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 of 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.

Now imagine that, instead of being freed, you continued to be held because the government refused to send you home, stating that it would not release you unless you first passed through a rehabilitation center in your home country, or, preferably, in a third country.

You would, I think, be pretty depressed about your situation, and would conclude that the United States’ much-vaunted justice system was a farce. And yet, this is exactly the problem that currently faces Alla Ali Bin Ali Ahmed, a Yemeni prisoner in Guantánamo, whose habeas corpus petition was granted in May by Judge Gladys Kessler.

Yesterday, the Associated Press reported that, although “The government’s deadline for appealing Ahmed’s release has run out,” he continues to be held because the of the government’s refusal to send him home without first putting him through a rehabilitation center, preferably in Saudi Arabia, which, unlike its impoverished neighbor, has established rehabilitation centers that have processed thousands of former and would-be jihadists in the last few years, including dozens of Saudi prisoners repatriated from Guantánamo (some of whom, it should be noted, were not in Afghanistan to fight for the Taliban, but had visited as missionaries or charity workers).

In the AP’s report, the US government’s refusal to free Ali Ahmed outright was dressed up as part of a wider policy on the government’s part to put an unspecified number of the remaining 100 or so Yemeni prisoners, “who officials say probably will be freed,” through a rehabilitation center “before they are released to make sure they pose no threat to Americans.”

However, in the case of Ali Ahmed, and two other Yemeni prisoners — Yasim Basardah, whose habeas petition was granted in March, and Ayman Batarfi, a doctor whose release was approved by the government’s own Detention Policy Task Force at the same time — this makes no sense, as either the courts or the government itself have already concluded that they “pose no threat to Americans.”

These cases are not the only examples of inexplicable obstruction on the part of the administration. Although 15 other prisoners cleared by the courts — 13 Uighurs, Sabir Lahmar, an Algerian, and Abdul Rahim al-Ginco, a Syrian — are awaiting new homes, because of fears that they will face torture — or worse — if returned to their homelands, the government has also approved “more than 50” other prisoners for release, after their cases were reviewed by the inter-departmental Detention Policy Task Force (established by Executive Order on Obama’s second day in office), which, as ABC News explained, has, for the last six months, involved 65 representatives “from agencies like the FBI, Pentagon, the CIA, and attorneys from the Justice Department” meeting up once a week “on a secure floor within a secure facility to discuss the review.”

Sadly, in a demonstration of the executive secrecy that was such a hallmark of the Bush administration, officials in the Obama administration have not revealed the identities of any of these men (other than Ayman Batarfi, Binyam Mohamed, the British resident who was hastily released in February to avoid a Transatlantic torture scandal, and Umar Abdulayev, a Tajik, cleared in June, who was seized by opportunistic Pakistani intelligence agents from a refugee camp), but it seems, from the limited information made available — rumors that three Tunisians will be transferred to Italy and that some Tunisians and Algerians will be rehoused in Spain, and the recent news that Belgium will take some prisoners and Ireland will accept two Uzbeks — that the decisions on who to release correspond broadly with those made by military review boards at Guantánamo under the Bush administration.

Although hundreds of the 544 prisoners freed from Guantánamo were released after military review boards concluded that they no longer posed a threat to the United States and/or no longer had ongoing intelligence value, 58 of these prisoners were still held when George W. Bush left office, even though some had been approved for release in 2006. Excluding the Uighurs (four of whom were finally released in Bermuda in June) and three Saudis released in the same month (see here and here), this leaves a total of 38 prisoners still at Guantánamo whose transfer from Guantánamo was approved by the Bush administration.

20 of these men — five Algerians, an Egyptian, a Libyan, eight Tunisians, four Uzbeks and Umar Abdulayev, who was cleared for release under George W. Bush before this decision was repeated by Obama’s Task Force — could not be repatriated by the Bush administration because of fears that they would be tortured on their return, and three are Palestinians, and are therefore effectively stateless, as the Israeli government has no desire to facilitate their return.

However, there appears to be no good reason why the remaining 15 men could not be repatriated tomorrow. Three are Saudis, and the other 12 are Yemenis, and, just to reiterate, in case anyone missed it the first time round, some of these men were approved for transfer from Guantánamo over three years ago.

I don’t mean to complain unnecessarily, but when the government has a genuine problem finding homes for at least 35 prisoners cleared for release by the Bush administration, by the US courts, or by its own Detention Policy Task Force, it seems inexplicable that 18 others — also cleared for release by either the Bush administration, the courts or Obama’s Task Force — cannot simply be flown home tomorrow, bringing to an end this farcical situation in which, as my Hotel California analogy was meant to signify, prisoners who do not face ill-treatment on their return to their homelands are still held no matter how many times their release is approved by various representatives of the US government.

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

As published on the Huffington Post, Antiwar.com, CounterPunch and AlterNet. Cross-posted on Common Dreams and uruknet.

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009). Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009).

In what appeared to be a shining but all too uncommon example of practical behavior by the Obama administration’s Justice Department — which has generally been content to court humiliation by contesting unjust and unwinnable cases in front of District Court judges in habeas corpus hearings (as demonstrated here and here) — lawyers informed Judge Reggie Walton on June 3 that they “will no longer defend his detention, and want US diplomats to arrange to repatriate him.”

Obama suspends habeas corpus, Umar Abdulayev fears repatriation

However, as Abdulayev’s lawyers explained, there were two fundamental problems with this decision. The first, as Andrew Moss explained to me last week, is that the Task Force’s decision led immediately to a request from the Justice Department to indefinitely stay Abdulayev’s habeas appeal, on the basis that “there was now nothing more the court could do” for him. As Moss explained, “The court granted that request over our opposition,” which was based on the fact that the Task Force’s decision was “not a determination that [Abdulayev’s] detention was or was not lawful,” and that it therefore “does nothing towards removing the stigma of being held in Guantánamo or being accused of being a terrorist by the United States.”

The result, as Andrew Moss stated bluntly, is that the writ of habeas corpus, granted to the prisoners by the US Supreme Court last June, is “effectively suspended.”

This is a disturbing development, not only because it deprives Abdulayev of the opportunity to be cleared publicly by a court (as opposed to being cleared by an unaccountable Executive review that reaches its conclusions in private), but also because it does not address a second problem for Abdulayev; namely, that he is terrified of being returned to Tajikistan. As another of his lawyers, Matthew O’Hara explained, “he’s told us he’d rather stay another seven years in Guantánamo than go back to Tajikistan.” In court filings, as Carol Rosenberg explained, Abdulayev has claimed that he was visited at Guantánamo by Tajik intelligence agents who made him “a sinister offer: Spy on Muslim radicals in the former Soviet Republic in exchange for his release.” When he refused, he said, “the agents threatened retribution.”

Rosenberg noted that eleven Tajiks have already been repatriated from Guantánamo, and I can confirm that some were subsequently freed on their return to Tajikistan. One, Muhibullo Abdulkarim Umarov, was interviewed by McKenzie Funk for an extraordinary story in Mother Jones, “The Man Who Has Been To America,” in the fall of 2006, and another, Abdul-Karim Ergashev, announced in July 2007 that he intended to sue President Bush for his wrongful imprisonment.

However, at least two former prisoners, Muqit Vohidov and Rukniddin Sharopov, who were repatriated in March 2007, received jail sentences of 17 years in “high-security penal colonies” (aka labor camps) for “serving as mercenaries in Afghanistan” — where they were accused of aiding the Taliban by fighting for the Islamic Movement of Uzbekistan (IMU) — and for taking part in “illegal border crossing,” and, as Rosenberg described it, Umar Abdulayev has claimed that they were actually imprisoned because, like him, they “rebuffed agents’ recruitment efforts.”

As a result, Matthew O’Hara told Rosenberg that Abdulayev doesn’t want to leave Guantánamo “unless a third country agrees to give him asylum,” and suggested that he was “twice cursed — not only because he rebuffed the overtures of the [Tajik] security forces but because he carries ‘the stigma of having been held at Guantánamo,’” although it is not yet clear whether the administration will respect his wishes. As Rosenberg explained, Justice Department spokesman Dean Boyd “refused to address Abdulayev’s specific claims,” but said that, broadly, speaking, “the United States doesn’t send foreigners with a credible fear of torture to another nation.” In a statement, he declared, “The US government is working to make appropriate arrangements to carry out these transfers in a manner consistent with national security and foreign policy interests of the United States, as well as US policies concerning humane treatment.”

Umar Abdulayev’s statements in Guantánamo

Certainly, no third country should have any fear of Umar Abdulayev. Now 30 years old, he has been “a cooperative captive” throughout his seven years in Guantánamo, and is now held in Camp 4, where prisoners who are not regarded as a threat are allowed to live communally. In addition, as Rosenberg explained, he “did not take part in hunger strikes that swept through the prison camps in the first few years,” and “consistently went before panels of senior officers to challenge the allegations against him.”

Throughout his long years in Guantánamo, these allegations have involved claims that, as Rosenberg put it, “he was in league with al-Qaeda, the Taliban and a Tajik terror movement,” but in response he has always claimed that he was “just a refugee who worked in construction.”

Abdulayev did not make the final cut of my book The Guantánamo Files, but I included his story in an additional online chapter, in which I explained that he “had left his war-torn country and moved to Afghanistan with his family in 1992, and had then moved to a refugee camp outside Peshawar in 2000.” At Guantánamo, he explained,

When we were in Afghanistan, no matter where we went, there were always wars. Since my father was killed, we always obeyed my mother; it was my mother’s decision to move to Pakistan because she said it was at least a peaceful country with no war going on. My father was killed a long, long time ago. Because of this, we have to listen to our mother; it is our culture.

He also explained that he was seized in a bazaar in December 2001 by operatives of Pakistan’s Inter Services Intelligence Directorate (ISI), who asked him for a bribe which he couldn’t pay, and then seized him and imprisoned him. It was at this point that his story became what I described as “particularly bizarre.”

Abdulayev stated that, after being beaten, he was forced to copy various documents including three hand-written notebooks containing information on weapons systems, counter-intelligence, chemistry and poisons. Following a close investigation of the publicly available documents relating to his case, it seemed probable to me that the notebooks were his own, because, at one point, he apparently admitted that he had copied the information while he was a student at a madrassa (a religious school), but while this may have reflected badly on the madrassa in question, indicating that it was training students for violent jihad, it was also clear that the US authorities had not managed to come up with any information to indicate that he was involved, in any way, with terrorist activities or any form of militancy against US forces.

It also seemed to me that the truth was probably stated by Abdulayev at his tribunal, when he said, “The Pakistanis are making business out of this war, including myself. The detainees are not being captured by US forces, but are being sold by the Pakistani government. They are making [up to] $10,000 to sell detainees to the US … they knew that the more evidence they created, the more dangerous they made me, the more money they would make from the Americans.”

Until recently, I was unaware that any further information about Abdulayev’s story was publicly available, but Carol Rosenberg’s article provided a link to a nine-page declaration by Abdulayev himself (PDF), which, presumably, played a major part in persuading the Obama administration not to contest his habeas appeal.

Umar Abdulayev’s story, in his own words

After reiterating that he fled the civil war in Tajikistan with his family in 1992, when he was 13 years old, Abdulayev explained that they lived in northern Afghanistan with other Tajik refugees, and added that, in 1994, his father was shot and killed on the Tajik-Afghan border, while attempting to “investigate the situation” in Tajikistan, having heard “pleas on the radio from the Tajik government, urging Tajik refugees to return home.”

For the next seven years, the rest of the family remained in Afghanistan, “relying upon aid from international refugee organizations,” but in early 2001, his mother took the whole family — Abdulayev and his two younger sisters and two younger brothers — to Pakistan, “in order to escape the escalating violence and unrest in Afghanistan.” They lived in “a government-sponsored refugee camp named Camp Babu,” near Peshawar, which “comprised mostly of families, and was principally for Afghan refugees.”

It was here, on November 25, 2001, that Abdulayev was seized by Pakistani police and handed over to Pakistani intelligence officials. In a gut-wrenching statement, Abdulayev said, “I never saw my family again, and to this day, I have not heard from them or been able to contact them.”

After repeating the story about being forced to copy “specific passages about weapons and explosives from books that the intelligence officials gave to me,” Abdulayev explained that, after about a month, he was told that he would be returned to his mother, but was taken instead to Kohat jail. From there he was flown, with 25 to 30 other men, to the US prison at Kandahar airport, where his ordeal in American custody began.

Recounting a story that is all too familiar from the accounts of other prisoners held at Kandahar, Abdulayev stated:

In Kandahar, we were abused by US soldiers, who beat us, pushed us, yelled at us, ridiculed us, and placed us under extremely bright lights during interrogations. We were forced to wear chains, handcuffs and leg irons and then made to run, which left scars on my ankles. While they did this, the American soldiers sometimes dragged us up against barbed wire. We were often forced to wear bags on our heads. On certain occasions, we were made to hold our arms out in front of us for lengthy periods of time. If we dropped our arms, we would be made to hold our arms out longer, or we were beaten. On one occasion, a soldier knocked us to the ground, and then he and other soldiers walked on our backs. The soldiers would make us kneel on the ground while we were chained; they would then pull our feet out from under us from behind so that our faces would smash into the ground. The soldiers would also pull our arms up while they were chained behind our backs, and repeat this tactic until a man would finally cry out in pain.

He also explained that, on one occasion, “a soldier grabbed the overalls I was given to wear, tore off the buttons in front, ripped off my overalls, and left me and other prisoners naked. The soldiers then yelled at us, took pictures of us, and beat us.” In addition, he said, “our sleep was constantly disrupted at night. Every thirty minutes or so, soldiers cam into where we were being held and screamed at us, searched us, and made us kneel in the cold in the open air. We were not given warm clothing, except for children’s-sized mittens and hats that the Red Cross brought us sometime much later after we arrived.”

He also reported that he and other prisoners were stripped naked before soldiers “forcibly shaved our hair and beards,” and that they were then “made to walk from one place to another while totally naked,” and also explained that “the soldiers made fun of our religion, and yelled and screamed at us when we prayed. We were also beaten while we prayed. The soldiers threw our Korans in the toilet where there was fecal matter. The soldiers also had dogs walk over our Korans.”

After a month in Kandahar, Abdulayev was flown to Guantánamo on February 11 or 12, 2002. He described conditions on the flight as “unbearable, as we sat on benches chained to the floor and wore very tight handcuffs.” He added, “We were made to wear blackened goggles over our eyes, headphones over our ears, and masks over our faces,” and also explained, “We were not permitted to use the bathroom, and some of the men who were prisoners had no choice but to urinate or defecate on themselves.”

Describing his time in Guantánamo, after his arrival, which involved further beatings, and being “made to kneel on the gravel in the very hot sun,” it was clear that he managed to avoid the worst of the “enhanced interrogation techniques” that were applied to numerous prisoners, particularly between 2002 and 2004, but it was also apparent that his seven-year imprisonment was brutally isolating. “I have been held in solitary confinement and required to remain in my cell for at least 22 hours a day,” he said. “I have been allowed very limited time for recreation, and that time is often held at night in small cages. There is no opportunity to interact with other prisoners other than at the limited recreation times and by shouting through cell doors. There is no opportunity to work, to receive any education, and there is no regular access to any reading materials other than a Koran.”

Abdulayev also spoke in detail about the visits from the Tajik agents, which took place on three separate occasions, between 2002 and 2005. “On these visits,” he said, “the Tajik agents threatened me with imprisonment, torture and death upon my return from Guantánamo to Tajikistan.” Explaining the offer to become a spy, he said, “In exchange for my service, the Tajik officials told me they would take care of me, give me money, get me a house, and find my family. I refused. The Tajik officials then told me that if I was not with them that I would have problems: they would imprison me, torture me, and even ‘get rid of’ me.”

It was on this first visit, he said, that the two prisoners who received 17-year sentences on their return to Tajikistan were also threatened, and he also added details about how he was threatened on the agents’ third visit. “They again asked if I wanted to work with them,” he said. “I refused again, and they told me I would see what would happen to me when I got back to Tajikistan.”

A bitter conclusion

Even leaving aside for a moment the disturbing evidence provided by Umar Abdulayev that — over the course of three years — agents were invited to visit him from a country that, although independent, has a poor human rights record and remains closely connected to Russia, the Obama administration’s refusal to allow him to clear his name in a habeas court and its refusal to rule out returning him to Tajikistan (described in the latest State Department advisory as “a nominally constitutional, democratic and secular republic”), is a sign that, despite over seven years of senseless imprisonment, the Obama administration is still shielding the Bush administration from clear demonstrations of the colossal failures of its “War on Terror” detention policies, and is committed to sidelining the courts in favor of its own Executive review, making a mockery of the prisoners’ Supreme Court-granted habeas rights along the way. In addition, as Andrew Moss explained to me, perhaps the most disturbing aspect of the Task Force’s decision to “approve” Abdulayev’s release is that the decision “does not effectuate release … there is no guarantee or indication that a transfer can be effectuated in a timely manner, or at all, for that matter.”

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

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

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 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). Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009).

In the letter, the Commissioner addresses the need for the United States to also play its part in accepting “cleared” prisoners, an issue that he raised with his hosts and which, he wrote, “was well received by my interlocutors though the recent Congress discussion had not been helpful in this respect.” Specifically, he states that he has “reason to believe that such offers will indeed be given,” although he notes that “some detainees would not, for obvious reasons, accept to stay in the country [the US],” and that this is the “major reason that European states should lend a hand.”

In a press release that announced the issuing of the letter, he added, “Those ‘cleared’ detainees who cannot be repatriated and have no wish to stay in the US should be offered an alternative. This requires a process during which the views of the detainees themselves should be sought on where they wish to go. Possible family ties is a factor to be seriously considered in this context. This is where European governments could give a very important contribution — which might be crucial to facilitate the final closing of the Guantánamo camp.”

He also demonstrates a healthy understanding of the scale of the mistakes made in sending prisoners to Guantánamo who “have not committed hostile acts against the US or its allies,” and, in the press release, also made clear his position that “detainees for whom there is evidence of criminal activities should be tried in accordance with international human rights law standards. The others should be released in full respect of the principle of presumption of innocence. Reparation for all those unlawfully detained should also be provided.”

The Commissioner’s letter, dated 5 June, is reproduced below:

Letter addressed to all Permanent Representatives of the 47 Council of Europe member states of Thomas Hammarberg, Council of Europe Commissioner for Human Rights, following his visit to Washington D.C.

Dear Ambassador,

This is a letter that I address to all Permanent Representatives of the 47 Council of Europe member states following my visit to Washington D.C. on 1 and 2 June and concerns the possibility of resettlement to member states of certain detainees from the Guantánamo detainee facility.

As you know, the US President has ordered the closure of the prison camp. The US administration is now working for this closure by January 2010 at the latest. Ambassador Daniel Fried at the State Department has been appointed as Special Envoy for Closure of the Guantánamo Detainee Facility. During my visit to Washington D.C. I met with him, as well as with representatives of the National Security Council at the White House and of the Department of Defense.

Based on these discussions, I am convinced about the US authorities’ determination to go ahead with the closure and the urgent need of effective support by European states to contribute to the attainment of this goal.

The Guantánamo prison camp has become a world-wide symbol of injustice and oppression, which has stained the US but to some extent also some other countries given the inter-state transfers to Guantánamo that have occurred, as reported by the Council of Europe Parliamentary Assembly and others. Resolutions 1340 (2003) and 1433 (2005) of the Assembly attest to the fact that the serious affronts to the rule of law that have occurred in Guantánamo are very much also a matter of serious concern to Europe. I recall furthermore that USA has an observer status with the Council of Europe.

There have been 778 persons from various countries who have been detained in Guantánamo [Note: the number is actually 779]. The first arrived hooded and shackled on 11 January 2002. The number of the remaining detainees is today 240 [Note: 239 since the death of Muhammad Salih]. Expert reports have made clear that the majority of the Guantánamo detainees have not committed hostile acts against the US or its allies, only less than ten per cent have been characterized as al-Qaeda fighters and several of them are no more than “volunteer foot soldiers”.

Among the current detainees there are approximately fifty persons who are “cleared for release” by the US authorities but cannot be repatriated because they are stateless or likely to face torture or other serious human rights violations if forcibly returned to their home countries. They come from various countries such as Algeria, China, Libya, the Occupied Palestinian Territories, Russia, Syria, Tajikistan, Tunisia and Uzbekistan.

While Council of Europe member states have accepted their own nationals who had been in Guantánamo, certain others, such as Albania, France, Sweden and the United Kingdom, have also accepted non-citizens from Guantánamo. Authorities from a number of other member states have made public their willingness to accept non-citizen Guantánamo detainees. Last April the EU ministers for justice and the interior started to work towards a EU response to the closure of Guantánamo that would include possible provision of residence for persons “cleared for release” but cannot return to their countries of origin for “compelling reasons”.

It is beyond doubt that a number of the Guantánamo detainees are in need of international protection. Reliable reports have indicated that some of those released and returned to their home countries have suffered serious human rights violations, such as torture and unlawful detention.

I made the point during my visit that the US authorities must offer at least to some of the “cleared” detainees with protection needs a possibility to settle down in the United States. This was well received by my interlocutors though the recent Congress discussion had not been helpful in this respect. I have, however, reason to believe that such offers will indeed be given. However, it is likely that some detainees would not, for obvious reasons, accept to stay in the country. It is for this major reason that European states should lend a hand.

In view of the above, I would like to call upon your government, along with other member state governments, to consider receiving some few released detainees for whom return home is not really an option. Such transfers should of course be voluntary in nature.

I believe that such a decision by Council of Europe member states will constitute not merely a gesture of a humanitarian nature. They will in effect strengthen their fight against terrorism by reaffirming that all measures taken to prevent or suppress terrorist offences have to respect the rule of law and democratic values, human rights and fundamental freedoms, for which the Council of Europe was created and has worked for sixty years now.

Looking forward to hearing from you, I remain

Yours sincerely

Thomas Hammarberg

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.

Last week, however, Newt Gingrich, the former Speaker of the House of Representatives, hit a new low in the debate by lashing out at Guantánamo’s Uyghurs (also known as Uighurs), 17 men from China’s Xinjiang province, who, after a stunning court victory last June, are the only prisoners in Guantánamo to have persuaded the Bush administration to drop its claims that they were “enemy combatants.”

After this result, a vicious battle ensued between Judge Ricardo Urbina, of the District Court in Washington D.C., and Judges A. Raymond Randolph and Karen LeCraft Henderson in the appeals court. Judge Urbina ruled in October that the men’s continued detention was unconstitutional, and that they should be released into the care of communities in the US, because they cannot be returned to China (which has a history of human rights abuses with regard to the Uyghurs), and because no other country had been found that was prepared to accept them, but his ruling was reversed in February by Henderson and Randolph (who has a history of defending every major Bush administration detention policy that was subsequently overturned by the Supreme Court), even though the dissenting judge, Judith W. Rogers, pointed out that when the Supreme Court granted Guantánamo prisoners “the privilege of habeas corpus to challenge the legality of their detention” last June, the Court also held that “a court’s power under the writ must include ‘authority to … issue … an order directing the prisoner’s release.’”

In an article for the Washington Examiner last week, and in an appearance on FOX News, Gingrich stated bluntly that he thought the Uyghurs should be returned to China. “Why is that our problem?” he asked. “Why are we protecting these guys? Why does it become an American problem?” “Send them to China,” Gingrich continued. “If a third country wants to receive them, send them to a third country. But setting this precedent that if you get picked up by Americans — I mean, the Somalian who was recently brought here who’s a pirate — I mean, if you get picked up by the Americans, you show up in the United States, a lawyer files an amicus brief on your behalf for free, a year later you have citizenship because, after all, how can we not give you citizenship since you’re now here, and in between our taxpayers pay for you — this is, I think — verges on insanity.”

Gingrich’s outburst was immediately criticized by Rep. Bill Delahunt, who, as Ryan Grim explained in the Huffington Post, “ripped into” Gingrich, “arguing that his recent comments about [the] Uyghurs held at Guantánamo Bay show that he is either ignorant of international law or bizarrely allying himself with communist China — or both.”

Answering Gingrich’s question, “Why does it become an American problem?” Delahunt, who serves on the House foreign affairs committee, answered, “Well, in this particular case, we bought it. We bought it literally because these detainees were a victim of some half-cocked initiative, put out by Cheney et al, where they were purchased for $5,000.”

Delahunt added that he was surprised that Gingrich — a fervent anti-Communist who condemned China for using torture in 1997 — would ally himself with China. ”I guess he is unaware of the [United Nations] Convention Against Torture which obligates us not to return them to China because it’s clear they would be persecuted and undoubtedly subjected to torture, incarceration and all sorts of degradation, given the history of the red, godless Chinese communist government,” he said, adding, “What I find particularly ironic is, here’s the former Speaker allying himself with the Chinese communists. Quite an interesting development. I guess his fervent anti-communism has abated somewhat.”

In response to Gingrich’s comments, the Uyghurs themselves sent a response from Guantánamo via their translator, Rushan Abbas, who has been working with them since 2002. “Why does he hate us so much and say those kinds of things?” they asked. “He doesn’t know us. He should talk to our attorneys if he’s curious about our background. How could he speak in such major media with nothing based in fact?”

Abbas proceeded to explain, “They just cannot understand. How come the media doesn’t even verify the story? How could they just publish something like that without checking whether what he says is true or not?” but as Ryan Grim noted, “The Uyghurs are apparently under the misconception that American columnists are fact-checked for accuracy.”

Today, a new commentator has stepped forward to defend the Uyghurs. In an article for Foreign Policy, “Meet The Real Uyghurs,” Nury A. Turkel, a Uyghur American attorney, who has been involved in the resettlement plans that were scuppered by the Justice Department and Judges Randolph and Henderson, presented a much-needed antidote to Gingrich’s unjustified assault on the Uyghurs from the perspective of someone with first-hand knowledge of the Uyghurs’ predicament in China, under the sub-heading, “Newt Gingrich needs to read up before he defames my entire ethnic group,” and I’m cross-posting it here as an important piece of work from someone I have been glad to correspond with over the last few years.

Meet the Real Uyghurs
by Nury A. Turkel

Writing in the Washington Examiner last week, former speaker of the US House of Representatives Newt Gingrich warned the Obama administration that a group of 17 Uyghurs, held in Guantánamo Bay since 2002, would be a threat to US national security if transferred to American soil. “[T]hey are trained mass killers instructed by the same terrorists responsible for killing 3,000 Americans on September 11, 2001,” he wrote. “They have no place in American communities.”

These claims are irresponsible and untrue. And the title of his work, “Let’s NOT meet the Uyghurs” extends the accusation to all Uyghur people. Uyghurs are not terrorists; nor are they a threat. In fact, Uyghurs could be a natural US ally.

Uyghurs are the Tibetans you haven’t heard about. Ethnic Turkic people from the Chinese Xinjiang Uyghur Autonomous Region, Uyghurs have long faced discrimination and persecution as a minority — a fact recognized repeatedly by the US Congress and State Department, which has noted China’s insidious strategy of using the US war on terror as pretext to oppress independent religious leaders and peaceful political dissenters. Uyghurs’ struggle for self-rule is one against dictatorship and communism, not one to establish a sharia state through violence (as Gingrich claims, in a curious echo of Chinese government propaganda).

Nothing about the Uyghur cause involves hostility toward the United States or association with terrorist groups. In the case of the detained Uyghurs, this too has been recognized by the United States. In June 2008, a DC Circuit Court unanimously ruled that the US government’s designation of Huzaifa Parhat, one of the 17 Uyghurs at Guantánamo, as an enemy combatant was invalid. The US government’s case, they concluded, was insufficient, unreliable, and based on attenuated guilt-by-association reasoning. The panel found no evidence that Parhat was a member of the East Turkestan Islamic Movement (ETIM), that ETIM was associated with either al-Qaeda or the Taliban, or that ETIM had ever fought against the United States. Supposed proof that detainees had undergone “terrorist training” is dubious at best. The detainees were able to break down and reassemble a single Kalashnikov rifle. To classify this experience as “terrorist training” would require a radical logic leap.

Every one of the 17 Uyghur detainees at Guantánamo has repeatedly denied being part of ETIM, or of being sympathizers of al-Qaeda or the Taliban. They should remain innocent — both legally and in public discourse — unless proven guilty.

As the discussion about the fate of these men goes forward, it is not the danger that the Uyghur detainees pose to the United States that is of greatest concern, but the danger China poses to detainees. Were it not for the grave threat of persecution that these men face from the Chinese government, they would have been returned home years ago. In just one example from 2002, a US Department of Justice report (PDF) cites claims that US agents at Guantánamo collaborated with Chinese counterparts in the rough treatment of Uyghur detainees prior to scheduled interviews with the Chinese agents.

Finding a new home for the displaced Uyghurs is the US government’s duty. Gingrich finds preposterous the idea of relocating them to a place like, as he put it, “Fairfax Country Virginia, where there is already a sizable (non-terrorist) Uyghur community.” But why is the idea so preposterous? The Uyghurs are not a threat to US communities. Just look at the five Uyghur companions who were released from Guantánamo in 2006 and have lived peaceably and productively in Europe for three years now.

I am a new citizen of the United States, but I know enough about the shining ideals that brought me — and millions of other immigrants — here to know that fear-mongering rhetoric like Gingrich’s is the real threat to America.

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.

Cross-posted on Foreign Policy Journal.

For a sequence of articles dealing with the Uighurs in Guantánamo, see: The Guantánamo whistleblower, a Libyan shopkeeper, some Chinese Muslims and a desperate government (July 2007), Guantánamo’s Uyghurs: Stranded in Albania (October 2007), Former Guantánamo detainee seeks asylum in Sweden (November 2007), A transcript of Sabin Willett’s speech in Stockholm (November 2007), Support for ex-Guantánamo detainee’s Swedish asylum claim (January 2008), A Chinese Muslim’s desperate plea from Guantánamo (March 2008), Former Guantánamo prisoner denied asylum in Sweden (June 2008), Six Years Late, Court Throws Out Guantánamo Case (June 2008), Guantánamo as Alice in Wonderland (July 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), A Pastor’s Plea for the Guantánamo Uyghurs (October 2008), Guantánamo: Justice Delayed or Justice Denied? (October 2008), Sabin Willett’s letter to the Justice Department (November 2008), Will Europe Take The Cleared Guantánamo Prisoners? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), Guantanamo’s refugees (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), Obama’s “Humane” Guantánamo Is A Bitter Joke (February 2009), A Letter To Barack Obama From A Guantánamo Uighur (March 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), and the stories in the additional chapters of The Guantánamo Files: Website Extras 1, Website Extras 6 and Website Extras 9.

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.

This prompted a District Court judge to prevent the return of a third Tunisian in November 2007, with the result that this man, Lotfi bin Ali, and several other cleared Tunisians — including Hedi Hammamy — have languished in Guantánamo ever since, as the State Department has tried in vain to find a third country prepared to accept them.

In the surreal world of Guantánamo, the annual reviews — which rely largely on classified evidence that is not disclosed to the prisoners and cannot, therefore, be challenged by them — were introduced by the Bush administration as a rebuke to the Supreme Court, which granted the prisoners habeas corpus rights (the right to ask a judge why they were being held) in June 2004. It was not until last June (almost exactly four years later) that the Supreme Court once more addressed the prisoners’ habeas rights, ruling as unconstitutional the provisions in two pieces of legislation — the Detainee Treatment Act of 2005, and the Military Commissions Act of 2006 — which had purported to strip the prisoners of their habeas rights in the intervening years.

As a result, the first court reviews of the Guantánamo prisoners’ cases only finally took place last November, nearly seven years after the prison opened, when Judge Richard Leon, an appointee of George W. Bush, surprised the administration by granting the habeas appeals of five Bosnian prisoners of Algerian origin, and ordering their release after ruling that the government had failed to justify their detention. Since then, Judge Leon has also ordered the release of Mohammed El-Gharani, a Saudi resident of Chadian origin, who was just 14 years old when he was seized by Pakistani soldiers in a raid on a mosque in Pakistan, and subsequently sold to US forces.

However, Judge Leon also ruled, in four other cases, that the government had established, “by a preponderance of the evidence,” that a sixth Bosnian Algerian, the Yemeni Moaz al-Alawi, Hisham Sliti (a Tunisian), and another Yemeni, Ghaleb al-Bihani, had been correctly designated as “enemy combatants” and could continue to be held. In articles at the time, I took exception to these rulings, for three particular reasons: firstly, because it appeared that none of the men had actually engaged in terrorist activities, and secondly, because the definition of an “enemy combatant” was inappropriately broad, and, instead of focusing on individuals who had contributed directly to the planning and execution of terrorist attacks, persisted in conflating al-Qaeda with the Taliban, even though the first is a terrorist group, and the latter — though widely reviled — was in fact the government of Afghanistan.

The definition of an “enemy combatant’ that was chosen by Judge Leon before the habeas hearings began (and that was plucked from several different versions proposed by the Pentagon over the years) declared that an “enemy combatant” was someone who “was part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners,” and also included anyone “who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

My third reason for taking exception to Judge Leon’s rulings is based on the release from Guantánamo of another Yemeni prisoner, Salim Hamdan, who was sent home last November to serve out the last month of a short sentence he had been given by a military jury last summer, after a trial at Guantánamo in the Military Commission system invented by Dick Cheney and his close advisers. Hamdan had actually been one of several drivers for Osama bin Laden, but his release, after a trial of the government’s own devising, made a mockery both of the government’s rationale for continuing to hold prisoners who were regarded as less significant (essentially, the majority of the 241 prisoners still held), and, it should be noted, of the rulings by Judge Leon in the cases of prisoners who had no connection with al-Qaeda, and had never even met Osama bin Laden.

Nevertheless, last Thursday, over two months since his last ruling, Judge Leon decided that Hedi Hammamy had been correctly designated as an “enemy combatant,” and could, therefore, continue to be held for an unspecified amount of time. This was in spite of the fact that, just three weeks ago, the new administration of Barack Obama made a decision to stop using the term “enemy combatant,” and, in addition, amended the definition of the prisoners so that only those whose support for the Taliban or al-Qaeda was “substantial” were supposed to be held.

As I noted at the time, the situation faced by the “Nobodies Formerly Known As Enemy Combatants” — as the Justice Department had not given them a new designation — was little improved, as the government considered “substantial” support to include those who “have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations,” and others who had not raised arms against anybody but had “stay[ed] at al-Qaeda or Taliban safehouses that are regularly used to house militant recruits.”

However, Judge Leon appears not only to have failed to observe the new government’s semantic shift, but also to have attempted to weave unconnected events into a coherent whole in his appraisal of the government’s evidence. Hammamy, who was seized in Pakistan in April 2002, lived in Italy before traveling to Pakistan, and Judge Leon used an allegation that he was “a member of an Italy-based terrorist cell that provided support to various Islamic terrorist groups” as the basis for presuming that he had therefore arrived in Pakistan in connection with terrorism, even though the charges leveled against him in Italy — of “supporting terrorism, in part, by furnishing false documents and currency” — had not been tested in a court of law.

As Leon himself noted, “a judicial finding from a foreign government of Hammamy’s involvement in that terrorist cell would be clearly preferable to a US government agency’s review and evaluation of that government’s investigative reports.” Nevertheless, he concluded that, “in the absence of any reason to question its accuracy, the report deserves, at a minimum, a rebuttable presumption for these limited purposes,” even though, to my mind, this was a conclusion bedeviled with caveats.

Judge Leon was clearly persuaded to regard the unsubstantiated Italian allegations as trustworthy, because he concluded that they tied in with another claim put forward by the government, regarding Hammamy’s identity papers, which were apparently “found after the Battle of Tora Bora in the al-Qaeda cave complex.” As with the Italian allegation, which he has persistently refuted, Hammamy has always denied being in Tora Bora, and has claimed that his papers were in fact stolen from him, and that the government has evidence that this is the case.

Critically for Hammamy, however, Judge Leon was not persuaded, and dismissively noted that he had failed “to account for how his identity papers somehow mysteriously traveled the hundreds of miles from the point of their theft in Pakistan to the highly secluded mountain hideaway of Tora Bora in Afghanistan,” adding, “While theoretically it is possible that this supposed thief was heading for Tora Bora himself, common sense dictates that such a conclusion is not in the least likely.”

With Judge Leon’s ruling, Hedy Hammamy finds himself in a unique — and uniquely disturbing position — in Guantánamo’s long and ignoble history. As one of his lawyers, Cori Crider of the legal charity Reprieve explained to me, “While this doesn’t change the military’s opinion that Hedi Hammamy is transferable, it certainly isn’t going to help him in the political context. Being found subject to military detention is not remotely the same thing as a criminal conviction, but that won’t stop right-wing elements in potential resettlement states from conflating the two issues.”

There is, moreover, a troubling subtext to Hammamy’s case, as it is worth bearing in mind that it is President Obama’s Justice Department, and not that of George W. Bush, which is now shepherding the Guantánamo case files. It is possible, therefore, that the new administration is playing a game of political football with the prisoners, content to defend a detention that it has already decided to end in order to avoid racking up too many losses in court.

As so often in the last seven years and three months, it appears that Guantánamo has precious little to do with justice, and is, instead, a place where politics holds sway. For Hedi Hammamy, the price is his continued detention, with no end in sight, and the knowledge that the decisions made by the review boards at Guantánamo are — as many of the prisoners have maintained over the years — almost unutterably hollow.

Note: Throughout his detention, Hedi Hammamy has been identified by the Pentagon as Abdulhadi bin Haddidi.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prisononline casino (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.

This article was published exclusively on the website of the Future of Freedom Foundation.

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), 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). Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009).

Many of these prisoners have been cleared since 2006, and yet the majority of them are still held in conditions of profound isolation. At the very least, President Obama should be ensuring that all the prisoners are held in accordance with the Geneva Conventions, as he promised in a Presidential order on his second day in office, and that the cleared prisoners are held in Camp 4, away from the isolation blocks, where the fortunate few are allowed to live communally.

However, as I reported yesterday, with a mass hunger strike currently raging at the prison, and at least 42 of the remaining 242 prisoners being force-fed, severe doubts remain about the ability of defense secretary Robert Gates to ensure that Guantánamo conforms to the requirements of the Geneva Conventions within the deadline of a month that was established by the President.

European support for accepting Guantánamo prisoners

For the prisoners who have been cleared for release, there was, however, some good news last week, when, by an overwhelming majority of 542 votes to 55 (with 51 abstentions), the European Parliament passed a resolution on Guantánamo, which, as the BBC reported, “called for EU states to accept low-risk prisoners who cannot be sent home for fear they might be mistreated.”

Although there were dissenters — the right-wing German politician Harthmuth Nassauer, for example, claimed that many of the men “remain potential terrorists” — British MEP Graham Watson caught the general tone of the decision when he said, “Europe cannot stand back and shrug its shoulders and say these things are for America alone to sort out.” He stated that a crucial lesson to be learned from the Bush administration was that, “in the administration of international justice, the go-it-alone mentality ends in a cul-de-sac of failure,” and urged member states to recall that, although the Bush administration had led the way in the “War on Terror,” European countries also bore their share of the blame. “Too often member states from our union were complicit in what the Bush administration did,” he said.

Since Barack Obama was elected in November, the countries of Europe have struggled to present a coherent view on Guantánamo. In December — on the 60th anniversary of the creation of the Universal Declaration of Human Rights — Portugal was the first country to state openly that it would accept some of the cleared prisoners, but other countries were slow to follow the Portuguese example.

However, with Barack Obama now installed in the White House, the European Parliament’s enthusiastic support for resettling Guantánamo prisoners may now yield some tangible results. On Saturday, in his first visit to Europe, Vice President Joe Biden said that it was “time to press the reset button and revisit the many areas where we can and should work together.” Using Guantánamo as an example, he stated, “As we seek a lasting framework for our common struggle against extremism, we will have to work cooperatively with other nations around the world — and we will need your help.”

In the last few days, media outlets throughout Europe and beyond have been buzzing with claims that European countries are now prepared to help out. On Friday, it was reported that the Spanish government had “expressed its willingness” to consider accepting prisoners “on a case-by-case basis within the context of a European Union consensus on the issue,” and that the Czech foreign minister had said that, “if the United States asked the EU to accept some Guantánamo prisoners, the Czech Republic would consider the request.”

Courting the Uighurs

Even more significantly, the municipal council of Munich indicated that it was backing a motion submitted by the Green Party to accept Guantánamo’s most famous cleared prisoners, 17 Uighurs (Muslims from China’s Xinjiang province), who had fled to Afghanistan to escape persecution by the Chinese government. The Uighurs are unique in that they are the only prisoners who, through a resounding court victory last June, managed to persuade the Bush administration to drop its claim that they were “enemy combatants,” and their settlement in Munich would make sense, as the Bavarian city is home to the largest Uighur community outside of China.

Munich’s municipal council is acting unilaterally (with no guarantee that the German Chancellor will back the motion), but is not the only party interested in accepting the Uighurs. Last week the Associated Press reported that three of the Uighurs had applied for settlement in Canada, although the reporters also pointed out that previous attempts by the US to re-house the Uighurs in Canada had been unsuccessful. In February 2007, notes prepared for Peter MacKay, Canada’s Foreign Affairs Minister, indicated that it was probable that they would be “inadmissible under Canadian immigration law.”

When the news about the Uighurs’ claim was announced last Tuesday, Liberal Senator Colin Kenny, the former chairman of the Canadian Senate’s national security and defense committee, stated that he supported the return to Canada of its only citizen in Guantánamo, Omar Khadr, a teenager at the time of his capture who has been repeatedly ignored by successive Canadian governments, but added that he had no interest in accepting any other prisoners. “Why should people clean up their dirty business?” Kenny asked, adding, “I don’t have much sympathy with the Americans for creating that prison.”

On Wednesday, however, it was revealed that Immigration Minister Jason Kenney (no relation) was contemplating whether to accept the Uighurs’ request, and was looking at the viability of issuing “temporary residence permits,” valid for up to three years, which would “allow the detainees to bypass the backlogged refugee process.”

These developments are a positive step for the Uighurs, of course, especially as countries willing to take the Uighurs risk a diplomatic rift with China by doing so. As the Canadian story surfaced last week, the Chinese foreign ministry made a point of issuing a statement about the Uighurs. Ministry spokeswoman Jiang Fu said, “As for those Chinese terror suspects that are kept in Guantánamo, as we have stated before, we strongly oppose any country accepting these people.”

Why the Uighurs are an American problem

Nevertheless, there are two problems with this focus on the Uighurs. Firstly, as I have made clear in previous articles, when Judge Ricardo Urbina reviewed their case in October (almost exactly four months ago), he ruled that their continued detention in Guantánamo was unconstitutional, and, because no other country had been found that was prepared to accept them, ordered them to be delivered to his courtroom so that he could make arrangements for them to be resettled in the United States, in the care of communities in Washington D.C. and Tallahassee, Florida, who had prepared detailed plans for their welfare and support.

The Bush administration shamelessly appealed, protesting that the men still posed a threat — even though it had conceded that they did not — and insisting that a District Court judge did not have the right to order their release into the United States. This too was also a false assertion, as Judge Judith W. Rogers, one of the appeal court judges explained in a dissenting opinion, when her colleagues approved the stay on Judge Urbina’s ruling that had been requested by the government. As a result, I believe that the obligation to re-house the Uighurs still rests with the US government, and I join with Sabin Willett, a lawyer for the Uighurs, who has spent long years publicizing their plight, in asking Robert Gates and Attorney General Eric Holder to release them into the United States.

As Willett stated in a letter on January 23:

We urge the government to release the Uighurs immediately in the only place they can be released — the United States. Not only would this be just, but it is in our national interest. By accepting the Uighurs, we would encourage other countries to accept the significant number of Guantánamo detainees who are cleared for release but who cannot be repatriated. Bringing the Uighurs here is thus an important early step toward carrying out President Obama’s Executive Order and removing a stain on our National character.

The second problem with the widespread focus on the Uighurs is that it detracts from the cases of the other men held at Guantánamo who desperately need third countries to re-house them. Of the 44 cleared prisoners who are not Uighurs, 23 more men are currently seeking new homes. Three — of Palestinian origin — are essentially stateless, as it has proven impossible to negotiate their return with the Israeli authorities, and the other 20 — five Algerians, an Egyptian, a Libyan, a Tajik, eight Tunisians and four Uzbeks — cannot be repatriated because their safety cannot be guaranteed in their home countries. Last year, when two Tunisians were repatriated, these dangers were demonstrated with an alarming clarity. On their return, despite an agreement with the US government that they would be treated fairly, the two men were subjected to show trials based on evidence extracted through the torture of another prisoner, and given jail sentences of three and seven years.

It is clear that none of the cleared prisoners poses a threat to anyone, for the simple reason that, in a prison based on the presumption of guilt — in which everyone has been held as an “enemy combatant” without rights, solely because the President said they were — those who have been approved for release, after multiple military reviews, have only succeeded in doing so because the authorities have concluded that they do not pose any danger to the United States or its allies.

So who are these other men?

There is not the space here to discuss all their stories, but they include Ahmed Belbacha, an Algerian who fled persecution by Islamists and came to the UK, where he settled in the seaside town of Bournemouth, and received a tip and a thank-you note from Britain’s Deputy Prime Minister, after cleaning his room during a political conference. Ahmed’s only mistakes were to take a holiday in Pakistan in the fall of 2001, and to do so before his asylum application was complete.

Another is Nabil Hadjarab, a young Algerian from a broken home, with relatives in Lyon, who was only persuaded to travel to Afghanistan because he was caught in limbo between Algeria and France as his family disintegrated around him, and another is Rafiq al-Hami, a 39-year old Tunisian who had lived in Germany, where he had worked in restaurants and for a Turkish cleaning company. Seized randomly in Pakistan, far from the battlefields of Afghanistan, al-Rami was nevertheless sent to the CIA’s notorious “Dark Prison” near Kabul, which resembled a medieval torture dungeon, but with the addition of painfully loud music, blasted into the cells 24 hours a day.

Then there are seven Tunisians, who were all Italian residents. I covered the stories of five of these men last year, and one of them, to give just one example, is Adel al-Hakeemy, who had lived in Italy for eight years, working as a chef’s assistant in several hotels in Bologna, before traveling to Pakistan to get married. “I lived with Italians in their homes,” he explained to his lawyers. “I am used to their culture. The Italians worked alongside me, they respected me, they treated me as their brother.”

While these prisoners already have connections with specific European countries, others, like the Libyan Abdul Rauf al-Qassim, do not. Cleared since 2006, al-Qassim — essentially a refugee from Libya who married an Afghan woman and had a daughter he has not seen since she was a baby — was also seized in Pakistan at a time when bounty payments for “terror suspects” were widespread, and foreign Arabs were easy prey, and he has been fighting in the US courts to prevent his repatriation for nearly two years.

Another is Adel Fattough Ali El-Gazzar, an accountant and a former officer in the Egyptian army, who had traveled to the Pakistani border to provide humanitarian aid to Afghan refugees, but was caught in a US bombing raid. “I saw a light and heard a voice and then I lost consciousness,” he explained in Guantánamo.  “When I woke up I was in a Pakistani hospital. I lost my coat, my passport, my money, everything. And I lost my leg also.”

Then there are the Palestinians: Ayman al-Shurafa, a student whose education in Gaza was disrupted by the Intifada, who was persuaded to travel to Afghanistan for jihad, but who regretted his decision and never raised arms against anybody; Assem Matruq al-Aasmi, another duped young recruit, who was wounded by a grenade; and Mahar al-Quwari, an older man, with a wife and children, who had drifted to Afghanistan in search of work after a fruitless trip to visit the UN in Pakistan, to sort out papers for his family, but who ended up being sold by Afghan villagers to the Northern Alliance, who in turn sold him to the Americans.

Completing this brief guide to the cleared prisoners are the Uzbeks, whose government’s human rights abuses are notorious: Shakrukh Hamiduva, just 18 years old at the time of his capture, who was working as a taxi driver in Afghanistan when he was seized by Afghan bounty hunters; Ali Sher Hamidullah, a drifter who explained in Guantánamo that the Uzbek intelligence agents who visited him told him that “the only thing that waits for me in Uzbekistan is a bullet in my head”; Kamalludin Kasimbekov, who had been forcibly recruited to join the Islamic Movement of Uzbekistan, allies of the Taliban; and Oybek Jabbarov, a 30-year old father of two, who suffers from health problems related to a botched surgical procedure on a ruptured disk in his back in 2007.

Unwillingly transplanted to Afghanistan along with fighters from the IMU, Jabbarov explained in Guantánamo that he made a living “buying and selling sheep, chicken and goats,” and was told in December 2001 that the government was giving out ID cards to immigrants at Bagram airbase. “There, I saw American soldiers,” he said. “They just took me inside, they questioned me, and they kept me for a few days. I’ve been detained ever since.”

His lawyer, Michael Mone, who recently explained that he had taken on Jabbarov’s case because “I felt I could no longer stand on the sidelines and permit this gross executive power grab, which is how I view [Bush's] actions as they relate to torture, rendition, and the creation of Guantánamo as this [legal] black hole,” stated that his client had also been threatened by Uzbek intelligence agents. “They at one point showed him a photo array and asked him if he could identify any of the individuals,” Mone said in a recent interview. “And when he couldn’t identify any of them, one of the Uzbeks banged his fist on the table and said, ‘When you get back to Uzbekistan, you will know these things.’ And Oybek took that to mean that when he got back to Uzbekistan, they would torture him until he told them what they wanted to hear.”

I leave the final word to Spanish judge Baltasar Garzón, who has not always been a voice of reason when it comes to assessing the threat posed by terrorism, but who, on this occasion, captured a truth to which governments — including the US government — should pay close attention. As reported in the Los Angeles Times on Sunday, Garzon said, “We have to confront the reality that some bad people will end up walking the streets, like the former rapists, robbers and terrorists whom we have walking the streets once they complete their sentence and are released. We have to take the risks that are necessary in a democratic society.”

The alternative, lest we forget, is Guantánamo, as conceived by George W. Bush, Dick Cheney and Donald Rumsfeld, a place where, ideally, everyone is presumed guilty, no one is ever charged or tried, and no one is ever released.

Note: For those who are keeping count, the other 21 cleared prisoners are not apparently in immediate need of the assistance of third countries. Six are Saudis, whose release should be straightforward, as the Saudi government has run a successful rehabilitation program and has processed 109 returned prisoners in the last two years (with a low rate of recidivism, contrary to recent reports), twelve are Yemenis (and there are hopes that the long diplomatic impasse between the US and Yemeni governments will soon be resolved, so that they can be repatriated), and the release of the other three — two Bosnians of Algerian origin, and Mohammed El-Gharani, a resident of Chad — was ordered by District Court Judge Richard Leon, when he recently ruled, in their habeas corpus reviews, that the government had failed to establish a case against them.

Additional note: Oybek Jabbarov is known to the Pentagon as Abu Bakir Jamaludinovich. For the story of the Tajik prisoner, Omar Abdulayev, see The Guantánamo Files: Website Extras 9 – Seized in Pakistan (Part One). In addition, one of the Saudis cleared for release is the British resident Shaker Aamer, profiled here, and one of the other Tunisians is Lotfi bin Ali (known to the Pentagon as Mohammed Abdul Rahman), whose struggle to prevent his forcible return to Tunisia is described here.

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). This article draws on passages from the book. To receive new articles in your inbox, please subscribe to my RSS feed.

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

For a sequence of articles dealing with the Uighurs in Guantánamo, see: The Guantánamo whistleblower, a Libyan shopkeeper, some Chinese Muslims and a desperate government (July 2007), Guantánamo’s Uyghurs: Stranded in Albania (October 2007), Former Guantánamo detainee seeks asylum in Sweden (November 2007), A transcript of Sabin Willett’s speech in Stockholm (November 2007), Support for ex-Guantánamo detainee’s Swedish asylum claim (January 2008), A Chinese Muslim’s desperate plea from Guantánamo (March 2008), Former Guantánamo prisoner denied asylum in Sweden (June 2008), Six Years Late, Court Throws Out Guantánamo Case (June 2008), Guantánamo as Alice in Wonderland (July 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), A Pastor’s Plea for the Guantánamo Uyghurs (October 2008), Guantánamo: Justice Delayed or Justice Denied? (October 2008), Sabin Willett’s letter to the Justice Department (November 2008), Will Europe Take The Cleared Guantánamo Prisoners? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), and the stories in the additional chapters of The Guantánamo Files: Website Extras 1, Website Extras 6 and Website Extras 9.

The 50 prisoners cleared for release

Of the 255 prisoners currently held at Guantánamo, around 50 have been “approved for transfer” — many for at least three years — but they remain in Guantánamo, mostly imprisoned in conditions that would task the resilience of the most hardened convicted criminals on the US mainland, for two particular reasons. The first is because they are from countries with notoriously poor human rights records (including China, Libya, Syria, Tunisia and Uzbekistan) or unstable regimes like Iraq, and cannot be returned because of international treaties preventing the return of foreign nationals to countries where they face the risk of torture. The second reason is that the administration’s insistence that they are still “enemy combatants” (or are “no longer enemy combatants”) has deterred other countries from accepting them. Even though State Department representatives have been touring the world for the last three years in an attempt to relocate some of these men, the only third country that has been prevailed upon to accept any of them is Albania, which took eight former prisoners in 2006.

I am reliably informed that there are certain career officials in the State Department who have been anxiously awaiting a new administration, in the expectation that it will facilitate greater cooperation between the United States and its allies in Europe, and that some of these countries might now agree to help the United States out of the hole dug by the Bush administration, which regularly made matters worse by criticizing other countries for not helping out. In August 2007, for example, President Bush stated, “I did say it should be a goal of the nation to shut down Guantánamo,” but added, “I also made it clear that part of the delay was the reluctance of some nations to take back some of the people being held there.”

To this end, several prominent human rights and legal organizations — including Amnesty International, Human Rights Watch and the Center for Constitutional Rights — launched a campaign in Berlin on November 10 aimed at persuading European countries to accept cleared prisoners from Guantánamo. This is laudable, as it is clearly intolerable that these men remain imprisoned at Guantánamo (and, as it stands, makes Barack Obama’s mission to close the prison impossible), but if the President-Elect really wants to do the right thing, which will also send out a positive message to the United States’ allies abroad, then he should make the first move by allowing the 17 remaining Uighurs at Guantánamo (Muslims from China’s Xinjiang province, who had fled to Afghanistan to escape Chinese persecution) to settle in the United States.

The Uighurs scored a major victory this summer, after the Supreme Court ruled that the Guantánamo prisoners had constitutional habeas corpus rights. This ruling unlocked hundreds of habeas cases that had stalled in the lower courts following the passage of the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, which purported to strip the prisoners of the habeas rights granted by the Supreme Court in 2004. When the first of these cases, that of a Uighur prisoner called Huzaifa Parhat, was finally reviewed by the Court of Appeals in Washington D.C., the judges ruled that Parhat’s designation as an “enemy combatant” was invalid, and derided the government’s “evidence” as being akin to a nonsense poem by Lewis Carroll, the author of Alice’s Adventures in Wonderland.

In the months that followed, the cases against all 17 Uighurs crumbled, as the government admitted that it would “serve no purpose” to continue trying to prove that Parhat was an “enemy combatant,” and then did the same for his 16 compatriots. In October, when Judge Ricardo Urbina of the US District Court in Washington D.C. held a hearing to determine what should happen to the Uighurs, he declared, “Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful.” Furthermore, because no third country had been found that would accept the men, he ordered their release to the care of communities in the Washington D.C. area, and Tallahassee, Florida, who had put together detailed plans for their resettlement in the United States.

This was a proud moment for American justice, but the Uighurs never made it to Washington D.C. or Tallahassee. Instead, the government appealed, the Justice Department wheeled out its old and discredited allegations about the men being connected to terrorism (thereby stymieing attempts to find a third country to take them), and, in a brief filed for hearings next week, asserted that the executive branch “has authority to hold aliens in detention even if they are not considered enemies of the US,” adding, for good measure, “even if the detention is indefinite, it is still lawful.”

This is clearly an intolerable situation. As the only prisoners at Guantánamo who have ever persuaded the Bush administration to drop its claims that they are “enemy combatants,” the Uighurs deserve the lifeline extended to them by Judge Urbina. If the appeal goes against them, the new administration should make their release into the United States a priority.

The 80 prisoners scheduled to face trial by Military Commission

President-Elect Obama has already pledged to repeal the Military Commissions Act, which revived the Bush administration’s deeply flawed “terror trials” after the Supreme Court ruled them illegal in June 2006. This should be a priority after January 20, 2009, and should be accompanied by a thorough and independent review of the cases against the 80 or so prisoners facing (or scheduled to face) a trial by Military Commission.

What’s important to note is that the administration’s figure can be whittled down without any difficulty. Of the 17 prisoners currently facing trial by Military Commission, for example, two — Omar Khadr (photo, left) and Mohamed Jawad — were juveniles when they were seized, and should have been rehabilitated rather then punished under the terms of the Optional Protocol to the UN Convention on the Rights of the Child (on the involvement of children in armed conflict). Moreover, significant doubts have been expressed about the quality of the evidence against them, with legitimate claims made by their military defense attorneys (and, in Jawad’s case, by his former prosecutor, who resigned in September) that evidence vital to the defense was deliberately suppressed. In addition, another three of the 17 are, at best, minor Afghan insurgents who are not accused of killing US forces, and have no connection with al-Qaeda. All these prisoners should be released.

Others who have expressed doubts about the Pentagon’s figures are senior officials who spoke to the New York Times in 2004, when a total of 749 prisoners had been held at Guantánamo. In interviews, the Times explained, “dozens of high-level military, intelligence and law-enforcement officials in the United States, Europe and the Middle East said that contrary to the repeated assertions of senior administration officials, none of the detainees at the United States Naval Base at Guantánamo Bay ranked as leaders or senior operatives of al-Qaeda. They said only a relative handful — some put the number at about a dozen, others more than two dozen — were sworn Qaeda members or other militants able to elucidate the organization’s inner workings.”

To these can be added some, or perhaps the majority of the ten prisoners transferred to Guantánamo from secret CIA prisons in September 2004, the 14 “high-value detainees” — including Khalid Sheikh Mohammed and the other alleged 9/11 conspirators — who were transferred in September 2006, and two of the six prisoners who arrived at Guantánamo between March 2007 and March 2008. These prisoners — somewhere between 35 and 50 in total — are the only ones who should be moved to the US mainland to face trials in federal courtrooms.

There will inevitably be problems — protecting confidential intelligence sources, for example, and, in particular, dealing with evidence obtained through torture — but I can see no other alternative. The trials as they stand are an abomination, permeated with systemic pro-prosecution bias, and capable of handing down a life sentence only in a one-sided show trial (that of Ali Hamza al-Bahlul), which passed largely unnoticed in the week before the Presidential election.

Holding prisoners forever without charge or trial is clearly an untenable solution, as it simply perpetuates the Bush administration’s crimes, and recent suggestions — by both Democrats and Republicans — that another new trial system should be instigated, or that a form of “preventive detention” should be introduced, are just as redolent of the arrogance of the Bush years, and indicate that those proposing them have learned nothing from the abuse of the Constitution over the last seven years.

In addition, one extra problem that President Obama may have to deal with as soon as he takes office concerns Salim Hamdan, the driver for Osama bin Laden who was convicted of material support for terrorism (but cleared of conspiracy) in a trial that took place over the summer. Hamdan was sentenced to five-and-a-half years’ imprisonment, but his judge, Navy Capt. Keith Allred, allowed for time served since he was first charged, which means that he will have finished serving his sentence by the end of the year. Allred has refused to bow to pressure from the Defense Department, which attempted to claim that he had no right to allow time served to be taken into account, but the Pentagon may yet assert that it has the right to continue holding Hamdan as an “enemy combatant,” even after his sentence is over.

Like the plight of the Uighurs, this is completely unjustifiable, as Hamdan was convicted by a military jury in a trial of the administration’s own devising, but if the outgoing President insists on holding Hamdan after his sentence is served, President Obama will have to ensure that he is allowed to return to his family in Yemen.

The 125 prisoners who are “too dangerous” to be released

The notion that prisoners can be “too dangerous to release but not guilty enough to prosecute” is another hallmark of the Bush administration’s disdain for the law, but this, too, has been embraced by enthusiasts for a new policy of “preventive detention.” The rationale is, however, also unjustifiable. As I hope to have demonstrated in my previous article, in which I dissected the failures of the interrogators at Guantánamo to distinguish between genuine intelligence and false confessions produced through the use of torture, coercion or bribery, there is no reason to elevate these prisoners to even the lowest rungs of a terrorist hierarchy, and every reason to follow the conclusions reached by senior military and intelligence officials: that no more than 35 to 50 of the prisoners had any meaningful connection with al-Qaeda.

There is, at present, some hope that these prisoners’ habeas reviews will demonstrate the weakness of the government’s evidence against these 125 prisoners. In the case of six Algerian-born Bosnians accused of plotting to blow up the US embassy in Sarajevo, for example, their habeas review began with the government dropping the claim (which, it should be noted, was dismissed by the Bosnian government in January 2002, before the men were kidnapped and sent to Guantánamo), and today (November 20) Judge Richard Leon, a Bush appointee, ordered five of the six to be released “forthwith,” as the government had “failed to show by burden of proof” that they were guilty of the only other charge that remained: an allegation that they had planned to go to Afghanistan to take up arms against US forces. It seems probable that other cases will also see the government dropping its “evidence,” before the judges can conclude, as the appeal court judges did in the case of Huzaifa Parhat, that it is no more reliable than the nonsense poetry of Lewis Carroll, or, as Judge Leon stated as he ordered the Bosnian Algerians to be freed, “To rest on so thin a reed would be inconsistent with this court’s obligation.”

I can only hope that the habeas reviews continue to force the government to drop more of its redundant claims against the prisoners, as my research has illuminated, above all, how the protestations of innocent men — and of Taliban foot soldiers recruited to fight an inter-Muslim civil war that began long before 9/11 and had nothing to do with al-Qaeda — have been overshadowed with disturbing regularity by allegations made by unnamed “senior figures in al-Qaeda,” interrogated in unknown circumstances, or by other prisoners who have made false confessions, often on a colossal scale, in the hope of securing more favorable treatment. Stark examples of both of these practices are available here and here, but many more are reported in The Guantánamo Files, and what they demonstrate, above all, is how the entire “War on Terror” detention program, as executed at Guantánamo, was designed to do away with the presumption of innocence, and was, instead, focused solely on confirming preordained guilt.

The 125 prisoners in question are from a variety of nations — a few dozen of the remaining Afghans, several dozen more from the countries of North Africa and the Gulf — but up to half are from the largest remaining group at Guantánamo: the Yemenis. Unlike the 130 Saudis, who were mostly released from Guantánamo in 2006 and 2007, after the Saudi government instigated a rehabilitation program (involving religious retraining and support in finding wives and employment), which met with the approval of the US authorities, only 13 of the 108 Yemenis in Guantánamo have been released, even though they, like the Saudis, were, for the most part, a mixture of Taliban foot soldiers and humanitarian aid workers and missionaries, caught up in an undiscriminating dragnet.

The problem, as has been repeatedly stated, is that the US authorities claim that they are not convinced that the Yemeni government will be able to guarantee that the men will not continue to pose a threat to the United States. For their part, as the Houston Chronicle reported on Saturday, “Yemeni officials say they’re ready to try many of the men and imprison those who are convicted, but they complain that US officials refuse to share evidence with them.” The Yemeni foreign minister, Abu Bakr al-Kirbi, explained, “Based on the information we have, some of the Guantánamo prisoners have nothing to do with terrorism. We cannot imprison them without a court sentence. We cannot do something that is against our laws. We are accountable to our own public.”

Al-Kirbi is undoubtedly right that some of the men pose no threat to anybody, and cannot be detained without reason, but to break the deadlock both sides need to sit down and hammer out a deal — perhaps one that involves judge Hamoud Al-Hitar, the head of Yemen’s Dialogue Committee, which, as the Yemen Times reported last December, “aims at steering extremists away from violence through a number of dialogue sessions.” Al-Hitar’s program is widely credited as the inspiration for the Saudis’ successful rehabilitation program, and it would surely, therefore, make sense for the US and Yemeni governments to work out how to come up with a suitable program for Yemen that will enable Barack Obama to close Guantánamo.

Then we can move on to what lies behind Guantánamo: the unaccountable prisons in Afghanistan and Iraq, which hold an estimated 39,000 prisoners, and the unknown number of prisoners still held in secret CIA custody, or rendered to torture in third countries, who constitute “America’s Disappeared.”

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

As published on the Huffington Post, Antiwar.com. ZNet and CounterPunch.

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

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

And see here for an article discussing the presidential orders issued by Barack Obama in his first week in office, closing Guantánamo and banning torture.

For many of the prisoners at Guantánamo, the forthcoming US Presidential election holds little promise of change. Although both Barack Obama and John McCain have pledged to close Guantánamo, the problem for at least 50 of the 261 prisoners still held at the prison is not that the US government is unwilling to release them, but that there is nowhere for them to go.

These men are from countries including Algeria, China, Libya, Tunisia and Uzbekistan. Although they have been approved for release after multiple military review boards — some for at least three years — they cannot be repatriated because of international treaties preventing the return of foreign nationals to countries with poor human rights records, where they face the risk of torture. Attempts to find other countries willing to take them have also failed (with the exception of Albania, which accepted eight former prisoners in 2006), in part because, although they are approved for release, the government insists on maintaining that they are still “illegal enemy combatants.”

Generally ignored by the media, which focuses instead on the few prisoners chosen to face special “terror trials” (the Military Commissions), these men receive no special favors, in spite of their status, and are mostly held in conditions of strict solitary confinement for up to 23 hours a day.

Recently, however, some of these men have received extensive media coverage. Seventeen Uyghurs — Chinese Muslims who were sold to US forces after fleeing a settlement in Afghanistan where they had sought refuge from Chinese oppression — were allowed to present their case to a US court on October 7. The judge, Ricardo Urbina, ruled that their continued imprisonment was unconstitutional, and that, because no other country would take them, they should be rehoused in the United States.

This prompted a frantic appeal from the government, which is desperate not to accept responsibility for its mistakes by welcoming any former prisoners into the United States. The appeal was accepted, and arguments on both sides are scheduled to take place on November 24.

If the appeals court upholds Judge Urbina’s ruling, this might bring an end to some of the other prisoners’ extensive legal limbo, but in the meantime the silence surrounding their predicament masks a darker truth, which has only just come to light.

Since June 2007, the administration has been stealthily attempting to repatriate various North African prisoners, under the cover of “diplomatic assurances” with the governments of Algeria, Libya and Tunisia. These are supposed to guarantee that, if returned, the prisoners will be given “humane treatment,” but as various human rights organizations have reported, the “diplomatic assurances” are worthless.

After two Tunisians — Lotfi Lagha and Abdullah bin Omar — were repatriated last June, the “diplomatic assurance” with the government of Zine El Abidine Ben Ali melted away when the men faced show trials on trumped-up charges (extracted through the torture of other prisoners) and received jail sentences of three and seven years.

Fearing that other cleared prisoners would receive similar treatment, several lawyers sought help from the US courts to prevent their clients’ forcible return. A District Court blocked the return of a third Tunisian, Mohammed Abdul Rahman, and lawyers for at least two other prisoners petitioned to prevent their clients’ forced repatriation.

One was Abdul Rauf al-Qassim, a Libyan with an Afghan wife and a daughter he has never seen, and another was Ahmed Belbacha (photo, left), an Algerian who had sought asylum in the UK in 1999. Belbacha, who was seized and sold by bounty hunters in Pakistan, had fled Algeria because he had been working for a government controlled oil company and had been threatened by militants, but the British government refused to accept his return to the UK because he was kidnapped while his asylum claim was still pending. Terrified of being returned to Algeria, he told his lawyers that he would rather stay in Guantánamo, even though his cell was “like a grave.”

For most of this year, it appeared that the lawyers’ attempts to prevent their clients’ return to torture had been successful, but last month, during a visit with Cori Crider, staff attorney at the London-based legal action charity Reprieve, Ahmed Belbacha explained that in July he had been taken aside by a group of US soldiers who had ordered him to sign papers approving his release from Guantánamo. Knowing that a court had put a stay on his repatriation, Belbacha refused, but his lawyers did not hear about it until Ms. Crider’s latest visit with him last month.

Although lawyers for other prisoners are not at liberty to speak about similar cases (because their cases are sealed before the US courts), it appears that this was not an isolated example. The only conclusion that can be drawn is a bleak one: in an attempt to clear out unwanted prisoners from Guantánamo — and also, no doubt, to prevent them from seeking asylum in the United States if Judge Urbina’s ruling stands — the authorities at Guantánamo are deliberately undermining rulings made in courts on the US mainland to prevent the forced repatriation of vulnerable prisoners.

This is shocking, of course, but it is unsurprising given that those who established Guantánamo have consistently expressed disdain for the law, and have sought nothing less than unfettered executive power.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press).

As published exclusively in the Daily Star, Lebanon.