Andy Worthington » Uyghurs in Guantanamo

Obama and US Courts Repatriate Algerian from Guantánamo Against His Will; May Be Complicit in Torture

Andy Worthington — Wed, 21 Jul 2010 11:28:43 +0000

On Monday, the Pentagon announced that two prisoners had been released from Guantánamo. Abd al-Nisr Mohammed Khantumani, a 50-year old Syrian (also known as Abdul Nasir al-Tumani) was given a new home in Cape Verde, a former Portuguese colony off the West African coast, while Abdul Aziz Naji, a 35-year old Algerian, was repatriated to Algeria.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How the Circuit Court defended expansive executive power

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

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

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

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

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

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

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

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

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

As published exclusively on Cageprisoners. Cross-posted on The Smirking Chimp, The Public Record and New Left Project.

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

Guantánamo Uighurs Thank Bermuda; Supporters Ask UK to Give Them Passports

Andy Worthington — Wed, 09 Jun 2010 21:34:47 +0000

As I have explained in two recent articles, a global scramble by the Obama administration to find new homes for 17 Uighurs (Muslims from China’s Xinjiang province) who were, or are held in the US prison at Guantánamo Bay, has had mixed results. The men won their habeas corpus petitions in a US court in October 2008, but five are still held in Guantánamo, having refused an offer of resettlement from Palau and another unidentified country. These men have just lost a court case in the US, in which they sought release into the United States, and are now back in legal limbo.

In contrast, six men freed in Palau on October 31 last year are well, and happy to be free, but are also hoping that an appeal to the Australian government by Palau’s President will secure them a permanent home in Australia, where there will be more opportunities for them — and where there is also a large Uighur community.

Today, however, the four Uighurs who were freed in Bermuda last June marked the first anniversary of their release from Guantánamo in a more upbeat manner, sending a message of thanks to the Bermudian people and speaking about how they are enjoying their new lives. This was reported in the Bermuda Sun, and I’m pleased to be able to pass on the good news.

In a sign that any worries about the men have dissipated in the last year — worries that, it should be noted, were largely fanned by political opponents of Premier Ewart Brown, who arranged for their release — the Bermuda Sun described them explicitly as “innocent men wrongly imprisoned for seven years,” and explained that they are “still relishing their freedom 12 months after being let go.”

“It has been a wonderful year,” Khalil Mamut told senior reporter James Whittaker, who described him as “the best English speaker of the four and the group’s unofficial spokesman.” Mamut added, “A year ago we were in Guantánamo Bay but this year, praise be to God, we are here. We have a lot of friends — some Muslims, some Christians — and they treat us as if we are Bermudian.”

Salahidin Abdulahad added, “In our country Muslims cannot practice their religion, cannot pray together otherwise the Government oppresses them. Here we can meet with other Muslims and practice our religion in peace.”

Describing how, “with their long shorts and wrap-around shades, they do not stand out from the crowd,” Whittaker proceeded to explain how “the simple pleasures of being free” were still astonishing to the men, but also pointed out how descriptions of their life, which includes “swimming in the Atlantic, riding to work on scooters and their jobs on a majestic ocean-side golf course,” will “sound familiar to locals and expatriates alike.”

“We work hard, we pray, we rest,” Khalil Mamut told him. “We play a friendly soccer game on Sundays at Port Royal and after we like to swim in the ocean. Sometimes we have friends over for a barbecue.”

Even so, adjusting to their new life has not always been easy. As Whittaker explained, “They are still struggling to learn the language and adjust to a culture so markedly different from their own.” Salahidin Abdulahad told him, “We are still unfamiliar with the culture of Bermuda. We still need help and support. We are adapting but it is difficult. We grew up in a big country, we moved around a lot — now we move only from Dockyard to St. George’s.”

However, as Whittaker also explained, the men “hope to be able to travel beyond these shores soon” and are “awaiting news on whether they will be granted travel documents.” One of the four, Abdullah Abdulqadir, has a sister in Montreal, and hopes to be able to visit the nieces and nephews he has never met, but who, in the last year, he has been speaking to several times a week via Skype. “At first I was like a stranger,” he told Whittaker, but “now they call me uncle. If I am talking to their parents they come and they want to talk to their uncle.”

In the long-term, the men “hope to stay in Bermuda and start families of their own,” as James Whittaker put it. Khalil Mamut explained, “None of us have girlfriends, but in the future, who knows? We are all older than 30 and to have a family is very important to us.” For now, however, they are, as Whittaker described it, “just grateful to be free and in Bermuda.” Khalil Mamut told him, “We are so happy that Bermuda gave a helping hand to us and we ask God to give a peaceful life.”

A letter to the people of Bermuda

As well as publishing this anniversary article, the Bermuda Sun also published the following “poignant letter to Bermuda’s residents and Government thanking them for welcoming them to the island last year,” which was written by Khalil Mamut.

In the name of Allah, on behalf of my brothers and I, we would like to thank Premier Dr. Ewart Brown, the Bermuda Government and the people of Bermuda. You opened your homes and hearts to us and we are humbled by your hospitality.

We grew up in a different land and culture but you embraced us with your humanity and kindness and made us feel at home. We are thankful for the opportunity you gave us for a new beginning.

We are looking forward to your continual support in order for us to adapt and integrate more to your culture.

We are very blessed to be embraced by people in the community — Muslims, Christians and others.

Peace be with you all.

The political fallout – and a question of British passports

In a final article, James Whittaker also examined the political fallout from Premier Brown’s “secret deal with the US” to bring the Uighurs to Bermuda, which, as he explained, “sparked a political firestorm,” with critics arguing that Bermuda’s reputation “would forever be tarnished by an association with terrorism” and that “relations with the UK [Bermuda is a British Overseas Territory] would be seriously damaged,” while Brown’s supporters regarded it as “a bold, humanitarian gesture that would strengthen relations with the US.”

After noting that there appears to have been no noticeable effect on Bermuda’s relations with the US, despite supportive words from President Obama and Hillary Clinton, Whittaker pointed out that, in contrast, “the damage to Bermuda’s reputation seems to have been overstated by Dr. Brown’s critics,” and that, although the UK “was angry for a while,” a royal visit and a change of government “has put the incident largely in the past.”

On the domestic front, Whittaker pointed out that “PLP insiders [in Brown's party, the Progressive Labour Party] say his failure to consult his colleagues over the Uighurs critically weakened support from key parliamentary figures,” but he survived a vote of no confidence last year, and, as Senator Walton Brown, one of his supporters, explained, “We have secured significant goodwill with the US and no adverse action whatsoever from the UK,” and the “real issue” is that “four individuals who were never charged with any crime are now free.”

Perhaps the only outstanding questions concern the men’s official status. While awaiting travel documents, as mentioned above, they are also aware that negotiations are underway in an attempt to convince the British government to give them passports, although in April, as Whittaker explained, the Governor, Sir Richard Gozney, suggested that this was “unlikely to happen soon.”

However, although Sen. Brown said that the delay “was a result of ill-feeling from the UK” regarding the way the decision to accept the Uighurs was taken, he insisted that “time is a great healer” and told Whittaker that he was “confident the UK will ultimately do the right thing and grant the men the chance to travel” and even “to reside in Britain if they chose to do so.”

“They are settled in Bermuda, they are hard working individuals,” Sen. Brown said of the Uighurs. “I’m sure they miss their families like anyone would, but their living conditions are significantly better today than they were 18 months ago. By any moral standards we have done the right thing. All that remains is for the UK to grant them travel documents and allow them to be truly free.”

The Uighurs in Britain? Now that really would be something — although I suspect that they may prefer life in Bermuda!

To conclude on a more serious note, however, the way in which the Uighurs have been accepted in Bermuda shows what would have happened in America, if President Obama had found the courage to follow through, last spring, on a plan formulated by Greg Craig, the White House Counsel, to bring a number of the Uighurs to live in the United States.

The fact that Obama quashed Craig’s plan in the face of Republican opposition still counts as his single biggest failure with regard to Guantánamo. As can be seen from the escalation of fearmongering about Guantánamo in Republican circles — and in large parts of his own party — it has been disastrous in terms of demonstrating to the American people that Guantánamo was not full of terrorists, and that innocent men were held, as well as making it more difficult for the State Department — and Obama’s special envoy Daniel Fried — to find new homes for other men who, like the Uighurs, cannot be repatriated because of fears that they will face torture on their return.

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

No Escape from Guantánamo: Uighurs Lose Again in US Court

Andy Worthington — Sun, 06 Jun 2010 11:04:44 +0000

In 2002, when Guantánamo opened, 22 Uighurs (Muslims from China’s oppressed Xinjiang province) were held in the prison, even though interrogators in Afghanistan (where the prisoners were processed for Guantánamo) had already realized that they had no connection to al-Qaeda or the Taliban. The men were mostly seized by Pakistani villagers and sold to US forces after fleeing a settlement in Afghanistan, where they had ended up either because they had found it impossible to travel to Turkey, where some had hoped to find work, or because they nursed futile hopes of rising up against the Chinese government, whose oppression of the Uighurs was distressingly revealed to the world last July.

Over the years, the Uighurs became pawns in the Bush administration’s diplomatic relations with the Chinese government, but were mostly cleared for release after military tribunals and review boards concluded that they were innocent men, seized by mistake. Five were released in May 2006, given new homes in a refugee camp in Albania, the only country that would accept them, but the remaining 17 languished until their habeas corpus petitions reached a US court in October 2008, and Judge Ricardo Urbina granted their petitions and ordered their release into the United States. Judge Urbina concluded that their continued detention was unconstitutional, and that the US had an obligation to accept them because there were legitimate fears that they would be tortured if returned to China, and also because no other country had been found that was prepared to take them.

In response, the Bush administration appealed, and when President Obama came to power he maintained the same position. In February 2009, with the backing of Obama’s Justice department, the Court of Appeals refused to accept the implications of Judge Urbina’s position, reversing his ruling and concluding that questions relating to immigration — even those posed by men who had been wrongly imprisoned for eight years, and had won a habeas petition — were for the Executive, and not the court, to decide.

Judge A. Raymond Randolph (who defended every Bush decision about the Guantánamo prisoners that was subsequently overturned by the Supreme Court) and Judge Karen LeCraft Henderson held that it was within “the exclusive power of the political branches to decide which aliens may, and which aliens may not, enter the United States, and on what terms,” despite dissent from the third judge, Judith W. Rogers.

Although Judge Rogers concurred in the judgment (because the government had, at the time of Judge Urbina’s ruling, not stated its position regarding matters relating to immigration), she was deeply critical of her colleagues’ decision to undermine the Supreme Court ruling in Boumediene v. Bush, in June 2008, which granted the prisoners constitutionally guaranteed habeas corpus rights. In her dissenting opinion, Judge Rogers reiterated that the Supreme Court held that prisoners in Guantánamo are “entitled to the privilege of habeas corpus to challenge the legality of their detentions,” and that a “habeas court must have the power to order the conditional release of an individual unlawfully detained.” She also declared:

Today the court nevertheless appears to conclude that a habeas court lacks authority to order that a non-“enemy combatant” alien be released into the country (as distinct from be admitted under the immigration laws) when the Executive can point to no legal justification for detention and to no foreseeable path of release. I cannot join the court’s analysis because it is not faithful to Boumediene and would compromise both the Great Writ as a check on arbitrary detention and the balance of powers over exclusion and admission and release of aliens into the United States recognized by the Supreme Court to reside in the Congress, the Executive and the habeas court.

Within the administration, one man — White House Counsel Greg Craig — recognized that this was not only unjust, but also that hopes of persuading other countries to accept cleared prisoners who, like the Uighurs, feared repatriation because of the risk of torture, would be imperiled if America refused to take any of these men. Last spring, Craig was close to finalizing a plan to bring some of the men to live in the US, but President Obama capitulated to critics and abandoned the plan, and lawmakers — no doubt partly emboldened by the President’s willingness to cave in on matters relating to Guantánamo — subsequently passed legislation preventing Guantánamo prisoners from being brought to the US for any reason other than to face trials.

Following the ruling in the Court of Appeals, the Uighurs’ lawyers appealed to the Supreme Court, prompting a frantic, and, frankly, cynical effort by the administration to find new homes for the men. Four were taken by Bermuda in June last year, another six accepted an offer by the Pacific island state of Palau, arriving there on October 31, and two others were taken in by Switzerland in January this year.

However, the five remaining men had turned down Palau’s offer, because of fears that it was too close to China for comfort, and also because of a recognition that, as the Uighurs in Palau have realized, they would be culturally and socially stranded in Palau, where there is no Uighur community.

Nevertheless, the offer by Palau was enough for the Supreme Court to turn down the Uighurs’ case in March. Although the Court vacated the February 2009 ruling by the Court of Appeals, denying access to the US for any Guantánamo prisoner (even those who have won their habeas petitions), the justices sent the case back to the lower courts, and on May 28, as through time had stood still for 15 months, the same Court of Appeals essentially reinstated its former opinion, ruling (PDF), as SCOTUSblog described it, “that the courts have no role to play in deciding whether any non-citizen will be allowed to enter the United States.” As SCOTUSblog also explained, “Thus, the Circuit Court reinstated without change in substance a prior ruling that the Supreme Court had previously agreed to review.”

In truth, it was always obvious that a second review by the Court of Appeals would fail, because the Uighurs’ circumstances have changed since February 2009. As Judges Randolph and Henderson noted, the men have received three resettlement offers in the last 16 months, including at least one offer from Palau and another from an unidentified country, and their attempts to persuade the court to rule on whether these offers were “appropriate” fell on deaf ears, with the judges pointing out that, as their original opinion indicated, “even if petitioners had good reason to reject the offers they would have no right to be released into the United States,” and reasserting that “it is for the political branches, not the courts, to determine whether a foreign country is appropriate for resettlement.”

This, disturbingly, went further in handing the government the power to decide what to do with the men than the government’s own lawyers asserted, as the Obama administration has always maintained that, “As a matter of course, the United States will obtain petitioners’ consent prior to resettlement,” but it was consistent with a ruling delivered by the court in a second case relating to the Uighurs, which I discussed last September, in an article entitled, “Court Allows Return of Guantánamo Prisoners to Torture.”

The judges also relied on the fact that, since February 2009, when they “had heard only from the Executive Branch … the Legislative Branch has spoken,” and that, “In seven separate enactments — five of which remain in force today — Congress has prohibited the expenditure of any funds to bring any Guantánamo detainee to the United States.” Denying the Uighurs’ claim that the statutes “violate the Suspension Clause of the Constitution” (which guarantees the right to habeas corpus, “unless when in cases of rebellion or invasion the public safety may require it”), the judges reiterated that the right to habeas does not guarantee the remedy of release into the United States, noting that “the statutes suspend nothing; petitioners never had a constitutional right to be brought to this country and released.”

As in February 2009, it was left to Judge Rogers to dissent. Although she again concurred in the judgment, this time because of the offers of “appropriate” places of resettlement, she made a point of asserting that, although the men’s original claim, when no country had offered them resettlement, “has been overtaken by events,” Judges Randolph and Henderson once more went further than was necessary in handing powers to the Executive branch. “[I]t is no longer necessary to opine as broadly as the majority does by reinstating its opinion of February 18, 2009,” Judge Rogers wrote, adding, pointedly, “That opinion was overbroad to begin with, as pointed out in my separate concurrence, which must, as a result, also be reinstated, acknowledging certain new developments.”

Although Judge Rogers’ partial dissent does not necessarily help the Uighurs, because she noted that, as a result of the resettlement offers, they “hold the keys to their release from Guantánamo,” it is nevertheless significant that she reiterated her opposition to the majority’s “overbroad” assertion of Executive power, reminding her fellow judges that the question of whether “a habeas court may have the authority to order release is a separate question from whether that court is obligated to order release.”

What will happen next, however, is at present unknown. With the retirement of Justice John Paul Stevens, it is unlikely that any further attempt to secure Supreme Court review will succeed, because Justice Stevens’ intended successor, Solicitor General Elena Kagan, who has been involved in the case on the government’s side, would have to recuse herself, and the court would therefore split 4-4, handing victory to the government.

As a result, the Court of Appeals ruling hurls the five remaining Uighurs back into a legal limbo that might only be resolved if they decide to revisit Palau’s offer, joining their compatriots, who, as I explained in a recent article, are grateful to Palau for helping them escape from Guantánamo, but are still anxious to find a country where they can truly begin to rebuild their lives, and are hoping that an appeal to Australia — lodged by President Johnson Toribiong, who has asked the Australian government to offer them permanent settlement — will be successful, and will allow them, as their lawyers pointed out to the Court of Appeals, to fulfill their “desire for citizenship, ownership of property, cultural affinity, and employment.”

Nevertheless, eight and a half years after they were first seized by mistake, it is apparent that, in the cases of the Uighurs, political maneuvering — and not justice — dictates what will happen to them, and in this, all of those involved in the United States — the Obama administration, lawmakers in Congress, and the Court of Appeals in Washington D.C., with its penchant for upholding the kind of far-reaching claims for executive power that President Bush embraced — ought to be deeply ashamed. In this whole sordid story, only Special Envoy Daniel Fried, who has worked tirelessly to find new homes for the men, and former White House Counsel Greg Craig, who came close to rehousing the men on the US mainland, emerge with any integrity.

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

Cross-posted on Countercurrents and Uruknet.

Palau President Asks Australia to Offer Homes to Guantánamo Uighurs

Andy Worthington — Sat, 05 Jun 2010 20:08:57 +0000

On Radio Australia’s show “Pacific Beat,” reporter Sean Dorney traveled to the small Pacific island nation of Palau to discuss an appeal to the Australian government, made by Palau’s President Johnson Toribiong, asking Prime Minister Kevin Rudd to accept for permanent resettlement six Uighurs (Muslims from China’s oppressed Xinjiang province), who were cleared for release from Guantánamo by a US court in October 2008, and given temporary residence in Palau on October 31 last year.

I have written about the Uighurs at length over the last few years (see the links at the foot of this article), and share President Toribiong’s concerns that, although they have been freed from Guantánamo, they are culturally and socially stranded in Palau, where there is no Uighur community. My hope is that the Australian government will indeed offer them permanent resettlement in Australia, where there is a 2,000-strong Uighur community, and will follow the example of Bermuda and Switzerland, which have both given Uighurs from Guantánamo a permanent home, despite opposition from the Chinese government.

I acknowledge, however, that this remains a remote possibility, given that a hundred countries contacted by the US State Department refused to take the Uighurs. Primarily, this is because of the importance of friendly relations with China to the majority of the countries involved, to which Palau — which deals with Taiwan rather than China — is immune.

Sean Dorney (voice-over): Most Australians who go to Palau do so for the spectacular diving around Palau’s hundreds and hundreds of scattered idyllic islets known as the Rock Islands. But a three-year old Australian Uighur girl, Khadecha, and her five-year old sister, Sabeha, have come to Palau to claim a new father. Their late father died in a drowning accident back in Australia.

Their new stepfather is Adham Nabi, who spent eight years in Guantánamo Bay. In recent weeks, though, he has married their mother, an Australian Uighur woman whose uncle brought her to Palau for the wedding. The six Uighurs who have been in Palau since November were keen to hear what the President of Palau, Johnson Toribiong, had told me in an interview a few days earlier.

President Toribiong: When they first arrived I think they felt for the first time after seven or eight years the enjoyment of individual freedom, physical freedom from physical confinement. They are free here but we don’t have a Uighur community here. And as you know being physically free is not enough. You must have social relationships. One just got married recently to a lady from Australia who’s a Uighur. And others are trying to connect with other Uighurs from all over the world and I can understand that. I mean, they lost seven years during the prime of their lives and they want to have families. And they yearn to go to a community where they can enjoy social relations with their own people.

Sean Dorney: Why would you like to go to Australia?

Abdulghappar Abdulrahman: We need to go to Australia because Australia is a big country. If we go to Australia we feel we will be safe. And in Australia there are Muslims and a Uighur community. Palau is a very small country, no Uighurs. There are no Uighurs.

Sean Dorney (voice-over): Abdulghappar Abdulrahman says they fled their homeland into Pakistan because of oppression.

Abdulghappar Abdulrahman: In Turkestan what happens, for example, last year there were more Uighurs killed. China militarists killed them.

Ahmad Abdulahad: You know about our country what happened right now. There are no human rights. Always the government are causing suffering to our people.

Sean Dorney (voice-over): Ahmad Abdulahad tells me they got caught when the Chinese declared dissident Uighurs terrorists and, for a while, the Americans agreed. He found the price on his head in Pakistan was five thousand US dollars.

Ahmad Abdulahad: Unfortunately, what happened was September 11, and they took us. But from 2003 to 2009 the American Government pronounced us innocent people but no country would accept us. And we spent eight years, almost eight years we spent in Guantánamo Bay.

President Toribiong: When the United States Special Envoy for President Obama arrived in Palau in May of 2009 — the Special Envoy is named Ambassador Daniel Fried — he brought a request from President Obama asking for Palau to accept temporary resettlement of the Uighurs from Guantánamo Bay detention facility because they’d been declared non-enemy combatants by the Federal Court but they cannot go to the United States.

Sean Dorney (voice-over): When the Uighurs arrived in Palau, they spoke almost no English.

President Toribiong: So we enrolled them at our Palau Community College where they are taking crash courses in the English language.

Sean Dorney (voice-over): The Uighurs do their English language courses five days a week. Although there were no lessons this day they offered to take me to their classroom. Their translator who was hired from Australia for six months by the Americans has now left. They’ve been broken up into two groups and do three hours of lessons, one group in the morning and the other in the afternoon. And they like their English teacher, although she does not speak any Uighur.

Ahmad Abdulahad: She’s very kind to us.

Sean Dorney: Yeah?

Ahmad Abdulahad: She’s a really good teacher.

Sean Dorney (voice-over): The tropical rain prompts a question or two about Australia.

Sean Dorney: Well, some parts of Australia get very little rain. Other parts get quite a bit. But Australia is a very dry place.

One of the Uighurs: Some rivers?

Sean Dorney: A river runs through the middle of Brisbane. And Sydney is based on a harbour.

One of the Uighurs: Right now, over there: Hot? Hot?

Sean Dorney: No, at the moment in Australia it’s quite cold.

Sean Dorney (voice-over): The Uighurs say they are innocent victims caught up in a power play between two superpowers, China and America. China claims they should be sent back to China to face the law because they are members of a terrorist organization, something they flatly reject.

Abdulghappar Abdulrahman: Not, not terrorists! We are simple people.

Sean Dorney: Should anyone in Australia be afraid?

One of the Uighurs: Afraid?

Sean Dorney: Afraid of you?

Abdulghappar Abdulrahman: (Breaks into a smile) No, we are simple people. Why, why this? In Palau everybody [waves and says], “How are you? Good.”

Ahmad Abdulahad: We are peaceful people and we are not criminals. In 2003 the US government announced we are free men. Not the enemy of Americans or any country. But the Chinese Government needed to put us in jail.

Sean Dorney (voice-over): On a trip to the seashore we hear of another problem they have in Palau.

Uighur driver: No more meat, no more halal food, no more halal Muslim restaurant. Cannot eat food outside. For us, difficult.

Sean Dorney (voice-over): And once we reach the jetty the subject of food comes up again.

Abdulghappar Abdulrahman: Sheep. Every time we eat sheep. That’s our custom. There are, in Palau, no more sheep.

Sean Dorney: No.

Abdulghappar Abdulrahman: No more sheep.

Sean Dorney: In Australia there are plenty of sheep.

One of the Uighurs: Yeah.

President Toribiong: I hope Australia will accept them. They’ve been freed from the Guantánamo Bay detention facility. I think Palau is a stepping stone to a country where they can really be free. Not only free but to enjoy the freedom that we all enjoy to live in the free world, to marry, to have friends, to work, to socialise.

Ahmad Abdulahad: Some of us want to get married. And right now we’re beginning our life like from a zero beginning. Beginning life. We don’t have anything. We only have ourselves. And we want to begin our life, our new life.

Sean Dorney (voice-over): The sea and the tropics are quite foreign to these Turkestani men from China’s Xinjiang Uighur Autonomous Province, who hope the future for them lies far away from here down in Australia. And there are two little Australian girls who want to take their new stepfather home with them.

Note: For more information on the Uighurs in Palau, see this February 2010 article in Foreign Policy.

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

Guantánamo Habeas Results: Prisoners 34, Government 13

Andy Worthington — Mon, 19 Apr 2010 16:19:48 +0000

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

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

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

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

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

The 47 Guantánamo Habeas Corpus Results

October 2008

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

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

November 2008

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

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

December 2008

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

January 2009

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

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

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

March 2009

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

April 2009

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

May 2009

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

June 2009

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

July 2009

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

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

August 2009

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

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

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

September 2009

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

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

November 2009

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

December 2009

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

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

February 2010

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

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

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

March 2010

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

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

April 2010

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

(‘’)

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

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

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

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

The Guantánamo Files: Andy Worthington Interviewed on The Young Turks TV

Andy Worthington — Fri, 16 Apr 2010 15:42:29 +0000

On Monday, at 1.20 in the morning in London, I was, nevertheless, happy to get on the phone to talk to Cenk Uygur for The Young Turks, a daily online news show, which attracts a significant number of viewers, and, when it launched in 2005 (after three years as a radio show), was the first live, daily webcast on the Internet. My interview, which lasts for 16 minutes, is available below, via YouTube:

Cenk was a great host, asking me to explain why I have contended, both in my book The Guantánamo Files, and in my subsequent journalism, that the overwhelming majority of the prisoners at Guantánamo are not terrorists. After describing how intelligence reports over the years have persistently demonstrated that no more than a few dozen of the men held at Guantánamo had any meaningful connection to al-Qaeda, I explained that the rest of the men were either completely innocent men, who were seized by the US military’s Afghan or Pakistani allies at a time when bounty payments averaging $5,000 a head were widespread, or low-level Taliban recruits, involved in an inter-Muslim civil war that began long before the 9/11 attacks, and had no connection to al-Qaeda.

Cenk also asked me about the Uighurs, Muslims from China’s Xinjiang province, who were sold to US forces by Pakistani villagers in December 2001, allowing me to explain how they were living in a run-down settlement in Afghanistan’s Tora Bora mountains, either because they had failed to find a way to get to Turkey or Europe, where they hoped to build new lives, or because they nurtured futile hopes of rising up against their only enemy, the Chinese government, and occasionally had a go on the settlement’s one and only gun.

Clearly, these men were not terrorists, and bore no ill will towards the US, but, as I also explained, it was a bitter disappointment when a plan hatched by White House Counsel Greg Craig to bring two of these men to live in the US last April, which provided the best opportunity to demonstrate to the American people that they were not terrorists, and that terrible mistakes were made at Guantánamo, never reached fruition, because President Obama capitulated to Republican pressure and abandoned it.

As a result, Republican opportunists have been able to continue portraying these men as terrorists, even though, as Cenk noted, when four of them were resettled in Bermuda last June and Bill O’Reilly joked that Obama was setting free terrorists who wanted to set up an ice cream store (which the men had said they wanted to do), a more logical conclusion would have been that they were never terrorists in the first place. As I added, however, when dealing with the likes of O’Reilly and Glenn Beck, there is no place for logic or reality, as everything is twisted to the service of their own malign agenda.

Cenk also asked me to speak about the recent declaration by Col. Lawrence Wilkerson, Colin Powell’s former Chief of Staff, who asserted, as part of a lawsuit brought by a former Guantánamo prisoner seeking compensation, that President Bush, Vice President Cheney and defense secretary Donald Rumsfeld all knew — and didn’t care — that the majority of the prisoners at Guantánamo were innocent. Despite this, I had to point out that, although this was certainly true, all three men remained convinced that interrogations would yield “actionable intelligence,” and were happy to authorize a widespread torture program when they failed to get the results they hoped for.

Finally, we spoke about how the Obama administration is floundering, and how Guantánamo is now on the back burner, allowing me to explain that I don’t see how the prison will close, even though the need to close it is as great as ever, and Cenk concluded with some apposite complaints about how depressing it is when the President won’t do the right thing, but prefers instead to play politics with the lives of men who, for the most part, have already been deprived of their liberty — and subjected to a horrendously abusive regime — for no good reason for over eight years.

It was a pleasure to talk to Cenk, and I hope to have the opportunity to talk to him again.

(‘’)

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

More Dark Truths from Guantánamo, as Five Innocent Men Released

Andy Worthington — Thu, 01 Apr 2010 11:29:13 +0000

After eight years’ imprisonment without charge or trial, five former Guantanamo prisoners are beginning new lives this week — two in Switzerland and three in Georgia. Their stories reveal, yet again, how Republican lawmakers and media pundits in the US, who have, in recent months, renewed their fear-filled attacks on those still held, are guilty of hyperbolic and unprincipled outbursts, and, in addition, how these critics’ attacks are damaging to the prospects of cleared men, seized by mistake, finding new homes in countries that, unlike the US, are prepared to offer them a chance to rebuild their shattered lives on a humanitarian basis.

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

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

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

The Uighur brothers released in Switzerland

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

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

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

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

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

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

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

A Libyan refugee released in Georgia

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

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

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

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

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

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

Unprincipled obstacles to the closure of Guantánamo

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

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

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

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

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

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

As published exclusively on Truthout. Digg the original here.

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

Guantánamo Uighurs Back in Legal Limbo

Andy Worthington — Wed, 10 Mar 2010 00:39:23 +0000

Last Monday, the Supreme Court declined to review a case brought on behalf of seven men in Guantánamo whose release into the United States was ordered by a US judge 17 months ago. The men in question are Uighurs, Muslims from China’s Xinjiang province, and the ruling ordering them to be rehoused in the US was made in October 2008 by Judge Ricardo Urbina.

In light of the Supreme Court’s June 2008 ruling, in Boumediene v. Bush, granting the Guantánamo prisoners habeas corpus rights, the government had suffered a humiliating court defeat, and had then abandoned all pretense that the Uighurs — sold to US forces after fleeing a settlement in which they had been living in Afghanistan — were “enemy combatants.” It had long been apparent to the Bush administration that the men had only one enemy — the Chinese government — and the government had also accepted that it could not repatriate them, because they would face torture or other ill-treatment, and so, for many years, the State Department had been obliged to try to find new homes for them in other countries.

This was a difficult task, and although Albania accepted five of Guantánamo’s 22 Uighurs in May 2006, no other country would help out, and it took another two years and four months — and the Boumdediene ruling — until a judge was able to examine their case, and to order that, because no other country had been found that would accept the remaining 17 men, and because the government had conceded that they were not “enemy combatants,” their continued detention was illegal, and the government should offer them new homes on the US mainland.

The government, predictably, appealed, and in February 2009 the Court of Appeals for the D.C. Circuit ruled against the men, and against Judge Urbina’s heroic ruling, casting the men back into legal limbo by ruling that matters relating to immigration were not for the courts to decide, but were, instead, the exclusive preserve of the Executive branch.

In light of the Uighurs’ particular circumstances, this was a callous ruling, but it was unsurprising given that one of the judges in this notoriously conservative court was Judge A. Raymond Randolph, who had the dubious distinction of writing the three major Guantánamo decisions issued by the D.C. Circuit — in Al Odah v. United States, Hamdan v. Rumsfeld and Boumediene v. Bush — which were all reversed by the Supreme Court.

More surprising was the fact that the Justice Department, under Obama, chose to maintain the Bush administration’s position, but this was a harbinger of further cowardice to come, and although Greg Craig, the White House Counsel, then established a plan to bring two of the Uighurs to the US in April, and secured the agreement of Secretary of State Hillary Clinton, and defense secretary Robert Gates, Obama quashed the plan when he started taking flak from Republican critics, and the Uighurs were once more abandoned.

Through extraordinary diplomatic maneuvering, Special Envoy Daniel Fried managed to secure new homes for ten of the men in the months that followed. Four went to Bermuda in June, and another six to the island of Palau, in the Pacific, at the end of October. In the meantime, the Supreme Court agreed to take the men’s case, to decide whether Judge Urbina — and the men’s lawyers — had been right, and that habeas was meaningless if a judge was unable to order the release into the US of innocent men, seized by mistake, for whom no other country could be found.

However, before the Mar. 23 deadline arrived for the Supreme Court to review the case, Switzerland threw the government a lifeline, offering new homes to two of the men. This still left five others, but they had all been offered new homes in Palau and another country, which they had refused. As a result, the government asked the Supreme Court to dismiss the case as “improvidently granted,” because of the Swiss offer, and because the other five men “had received offers of resettlement, which were later withdrawn, from the Republic of Palau and a second unidentified country.”

Despite the offers, this remains a complicated situation. Switzerland has made its offer, but has not yet brought the men to their new homes, and the Palau deal is less straightforward than it may at first appear. Although some critics have argued that the men are angling for new homes in the US and have consigned themselves to life imprisonment in Guantánamo by refusing the offer, their lawyers have stated that they had genuine doubts about the terms of resettlement, and fears that they would still not be safe from the Chinese government, which were perfectly legitimate.

Quite how these problems will be resolved is at present unclear. The Supreme Court ruled that, because offers of resettlement had been made, “This change in the underlying facts may affect the legal issues presented,” adding, “No court has yet ruled in this case in light of the new facts, and we decline to be the first.” As a result, the Supreme Court referred the case back to the D.C. Circuit, noting that the court “should determine, in the first instance, what further proceedings in that court or in the District Court are necessary and appropriate for the full and prompt disposition of the case in light of the new developments.”

At first glance, this appears to be bad news, and it is, of course, in the sense that the Uighurs are still stuck at Guantánamo, and the Supreme Court refused to fulfill the dreams of Guantánamo’s fiercest opponents — myself included — who had hoped that the highest court in the land would finally order the Executive to take responsibility for the Bush administration’s horrendous mistakes by giving new homes to wrongly detained men. From my point of view, this would not only encourage other countries to continue taking cleared prisoners who cannot be repatriated, but would also demonstrate to the American people, in the clearest manner possible, that not everyone held at Guantánamo was a terrorist, and that terrible mistakes were made.

However, despite this disappointment, the Supreme Court did not merely bounce the case — Kiyemba v. Obama — back to the lower courts. Clearly and deliberately, the justices actually vacated the Court of Appeals ruling, which they need not have done, banishing the judges’ contentious ruling about immigration and the reach of habeas corpus, and allowing the Uighurs’ lawyers to file a petition requesting that the case be remanded back to the District Court to look at anew, with a full exploration of all the issues surrounding habeas rights and the resettlement proposals.

Vacating the Court of Appeals ruling was not only a positive step in terms of reviving the issues outlined above; it also removed some of the other baleful effects of that particular ruling that had impacted negatively on other detainee issues.

In an email exchange, Michel Paradis, a civilian defense lawyer with the Pentagon, assigned to the Military Commissions, explained that “the biggest problem with Judge Randolph’s now vacated decision was that it went far beyond what the facts and issues in the case required,” and that Randolph “strained to reach the most sweeping ground on which to decide the case.”

Paradis continued:

I would not be surprised if there were some debatable issues over the application of immigration laws, but Judge Randolph went far beyond that, and, as he did in Al Odah, Boumediene and Hamdan, threw in a gratuitous paragraph that said GTMO detainees simply do not qualify as persons protected by the Due Process Clause of the Constitution.

The practical effect of this paragraph has been pernicious. In Rasul v Myers [a torture case brought against senior US officials by several British ex-prisoners], Judge Randolph relied on this paragraph to rule that former British detainees are not “persons” and therefore were not protected from religious harassment by federal law. And since the D.C. Circuit’s rulings control the district courts, the district judges have ruled, in the Obaidullah case for example [an Afghan recently put forward for a trial by Military Commission], that forced confessions can be admitted even into a civilian federal court if they happen to have been made by a GTMO detainee. So this paragraph did not simply create second-class persons, it created a class of non-persons. And it did so in a way that was not only dubious legally, but wholly unnecessary.

Moreover, although Judge Randolph papered over Boumediene, Judge Rogers, who concurred with the result in Kiyemba, strongly objected to Judge Randolph’s apparent effort to overrule the Supreme Court. Likewise, in Rasul, Judge Brown, who was one of the Bush administration’s more contentious appointments to the D.C. Circuit, called Judge Randolph’s reasoning “constricted” and “untenable” (strong words for a federal court opinion) and insisted that “’persons’ are individual human beings, of whom the American people are just one class.”

From this, it is clear that the Supreme Court had more in mind than just the Uighurs, and that it was extremely important to dismiss, for the fourth time, an unacceptable ruling made by Judge Randolph. Admittedly, this hurls the Uighurs back into a legal limbo, but my hope is that the case will be returned to the District Court, and that a judge with the decency and respect for the law demonstrated by Judge Urbina in October 2008 will once more be able to address these issues in a responsible manner, and may, for the second time, set in motion a process that, this time, might lead to the resettlement of innocent men from Guantánamo on the US mainland.

Not only would this be the right thing to do, but nothing — and I mean nothing — would do more to silence the opportunistic fearmongers who delight in stirring up hysteria about Guantánamo at very opportunity than for one of these men to be brought to live in America, where ordinary, decent people would soon realize that the hysteria is nothing more than a cynical attempt to preserve the Bush administration’s lies about the wretched experiment undertaken at Guantánamo.

(‘’)

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

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

Swiss Take Two Guantánamo Uighurs, Save Obama from Having to Do the Right Thing

Andy Worthington — Thu, 04 Feb 2010 13:10:12 +0000

Congratulations to the Swiss Canton of Jura, which recently accepted the asylum claims of two Uighur prisoners at Guantánamo, and to the Swiss federal government for agreeing to accept Jura’s decision on Wednesday.

The two men in question — Arkin Mahmud, 45, and his brother Bahtiyar Mahnut, 32 — were seized with 20 other Uighurs in December 2001. The US authorities realized almost immediately that all of these men, who are Turkic Muslims from China’s Xinjiang province, had only one enemy — the Chinese government — and had been seized (or bought) by mistake. However, although the majority of the men were cleared for release by 2005, the Bush administration accepted that it could not return them to China, because of fears that they would face torture or other ill-treatment, but then struggled to find another country that would take them instead.

In May 2006, Albania was persuaded to take five of these men, but the other 17 had to wait until October 2008, when Judge Ricardo Urbina, a US District Court judge, ruled on their long-delayed habeas corpus petitions, and ordered their release into the United States, because no other country had been found that would take them, and because their continued detention was unconstitutional.

Predictably, the Bush administration appealed, and in February 2010 the Obama administration, to its eternal shame, followed suit, backing a ruling by the Court of Appeals, which overturned the lower court ruling, and hurled the Uighurs back into limbo.

In June 2009, the State Department managed to find new homes for four of these men in Bermuda, and in November the Pacific island of Palau took another six. As a result, seven Uighurs remained in Guantánamo, but by taking the brothers, the Swiss government has not only dared to take on the might of the Chinese government, which threatens any country that dares to entertain the prospect of taking any of the men from Guantánamo, but has also helped President Obama out of what appeared to be an intractable problem.

In a statement, the Swiss Justice Ministry said, “Today the Federal Council decided to admit for humanitarian reasons two Uighurs with Chinese citizenship, who have been imprisoned in Guantánamo for years by the United States without being charged with a crime nor [convicted].” Brushing aside the threats that the Chinese government had made last month, when Chinese officials warned that Switzerland should avoid damaging “overall Sino-Swiss relations,” the Justice Minister Eveline Widmer-Schlumpf added that Switzerland has a “stable, good relationship with China, and we want to keep it that way.”

Not mentioned publicly was the fact that, until Jura accepted the men’s asylum claims, one of them, Arkin Mahmud, appeared to stuck at Guantánamo, his only way out being to hope that the Supreme Court, which agreed to hear the Uighurs’ case last year, would overturn last February’s appeals court ruling, and allow cleared prisoners who cannot be repatriated into the United States.

The problem is that Palau had refused to take Arkin Mahmud, because, as the Washington Post noted in an editorial in October, he “suffers from serious mental health issues because of his detention and lengthy periods of solitary confinement.” As a result, Bahtiyar Mahnut turned down Palau’s offer of a new home for himself, in order to stay with his brother, and, as the Post noted, “Unless another country accepts the brothers, they could remain in custody indefinitely — a prospect that is unconscionable and that no doubt informed the justices’ decision to hear the matter.”

As I explained in an article at the time:

[T]he Supreme Court was faced with a tricky legal decision, because the justices will be considering whether, in defense of habeas corpus, and in reference to the unique position in which the Guantánamo prisoners are held, they are being asked to decide whether a judge has the power to order the release of prisoners into the US, when all the precedents, as the Court of Appeals made clear, establish that the admission of foreigners into the US is a matter for the executive and legislative branches of government.

At the time, the Post reached a principled conclusion with profound implications for the government, arguing that the “moral and ethical imperatives” were “clear and compelling,” and that the government should introduce “narrowly crafted legislation that would allow Mr. Mahmud and Mr. Mahnut into the United States, where they could remain together and Mr. Mahmud could get the medical help he needs.”

This “narrowly crafted legislation” will not now be needed, but it remains to be seen if the imminent release of Arkin Mahmud and Bahtiyar Mahnut will affect the Supreme Court’s planned deliberations about the remaining five Uighurs.

The Supreme Court has scheduled argument for March 23 to decide whether to overturn the precedents regarding the admission of foreigners into the US, when, as in the cases of the Uighurs, these men are held in Guantánamo because it is not safe to repatriate them, and no other nation will take them.

The men’s lawyers will argue, as they have consistently, that the Supreme Court ruling in June 2008, granting constitutionally guaranteed habeas corpus rights to the prisoners, is meaningless if a judge cannot actually order prisoners to be released.

As the Associated Press explained on Wednesday, the government could now try to argue that the Supreme Court should drop the case, because the remaining Uighurs were apparently offered new homes in Palau but turned down the offer. Sharon Bradford Franklin, senior counsel at The Constitution Project, told the AP that she feared this outcome. “I would not be surprised,” she said, “if the administration says that the Uighurs themselves are at fault that they have not been resettled to Palau.”

However, Sabin Willett, an attorney who has represented the Uighurs for many years, was more hopeful, telling the AP by email that he “expects the case to go forward.” I tend to share Willett’s optimism, but not, of course, if the remaining five men are miraculously resettled in some other country, perhaps just days before the March 23 deadline.

If there is one thing we have learned from the Obama administration, since the President shelved plans made last April by his counsel, Greg Craig, to bring the Uighurs to live in the US, it is that, regardless of whether senior officials may agree in private that resettling the Uighurs in the US would be the right thing to do, they are not prepared to tackle their critics — and the Bush administration’s poisonous legacy — head-on. Instead, senior officials prefer not only to avoid confrontation, but also, sadly, to avoid doing anything that would demonstrate to the American public that enormous mistakes were made at Guantánamo, and that the rhetoric of Dick Cheney and his thriving acolytes is disturbingly mistaken.

I can think of no finer way to demonstrate this than to allow the Uighurs to walk free on the streets of, say, Washington D.C., but it remains clear that this is not something that the administration will undertake willingly, and in the meantime, the people of Bermuda and Palau have been learning this instead, and are soon to be joined by the people of Switzerland.

President Obama is fortunate to have such kind allies, but he himself is the loser, the longer he refuses to tackle those who insist, in the face of overwhelming evidence, that everyone who was held at Guantánamo was a “terrorist,” and that it is somehow appropriate to continue to deprive innocent men of their liberty in Guantánamo, rather than giving them new homes in the country that, through cruelty and incompetence, deprived them of so many years of their lives.

(‘’)

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

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

Guantánamo: Idealists Leave Obama’s Sinking Ship

Andy Worthington — Tue, 01 Dec 2009 21:08:02 +0000

Last week, lawyer, ex-Army Captain and Iraq veteran Phillip Carter, described by Glenn Greenwald as “a very harsh critic of the Bush administration’s detention and interrogation policies,” suddenly resigned his post as Deputy Assistant Secretary of Defense for Detainee Policy, which he had occupied since April. Carter claimed that he was leaving due to “personal issues,” which may be true, but as Greenwald noted, “the policies Obama has adopted in the last six months in the very areas of Carter’s responsibilities were ones Carter vehemently condemned when implemented by Bush.”

Greenwald then proceeded to explain how, in May 2008, Carter had condemned the Bush administration’s Military Commissions (the trial system for Guantánamo prisoners) as “fundamentally and fatally flawed,” arguing that “the rule of law will prevail only if they are perpetually blocked,” and cited a trial in a “civilian court” (his emphasis) of accused terrorists in France that involved “a combination of open and sealed (i.e., classified) evidence to prove the defendants’ guilt in a six-day trial,” which he regarded as the only viable model for the United States to follow.

How disappointing, then, that, just a month after Carter joined the Obama administration, the President announced, in a major national security speech, that the Commissions were back on the table, and Carter then watched, two weeks ago, as Attorney General Eric Holder announced that, although Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks would face a federal court trial in New York, five other prisoners — previously charged in the Bush administration’s Military Commissions — would face what is apparently a second tier of justice based solely on the government’s belief that their cases are weaker: trials in the revamped Military Commissions, which have been brought back from the dead with the help of Congress.

Greenwald also noted that, in another post in April 2008, Carter expressed dismay at the Bush administration’s decision to charge Ahmed Khalfan Ghailani, a “high-value detainee” held for over two years in secret CIA prisons before his transfer to Guantánamo in September 2006, in a Military Commission “for acts committed before Sept. 11 — to wit, his alleged participation in the bombing of the US Embassy in Tanzania [in 1998].” Carter focused on the following passage in a Washington Post report: “Almost all of his alleged ‘war crimes’ occurred before the Sept. 11 attacks, and most predated the nation’s fight against terrorism. Four co-conspirators in the Tanzania bombing were convicted in US federal courts. Ghailani, too, was indicted in the United States, but federal authorities have opted to try him before the commission, composed entirely of military officers.”

Rounding on the Bush administration, Carter stated:

I’ll be very interested to see how the Bush administration’s lawyers argue their way around the provision of Article 1 that reads, “No Bill of Attainder or ex post facto Law shall be passed”. Setting aside the myriad objections to the military commissions generally, and this case specifically, I think this is going to present a major hurdle for the government.

I’m also concerned about the deliberate decision to take this case away from federal prosecutors … In my opinion, our default choice for the prosecution of suspected terrorists should be federal court … The substantive and procedural due process granted by federal courts has strategic value — it confers legitimacy on the outcome. That legitimacy matters for the struggle against terrorism, and I think it’s crucial that we evaluate our prosecutorial decisions with that strategic calculus in mind.

As Greenwald noted, bringing the story up to date:

While the Obama administration commendably sent Ghailani to New York to be tried in a civilian court, it just announced two weeks ago that Abd al-Rahim al-Nashiri, whose case originated as a criminal investigation with the FBI, would now be turned over to a military commission for prosecution in connection with the 2000 bombing of the USS Cole — raising all of the serious objections Carter voiced to the Ghailani case.

There’s more to Greenwald’s article — regarding Carter’s opposition to the use of the “state secrets” privilege, his concerns regarding the distinction between conventional wars of the past and the “War on Terror” when claiming presidential power, and his willingness to prosecute Bush administration officials and lawyers for war crimes, all of which have also been ignored by President Obama — but I’d like now to move onto the second departure from the administration: that of Greg Craig, the former White House Counsel, who resigned on November 13.

Craig is no darling of the left, as is apparent from complaints about his business dealings, including his relationship with Karl Rove, George W. Bush’s former Senior Advisor and Deputy Chief of Staff. However, on national security issues, his departure set the seal on the demise of a period of principled optimism that marked the first few months of the Obama administration, and that has degenerated into chaos and confusion ever since. A former foreign policy advisor to Senator Edward Kennedy and to Secretary of State Madeleine Albright, who served as special counsel in the White House of President Bill Clinton, and directed the team that defended Clinton against impeachment, Craig not only brought a wealth of political experience to Barack Obama’s administration, but was also the main driver of the policies designed to overturn and repudiate the Bush administration’s detention and interrogation policies in the “War on Terror.”

As Massimo Calabresi and Michael Weisskopf explained two weeks ago in an article in Time, “The Fall of Greg Craig,” Barack Obama “tasked Craig with dismantling Bush’s interrogation and detention policies” just four days after the Presidential election, and he took to his new job with extraordinary vigor, “creating one of the largest White House counsel’s offices ever, with dozens of high-powered lawyers, compared with only a handful who served under Bush in early 2001 … Craig’s office was an instant power center in the White House, able to produce answers, memos and ideas seemingly overnight while other parts of the Administration were still getting up and running.”

Despite opposition from the intelligence agencies, Craig drafted the Executive Orders, issued on President Obama’s second day in office, which, singlehandedly, sent a message to the world that the extra-legal horrors of the Bush administration had apparently come to an end. The orders set a one-year deadline for the closure of Guantánamo and called time on the CIA’s use of torture and secret prisons, and President Obama also announced that he was suspending the Military Commissions. Human rights activists were overjoyed, and, as Time noted, “Craig was delivering much of the change Obama had promised during the campaign.”

On March 15, Craig’s insistence on repudiating the Bush administration’s policies and providing the transparent government that Barack Obama had promised was delivered to full effect when, as a result of a long-standing court case initiated by the ACLU, a court deadline was reached regarding the release of classified memos, issued in 2002 and 2005 by the Justice Department’s Office of Legal Counsel, which purported to justify the use of torture. When Craig notified the President that the Justice Department planned to make the memos public three days later, Obama asked for a one-month extension to consider his options.

According to Time, when Gen. Michael Hayden, the former Director of the CIA, learned of the administration’s intention to release the memos, he “went ballistic,” calling Craig on March 18 and asking him, “What are you doing?” Hayden claimed that, if Obama released the memos, “al-Qaeda would be able to train its warriors to resist the techniques described in their contents.” Craig was apparently unperturbed. “The President is never going to authorize any of those techniques,” he replied, prompting the following response from Hayden: “Lemme get this right. There are no conditions of threat this nation might face that would prompt you to interrupt the sleep cycle of somebody who may have lifesaving information?” As Time described it, “There was a long silence. Craig would not concede the point.”

This showdown may well have been the high point of Greg Craig’s endeavors to reset America’s moral compass, confirming the President’s commitment to non-abusive interrogation techniques, in the face of Hayden’s extraordinary insistence that sleep deprivation — a clear component of the torture techniques favored by the Bush administration — ought to continue to be part of the agency’s operations.

As Time explained, Hayden refused to back down, and rallied CIA opposition to Craig’s plans. Former Director George Tenet called his former aide John Brennan, the Assistant to the President for Homeland Security and Counterterrorism, and John Deutch, a CIA Director under President Clinton, called Deputy National Security Adviser Tom Donilon. National Security Council aide Denis McDonough, a former Senate staffer who has “daily access to the President,” was also recruited, and on April 15, as the court’s extension came to an end, Obama “invited eight officers of the CIA’s Counterterrorism Center to make their case against release” at a meeting in the Oval Office. That evening, Obama called Rahm Emanuel, his Chief of Staff, to discuss the memos, and discovered that Emanuel was already discussing it “with about a dozen national-security and political advisers.” After joining the meeting, Obama “asked each to state a position and then convened an impromptu debate, selecting Craig and McDonough to argue opposing sides.”

As Time explained, “Craig deployed one of Obama’s own moral arguments: that releasing the memos ‘was consistent with taking a high road’ and was ‘sensitive to our values and our traditions as well as the rule of law.’ Obama paused, then decided in favor of Craig, dictating a detailed statement explaining his position that would be released the next day.”

What happened next signaled the start of the Obama administration’s retreat from the moral high ground, which led to the sidelining of Craig, and, finally, his resignation. Former Vice President Dick Cheney went on the attack, pollsters noted a drop in Obama’s support among independents, and, as a result, Rahm Emanuel “quietly delegated his aides to get more deeply involved in the process.”

Craig, however, remained focused on how to close Guantánamo, as he was, according to Time, “under pressure to eliminate … indefinite detention without charge or trial and the use of military commissions.” On April 17, he assembled officials from a range of government departments, and explained his plan: to bring some prisoners from Guantánamo to the US to face federal court trials, and also to bring others to settle in the United States. The latter were the Uighurs, Muslims from China’s Xinjiang province whose release into the United States had been ordered in October 2008 by Judge Ricardo Urbina, after the Bush administration declined to challenge their habeas corpus petitions.

Craig, like Judge Urbina, recognized that, because they could not be repatriated (because of fears that the Chinese government would torture them), because no other country could be found that would take them, and because their continued imprisonment in Guantánamo was unconstitutional, they would have to be brought to the United States. According to Time, defense secretary Robert Gates, Secretary of State Hillary Clinton and other senior officials “approved Craig’s plan to release two Uighurs in northern Virginia” as part of “a global game to empty the prison. If the two settled without incident, six more would be let into the US. That in turn would help the State Department persuade other countries to take Gitmo detainees. The hope was that those remaining could be tried in federal courts.”

At the meeting on April 17, security measures were planned for monitoring the Uighurs in their new home, and Craig also called for the development of “a plan to convince Congress and the public that it was a good idea.” The Uighurs’ lawyers had apparently agreed that their clients could be tagged, to play down security fears, and a Defense Department official told Time that the planned arrival of the Uighurs in the US “was a matter of days, not weeks.”

It was a fine and principled plan, and, had it happened, it would, I believe, have made the closure of Guantánamo by January 2010 possible. However, what happened instead is that another Cheney-baiting court case, concerning the release of photos showing the abuse of prisoners by US forces, reared up to derail the administration. On April 16, Craig had explained that the photos would have to be released, and at that point Robert Gates was supportive, and Rahm Emanuel was only concerned about locating a good time to release the information to cause minimal damage. A week later, however, when the government announced its plans to release the photos, senior military figures warned that soldiers in the field would face reprisals, Gates flip-flopped, and Republicans seized on another opportunity to attack the administration.

The uproar over the photos was then revived on April 24, when news of the Uighur resettlement plan was leaked. Senate minority leader Mitch McConnell “launched three weeks of near daily attacks on the idea of letting the Uighurs loose in the US,” and although Dick Durbin, a staunch supporter of Obama and the Majority Whip in the Senate, thought the government could win the fight in Congress, cowardice finally prevailed.

By May 8, when Craig was summoned to a meeting with Obama, the tide had turned. “I don’t like my options,” the President said, in relation to the abuse photos, and although Craig explained that his legal team had found no alternative to releasing the photos, Obama directed him to find a way, which he did, by withdrawing approval and paving the way for a legal struggle that reached the Supreme Court this fall. In a one-line ruling on November 30, the Supreme Court reversed the lower court’s ruling that the pictures be released, citing a provision in the Homeland Security funding bill signed into law on October 28, which authorized the Pentagon to block the release of the pictures, as well as any others which might “endanger” US soldiers or civilians.

Objectively, the refusal to release the photos in May was a distressing volte-face on the part of the administration, but behind the scenes it is now clear that the combined Republican assaults on Obama’s national security credentials led the administration to withdraw completely from Craig’s principled position regarding the Bush administration’s detention policies, compromising on issues that, as Craig had astutely recognized, were not open to compromise or negotiation if they were to succeed in overturning the Bush administration’s toxic legacy.

By the second week of May, Obama had killed the Uighur plan. As Time described it, “Craig never got a chance to argue the case to the President,” and an aide explained, “It was a political decision, to put it bluntly.” Thereafter, Craig was sidelined. The administration failed to fight back when Congress rose up in revolt, threatening to impose its own ban on the release of the photos, withholding funding for the closure of Guantánamo, legislating to prevent prisoners being brought to the US mainland, and interfering in the transfer of prisoners to any other country.

On May 21, Craig, like Phillip Carter, was obliged to watch as President Obama delivered the national security speech in which he not only announced his intention to revive the Military Commissions, but also — presumably to the absolute horror of Craig and Carter — explained that he would continue to hold some prisoners without charge or trial; those who, as he put it, “cannot be prosecuted yet who pose a clear danger to the American people.” By doing so, Obama ignored the sub-text that, if you cannot prosecute someone, it is because the information you are using does not rise to the level of evidence, or is otherwise tainted by torture, and is therefore inherently unreliable.

Six months on, as Greg Craig finally tendered his resignation, the price of subscribing to the Bush administration handbook, instead of standing up to bullying lawmakers and a renegade ex-Vice President, has become distressingly clear.

When it comes to finding new homes for cleared prisoners who cannot be repatriated, the administration finally managed to dispose of ten of the Uighurs, in Bermuda and Palau, although seven still remain at Guantánamo, nearly 14 months after Judge Urbina ordered their release, and dozens of other cleared prisoners face indefinite detention at the US government’s pleasure, because other countries — unenthused by Obama’s inability to bring even a single man to settle on the US mainland — have not rallied sufficiently to the cause.

Moreover, although the administration finally announced federal court trials for the five men accused of involvement with the 9/11 attacks on November 13 (the same day that Greg Craig resigned), Obama and Attorney General Eric Holder not only had to fight back against a wave of Republican fearmongering that has only grown in strength throughout the year, but also lost whatever credibility this should have given them — in the eyes of those whose allegiance is to the rule of law — by announcing that five others would face trials by Military Commission. They also conceded that Guantánamo would not close by January 2010, and let slip that some of those still held — those described by Obama in May as prisoners who “cannot be prosecuted yet who pose a clear danger to the American people” — would likely remain imprisoned forever without charge or trial.

Forgive me if I have oversimplified matters, but it appears to me that the failure to deliver a single, coherent system of justice to the remaining prisoners in Guantánamo, the failure to close the prison by Greg Craig’s deadline, the failure to kill the Military Commissions once and for all, and the acceptance, rather than the elimination of indefinite detention without charge or trial (which is at the very heart of the Guantánamo regime established by George W. Bush) demonstrate what happens when tough battles on points of principle give way to cowardice and political maneuvering, as exemplified in the poisonous compromises embraced six months ago by the Obama administration.

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

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