr. al-Marri was placed in a completely bare and cold cell simply for refusing to answer questions.”

Perhaps the most disturbing treatment al-Marri suffered during this period was the suppression of his religious freedom. His lawyers observed that

Mr. al-Marri’s observance of Islam was restricted and degraded so severely that he could not adhere to the most elemental tenets of his faith. He was denied water to purify himself and a prayer rug to kneel on when praying. Mr. al-Marri was also denied a kofi to cover his head during prayer; when he used his shirt as a substitute, he was punished by having his shirt removed. Mr. al-Marri was prohibited from knowing the time of day or the direction of Mecca, preventing him from properly fulfilling the Islamic requirement of praying five times a day. The only religious item that Mr. al-Marri was permitted was a Qur’an, and his copy of the Qur’an was sometimes taken away to facilitate interrogation and at other times was degraded and abused.

In June 2004, the US Supreme Court made two significant rulings regarding the rights of prisoners detained in the “War on Terror.” One, Rasul v. Bush, granted habeas corpus rights to the Guantánamo prisoners, allowing lawyers access to the prison to begin filing briefs asking why the prisoners were being held, and the other, Hamdi v. Rumsfeld, did the same for US “enemy combatants,” although in a rather more muddled manner. Although eight of the nine justices determined that the President could not indefinitely imprison a US citizen without basic due process rights, they were unable to agree about the extent of the prisoners’ rights.

The most immediate impact of these rulings on the “enemy combatants” held on the US mainland was the repatriation of Yaser Hamdi to Saudi Arabia in August 2004. Padilla (photo, left) and al-Marri were less fortunate. Although both gained access to lawyers, and the brutal interrogations came to an end, the government was unwilling to grant them any further rights. In Padilla’s case, the government continued to hold him until November 2005, when, with the Supreme Court circling once more, the supposed justification for holding him — his alleged involvement in a “dirty bomb” plot — was dropped, and he was moved to the federal court system to face sketchy charges of providing material support for terrorism, which, nonetheless, led to a conviction in August 2007, and a 17-year sentence in January 2008.

Al-Marri was even unluckier. Although he too was granted access to counsel — in October 2004 — his lawyers noted, in the submission in May regarding his treatment, that “access initially was monitored and severely curtailed,” and, crucially, that, because he was a resident and not a citizen, the government “refused to recognize that Mr. al-Marri had a legal right of access to counsel (and still refuses to recognize that right to this day”).

Moreover, his lawyers explained that, although there was an improvement in his conditions of detention, these conditions “remained unbearably brutal and harsh.” They noted that he “continued to be confined to a 9 by 6 foot cell,” and was “denied regular opportunity for exercise,” and also stated:

The single window in Mr. al-Marri’s cell remained darkened with an opaque covering that prevented Mr. al-Marri from seeing the outside world or knowing the time of day. His cell had only a sink, toilet and hardened (metal) bed affixed to the wall. Mr. al-Marri had no chair on which to sit and no blanket, pillow, or any other soft item inside his cell. For more than two years, Mr. al-Marri was denied a mattress, causing him discomfort and pain whenever he lay down …

Mr. al-Marri was confined to his cell for 24 hours a day, 7 days a week, for months at a time. Once Mr. al-Marri was forced to spend more than 20 days in his metal bed in his freezing cell, shivering under a thin, stiff “suicide blanket,” unable even to stand because the floor was too cold and his socks and footwear had been taken away from him.

As part of a deliberate policy of controlling almost every aspect of his life “to cause disorientation, discomfort, and despair,” al-Marri continued to be deprived of all external stimuli — he had no access to books, newspapers, magazines, TV or radio — and began showing evidence of the mental collapse mentioned at the start of the article.

His conditions of confinement improved after August 2005, when his lawyers first filed a formal complaint about his treatment, and they noted in May this year that he is “now permitted to move about his cell block (though he remains the only prisoner there) and is given adequate time for recreation.” He is also in regular contact with his family by telephone, although his first phone call was not allowed until April 29, 2008, and was only arranged after his lawyers discovered that his father had died.

Nevertheless, the naked truth about al-Marri’s detention is that the five and a half years that he has spent in solitary confinement in the Charleston brig — on top of the 15 months that he was isolated in the Metropolitan Correction Center — makes him possibly the most isolated prisoner in American history. This would be disturbing enough if he had actually been convicted of a crime, but is all the more distressing because he has never been allowed anywhere near a courtroom.

This is not for want of trying on the part of his lawyers — and of certain judges. Last June, a panel of three judges in the Fourth Circuit appeals court dealt a blow to the administration’s claims by ruling that “the Constitution does not allow the President to order the military to seize civilians residing within the United States and then detain them indefinitely without criminal process, and this is so even if he calls them ‘enemy combatants.’”

At the time, it looked as if this ruling might stand, but the government appealed, and when the Fourth Circuit reconvened en banc to deliver a second ruling in July this year, the voices of reason — four judges led by Diana Gribbon Motz — were overruled by their five colleagues. In the words of Judge William B. Traxler, whose swing vote confirmed the court’s otherwise divided ruling, “the Constitution generally affords all persons detained by the government the right to be charged and tried in a criminal proceeding for suspected wrongdoing, and it prohibits the government from subjecting individuals arrested inside the United States to military detention unless they fall within certain narrow exceptions … The detention of enemy combatants during military hostilities, however, is such an exception. If properly designated an enemy combatant pursuant to legal authority of the President, such persons may be detained without charge or criminal proceedings for the duration of the relevant hostilities.”

Judge Motz and the dissenters took exception to the mention of “the duration of the relevant hostilities.” After citing the 2007 State of the Union Address, in which President Bush claimed that “the war on terror we fight today is a generational struggle that will continue long after you and I have turned our duties over to others,” Judge Motz noted, “Unlike detention for the duration of a traditional armed conflict between nations, detention for the length of a ‘war on terror’ has no bounds.”

What disturbed the dissenters the most, however, were other elements of the ruling. Judge Motz noted that her colleagues had endorsed the President’s dictatorial right to imprison US citizens — as well as US residents — as “enemy combatants” without charge or trial, and also noted that they had claimed that the President did not even have to allege, as he did with Hamdi and Padilla, that an “enemy combatant” had either been in Afghanistan or had ever raised arms against US forces.

The dissenting judges also supported al-Marri’s lawyers, who had pointed out that the Constitution “prohibits the military imprisonment of civilians arrested in the United States and outside an active battlefield,” and that, although a District Court had previously held that the President was authorized to detain al-Marri under the Authorization for Use of Military Force (the September 2001 law authorizing the President to use “all necessary and appropriate force” against those involved in any way with the 9/11 attacks), Congress explicitly prohibited “the indefinite detention without charge of suspected alien terrorists in the United States” in the Patriot Act, which followed five weeks later.

Judge Motz’s conclusion — “To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President call them ‘enemy combatants,’ would have disastrous consequences for the Constitution –and the country,” — should have sounded the alarm for anyone concerned with the Constitutional rights of Americans, but although Judge Traxler joined Judge Motz and her colleagues in ruling that al-Marri was entitled to some sort of review of the basis of his detention, there has been no progress in the intervening months. Al-Marri is now waiting to see if the Supreme Court, which was deciding whether to take up his case on November 25, will indeed challenge what Judge Motz called “a claim to power that would … alter the constitutional foundations of our Republic.”

The question remains, of course, as to why al-Marri was held as an “enemy combatant” in the first place, and although there are many unexplained elements in his story — involving the alleged large-scale credit card fraud that led to his initial arrest, an unexplained visit to New York in 2000, and questions about research on his computer into chemicals that could be used in explosives — he has always maintained that the allegations against him, as laid out in an FBI declaration, are untrue: specifically, that he “associated with high-level al-Qaeda members, met with Osama bin Laden, volunteered for a ‘martyr mission,’ and was ordered to enter the United States before September 11, 2001, to facilitate terrorist activities and explore the possibility of disrupting [the US] financial system via computer hacking.”

What’s particularly worrying about the FBI’s declaration is that the primary source for the allegations is Khalid Sheikh Mohammed, the self-confessed mastermind of the 9/11 attacks, who was seized in Pakistan in March 2003, just three months before al-Marri was declared an “enemy combatant,” and subjected to the ancient torture technique known as waterboarding. During his tribunal at Guantánamo in March 2007, Mohammed stated that he had given false information about other people while being tortured, and, although he was not allowed to elaborate, I traced several possible victims of these false confessions in an article last summer, including Majid Khan, one of 13 supposedly “high-value” detainees transferred with Mohammed to Guantánamo from secret CIA prisons in September 2006, Saifullah Paracha, a Pakistani businessman and philanthropist held in Guantánamo, and his son Uzair, who was convicted in the United States on dubious charges in November 2005, and sentenced to 30 years in prison.

It’s possible, therefore, that al-Marri is another victim of Mohammed’s false confessions, obtained through torture, and that other allegations may have come from Mustafa al-Hawsawi, an alleged al-Qaeda financier, captured with Mohammed, who was also held in CIA custody before his transfer to Guantánamo. The government has alleged that al-Marri was in contact with al-Hawsawi before his arrest, but al-Marri has repeatedly denied the allegation.

Whatever the truth, however, the correct venue for ascertaining Ali al-Marri’s guilt or innocence has never been, and never will be, through long years of torture and extreme isolation in a military brig in South Carolina. I can only hope that the Supreme Court, which now has a long track record of opposing the Bush administration’s attempts to justify holding prisoners without charge or trial, will realize the importance of his case, recognizing not only how it degrades America’s moral standing and her “constitutional foundations,” but also how — in terms of what has been done to Ali al-Marri on behalf of the American people — it is a repugnant way to treat a fellow human, whether a foreigner, a “resident alien,” or a US citizen.

In one sentence that reveals the depths to which the Bush administration has sunk in the treatment of Ali al-Marri, Stuart Grassian, a Boston psychiatrist and an expert on the effects of solitary confinement, explained, after being allowed to meet him at the Charleston brig, that he had “only very uncommonly encountered an individual whose confinement was as onerous as Mr. al-Marri’s, except for individuals who had been incarcerated brutally in some third-world countries.”

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

As published exclusively on Cageprisoners.

Note: See here for a detailed archive of legal documents relating to the case.

POSTSCRIPT: On December 5, the Supreme Court announced that it would “decide whether President George W. Bush can order the indefinite imprisonment in the United States of an al Qaeda suspect without charging him,” as Reuters explained, adding that the Court “most likely will hear arguments in Marri’s case in March, with a decision expected by the end of June.” SCOTUSblog has links to the legal documents, including impressive support for al-Marri from law professors, former federal judges and retired military officers.

For a sequence of articles on Ali al-Marri’s case, see The Ordeal of Ali al-Marri (June 2007), The torture of Ali al-Marri, the last “enemy combatant” on the US mainland (November 2007), Court Confirms President’s Dictatorial Powers in Case of US “Enemy Combatant” Ali al-Marri (July 2008), Ending The Cruel Isolation Of Ali al-Marri, The Last US “Enemy Combatant” and Why The US Under Obama Is Still A Dictatorship (both March 2009), Dictatorial Powers Unchallenged As US “Enemy Combatant” Pleads Guilty (May 2009).

Also see related articles on Jose Padilla: Jose Padilla: More Sinned Against Than Sinning (August 2007), Why Jose Padilla’s 17-year prison sentence should shock and disgust all Americans (January 2008), US Justice Department drops “dirty bomb plot” allegation against Binyam Mohamed (October 2008), Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (April 2009).