I’ll discuss the stories of Abd al-Nisr Mohammed Khantumani and Abdul Aziz Naji in a separate article, but for now the focus must be on the legal maneuvering that led to the repatriation of Abdul Aziz Naji, because, for the first time in Guantánamo’s history, a prisoner has been sent home against his will, even though Doris Tennant, one of his lawyers, told the Washington Post two weeks ago that he was “adamantly opposed to going back.” At the weekend, another of his lawyers, Ellen Lubell, told the Miami Herald that Naji “fears extremists will try to recruit him — associating him with Guantánamo — and will torture or kill him if he resists.” She added, “He has nothing against the Algerian government, but he fears that the government will be unable to protect him from Algerian extremists.” In a press release, the Center for Constitutional Rights explained that Naji “fled various forms of persecution in Algeria many years ago, including having been attacked by an extremist.” CCR also sounded a note of caution about how the Algerian government will receive Naji, stating, “we are deeply concerned that he will disappear into secret detention.”

These are valid concerns, as Algeria has a poor human rights record. Amnesty International, Human Rights Watch and the United Nations (PDF, pp. 108-9) regularly express concerns about the use of torture in Algeria, and in its 2009 report on human rights in Algeria, the US State Department noted, “Local human rights lawyers maintained that torture continued to occur in detention facilities, most often against those arrested on ‘security grounds.’”

In contrast, an Obama administration official, speaking anonymously, told the Washington Post two weeks ago, “We take some care in evaluating countries for repatriation. In the case of Algeria, there is an established track record and we have given that a lot of weight. The Algerians have handled this pretty well: You don’t have recidivism and you don’t have torture.” This was a bold statement to make, in light of the allegations made by NGOs and the UN, and concerns about torture or other ill-treatment were not diminished by a response to the news of Naji’s repatriation in Monday’s Washington Post, in which it was noted that “The government said that Algeria has provided diplomatic assurances that Naji would not be mistreated, assurances that administration officials say are credible because 10 other detainees have been returned to Algeria without incident.”

The problems with this statement concern the “diplomatic assurances,” and the claim that 10 men have been repatriated “without incident.” On the “diplomatic assurances,” Human Rights Watch explained in a press release that its own research “has shown that diplomatic assurances provided by receiving countries, which are legally unenforceable, do not provide an effective safeguard against torture and ill-treatment,” and, on the status of the 10 men returned, although there have been no allegations of torture, there has been very little information at all about the conditions in which they have been held, and what has emerged publicly is not reassuring, as it reveals both prolonged pre-trial detention, and calls for punitive sentences from the prosecutors. As I explained in January this year:

[F]rustratingly little is known about the eight Algerians repatriated from Guantánamo between July 2008 and January 2009, although one indication of how the Algerian justice system deals with returned Guantánamo prisoners was provided in November 2009, when the BBC reported that, 15 months after two of these men were repatriated, they had been acquitted after a trial in which the prosecutor had called for prison sentences of 20 years.

Alarmingly, despite Abdul Aziz Naji’s fear of being repatriated — and the fears of five other Algerians, as revealed by the Washington Post two weeks ago — his release was not only supported by the Obama administration, but also by the Supreme Court.

Judge Gladys Kessler takes on the D.C. Circuit Court – and the Supreme Court

The spur for a legal battle that has largely been taking place without the mainstream media paying much attention — and with an alarming reliance on secrecy — was a principled stand taken by Judge Gladys Kessler, of the District Court in Washington D.C., who, single-handedly, has been attempting to uphold the United States’ obligation, under the UN Convention Against Torture, not to “expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

In November, Judge Kessler granted the habeas corpus petition of Farhi Saeed bin Mohammed, a 49-year old Algerian, after concluding that the government’s supposed evidence relied almost entirely on unreliable confessions produced by Binyam Mohamed, a British resident who was subjected to torture in Pakistan, Morocco and at the CIA’s “Dark Prison” in Kabul from April 2002 to May 2004.

Six months after Judge Kessler delivered her ruling, with bin Mohammed still not released, his lawyers asked her “to order the government to carry out his release, but to bar his transfer to Algeria, where he fears persecution or even death from either the Algerian government or from armed terrorist groups there,” as SCOTUSblog described it. As a result of two depressing rulings in the Court of Appeals in Washington D.C. Circuit Court (the District Court), judges are not actually able to order the release of prisoners who have won their habeas petitions, and are not even supposed to interfere with the disposition of prisoners, whose fate, according to the Circuit Court, is entirely dependent on the whims of the Executive branch. Judge Kessler, however, was undeterred.

On June 3, she issued a temporary order barring bin Mohammed’s transfer to Algeria, and on June 10 mounted a stout defense of his right not to be forcibly repatriated, noting (PDF):

Petitioner has voiced great fear about being transferred to Algeria. He has not lived in Algeria for more than 20 years, and has no ties to that country. Because he has been designated an “enemy combatant,” he greatly fears retribution by the Algerian authorities and that he will be formally charged under the Algerian Penal Code, tortured, convicted, and very possibly executed by the Algerian Government. He has claimed that he will be caught between the Algerian Government, which will brand him as an international terrorist, and armed domestic terrorists, who oppose the existing government, often pressure individuals to join their ranks, and retaliate violently when such individuals refuse. Petitioner has made clear that he would rather suffer continued confinement in Guantánamo Bay than be placed in the control of the Algerian Government.

In response to a brief filed by the government, Judge Kessler complained that two declarations submitted, which purported to guarantee bin Mohammed’s humane treatment if returned to Algeria, “appear to be boilerplate statements which have been filed in a number of the Government’s Oppositions to Motions,” and that a third, written by Daniel Fried, President Obama’s Special Envoy on Guantánamo, “was submitted ex parte so that [bin Mohammed] has not had an opportunity to read it.” After noting that bin Mohammed’s fears “are of great concern,” and that it is “essential” that assurances received from the Algerian government, purporting to guarantee that bin Mohammed will receive “humane treatment,” are “tested,” Judge Kessler ordered Fried to appear in person in her court, explaining, “Given the centrality of those representations and assurances to the future of [bin Mohammed] and possibly to his very life, this Court has an obligation to ensure that there is real substance behind the conclusory phrases contained in Special Envoy Fried’s declarations.”

Fried never turned up, of course, because the Justice Department immediately filed an appeal with the Circuit Court, which then ordered Judge Kessler to “resolve all outstanding motions” in the case with reference to Munaf v. Geren and Kiyemba v. Obama (aka Kiyemba II), the cases that the Circuit Court had drawn on (Munaf) and issued (Kiyemba II) to demonstrate that only the Executive branch was entitled to make decisions about where to send Guantánamo prisoners. As SCOTUSblog noted, “While the order did not say that Kessler could not hold a hearing on Mohammed’s plea not to be sent to Algeria, it specified that the judge was to rule on that issue ‘without requiring testimony from Special Envoy Fried or any other United States government official,’” which, of course, “completely undercut the purpose that Kessler had” for calling the hearing in the first place.

The Circuit Court then issued an amended ruling, instructing Judge Kessler to decide the Mohammed plea “in an order from which a party can take an immediate appeal,” and as SCOTUSblog noted in response to this instruction:

The Circuit Court thus had taken over, in a significant way, the further proceedings in Kessler’s Court, and has sent her the strongest hint that she risked being overturned if she barred his transfer anew. Since it noted the binding nature of the precedents she was to observe, the Circuit Court clearly was signaling that, if it accepted the government’s view that Mohammed’s case was no different, Kessler would be found to be without authority to prevent his transfer to Algeria.

After this, the struggle between Judge Kessler and the Circuit Court was swamped in secrecy. At a hearing convened by Kessler on June 28, all the documentation was sealed, but SCOTUSblog was able to deduce, from a subsequent appeal filed by the government, that she had once more barred bin Mohammed’s transfer to Algeria. On July 8, however, in another secret hearing, the Circuit Court “summarily overturned” Judge Kessler’s ban, prompting SCOTUSblog to note that the court’s order “continues a seldom-interrupted string of rulings by the Circuit Court against detainees challenging their confinement or transfer,” which “contrasts with a majority of rulings by District Court judges upholding detainees’ challenges under federal habeas law.”

The final blow for bin Mohammed — and for those who, like Judge Kessler, had quaintly presumed that the “non-refoulement” requirement of the UN Convention Against Torture might actually mean something to the judiciary and the Executive branch — came last Friday, when, by 5 votes to 3, the Supreme Court sided with the Circuit Court. As SCOTUSblog noted, the ruling was “the first indication that the Supreme Court will not allow federal judges to interfere with government controls on who leaves or stays at Guantánamo Bay.”

Although three of the justices — Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor — dissented, noting that they “would grant the stay to afford the Court time to consider, in the ordinary course, important questions raised in this case and not resolved in Munaf v. Geren,” just a few hours later the Supreme Court unanimously approved the forced repatriation of Abdul Aziz Naji.

This was a bleak day for US justice, not only because it involved the Supreme Court blithely disregarding the UN Convention Against Torture’s “non-refoulement” obligation, joining in an unholy trinity with the D.C. Circuit Court and the Obama administration, but also because it brings to an abrupt, cruel, and — I believe — illegal conclusion a struggle to release prisoners without violating the UN Convention Against Torture, which, for the most part, was actually respected by the Bush administration.

The Bush administration’s record on not returning prisoners to torture

The long history of the authorities grappling with the “non-refoulement” obligation at Guantánamo began with the Uighurs, 22 Muslims from China’s oppressed Xinjiang province, who were mostly seized in Pakistan in December 2001 after crossing from Afghanistan, where they had been living in a run-down settlement in the Tora Bora mountains, thwarted in their attempts to travel to Turkey or Europe in search of work, or nursing futile hopes of rising up against their only enemy, the Chinese government.

With the Uighurs, the Bush administration recognized its “non-refoulement” obligation, refusing to return them to China, and finding new homes for five of the men in Albania in 2006. When the Obama administration inherited the problem of the remaining 17 men, who had, in the meantime, won their habeas corpus petitions, it found new homes for 12 of them in Bermuda, Palau and Switzerland, although five still remain at Guantánamo, and, last spring, the administration turned down a plan by White House Counsel Greg Craig to bring some of the men to live in the US, which would have done more in the long run to defuse scaremongering about Guantánamo than any other gesture.

Despite the Bush administration locating some principles when it came to the Uighurs, in other cases prisoners had to fight in the courts to prevent their forcible repatriation to countries where they faced the risk of torture. In 2007, a Libyan, Abdul Rauf al-Qassim, sought the intervention of the courts to prevent his return to Libya, and after two Tunisians were repatriated in June 2007 — and were subsequently mistreated and given jail sentences (of three and seven years) after show trials — a judge intervened to prevent the repatriation of a third, Mohammed Abdul Rahman (also known as Lotfi bin Ali), and, by extension, other Tunisians in Guantánamo.

In other cases, like that of Ahmed Belbacha, an Algerian who had lived in the UK, lawyers successfully sought injunctions preventing their return, and by the time Obama came to power, it was generally understood that prisoners were not be involuntarily returned to China, Egypt, Libya, Syria, Tunisia or Uzbekistan. As a result, in the last year, the Obama administration has resettled prisoners from Egypt, Libya, Syria, Tunisia and Uzbekistan in Albania, Belgium, Bulgaria, Georgia, Ireland, Portugal, Slovakia and Switzerland. Algeria was more problematical, as was demonstrated by the cases of the men who had returned voluntarily, even though there was, to be honest, no guarantee that they would be treated humanely, and my constant analogy was that return to Algeria was like Russian Roulette.

How the Circuit Court defended expansive executive power

However, all this came to an end with the Circuit Court’s intervention in the Uighurs’ case — firstly, in February 2009 (in Kiyemba v. Obama, aka Kiyemba I), when a panel of judges ruled that the courts could not order the resettlement in the US of prisoners who had won their habeas petitions but could not be repatriated, because only the Executive branch could decide matters relating to immigration. As I explained in a review of the ruling:

The judges were seemingly unmoved that this would leave the Uighurs (and, very possibly, others in Guantánamo) with no means of leaving the prison, and that it stripped the Supreme Court’s ruling in June 2008, granting the prisoners habeas corpus rights, of all practical meaning, if it was not possible for judges to order their release. In the judges’ words, however, “the political branches have the exclusive power … to decide which aliens may, and which aliens may not, enter the United States, and on what terms.”

The second blow came last September (in another Kiyemba v. Obama case, identified as Kiyemba II), after the Uighurs’ lawyers asked the Court of Appeals to reconsider its opinion en banc (in other words, with all the judges ruling, instead of just a panel of three), and also sought assurances that the courts would be able to act if the government proposed sending their clients to countries where they faced the risk of torture. However, as I explained at the time:

[N]ot only did the court refuse to reconsider its ruling, but the judges also refused the Uighurs’ request for the court’s assistance “to prevent their transfer to a country where they are likely to be subjected to further detention or to torture,”, drawing on Munaf v. Geren, a case from 2008 in which “two American citizens held in the custody of the United States military in Iraq petitioned for writs of habeas corpus, seeking to enjoin the Government from transferring them to Iraqi custody for criminal prosecution in the Iraqi courts.” In Munaf, although “The Court held the district court had jurisdiction over the petitions,” it also ruled that “it could not enjoin the Government from transferring the petitioners to Iraqi custody,” because “that concern is to be addressed by the political branches, not the judiciary.”

It is this narrow reading of Munaf that has particularly enraged those opposed to the Circuit Court’s resolute endorsement of executive power — and which at least caused some consternation last Friday to Justices Ginsburg, Breyer and Sotomayor. Essentially, though, the Circuit Court’s ruling in Kiyemba II dictates what happens to prisoners like Abdul Aziz Naji — and, presumably, Farhi Saeed bin Mohammed — when the administration tires of trying to find new homes for them, and decides to subject them involuntarily to the Russian Roulette repatriation package that Abdul Aziz Naji received this week.

Although government officials told the Washington Post on Monday that they “will nonetheless continue to examine each case individually before any repatriation,” noting that some officials “have expressed some concern about returning one of the Algerians [Ahmed Belbacha] who was sentenced to 20 years in prison in absentia” last year, for what his lawyers think was the crime of speaking out about his fears of repatriation, there now appears to be no obstacle to prevent the Obama administration from sending the other four Algerians home whenever it feels like it.

To discover that such shameless disregard for the UN Convention Against Torture has come not only from the Supreme Court, but also from the man who promised to close Guantánamo (but then failed to do so), and who also promised to uphold the absolute ban on torture (while refusing to prosecute anyone who authorized its use in the previous eight years), is depressing news indeed.

Note: With these releases, 178 prisoners remain at Guantánamo. One of these men, Ali Hamza al-Bahlul, is serving a life sentence in solitary confinement, after a one-sided trial by Military Commission in October 2008, in which he refused to mount a defense. Another prisoner, Ahmed Khalfan Ghailani, is in prison in New York, awaiting a federal court trial that was recently approved. 594 prisoners have been released (or, in some cases, transferred to the custody of their home governments, or of other governments), and six men died, five in mysterious circumstances.

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 Smirking Chimp, The Public Record and New Left Project.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 60 prisoners released from February 2009 to mid-July 2010, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; ; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs to Bermuda, 1 Iraqi, 3 Saudis (here and here); August 2009 — 1 Afghan (Mohamed Jawad), 2 Syrians to Portugal; September 2009 — 1 Yemeni, 2 Uzbeks to Ireland (here and here); October 2009 — 1 Kuwaiti, 1 prisoner of undisclosed nationality to Belgium; October 2009 — 6 Uighurs to Palau; November 2009 — 1 Bosnian Algerian to France, 1 unidentified Palestinian to Hungary, 2 Tunisians to Italian custody; December 2009 — 1 Kuwaiti (Fouad al-Rabiah); December 2009 — 2 Somalis, 4 Afghans, 6 Yemenis; January 2010 — 2 Algerians, 1 Uzbek to Switzerland, 1 Egyptian, 1 Azerbaijani and 1 Tunisian to Slovakia; February 2010 — 1 Egyptian, 1 Libyan, 1 Tunisian to Albania, 1 Palestinian to Spain; March 2010 — 1 Libyan, 2 unidentified prisoners to Georgia, 2 Uighurs to Switzerland; May 2010 — 1 Syrian to Bulgaria, 1 Yemeni to Spain; July 2010 — 1 Yemeni (Mohammed Hassan Odaini).

I learned about the ruling through a “Guantánamo Habeas Scorecard” maintained by the Center for Constitutional Rights, but although Judge James Robertson’s unclassified opinion is not yet available, to ascertain why he decided that the government had met its burden of proof in establishing that Khalifh was part of, or supported al-Qaeda and/or the Taliban, at least part of his story — and of the government’s allegations — can be found through publicly available documents, and through representations made on his behalf by his lawyer, Edmund Burke. Other information has been provided to me by the former Guantánamo prisoner Omar Deghayes, who is aware of how Khalifh has been treated at Guantánamo over the last eight years.

As I explained in my book The Guantánamo Files, drawing on the publicly available information, Khalifh (or Abu Bakr) was seized during a series of house raids in Karachi, Pakistan in February 2002, which led to the capture of Abdu Ali Sharqawi, a Yemeni also identified as Sharqwi Abdu Ali al-Hajj, and more commonly known as Riyadh the Facilitator, and at least 15 other men. Sharqawi was subsequently rendered to Jordan, where he was tortured on behalf of the CIA, and the fruits of this torture were recently excluded as evidence in the habeas petition of another Guantánamo prisoner, Uthman Abdul Rahim Mohammed Uthman, as I explained in a recent article. Without access to the unclassified opinion, I have no idea whether the government alleged that Khalifh was seized with Sharqawi, although it is noticeable that Burke claimed that he was not, and it is also worth noting that the majority of the other men seized at this time have been released from Guantánamo.

In The Guantánamo Files, my analysis of Khalifh’s story was as follows:

It was claimed that he traveled to Afghanistan in 1998, that he was a member of the Libyan Islamic Fighting Group, who was “known to assist Osama bin Laden in purchasing weapons,” that he was a military trainer for the LIFG, that he established a training camp in summer 2001, that he “was a military leader of Arabs,” who fought against the Northern Alliance near Taloqan, that he “met with Taliban leaders to plan military operations,” and that he and his group were directed to Tora Bora [where a showdown took place between al-Qaeda and the US in November and December 2001] by Osama bin Laden.

One of his lawyers, Edmund Burke, refuted all the allegations, however. He acknowledged that his client had been a member of the LIFG, and had worked for the Taliban as a mine cleaner until 1998, when his right leg was severely damaged by a land mine, but said that he spent the ensuing years moving from hospital to hospital in Afghanistan to receive treatment for his leg, which was eventually amputated. He added that he moved to Pakistan in 2001, and was living in a school for boys when it was raided by Pakistani police. Pointing out that his client “can’t bear his weight on his good leg and only hobbles about with the help of a walker or crutches,” he explained, “It’s very hard to imagine him as a combatant of any kind.”

In the government’s most recent allegations, it was noted that Khalifh had “worked overseeing Sudanese drivers for one of Osama bin Laden’s construction companies in Sudan,” had been “identified” as a trainer and the leader of a Libyan training camp near Kabul, visited by bin Laden, where he was “identified as someone whom others would approach to receive explosives training if they wanted to commit a terrorist attack,” had allegedly attended two other training camps in 1996-97, and had also been “identified” as “a military leader in charge of many Arabs from Saudi Arabia, Yemen, and other Gulf States while on the front line” in 2001, who, as alleged before, “would meet with other Taliban leaders to plan military operations.”

These sound like typically overblown assertions, based on dubious evidence produced by Khalifh’s fellow prisoners under duress, or as a result of bribery, or as a result of false confessions made by Khalifh himself, given that the other narrative identified by Burke — that he worked as a mine cleaner for the Taliban until he lost his leg — is also included, and suggests a much more humble role than the leadership role ascribed to him by the government’s unidentified witnesses.

Moreover, this conclusion is one endorsed by Omar Deghayes, who explained to me that Khalifh’s status has been exaggerated by the authorities in Guantánamo. “They call him ‘The General,’” Deghayes told me, “not because of anything he has done, but because he decided that life would be easier for him in Guantánamo if he said yes to every allegation laid against him.” Even so, as Deghayes also explained, this cooperation has been futile, as Khalifh has been subjected to appalling ill-treatment, held in a notorious psychiatric block where the use of torture was routine, and denied access to adequate medical attention for the many problems that afflict him, beyond the loss of his leg. As Deghayes described it, “He has lost his sight in one eye, has heart problems and high blood pressure, and his remaining leg is mostly made of metal, from an old accident in Libya a long time ago when a wall fell on him. He describes himself as being nothing more than ‘the spare parts of a car.’”

Given that this information is unlikely to have been included in the documents compiled by the government for its response to Khalifh’s habeas corpus petition, it’s possible that Judge Robertson’s unclassified opinion will reveal only that Khalifh lost his habeas petition based solely on his work as a mine cleaner for the Taliban, which, under the detention standards decided by the courts, would be sufficient to justify his ongoing detention. If so, he will be yet another insignificant player in Afghanistan’s inter-Muslim civil war, which predated the 9/11 attacks, and had nothing to do with international terrorism, who is consigned to oblivion in Guantánamo on an apparently legal basis, even though there is no logical justification for equating the Taliban’s military activities (whether before or after the 9/11 attacks) with acts of international terrorism committed by al-Qaeda. In addition, he will also be another victim of Guantánamo, whose hidden story of abuse and exploitation never even surfaces publicly to reveal darker truths about how the prison has operated.

(‘’)

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

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

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

All five men were cleared for release from Guantánamo on two or three separate occasions — through Bush-era military review boards, through the deliberations of an interagency Task Force established by President Obama, and, in some cases, through successfully having their habeas corpus petitions granted by a US court. However, difficulties arose when it came to freeing them because they feared torture or other ill-treatment if returned to their home countries, and the US government (first under George W. Bush, and now under Barack Obama) recognized its obligations, under international treaties, not to repatriate them, but to find other countries prepared to take them instead.

The fact that Georgia — the former Soviet satellite in the Caucasus — is the new home of three of these men, and not the US state, demonstrates another obstacle to the men’s release. Had President Obama acted decisively last April, two Uighurs (Muslims from China’s Xinjiang province, seized by mistake in December 2001) would have been freed in the US, and others would undoubtedly have followed. However, when the President bowed to pressure from Republican critics, and turned down a plan, put forward by White House Counsel Greg Craig, and backed by defense secretary Robert Gates and Secretary of State Hillary Clinton, which involved bringing the two men to live in the US, the job of Obama’s Special Envoy, Daniel Fried, who was charged with finding new homes for dozens of cleared prisoners from countries including Algeria, China, Libya, Syria, Tunisia and Uzbekistan, was made considerably more difficult.

America’s allies had to overcome their obvious impulse — refusing to help unless the US also acknowledged its own mistakes by giving new homes to cleared prisoners — and it is a tribute to the governments of Switzerland and Georgia that they felt able to place humanitarian concerns above political pragmatism by accepting the men. Switzerland had already accepted an Uzbek ex-prisoner in January this year, and Georgia now joins Switzerland in a distinguished club that also includes Albania, Belgium, Bermuda, France, Hungary, Ireland, Palau, Portugal, Slovakia and Spain. These countries have all shown up the US (and other European countries, including the UK, Germany, the Netherlands, Norway, Sweden and Denmark), who have turned their backs on the dozens of cleared prisoners who will languish in Guantánamo until new homes can be found for them.

The Uighur brothers released in Switzerland

The two men given new homes in the Swiss canton of Jura are brothers, Arkin Mahmud, 45, and Bahtiyar Mahnut, 34, Two of the 22 Uighurs originally held at Guantánamo (five of whom were released by George W. Bush in Albania in 2006), the men had been living in a small, rundown settlement in Afghanistan’s Tora Bora mountains at the time of the US-led invasion of Afghanistan in October 2001, either because they had been thwarted in their attempts to travel to Turkey or Europe in search of work, or because they nurtured futile hopes of finding some way to rise up against the Chinese government. They were sold to US forces by Pakistani villagers when their temporary home was destroyed in a US bombing raid and they had crossed the border into Pakistan.

The US government understood almost immediately that they had been seized by mistake, but that did not prevent senior officials from allowing Chinese interrogators to visit them at Guantánamo, and, it seems, securing a guarantee in UN negotiations that China would not oppose the invasion of Iraq by designating a Uighur separatist group as a global terrorist organization.

Attempts to conveniently tie the Guantanamo Uighurs to this group came unstuck in June 2008, when a US court derided the government’s supposed evidence as being akin to a nonsense poem by Lewis Carroll, author of Alice’s Adventures in Wonderland, but it was not until October 2008 that the government finally abandoned all claims that the men were “enemy combatants.” That month, their habeas corpus petition finally reached Judge Ricardo Urbina, in the District Court in Washington D.C., who ordered their release into the United States, pointing out that holding innocent men was unconstitutional.

The Bush administration appealed, and the appeal was approved in February 2009 by the notoriously right-wing Court of Appeals for the D.C. Circuit, who ruled (with the blessing, sadly, of President Obama’s Justice Department), that matters of immigration were to be decided by the Executive and not the courts, thereby gutting the men’s habeas victory of any practical meaning.

After Greg Craig’s honorable plan to rehouse two of the men in the US was scrapped, Daniel Fried was obliged to undertake numerous missions to persuade other countries to offer them new homes. Fried eventually persuaded Bermuda and the Pacific island of Palau to take ten of the men, but Arkin Mahmud and Bahtiyar Mahnut in particular remained a problem. Palau had refused to offer a new home to Mahmud, who had developed mental health problems in Guantanamo, and, in solidarity, his brother, who had been offered a new home, turned down the offer, preferring to stay with his brother in Guantánamo instead.

An appeal to the government by the Washington Post, asking that the men be allowed into the US, was subsequently ignored, but it seemed that Obama was on a collision course with the Supreme Court, which accepted the men’s case last October, until Switzerland obligingly offered the men a new home in January this year.

As Arkin Mahmud and Bahtiyar Mahnut begin their new lives in Switzerland, five Uighurs remain in Guantánamo, but their fate is unknown. The Supreme Court refused to proceed with their case at the start of this month (although they did vacate the terrible Court of Appeals ruling), essentially because the five remaining men had also been offered new homes in Palau, but had turned them down, and it remains to be seen if Palau will renew its offer, if another country will rescue them from their seemingly endless ordeal, or if the lower courts will, once more, attempt to order their release into the United States.

A Libyan refugee released in Georgia

Announcing the release of the other three men from Guantánamo, the Justice Department refused to reveal their identities, but Candace Gorman, the indefatigable attorney representing Abdul Hamid al-Ghizzawi, a Libyan, revealed that one of the three is her client, and it appears that the second man is also Libyan, and that the third is from an unidentified country in the Middle East (perhaps Libya, again, or Syria or Tunisia).

The release of Abdul Hamid al-Ghizzawi brings to an end another of Guantánamo’s many particularly bleak stories. A refugee from Libya, al-Ghizzawi had settled in Afghanistan in the 1990s, where he married an Afghan woman and had a child. Together, he and his wife ran a small bakery in Jalalabad, but after the US-led invasion, hearing that Arabs were being targeted, he decided to seek refuge with his in-laws in his wife’s home village. There, however, he was seized by bounty hunters and sold to US forces.

In Guantánamo, al-Ghizzawi suffered horribly. Afflicted with tuberculosis and hepatitis B, he nevertheless received little or no treatment, in common with the majority of those with medical problems, whose treatment was dependent on cooperation with their interrogators. In practical terms, what this meant for innocent men like al-Ghizzawi was that they would not be treated unless they provided false confessions to their interrogators, which could be used to justify their own detention, or the detention of others identified in these false confessions.

Al-Ghizzawi’s case is also notorious in terms of the warped review processes masquerading as justice at Guantánamo, as was revealed in 2007 by Lt. Col. Stephen Abraham, a veteran of US intelligence who had been involved in compiling the information used as evidence in the Combatant Status Review Tribunals at Guantánamo in 2004-05. In an affidavit filed in a case submitted to the Supreme Court, Lt. Col. Abraham explained how the tribunal system, designed to review the prisoners’ cases to ascertain whether they had been correctly designated as “enemy combatants,” who could be held indefinitely, was a sham, and that the information used consisted of intelligence “of a generalized nature — often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status.”

Lt. Col. Abraham also explained how he had taken part in one of the tribunals, and, with his fellow officers, had concluded that the government had failed to establish that the prisoner before them had any connection whatsoever to al-Qaeda or the Taliban for the very reasons described above. That prisoner was Abdul Hamid al-Ghizzawi, and, as Lt. Col. Abraham added, the authorities refused to accept the tribunal’s decision, dismissing all three officers, and conducting a second tribunal that reached the conclusion the government wanted; namely, that al-Ghizzawi was an “enemy combatant,” and that he could continue to be held indefinitely. This was not the only “do-over” tribunal, but the fact that it happened at all is a disgrace, and the fact that al-Ghizzawi continued to be held for another six years after Lt. Col. Abraham exposed the shortcomings in the government’s so-called evidence is a disturbingly clear example of the complete disregard for any notions of justice or decency in the running of Guantánamo.

It was not until June last year that al-Ghizzawi was finally cleared for release by the interagency Task Force established by President Obama to review all the Guantánamo cases, and even then the Justice Department behaved appallingly, neglecting to inform Candace Gorman of the decision and then gagging her when she tried to inform al-Ghizzawi’s family, and his wife, who, in despair after years of waiting, had decided to seek a divorce.

Unprincipled obstacles to the closure of Guantánamo

I have no idea if the identities of the other two men released in Georgia will be made available, but it is clear that they too have been deprived of their freedom for up to eight years not as a result of any coherent policy, but as a direct result of the Bush administration’s arrogance and incompetence in establishing Guantánamo as a prison outside the law filled largely with men who were seized and sold to US forces by their Afghan and Pakistani allies, and who had no connection whatsoever to al-Qaeda, the 9/11 attacks, or any other group involved in international terrorism.

With 183 prisoners still at Guantánamo, and 101 of these cleared for release by Obama’s Task Force, and, in some cases, by the US courts, the shrill rhetoric of those who still insist that the prison is full of terrorists should have been silenced, but as the cynical fearmongering of recent months has shown all too clearly, when it comes to Guantánamo, Republican lawmakers are more than happy to stir up unsubstantiated hysteria about the prison, playing the fear card as the mid-term elections approach, and encouraging Democrats to do the same.

I have my doubts that the other 82 men qualify as terrorists, but presume that the 35 proposed for trials (either in federal courts or in Military Commissions) will one day have their cases considered by a judge and jury, and that the other 47 men, who the Task Force recommended be held indefinitely without charge or trial, will be able to challenge this deeply distressing advice in a US court, before judges reviewing their habeas corpus petitions. As with 34 of the 46 cases so far decided, the judges will, no doubt, conclude that, in many of these cases, the government’s assertions that they are too dangerous to release, despite a lack of usable evidence, will be revealed as distortions based on the kind of false confessions that Abdul Hamid al-Ghizzawi resisted making in exchange for medical treatment.

For now, however, while readers should bear in mind that only between 5 and 10 percent of the total number of prisoners held at Guantánamo will, in the end, be judged to have had any connection to al-Qaeda or the Taliban, the release of these five prisoners to Switzerland and Georgia continues to demonstrate that innocent men are still held at Guantánamo, and that the fearmongering in the US is both unjustifiable and potentially damaging to these men’s prospects of being rehoused elsewhere.

Given these obstacles — and lawmakers’ refusal to accept any cleared prisoners into the US — Daniel Fried is to be congratulated for successfully concluding the complex negotiations leading to the release of these men, and, sometimes single-handedly, it seems, working towards the closure of Guantánamo, which remains a stain on America’s reputation, and a dark symbol of the Bush administration policies that Obama has found himself unwilling, or unable to thoroughly repudiate.

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

As published exclusively on Truthout. Digg the original here.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 52 prisoners released from February 2009 to February 2010, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; ; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs to Bermuda, 1 Iraqi, 3 Saudis (here and here); August 2009 — 1 Afghan (Mohamed Jawad), 2 Syrians to Portugal; September 2009 — 1 Yemeni, 2 Uzbeks to Ireland (here and here); October 2009 — 1 Kuwaiti, 1 prisoner of undisclosed nationality to Belgium; October 2009 — 6 Uighurs to Palau; November 2009 — 1 Bosnian Algerian to France, 1 unidentified Palestinian to Hungary, 2 Tunisians to Italian custody; December 2009 — 1 Kuwaiti (Fouad al-Rabiah); December 2009 — 2 Somalis, 4 Afghans, 6 Yemenis; January 2010 — 2 Algerians, 3 prisoners of undisclosed nationality to Slovakia, 1 unidentified Uzbek to Switzerland; February 2010 — 1 Egyptian, 1 Libyan, 1 Tunisian to Albania, 1 Palestinian to Spain.

I also reproduce another article, published on today on EurasiaNet, written by Molly Corso, a freelance reporter based in Tbilisi. Molly interviewed me back in October last year, when it was first indicated that Georgia would accept prisoners from Guantánamo, and her latest article provides some updates, and also includes information I provided during a telephone interview on Monday.

Georgia Helps Close Guantánamo
By Ketevan Khachidze, Lizaveta Zhahanina, The Georgian Times, March 29, 2010

The transfer of three Guantánamo Bay prison inmates to Georgia has sparked controversy in Georgia. The Government has justified the move by saying it is part of the strategic relationship between Georgia and the US. Some opposition groups however have denounced the lack of clarity on the issue and voiced security concerns.

According to the Georgian Interior Ministry, the Guantánamo inmates arrived on Tuesday and will live in Georgia freely under the control of law enforcement bodies. They will not be allowed to leave the country.

The Obama Administration had pledged to close the Guantánamo prison by January 2010 but as the Western media noted missed the deadline due to a difficulty in finding countries which would host the prisoners.

In a statement released on Tuesday the Justice Department thanked Georgia for making its task easier: “The United States is grateful to Georgia for its willingness to support US efforts to close the Guantánamo Bay detention facility.”

The nationalities of the inmates have been kept secret for security reasons but the Georgian authorities said they come from the Middle East. An Interior Ministry spokesperson said that the transfer was made after the Ministry of Foreign Affairs exchanged notes with the US State Department.

Strategic allies

The August 2008 war created a big headache for the US, which had to stand by Tbilisi in its official rhetoric at least. Many analysts note that Georgia is now trying to prove it is still an asset for Washington rather than a liability. Georgia has become the highest per capita troop contributor to NATO’s operation in Afghanistan for the same reason and this is primarily why Georgia is accepting the Guantánamo inmates today.

Davit Darchiashvili, Chair of the Parliamentary Committee for European Integration, said that the decision carries serious political importance as “strategic partnership between countries is always a two-way process.”

“If a big part of [the Government’s message] is that we have a special relationship with the United States, you have to be able to demonstrate that. This is one way to do it,” Lincoln Mitchell, an Assistant Professor of International Politics at New York’s Columbia University, was quoted as saying by EurasiaNet.

Security risks?

Senior Interior Ministry official Shota Utiashvili said the presence of former terror suspects does not pose any threat to civilians. “We have carefully examined their profiles and are confident that they will not create any dangers. Many countries have received Guantánamo prisoners and there has not been a single case in which these prisoners have violated the laws of their host countries,” Utiashvili said.

Pro-Western opposition leader Irakli Alasania also brushed off concerns that the inmates pose security threats to the country but was not happy with the Government’s explanations. “I don’t think the transfer of the three former prisoners is dangerous for the country. However, the Government is obliged to give clear explanations regarding this, and take relevant security measures,” Alasania told journalists.

Other opposition figures were more critical. MP Gia Tsagareishvili says the explanations given by Government officials leave the public unable to assess the risks involved in the transfer. “If the risks were assessed by National Security Council Secretary Eka Tkeshelashvili, I do not believe they are reliable. She has held too many positions, and during the August war we all saw her skill at risk assessments,” Tsagareishvili said.

Andy Worthington is among those who believes that the transfer of former terror suspects would not jeopardize Georgia’s security. He is a British journalist and author of three books, including The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison.

“There is absolutely no reason to worry whatsoever. The men who have been released have been cleared on two or three occasions in the United States. The Obama administration has been very careful about making sure that it does not release anybody who may constitute any kind of a threat,” he said in a phone interview with GT on Saturday.

Moreover, Andy Worthington believes that Georgia should be commended for what he calls “a humanitarian gesture” and joining the club of all those countries who help close Guantánamo.

The Prisoner’s Story: from Libya to Guantánamo

Andy Worthington said he knows the story of one of the inmates who was transferred to Georgia from the prisoner’s lawyer. His name is Abdul Hamid al-Ghizzawi and he comes from Libya.

“He is a Libyan who had travelled to Afghanistan in the 1980 to fight against the Soviet Union. But after that he settled in Afghanistan, he married an Afghan woman and had a child. He and his wife were running a bakery in Jalalabad at the time of the US-led invasion of Afghanistan. He heard that Arabs were being targeted. So, he thought it was better to move to his wife’s family’s village where his wife’s mother and father lived. He thought he would be safer there. But he was captured by bounty hunters and he was sold to the United States and he ended up in Guantánamo.

“Now in 2004 in Guantánamo they held what were called Combatant Status Review Tribunals. They were tribunals of military officers who looked at what the government claimed was the evidence against the prisoners and decided whether they should still be held as enemy combatants, as men who could be held indefinitely. In that tribunal the three men who looked at Mr. al-Ghizzawi’s case said there is no case against this man. We know this because one of the men, Lieutenant Colonel Steven Abraham, said they did not use anything that rose to the level of evidence and should have let him go. He later submitted a document that went to the Supreme Court in which he explained essentially how the tribunals at Guantánamo were a sham process. Two other American officers [also] said there was no reason to continue holding this man [in custody].

“What happened was that the government dismissed them, set up another tribunal and told these officers to change the opinion. So, it convened another tribunal to get the right answer … So, essentially, there was never any reason to hold this man. He was somebody who was picked up and was sold to the Americans because the Americans were offering bounty payments averaging $5,000 a head for people who could be dressed up as al-Qaeda or the Taliban and Mr. Abdul Hamid al-Ghizzawi fitted this picture, he was an Arab living in Afghanistan. The fact is that he had not been involved in any fighting for over ten years, and when he had been, he had been fighting against the Soviet Union.”

Georgia Officials Say Guantánamo Prisoners Pose No Threat
By Molly Corso, Eurasianet, March 30, 2010

Eager to demonstrate its reliability as Washington’s strategic partner, the Georgian government is downplaying security concerns about three former prisoners dispatched from the United States’ Guantánamo Bay prison to Georgia.

US President Barack Obama’s administration has been under ongoing pressure to find new homes for prisoners housed at the US-run Guantánamo Bay prison in Cuba after pledging to close the facility by January 2010. Over 180 prisoners remain in limbo.

Georgian opposition groups have raised concerns about potential risks from Tbilisi’s willingness to help house former Guantánamo detainees, but ruling party politicians and government officials have brushed aside worries that the three men pose any security threat.

“The Georgian government made the decision to accept several detainees as part of our strategic partnership with the United States,” Deputy Parliamentary Speaker Gigi Tsereteli commented to EurasiaNet.org. “Three or four people is [sic] not any threat for the Georgian state.” One senior Ministry of Internal Affairs official underlined that the trio will live “normal lives” in their host country.

A special group of ministry representatives traveled to the Guantánamo prison in December 2009 to interview possible detainees for relocation, said Shota Utiashvili, head of the ministry’s analytical department. The Georgian government was satisfied that the men are not dangerous, although wanted to confirm that they were not “psychologically damaged,” he added. The men have already contacted their families, and are free to bring them to Georgia if they wish, Utiashvili continued.

The men are currently housed in Tbilisi and have been provided with language tutors to help them learn Georgian. Utiashvili said that the Georgian government is not paying for the men’s accommodations or needs, but would not elaborate about who is covering the cost of their care. He would not identify any of the ex-prisoners.

The US attorney for one of the men, however, maintains that he is far from being a terrorist. In March 23 comments posted on her blog, Chicago-based attorney H. Candace Gorman identified one of the transferred prisoners as Abdul Hamid al-Ghizzawi. In published interviews, Gorman has described al-Ghizzawi as a Libyan baker in his mid-40s with an Afghan wife and small daughter. He allegedly fled Libya for Afghanistan in the 1980s, and opened a spice shop and bakery.

His story appears to be well known among anti-Guantánamo activists like British journalist and filmmaker Andy Worthington, who has made a documentary about the prison. Worthington claims that al-Ghizzawi was among scores of Arab nationals scooped up by bounty hunters looking to trade alleged al-Qaeda sympathizers for cash. Al-Ghizzawi was declared innocent by a military tribunal in 2004, but was not released [because a second tribunal was convened, which reversed that opinion -- see above]. Attorney Gorman writes on her blog that he suffered health problems while in prison and was often in solitary confinement.

Utiashvili would not confirm or deny that al-Ghizzawi is one of the three former Guantánamo prisoners sent to Georgia.

Opposition figures like Irakli Alasania, Georgia’s former ambassador to the United Nations, have called for greater transparency about the transfer. Discussions about such a transfer were ongoing as of late autumn 2009, according to Georgian government statements made to EurasiaNet.org. But filmmaker Worthington noted that it is often in the men’s best interests not to be identified. Family members at home could face retribution, he said.

Another concern is the reaction in the host country. Detainees face “almost complete ignorance about any of the details of Guantánamo” in any host country, which can lead to misperceptions by the local population, Worthington claimed.

So far, however, ordinary Georgians, long used to riding the waves of larger powers’ foreign policies, appear to have responded to the trio’s arrival with equanimity. The three men have, in fact, already contributed to the country’s rich culture of self-deprecating jokes.

A cartoon published on March 29 by the weekly newspaper Kviris Palitra illustrated their reaction to being transferred to Georgia, a country still struggling to recover from the 2008 war with Russia and years of economic decline. Lament the men: “But we didn’t harm (America) that much!”

POSTSCRIPT/CORRECTION: Candace Gorman informs me that the US authorities never even attempted to back up its claim, mentioned many years ago in one of its “Summaries of Unclassified Evidence,” that Mr. al-Ghizzawi had been “encouraged to go to Afghanistan to fight with the Mujahideen,” and had “moved to Pakistan to take up the Afghan case.” In the fog of allegations masquerading as evidence, I’m sorry to report that I had given weight to this allegation, whereas it appears that Mr. al-Ghizzawi was, in fact, nothing more than a refugee from Libya who had settled in Afghanistan.

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

The Spanish government, which declared last week that it would take up to five cleared prisoners from Guantánamo, announced that the first of these men arrived in Spain on Wednesday. The Spanish Interior Minister Alfredo Perez Rubalcaba told reporters that the man is Palestinian, but would not give his name, citing privacy concerns. According to the press agency dpa, Rubalcaba explained that he “would get a residence permit, the possibility to work and freedom of movement in Spain, though Guantánamo prisoners taken by European countries could not leave those countries.” He added that Spain would only accept prisoners “with no criminal charges in the European Union, the United States or their countries of origin.”

As well as accepting the Palestinian, the newspaper Periódico reported that other prisoners, “believed to include a Syrian and a Yemeni citizen,” were “expected to arrive in Spain shortly,” adding that they will be “placed in different locations under the care of NGOs,” and will also be “placed under surveillance not only to protect the Spanish public, but also to protect the individuals from al-Qaeda reprisals over their possible revelations to US intelligence services.”

Cementing its role as America’s closest ally when it comes to clearing up “the mess” that is Guantánamo (to quote President Obama’s words from last May), the Albanian Ministry of Interior announced on Wednesday that it had accepted three cleared prisoners, who could not be repatriated because of the fears outlined above. Albania has now taken eleven cleared prisoners from Guantánamo, having accepted eight in 2006, when no other country in the world was prepared to do so (five Uighurs, an Algerian, an Egyptian and an ethnic Uzbek from the former Soviet Union).

Announcing the arrival of three prisoners in Albania, the Ministry of the Interior stated, “This transfer is a result of the engagement of the Albanian government in backing the Obama administration’s policy to close the detention center in Guantánamo and transfer prisoners to friendly and safe third countries.” In a press release, the US Justice Department identified the three men as: Abdul Rauf Omar Mohammad Abu al-Qusin, a Libyan; Sharif Fati Ali al-Mishad, an Egyptian; and Saleh bin Hadi Asasi, a Tunisian.

Their stories, like those of the majority of the 584 prisoners released from Guantánamo, demonstrate, yet again, that, behind the blustering rhetoric of former Vice President Dick Cheney and his swarming acolytes, the majority of the men held at Guantánamo had no involvement with terrorism, and that a disturbingly large number of them were innocent men seized by mistake.

Of the three men rehoused in Albania, for example, one was a businessman, living in Europe, who had traveled to Afghanistan to provide humanitarian aid, one was a veteran of Afghanistan’s war against the Soviet Union, who had married an Afghan woman, and was seized in a house in Lahore, Pakistan, far from the battlefields of Afghanistan, and the other man, as was common in 2001, before the 9/11 attacks, had been persuaded to travel to Afghanistan to help the Taliban defeat their enemies, the Northern Alliance, in a long-running civil war that had nothing to do with al-Qaeda or international terrorism, and had not raised a finger against US forces.

Sherif El-Mashad: An Egyptian businessman and humanitarian aid worker

Sharif al-Mishad (also identified as Sherif El-Mashad) is an Egyptian, born in 1976. A talented athlete and carpenter in his youth, he enrolled in a technical school to learn woodworking, cabinetmaking, painting, tiling, plumbing and roofing, and, after graduating, spent three years working in Sinai at some of Egypt’s largest beach resorts. There, he began to learn Italian from the tourists, and in 1997, after his father died, decided to travel to Italy, to stay with his uncle, an Italian citizen who lived in Como, in the hope of finding better paid work to provide for the family.

Once he had secured a work permit, he worked in a restaurant and a bar, but soon found that his skills as a craftsman would pay better. After working as an apprentice with two painting companies, he obtained a license from the Chamber of Commerce in Como to work as an independent contractor, and set up his own company, “Sherif El-Mashad,” running the business out of his home.

In the spring of 2001, he met a wealthy Kuwaiti businessman, who encouraged him to travel to Afghanistan to do charity work. As he explained to his lawyers, at the London-based legal action charity Reprieve, he saw this as “a dual opportunity,” allowing him not only to network with a well-connected businessman, but also to help those less fortunate than himself by distributing humanitarian aid — food, clothes, and blankets. Providing an analogy to his lawyers, he explained that the plan was akin to “organizing a charity gala with a prospective business partner.”

As a result of this meeting, El-Mashad booked a round-trip ticket, intending to stay in Afghanistan for a couple of months, before returning home to work. It was obvious that he had no intention of staying any longer, because, as his lawyers, explained, two days before he left Italy in July 2001, he had billed a customer almost €15,000 for painting services to be collected on his return.

His mother, who is the deputy principal of a school in Egypt, explained in 2006 how she had advised her son against traveling to Afghanistan. “I never wanted him to go on that trip”, she said, “because I knew that the region was unstable and so many events were taking place there, but he was stubborn. He was very kind and grateful to his family, though.” A week after his arrival, according to his mother, “he called his uncle, who lives in Italy, and told him that he arrived and asked him to reassure me.”

After that, he effectively disappeared off the face of the earth, until his uncle called to say that he had received a postcard from Guantánamo (via the International Committee of the Red Cross), in which he wrote that “he had been visiting a friend in Afghanistan and subsequently enlisted in a ‘rescue organization’ that offered ‘humanitarian aid to the Afghani people.’” Although he ended up staying in Afghanistan for longer than he intended, helping his friend, who, as he explained in Guantánamo, “passed out donations to help the Afghani people,” they remained safe in Kabul until November 2001, when, with the Northern Alliance approaching, and rumors spreading that Arabs were no longer safe, they set off for the Iranian border, intending to return home. As he also explained, “I had a valid visa to Iran and a return ticket with an Iranian airline.” However, when they discovered that the border crossing was closed, they realized that they would have to leave via Pakistan, but were detained by Pakistani soldiers after crossing the border and arriving in a small village. El-Mashad then spent three weeks in a Pakistani prison in Peshawar, and was then flown to the US prison at Kandahar airport, where he spent several more months before being transferred to Guantánamo.

There seems to be no reason to dispute this story, and El-Mashad clearly explained it at length to his interrogators in Guantánamo, telling them how he traveled to Kabul, how he met up with the Kuwaiti businessman, how he “heard of the attacks in America while listening to the radio,” how he and “all who were present with him were sorrowful and none of them were happy,” and how he fled from Afghanistan and was seized.

However, once he was in US custody, he became the victim of patently false allegations made by other prisoners, either through coercion or torture, or through the promise of preferential treatment, of the kind that are disturbingly familiar to those who have studied closely the rulings in the prisoners’ habeas corpus petitions over the last year and a half.

One of these allegations was made by a prisoner who was rescued by US forces from a prison in Afghanistan, and then transported to Guantánamo, even though he had been imprisoned as a spy by al-Qaeda and had been subjected to horrendous torture. This prisoner claimed that, in early 2000, El-Mashad  “participated in torturing him through beatings and electric shocks”, even though, as El-Mashad pointed out, he was in Italy in early 2000 and had the documents to prove it.

He also told his lawyers that, in the early days of his imprisonment, “I was first accused of aiding the Arabs in Bosnia. Then they changed the accusation that I was there just for training. In both cases, it’s impossible that I was in Bosnia at the time of the war in 1991, simply because at that date I was 14 years old! From 1991-1997 (the duration of the Bosnian war) I was studying at my school and I never left my country to anywhere. I have the proving documents.” He also explained that another set of false allegations came about because the US authorities mistook him for a significant figure in al-Qaeda, which led to a number of other false allegations, including claims that he trained recruits in urban warfare at a military training camp. Another false allegation, made by an unnamed “source”, was that he sold videotapes of the bombing, in 2000, of the USS Cole.

“Throughout my life, I was never involved in any banned or illegal activities by any means,” he told Cori Crider of Reprieve in August 2008, during his first visit with a lawyer from the legal action charity, adding, “I don’t have any file with any police office or any bad record with any authority.” He also explained that Italian agents had visited him in Guantánamo and had confirmed that there was no case against him. “They told me they knew I was innocent and they would ask the United States to release me,” he said, adding, “My case is very clear. I have physical evidence to defend myself against these charges.”

Abdul Ra’ouf al-Qassim: A Libyan seized in Pakistan

Abdul Rauf al-Qusin (also identified as Abdul Ra’ouf al-Qassim, and named in court documents as Abu Abdul Raouf Zalita) is a Libyan, born in 1965, who was cleared for release from Guantánamo in 2006. A soldier in the Libyan army from 1983 to 1989, he had then deserted, traveling to Afghanistan “to immigrate and to start a new life,” as he explained to his military review board in Guantánamo in May 2005. After fighting with the mujahideen until 1993, when the last remnants of the Soviet regime fell, he “traveled back and forth between Pakistan and Afghanistan” — at one point studying at university in Quetta — and also met and married an Afghan woman, Rahima, with whom he had a daughter, Khiria, who has spent the whole of her young life without her father.

Al-Qassim was captured in Lahore in May 2002, at the house of a Pakistani, after escaping from war-torn Afghanistan with his pregnant wife, but although it was clear that he had not taken up arms against the Americans, it was far less clear that he would not be regarded as a threat by the government of his home country. At his review in 2005, he explained (via a military officer assigned to him instead of a lawyer) that he had received military training at two Libyan camps in Afghanistan, but only because he was living there, and also admitted that he had joined the Libyan Islamic Fighting Group — exiled opponents of the Gaddafi regime — but only “out of desperation — he was broke, had no place to go, was hungry, unemployed and had no way to support himself.” He added that his family “did not receive monetary support from the [LIFG], but he received food, shelter and an allowance for clothes.” He also agreed with previous statements he had made: that he “did not believe in violence,” and that he “angrily defined [al-Qaeda’s] leadership and members as ‘savages’ who twist the meaning of Islam, thereby hurting all Muslims.”

Although al-Qassim stated that a Libyan delegation, who visited Guantánamo in 2004 (and were actually flown there by the CIA), told him that they “knew he was with the Libyan Islamic Fighting Group only by name,” that he was “obligated to be with them,” and that they would “take care of him,” he repeatedly told his Assisting Military Officer that he was “afraid of returning to Libya.” His AMO reported, “He said he does not want to go to Libya because he feels he cannot trust them and because they put people in prison for no reason. He said he feels that if he returns to Libya, even after being released by the United States, he would be sent back to prison.” Such was his concern that the Presiding Officer noted, “For the record, make sure that we put in our report that the Detainee is afraid of returning to Libya.”

In spite of this, the US government sought to repatriate al-Qassim, and his lawyers — at the Center for Constitutional Rights — fought a legal battle for over three years to prevent his forcible return. In a court filing in December 2008 (PDF), they noted his ongoing legal limbo:

The Government has cleared him for transfer from Guantánamo, and has twice attempted to repatriate him to Libya, the country from which he fled to Afghanistan more than a decade ago in order to avoid religious persecution. Petitioner has a credible fear that he will be subject to imprisonment, torture and possible summary execution if he is forcibly returned to Libya, and he has resisted all attempts to repatriate him to that country. He remains detained in Camp 6, an isolation facility, more than six years after his detention and nearly two years after the Government’s first notice of intent to transfer him out of Guantánamo.

Saleh Sassi: An insignificant adventurer

The third man released in Albania, Saleh bin Hadi Asasi (more commonly known as Saleh Sassi, and also identified in Guantánamo as Sayf bin Abdallah) is a Tunisian, born in 1973, who, like the two men described above, was cleared for release by a military review board under the Bush administration, and by President Obama’s Task Force.

A welder and a skilled laborer, he moved to Italy in 1998, hoping to find work and a better life, and settled in Turin, where he secured a work permit and found employment in the construction industry. Apparently persuaded to travel to Afghanistan during a vacation from work, he reportedly spent some time at a mountain outpost north of Kabul, and was later wounded when a truck he was traveling in was shot at. Hospitalized, first in Kabul, and then in Khost, he was transported to the Pakistani border, where he was seized by the Pakistani authorities.

In Guantánamo, as his lawyers at Reprieve noted, he was often held “in brutal conditions.” The vast majority of his imprisonment was spent in isolation, which caused him to suffer clinical depression. In discussions with his lawyers, he explained that his imprisonment was “a long and unending nightmare.” He was also visited by teams of foreign interrogators — both Italian and Tunisian. In late 2002, Tunisian agents came to Guantánamo and left no doubt about what awaited him if he were to be returned to Tunisia, which included “water torture in the barrel.”

What now, and what next?

With the release of these four men, 188 prisoners remain in Guantánamo, but while the Albanian and Spanish governments are to be congratulated for offering homes for men who would otherwise rot in Guantánamo for the rest of their lives, the Italian government, which is only interested in taking prisoners who can be put on trial in Italy (as demonstrated with the transfer of two Tunisians in December) ought to be ashamed that it did not accept Sherif El-Mashad, who was so clearly seized by mistake, and who, with family in Italy and viable skills that he could use once more, has, essentially, been betrayed by the country which he once called home.

Above all, though, the greatest shame must settle on the United States, which still refuses to accept its own responsibility to provide new homes for cleared prisoners who cannot be repatriated. The exact number of prisoners in this category is difficult to establish, because the Obama administration has not provided details of the nationalities of these prisoners (who now number 106). When the Task Force announced its final decisions about the prisoners last month, it was reported that around 60 of the 106 are Yemenis. These men will not be released until the Obama administration finds some spine, having capitulated to fearmongering about Yemen after the failed plane bomb at Christmas, and suspending all further releases to Yemen. Back in October, it was reported that three others are Saudis (who, in theory, could be returned tomorrow), which means that around 42 of the cleared prisoners are awaiting new homes.

Two of these, who have been offered a new home in Switzerland, are amongst the remaining seven Uighurs, another is an Uzbek who has been offered a new home in Latvia, and three others (plus one of the Yemenis) are, as mentioned above, expected to arrive in Spain shortly. However, that still leaves 36 men waiting for new homes, and it seems probable that the countries of Europe, which, before Wednesday, had taken 12 cleared prisoners (with Bermuda and Palau also taking another ten of the Uighurs), will run out of largesse before all 36 are rehoused, leaving the US government — and its people — with a stark choice: hold them forever, or, as was planned last April (before Obama scuppered the proposal), bring some of them to live in the United States.

This is not only the right thing to do; it will also demonstrate to the American people — and to its surplus of hysterical pundits and politicians — that not everyone who was held at Guantánamo was a terrorist, bent on the destruction of the United States. Why is it, I wonder, that Europeans — in Albania, Belgium, France, Hungary, Ireland, Portugal, Slovakia, Spain and Switzerland — can understand that between 90 and 95 percent of the men held at Guantánamo had no connection to terrorism, and that many of these men are still imprisoned, awaiting an end to their long and lawless ordeal, but Americans cannot?

(‘’)

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

As published on the Huffington Post and Antiwar.com. Cross-posted on AlterNet, Common Dreams, The Public Record, Axis of Logic.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 48 prisoners released from February 2009 to January 2010, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; ; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs to Bermuda, 1 Iraqi, 3 Saudis (here and here); August 2009 — 1 Afghan (Mohamed Jawad), 2 Syrians to Portugal; September 2009 — 1 Yemeni, 2 Uzbeks to Ireland (here and here); October 2009 — 1 Kuwaiti, 1 prisoner of undisclosed nationality to Belgium; October 2009 — 6 Uighurs to Palau; November 2009 — 1 Bosnian Algerian to France, 1 unidentified Palestinian to Hungary, 2 Tunisians to Italian custody; December 2009 — 1 Kuwaiti (Fouad al-Rabiah); December 2009 — 2 Somalis, 4 Afghans, 6 Yemenis; January 2010 — 2 Algerians, 3 prisoners of undisclosed nationality to Slovakia, 1 unidentified Uzbek to Switzerland.

Al-Ghizzawi is clearly an innocent man. Back in 2004, when the Bush administration convened military review boards — the Combatant Status Review Tribunals — to review the prisoners’ cases, his panel of three military officers concluded that there was insufficient evidence to declare him an “enemy combatant,” and that he should therefore be released.

We know this because one of the members of this particular tribunal, Lt. Col. Stephen Abraham, a veteran of US intelligence who also compiled the information used in the tribunals, and who memorably declared in 2007 that they were severely flawed, relying on intelligence “of a generalized nature — often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status,” wrote about serving on al-Ghizzawi’s tribunal, explaining:

On one occasion, I was assigned to a CSRT panel with two other officers, an Air Force Colonel and an Air Force Major, the latter understood by me to be a judge advocate. We reviewed the evidence presented to us regarding the recommended status of [Mr. al-Ghizzawi]. All of us found the information presented to lack substance.

He added:

On the basis of the paucity and weakness of the information provided both during and after the CSRT hearing, we determined that there was no factual basis for concluding that the individual should be classified as an enemy combatant.

Lt. Col. Abraham also explained — as was backed up in October 2007 by a second whistleblower, an Army Major who had taken part in 49 tribunals — that unfavorable decisions were overruled by those in charge, who then convened a second tribunal to produce the desired result, and added that this is what had happened in the case of Mr. al-Ghizzawi. Lt. Col. Abraham and his fellow tribunal members were prohibited from taking part in any more tribunals, and a second, secret tribunal was held in Washington D.C., at which it was duly decided that Mr. al-Ghizzawi was an “enemy combatant” after all.

In the five years since this shocking demonstration of rigged justice, Abdul Hamid al-Ghizzawi has languished in Guantánamo, plagued with health problems, including, at one point, an apparently mistaken belief that he had been infected with AIDS, while his attorney, H. Candace Gorman, has waged a relentless campaign to try to secure justice for him, which she has chronicled on her website, The Guantánamo Blog, as well as for the Huffington Post and In These Times.

Last Tuesday, November 17, Candace finally had some good news about her client that she could announce to the world: he had finally been cleared for release, and she was at liberty to tell us, five months after first hearing about it, which she did in a blog post entitled, “The Muzzle Is Off.” This is reproduced below, as, for insane reasons described afterwards, the Justice Department has just ordered her to remove it from her blog (she has done so, but a cached copy is retained by Google here — the ironic italics in reference to the justice department are Candace’s):

The Muzzle Is Off
By Candace Gorman

In June of this year I received a call from a foreign reporter who asked if I could give her a profile of my client Al-Ghizzawi as he was on a list of men whom the US was looking for a new home and her country was considering accepting him. This was the first I had learned that Al-Ghizzawi had been “cleared” by the Obama review team for release. I gave her information about my client and for all I know a story was published about the plight of Al-Ghizzawi at Guantánamo, his status as “cleared” and why he needed a country in Europe to take him.

A few days later an attorney from the justice department called to tell me that Al-Ghizzawi was cleared for release and we laughed about the fact that I already knew the information. However the laughing stopped when the attorney told me that the justice department had designated the information as “protected” and I could not tell anyone except my client and those people who had signed on to the protective order (a court document that outlines the procedures for the Guantánamo cases) about his status as “cleared for release.” I told the attorney that he could not declare something “protected” that was already in the public domain. To make a long story short we were not in agreement and the attorney filed an emergency motion with the judge to muzzle me. Despite the fact that the information was in the public domain I was muzzled by the good judge who apparently doesn’t believe that the Constitution applies to me. I couldn’t even tell Mr. Al-Ghizzawi’s brother what I thought was good news (I didn’t know then that this was just another stall tactic by the justice department).

Not only was I muzzled but Mr. Al-Ghizzawi’s case was put on hold. The habeas hearing that we had been fighting to obtain literally for years was stayed by the judge despite the fact that the US Supreme Court held in June of 2008 that the men were entitled to swift hearings … So much for the Supreme Court! The president asked the judges to stop the hearings for those men who were “cleared” for release and the judges have fallen into lockstep, shamefully abandoning their duties as judges.

A few months later when I visited Al-Ghizzawi (at the end of August) he had just received word from his wife that she could no longer wait for his release and she asked him if she would sign papers for a divorce. Bad news is an everyday occurrence for Al-Ghizzawi and he was holding up well despite this latest blow.

When I returned from the base I asked the justice department to allow me to contact Al-Ghizzawi’s wife and tell her that he had been cleared for release. I hoped that if she knew he was to be released she would hang in there and not go through with the divorce. I was told they would get back to me. When they didn’t I asked again but they still would not give me the OK. In Court papers I pleaded with the judge to let me tell Al-Ghizzawi’s brother and wife, telling the judge about the wife’s request for a divorce, but the judge, the same judge who has apparently decided to ignore the Supreme Court’s directive for quick habeas hearings, ignored this plea as well.

I seriously thought about disobeying the order and trying to get word to Al-Ghizzawi’s wife and then taking whatever lumps were thrown my way … however, despite the fact that the judicial system has failed Al-Ghizzawi and most of the men at Guantánamo I could not bring myself to blatantly disobey a court order. For five months I have kept this information confidential despite the injustice to both my client, Mr. Al-Ghizzawi, and to what was our rule of law … until yesterday, when the muzzle was lifted.

*****

Four days later, and Candace has now reported that “The Muzzle Is Back On,” explaining:

On Tuesday I reported that the Government finally allowed me to discuss matters that had previously been “protected” in regards to my client Al-Ghizzawi. In fact the Government unclassified and allowed for public release a Petition for Original Habeas Corpus that I filed in the US Supreme Court. I released that Petition to the public in accordance with the Government’s designation of “unclassified.” On Friday the Department of Justice (DOJ) told me that it had made a mistake and that it had apparently violated the Protective Order (an Order that sets out the rules for the DOJ and Habeas counsel in regards to the Guantánamo cases) entered in the case when it “unclassified” and allowed for public release information in the Petition that it wanted to “protect” and that therefore I must remove my post of November 17 because of the DOJ’s mistake. I explained to the DOJ attorneys that the Petition and my Post of November 17 were widely distributed and are available at various sites on the web … they do not seem to care about that … they only care that I not report about what they are now trying to declare “protected information” … 5 days after they unclassified the material and made it available for public release.

This is of course outrageous conduct by the DOJ … in trying to declare something as “protected” after being clearly designated and distributed to the public, but what else is new? For those of you who either remember my November 17 post or have it available on your website, I originally learned of the so-called “protected” information from a public source and the judge in Al-Ghizzawi’s case still ruled that I could not discuss it. […]

This is not the end of this story. Under the Protective Order the Government must actually get the judge’s permission to retroactively keep me (and only me) from publishing and discussing the information that the Government now seeks to “protect.” The DOJ will have to file a document with the Court explaining why this now very public information should be “protected.” Ultimately it will be the judge’s decision. If you do not see my post back up that will mean that the judge agreed with the Government, that I alone cannot talk about those things that you are privy to discuss.

So there you have it. As I am not Candace, and am not prohibited from reproducing her words, I thought that this whole depressing saga was worth relating in full. I’d also like to include Candace’s parting words from the post that has been removed at the insistence of the Justice Department, as they shine a light on the Byzantine workings of the Guantánamo litigation. As Candace explained:

[I]f you hear from a habeas attorney that his or her case has been stayed you will know about the injustice that their client is continuing to suffer, you will know that the client has been cleared for release, that the attorney cannot discuss that fact and that the judge in that case has abandoned his or her duty to be a judge. You will also know that being cleared for release is just as meaningless as everything else that has been happening to these unfortunate men … because being cleared for release means nothing.

Or, as my good friend The Talking Dog explained just a few days ago:

For advocates of “hope and change” who foolishly think that with our young and handsome new President everything is somehow “better” now … I just want you to know that while the nomenclature has changed (Al-Ghizzawi is no longer an “enemy combatant” or “unlawful enemy combatant” … he is simply a poor schmuck we’re holding) … and he is “cleared for release” … the same great executive overreach with its very real and very tragic personal consequences just goes on … and on … and on …

Americans should look at Al-Ghizzawi’s story (he was simply a baker in Afghanistan, handed in to American forces for bounty money, and we just can’t bring ourselves to let him go, even as he suffers egregious medical problems) and ask ourselves, “What kind of people are we?” The fact that most of us are probably not capable of that level of introspection probably best answers the question, I’m afraid.

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

Cross-posted on The Public Record.

The trigger for this sudden shifting of legal protections for some of the most vulnerable prisoners in Guantánamo (from countries with notoriously poor human rights records, including Algeria, Libya, Tunisia and Uzbekistan) was the response to a ruling last October, by District Court Judge Ricardo Urbina, after the government (reeling from a shocking court defeat in June) conceded that it could no longer claim that the Uighurs were “enemy combatants.” Judge Urbina ruled that they should be relocated to the US mainland, because the government conceded that it was unsafe to return them to China, because no other country had been found that would accept them, and because continuing to hold them in Guantánamo was unconstitutional.

The government disagreed, and appealed Judge Urbina’s ruling, and when the Court of Appeals came to review the case, a panel of three judges — including Judge A. Raymond Randolph, a man noted for endorsing every Bush administration policy regarding the “War on Terror” that was subsequently overturned by the Supreme Court — reversed Judge Urbina’s ruling, deciding that the courts had no business interfering in immigration policies that were the preserve of the Executive.

The judges were seemingly unmoved that this would leave the Uighurs (and, very possibly, others in Guantánamo) with no means of leaving the prison, and that it stripped the Supreme Court’s ruling in June 2008, granting the prisoners habeas corpus rights, of all practical meaning, if it was not possible for judges to order their release. In the judges’ words, however, “the political branches have the exclusive power … to decide which aliens may, and which aliens may not, enter the United States, and on what terms.”

In response to the ruling, the Uighurs’ lawyers filed a petition with the Supreme Court (a writ of certiorari, essentially a petition asking for a judicial review). A date in June was set for a hearing, amid fears from the lawyers that the government would find other countries to take the Uighurs before that date, so that the Supreme Court could be persuaded not to review the Circuit Court’s ruling, and to rule on whether it was indeed acceptable that the Executive should be able to gut the lower courts’ habeas rulings of all meaning by refusing to allow judges to order the prisoners’ release.

In the end, the government managed only to dispose of four of the Uighurs before the deadline (sending them to Bermuda), but the Supreme Court then decided to refrain from hearing the case until October, perhaps to give the government time to resolve the issue itself.

This case, Kiyemba v. Bush (which became Kiyemba v. Obama) is now known as “Kiyemba I,” because, in response to the ruling by the Court of Appeals, the Uighurs’ lawyers submitted an appeal on their clients’ behalf, also filed as Kiyemba v. Obama, and now known as “Kiyemba II.” In the brief, they asked the Court of Appeals to reconsider its opinion en banc (in other words, with all the judges ruling, instead of just a panel of three), and also sought assurances that the courts would be able to act if the government proposed sending their clients to countries where they faced the risk of torture.

However, not only did the court refuse to reconsider its ruling, but the judges also refused the Uighurs’ request for the court’s assistance “to prevent their transfer to a country where they are likely to be subjected to further detention or to torture” (PDF), drawing on Munaf v. Geren, a case from 2008 in which “two American citizens held in the custody of the United States military in Iraq petitioned for writs of habeas corpus, seeking to enjoin the Government from transferring them to Iraqi custody for criminal prosecution in the Iraqi courts.”

In Munaf, although “The Court held the district court had jurisdiction over the petitions,” it also ruled that “it could not enjoin the Government from transferring the petitioners to Iraqi custody,” because “that concern is to be addressed by the political branches, not the judiciary.”

The court added that strenuous efforts had been made by the US government not to transfer prisoners to countries where they might face torture, and “The upshot is that the detainees are not liable to be cast around willy-nilly without regard to their likely treatment in any country that will take them,” but in any case, as the judges also explained, “the district court may not question the Government’s determination that a potential recipient country is not likely to torture a detainee,” because “The judiciary is not suited to second-guess such determinations.”

With that decision, effectively, the case was lost. The Uighurs’ lawyers announced their intention to appeal this second ruling to the Supreme Court, and it is currently anticipated that the Supreme Court will address both “Kiyemba I” and “Kiyemba II” sometime next month.

However, the fallout from the Court of Appeals’ insistence that no court is empowered to prevent the government from sending prisoners wherever it wishes has had a disturbing knock-on effect on other cases (as many as 150 of the remaining 225 prisoners, according to SCOTUSblog), in which lawyers have, since 2005, persuaded the courts to order the government to provide 30 days’ notice in advance of any proposed transfer, and, in some cases, including that of Ahmed Belbacha, an Algerian who had lived in the UK, have secured injunctions preventing any attempt to repatriate their clients.

Belbacha’s case is, in many ways, emblematic of the issues at stake. Although he was cleared for release from Guantánamo by a military review board in February 2007, he is terrified of returning to Algeria, where he fears persecution both by the government and by the Islamists whose threats forced him to flee his homeland in the first place. His case has attracted widespread support from human rights organizations, and has also received international media coverage.

Since the Court of Appeals made its ruling in “Kiyemba II,” lawyers have been aware that the 30-day notices and injunctions were under threat, but it was not until September 8, when the court issued its mandate regarding “Kiyemba II”, which formally implements its ruling, that the way was paved for the government, if it wishes, to lawfully repatriate prisoners who, like Belbacha, would rather remain in Guantánamo than return home.

As a result, Belbacha’s lawyers have filed a motion with the Court of Appeals asking the judges “to hold this case in abeyance pending the Supreme Court’s disposition of a petition for certiorari that the petitioners in Kiyemba intend to file.” The judges may well respond by reiterating that they are secure in assurances from the government that “the detainees are not liable to be cast around willy-nilly without regard to their likely treatment in any country that will take them,” but with just four months to go until the deadline is reached for Obama’s promised closure of Guantánamo, it is, I believe, legitimate to entertain fears that the administration may wish to repatriate cleared prisoners to countries it regards as safe (following “intense diplomatic negotiations,” or some such explanation), but which the prisoners and their lawyers still regard as a profound threat.

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. Also see my definitive Guantánamo prisoner list, published in March 2009, and if you appreciate my work, feel free to make a donation.

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

Since breaking al-Libi’s story in the Western media on Sunday evening, I have written several articles examining the story from various angles — in particular, was he killed, or did he commit suicide, and why was the mainstream media so slow to pick up on the story? — but for the Guardian I thought it was significant to focus on how Libyan prisoners seized by the US in the “War on Terror,” or those who fled Libya seeking asylum in the UK, have become pawns in a political game.

This little-noticed story, which I touched on in my article, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence? has manifested itself as both countries have repatriated former prisoners and asylum seekers to face torture and show trials — or have attempted to do so — not because of the threat that they pose to the US and the UK, but as part of a morally bankrupt deal that followed Colonel Gaddafi’s pragmatic renunciation of terrorism in 2003, when he suddenly became a friend of the West, and his opponents were transformed, overnight, from freedom fighters to terrorists.

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

For other recent articles on Ibn al-Shaykh al-Libi — and Cheney’s monstrous and unprecedented crime — see: Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, 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.

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), linearization transfer characteristic mach-zehnder modulatorSecret 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? and CIA Torture Began In Afghanistan 8 Months before DoJ Approval (all April 2009), Obama’s First 100 Days: Mixed Messages On Torture (May 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.

So, it’s been about 16 hours since we covered indie journalist / historian / blogger Andy Worthington’s detailed report on the reported suicide of the man who falsely “confessed,” during torture, to a false tie between Iraq and al-Qaeda … As of this moment, not a single mainstream US newspaper or broadcast outlet has reported on the story. Is it not notable? Or are our newspapers just dead set on ensuring their irrelevance by continuing to not report on news that actually matters, no matter how widely it’s being reported in other parts of the world?

See the rest of the story here.

Reuters finally picked up on the story late yesterday afternoon, and secured a quote from Human Rights Watch researcher Heba Morayef, who said that she had seen al-Libi just two weeks ago, on April 27, during a visit to Abu Salim jail in Tripoli. She explained that he “appeared for just two minutes in a prison courtyard,” and that he “looked well, but was unwilling to speak” to the Human Rights Watch team, saying instead, “Where were you when I was being tortured in American prisons?”

This account corresponded with some news I received from a Libyan friend, who told me that “a reliable source” had told him that al-Libi’s body “was handed to his brother in the city of Ajdabiya.” The friend’s source corroborated Heba Morayef’s account of the prison visit, explaining that al-Libi “refused to meet them in anger because he thought, ‘Where were these organizations when I was badly tortured in US custody?’” In addition, the source, who had had access to al-Libi when he was in prison, said that he was held “in reasonable cell conditions.”

This doesn’t provide absolute confirmation of what happened to al-Libi, but it does seem to indicate fairly convincingly that he was in reasonable health just two weeks ago, which will only add to suspicions that, instead of committing suicide, as the Libyan authorities claimed, he was actually killed.

Late yesterday, Human Rights Watch issued a press release, calling on the Libyan authorities to conduct “a full and transparent investigation of the reported suicide,” in which they “should reveal what they know about al-Libi’s treatment in US and Egyptian custody.” Sarah Leah Whitson, Middle East director at Human Rights Watch, said, “The death of Ibn al-Shaykh al-Libi means that the world will never hear his account of the brutal torture he experienced. So now it is up to Libya and the United States to reveal the full story of what they know, including its impact on his mental health.”

Other Libyans subjected to “extraordinary rendition” by the CIA

Human Rights Watch also revealed that, although its researchers had been unable to talk to al-Libi, they did interview four other Libyan prisoners, sent to Libya by the CIA between 2004 to 2006, who stated that they had been tortured by US forces in detention centers in Afghanistan, and that US forces had also supervised their torture in Pakistan and Thailand.

One of the men, Mohamed Ahmad Mohamed al-Shoroeiya, also known as Hassan Rabi’i, told Human Rights Watch that “in mid-2003, in a place he believed was Bagram prison in Afghanistan,” he had been subjected to the following abuse: “The interpreters who directed the questions to us did it with beatings and insults. They used cold water, ice water. They put us in a tub with cold water. We were forced [to go] for months without clothes. They brought a doctor at the beginning. He put my leg in a plaster. One of the methods of interrogation was to take the plaster off and stand on my leg.”

The Washington Post published the story of al-Libi’s death in this morning’s edition, with a fine quote from Tom Malinowski, the head of the Washington office of Human Rights Watch, who said, “I would speculate that he was missing because he was such an embarrassment to the Bush administration. He was Exhibit A in the narrative that tortured confessions contributed to the massive intelligence failure that preceded the Iraq war.” However, the Post failed to follow up on the stories of the other prisoners mentioned in the Human Rights Watch press release, even though, in October 2007, Craig Whitlock had written a front-page article for the Post, “From CIA Jails, Inmates Fade Into Obscurity,” which included details of the four prisoners.

Whitlock wrote that, when al-Libi was rendered to Libya by the CIA “in early 2006,” he “joined several other Libyans” — members of the Libyan Islamic Fighting Group, an exiled group dedicated to the overthrow of Colonel Gaddafi –  “who had spent time in the CIA’s penal system.” Whitlock noted that, after the US-led invasion of Afghanistan, the CIA “helped Libya’s spy agencies track down some of the leaders” of the LIFG, after they fled the country.

He reported that, according to Noman Benotman, an exiled former LIFG member, who had met the prisoners during a visit to Tripoli that was “arranged by the Libyan government as part of an effort to persuade the Libyan prisoners to reconcile with the Gaddafi regime,” the prisoners included Abdallah al-Sadeq, who “was apprehended in a covert CIA operation in Thailand in the spring of 2004,” and Abu Munder al-Saadi, described as “the group’s spiritual leader,” who was seized at an airport in Hong Kong. According to Benotman, these two men were only “held briefly” by the CIA before being rendered to Tripoli. “They realized very quickly that these guys had nothing to do with al-Qaeda,” Benotman explained. “They kept them for a few weeks, and that’s it.”

Benotman also explained that two other prisoners, Khaled al-Sharif “and another Libyan known only as Rabai” — the prisoner mentioned in the Human Rights Watch press release — “were captured in Peshawar, Pakistan, in 2003 and spent time in a CIA prison in Afghanistan.”

I await the Human Rights Watch report on the Libyan visit with interest, as it will undoubtedly shed more light on the stories of these four men, who appear to be among the 94 prisoners who, in May 2005, in one of the notorious Office of Legal Counsel memos issued by the US Justice Department last month, Principal Deputy Assistant Attorney General Steven G. Bradbury acknowledged had been held in US custody.

Just as the story of Ibn al-Shaykh al-Libi should shine the most uncomfortable light on former Vice President Dick Cheney’s claims that the CIA’s web of secret prisons and proxy prisons protected America from further deadly attacks (and not, as it transpired, provided false information obtained through torture to justify an illegal war), so the stories of these four men deserve to be heard, to focus much-needed attention on a policy which, with no oversight from either Congress or the judiciary, allowed the Executive branch to indulge its dictatorial fantasies by “disappearing” prisoners anywhere around the world, and, in some cases, returning them to countries like Libya, with its notoriously poor human rights record, even when, as Craig Whitlock noted, at least two of these men “had nothing to do with al-Qaeda.”

And an even bigger story, to which I hope to return in future, involves asking searching questions of both the US and UK governments regarding their role in forcibly returning — or attempting to return — Libyan prisoners from Guantánamo, and Libyan residents in the UK, whose only crime, it appears, is to have been in the wrong place at the wrong time when Colonel Gaddafi, once regarded as a pariah and an international terrorist, became an ally in the “War on Terror,” and those who opposed him were transformed, overnight, from freedom fighters to terrorists.

Note: See here for some excellent political cartoons by Detainee DD, one of the Libyans held in the UK, see here for a report on the UK government’s failed attempts to forcibly repatriate Libyans in the UK, and see here, here, here and here for more stories of Libyans in 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, and see here for my definitive Guantánamo prisoner list, published in March 2009.

For updates on the story, see: Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq and In the Guardian: Death in Libya, betrayal by the West (in the Guardian here), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA), and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi.

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? and CIA Torture Began In Afghanistan 8 Months before DoJ Approval (all April 2009), Obama’s First 100 Days: Mixed Messages On Torture (May 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.

In some ways, of course, it is not. The British government, while clearly complicit, to some extent, in the rendition and torture of prisoners by or on behalf of the Bush administration, and in interrogating them while they were held in illegal and unjustifiable conditions, was not directly involved in their industrial-scale rendition, in the establishment of a vast offshore prison devoted to coercive intelligence-gathering, or in the direct implementation of torture, under the cover of flawed legal advice which included blatant attempts to redefine its very meaning.

That said, there are, in fact, many unnerving similarities between the Bush administration’s policies, which prompted universal condemnation on an unprecedented scale, and those implemented in the UK, which have caused barely a ripple of protest.

The similarities between Guantánamo and the UK terror laws

At Guantánamo, since January 2002, the US government has, at various times, held 779 men, mostly without charge or trial, who were picked up in 20 different countries but detained neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects, to be tried in a recognized court. When, after three and a half years, the Supreme Court ruled that they had habeas corpus rights, the government responded not by allowing them access to the US courts, but by holding military tribunals, designed to justify their detention through the use of secret evidence that the prisoners — known as “detainees” — were not allowed to see.

In the UK, since December 2001, the British government has, at various times, held around 70 men without charge or trial, refusing to try them as criminal suspects in recognized courts. The policy began with the imprisonment of 17 men in Belmarsh high-security prison, but when, after three years, the Law Lords ruled that their imprisonment was in contravention of the Human Rights Act, the government responded by introducing control orders and deportation bail, both of which involve draconian restrictions that amount to house arrest. Throughout this whole period, the government has justified the men’s detention through the use of secret evidence that the prisoners — known as “detainees” — are not allowed to see.

Another similarity concerns attempts by both the British and American governments to bypass their obligations under the UN Convention Against Torture — which prevents the return of foreign nationals to countries where they face the risk of torture — by reaching diplomatic agreements with various dictatorships in North Africa and the Middle East. These purport to guarantee that repatriated prisoners will be treated humanely, but in reality they have proved worthless.

Deportation to Tunisia

In June 2007, for example, after the US government signed a “diplomatic assurance” with the Tunisian dictator Zine El Abidine Ben Ali, so that prisoners cleared for release from Guantánamo could be repatriated, two prisoners who were returned — Lotfi Lagha and Abdullah bin Omar — reported that they were threatened and mistreated in Tunisian custody. They were then subjected to show trials, apparently based on evidence obtained through the torture of other prisoners, and received prison sentences of three and seven years.

In the UK, the British government has been involved in a similar policy, signing “memoranda of understanding” (MoUs) in 2005 with Jordan, Libya and Lebanon, and attempting, without success, to do the same with Algeria, in order to deport “detainees” held on the basis of secret evidence, instead of putting them forward for trial in the UK. This is apparently because of the British government’s refusal to join the rest of the world in finding ways to use information obtained by the intelligence services in court, while preserving the confidentiality of sources and methods (PDF), but it is difficult not to conclude that, in fact, the government has been swept up in its own rhetoric, and has actually lost sight of the correct balance between liberty and security.

There are further disturbing parallels. After the demonstrable failure of the Americans’ “diplomatic assurance” with Tunisia, a District Court judge intervened to prevent the return of a third Tunisian — Lotfi bin Ali — in November 2007, arguing that he could suffer “irreparable harm” that the US courts would be powerless to reverse. Since then, no other Tunisians have been repatriated from Guantánamo, and, although the British government subsequently persisted in attempts to deport Tunisians from Europe, intervening in an Italian case, Saadi v. Italy, which was being considered by the European Court of Human Rights at the same time, the British attempts were struck down by the Court, which ruled, in March 2008, that attempts to return Nassim Saadi to Tunisia would be a clear breach of Article 3 of the European Convention on Human Rights (which states that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”).

Deportation to Libya

Both the US and the UK have faced struggles with repatriating foreign nationals to Libya, not because of any difficulties either government has with its enemy-turned-ally, the dictator Moammar Gaddafi, but because courts on both sides of the Atlantic have intervened to prevent Libyans from being repatriated: a Libyan in Guantánamo, Abdul Rauf al-Qassim, has been resisting his enforced return since June 2007, and in the UK, attempts to return 12 Libyans accused of having connections with terrorism were scuppered when, in April 2008, as the Independent described it, the Court of Appeal “gave a damning verdict on promises” that two men — identified only as AS and DD — “would not be tortured in their home country.” The judges ruled that the government “failed to give enough weight to the risk of torture.”

What is particularly galling in the Libyans’ case is that nowhere along the line has a single voice in authority been heard pointing out that those who once opposed Colonel Gaddafi’s regime — and are now wanted in his dungeons — would, not so long ago, have been regarded as our friends, but that observation, of course, succinctly demonstrates an uncomfortable truth: that yesterday’s freedom fighters can all too easily become today’s terrorists when the winds of politics change.

Deportation to Algeria

Where both the British and American governments seem to be in accord — and seem also to be meeting with some success in their mission to discard the UN Convention Against Torture and the European Convention on Human Rights — is with Algeria. Although some Algerians in Guantánamo — most notably Ahmed Belbacha, who had lived peacefully in the UK for two years before he took an ill-timed holiday in Pakistan — are still striving to prevent their enforced repatriation from Guantánamo, others are on record as having returned willingly, even though the fate that awaited them — whether freedom, or a bent trial followed by further imprisonment — seems to be akin to a round of Russian Roulette.

Given the choice of two evils, eight Algerians (see here, here, here, here and here) settled for Algeria over Guantánamo between July 2008 and January 2009, and the same thing has happened with a number of “terror suspects” in the UK, who, exhausted by the imprisonment and house arrest foisted on them by the British government, on the basis of unknowable and unchallengeable secret evidence, opted to return “voluntarily “ to Algeria, with mixed results, as Amnesty International has reported (PDF). Some were released without charge, while others received prison sentences after dubious trials, and in all cases it has been next to impossible for human rights observers to monitor what has been happening with the kind of diligence that is necessary.

The British government — or the Law Lords, at least — know how shaky is the assumption that Algerians returned from the UK will be treated humanely and given fair trials, for two particular reasons: firstly, because the Algerian government has refused even to sign a worthless “memorandum of understanding” and has also refused to allow any British representatives to monitor what happens to those who are returned, and secondly, because, when the Lords approved the deportation in February of two prisoners — BB and U — they resorted, as I explained in an article at the time, to claiming that President Bouteflika has improved Algeria’s human rights record, and has “acknowledged and approved a letter from the Prime Minster which included the statement that ‘this exchange of letters underscores the absolute commitment of our two governments to human rights and fundamental freedoms.’”

In quiet desperation, the Lords also quoted the judges of SIAC (Britain’s secret terror court), who had noted that “Very considerable efforts have been made at the highest political levels on both sides to strengthen these ties,” and concluded that, as a result, “it is barely conceivable, let alone likely, that the Algerian government would put them at risk by reneging on solemn assurances.” As I noted at the time, it was hardly reassuring that, if returned prisoners did find themselves abused, they could be comforted by the fact that the government, SIAC and the Law Lords had thought that such abuse was “barely conceivable.”

Deportation to Jordan

And finally, while the US managed to return all the Jordanians it was holding in Guantánamo without apparent incident, the British government faced an even more uphill struggle to conclude that it most-celebrated would-be deportee, Abu Qatada, would be treated humanely on his return. In the same ruling in which the Law Lords declared that it was safe for BB and U to be returned to Algeria, they concluded that Abu Qatada would not be tortured, and would receive a fair trial — or at least, would not receive “a flagrant denial of a fair trial” — for two reasons; firstly, because, in October 2005, a human rights organization in Jordan “signed an agreement with the United Kingdom government under which it would monitor the due performance of the obligations undertaken by Jordan under the MoU,” and, secondly, because “the fact that he would have a very high profile, coupled with the MoU, and the diplomatic capital invested in it, meant that the Jordanian authorities were likely to make sure that he was not ill-treated in custody or when he emerged from it.”

The judges made their decision in spite of the fact that Abu Qatada had been previously tortured in Jordan, and had been convicted in absentia in a terror trial at which witnesses claimed they had been tortured to make false confessions. In addition, their ruling was disappointing because a “likelihood” that he would not be tortured is far from reassuring, and seems, instead, to be another form of Russian Roulette that plays games with a man’s life and with the universal torture ban.

An unnerving conclusion

For now, the deportations of Abu Qatada, BB and U are on hold, pending a review by the European Court of Human Rights, which may mean — if both torture and judicial secrecy are regarded with the horror and scorn that they deserve — that the British government will eventually be obliged to abandon its blanket use of secret evidence and its labyrinthine attempts to circumvent the universal torture ban, by allowing the use of intercept evidence and reintroducing fair trials.

Ministers might also want to reflect that, although Barack Obama has not magically dismantled the legacy of the Bush administration’s “War on Terror,” he is at least committed to closing Guantánamo within a year, has established a review of the prisoners’ cases that has started to approve the release of prisoners, and is continuing to allow judges — empowered by a Supreme Court ruling last June — to challenge the Bush administration’s secret evidence, with the result that, in 24 of the 28 cases so far reviewed, the judges involved have ordered the prisoners’ release because the government failed to provide sufficient evidence that they should ever have been held in the first place (a summary is here, and see here for the latest decision).

In Britain, in contrast, the government would still have us believe that all of its supposed “terror” evidence is infallible, and cannot be challenged, even though much of what is known appears to be misguided intelligence, or intelligence obtained through torture, and even though glaring errors on the part of the Home Office and the security services have been repeatedly noted over the last seven years. This not only makes a mockery of due process; it also leaves the government — and Home Secretary Jacqui Smith in particular — looking like the last bastion of the kind of unprincipled and unfettered executive power embraced by former US Vice President Dick Cheney and his chief of staff David Addington, the architects of the “War on Terror.”

As Jane Mayer explained in her book The Dark Side, in the summer of 2002, when John Bellinger, the National Security Council’s top lawyer, tried to approach the White House counsel, Alberto Gonzales, to seek a review of the prisoners’ cases — expressing some of the same doubts about the US intelligence services that lawyers have sought to expose in relation to the intelligence services in the UK, and that judges in the US have finally been allowed to prove in some of the Guantánamo cases — he was met with the sternest of rebukes, when a scheduled meeting was hijacked by David Addington, who declared, imperiously, “No, there will be no review. The President has determined that they are ALL enemy combatants. We are not going to revisit it.”

Without fair trials for “terror suspects” in the UK, Jacqui Smith, like Jack Straw, David Blunkett, Charles Clarke and John Reid before her, appears to be nothing less than David Addington’s Anglicized twin, and in Addington’s statement above, all that needs changing are the words “President” to “Tony Blair,” and “enemy combatants” to “terrorists,” and the picture is complete. In democracies founded on the rule of law, it is not sufficient for an elected minister to maintain, as President Bush declared for over seven years, that it was true because he said so.

This article is part of a series of four articles and five statements examining the use of secret evidence in the British courts. For an introduction, see Britain’s Guantánamo: An Introduction, and for the first two articles, see Torture taints all our lives (published in the Guardian’s Comment is free), and Britain’s Guantánamo: Calling For An End To Secret Evidence. For the statements, see: Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (3) Detainee U, Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara and Five Stories From Britain’s Guantánamo: (5) Detainee Z.

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.

For other articles dealing with Belmarsh, control orders, deportation bail, deportations and extraditions, see Deals with dictators undermined by British request for return of five Guantánamo detainees (August 2007), Britain’s Guantánamo: the troubling tale of Tunisian Belmarsh detainee Hedi Boudhiba, extradited, cleared and abandoned in Spain (August 2007), Guantánamo as house arrest: Britain’s law lords capitulate on control orders (November 2007), The Guantánamo Britons and Spain’s dubious extradition request (December 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 2008), Spanish drop “inhuman” extradition request for Guantánamo Britons (March 2008), UK government deports 60 Iraqi Kurds; no one notices (March 2008), Repatriation as Russian Roulette: Will the Two Algerians Freed from Guantánamo Be Treated Fairly? (July 2008), Abu Qatada: Law Lords and Government Endorse Torture (February 2009), Ex-Guantánamo prisoner refused entry into UK, held in deportation centre (February 2009), Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh (February 2009), Britain’s insane secret terror evidence (March 2009).