US Military Lawyer: Kuwait Needs to Speak Up on Guantánamo

One of the heroes of the Military Commissions at Guantánamo is Lt. Col. Barry Wingard, who has served for 26 years in the US military, works as a public defender in Pittsburgh, and is also a Judge Advocate General (JAG) in the Air Force. A veteran of the conflicts in Bosnia and Iraq, he was introduced to the public in May 2009, in a profile in the Pittsburgh Post-Gazette, entitled, “Military attorneys risk careers to criticize practices at Guantánamo,” which also profiled Lt. Col. Darrel Vandeveld.

A former prosecutor and “true believer” in the Commissions, Lt. Col. Vandeveld resigned spectacularly in September 2008, after discovering, as the Post-Gazette profile explained, that, although he had expected to work within a familiar military justice system, what he found instead was “a chaotic environment in which cases were tainted by questionable interrogation techniques and evidence was scattered, missing, of questionable origin or simply unavailable.”

Lt. Col. Wingard’s experiences were similar. Although he had “prosecuted cases in 110-degree courtrooms in Iraq, investigated war crimes in Bosnia and acquired years of experience” as an officer in the Air Force Reserve JAG corps, and had signed on expecting to encounter the “worst of the worst,” it was the system itself that was “the worst of the worst.”

Assigned to the defense office, rather than the prosecutors, as he had hoped, Lt. Col. Wingard discovered, when assigned the case of Fayiz al-Kandari, a Kuwaiti who was put forward for a trial by Military Commission in November 2008, that the case against his client was non-existent. As he explained in May last year, “There simply is no evidence other than he is a Muslim in Afghanistan at the wrong time, other than double and triple hearsay statements, something I have never seen as justification for incarceration, let alone eight years.” Last October, with assistance from Lt. Col. Wingard, I wrote a detailed article about Fayiz al-Kandari, entitled, “Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari.”

In the nine months since the Post-Gazette article was published, Lt. Col. Wingard has become a persistently outspoken opponent of the Commissions, and an equally persistent defender of his client. He now has a blog at TPM (Talking Points Memo), which I urge you to check out and support, and yesterday he had the following op-ed published in Kuwait Times:

Kuwait Needs to Speak Up on Guantánamo
By Barry Wingard, Kuwait Times, February 25, 2010

With the Obama administration’s January 2010 deadline for closing Guantánamo Bay now in the past, two Kuwaiti detainees remain imprisoned in Cuba where they have been held without trial for more than eight years. While the US government is primarily responsible for the suffering these Kuwaitis have endured, the Government of Kuwait is also responsible for allowing the injustice to continue.

As is universally recognized, Kuwait is a close and faithful ally of the United States. The United States liberated Kuwait following the Iraqi invasion of 1990. More recently, Kuwait provided critical support as a staging area for the US military during the Iraq War.

To be fair, the Emir of Kuwait has sought the return of the Kuwaiti detainees in face-to-face meetings with both President Bush and President Obama. The Emir has also sent a letter to the US government requesting that all Kuwaiti citizens detained at Guantánamo be returned. Other Kuwaiti officials have repeated that request to their counterparts in the US government.

The Government of Kuwait has also fulfilled all of the conditions the US government established for the return of the Kuwaiti detainees. Perhaps most significantly, Kuwait established a state-of-the-art rehabilitation center that provides access to education, medical care, group discussions, and physical exercise to help detainees recover from their long ordeal in Guantánamo.

But while Kuwait has clearly made an effort to secure the return of its citizens, these efforts have not been strong enough. Contrast Kuwait’s quiet, diplomatic approach with that of Saudi Arabia, which openly criticized the US government and demanded its citizens back. As a result, more than 100 Saudi detainees were transferred from Guantánamo to Saudi Arabia.

Despite the close ties between the United States and Kuwait, the United States does not appear eager to send Kuwaitis home. For example, on September 17, 2009, a US federal judge ordered the immediate release of Fouad Al Rabiah, an innocent Kuwaiti who was interrogated in “enhanced” ways at the hands of his US captors.

Rather than immediately returning him to Kuwait, the US government delayed and stalled Mr. Al Rabiah’s transfer, forcing his attorneys to ask that US officials be held in contempt of court. It was not until December 9, 2009, almost three months after the judge’s order, that Mr. Al Rabiah was finally released from Guantánamo and returned to Kuwait. Still, even with a Federal judge’s opinion that the United States had no authority to detain Mr. Al Rabiah, the Kuwaiti government refused to demand his return.

If the United States was reluctant to release a demonstrably innocent man, it most certainly will be in no rush to repatriate my client, Fayiz Al Kandari, whose habeas case is still pending, despite Fayiz having spent more than eight years in Guantánamo.

At this critical time, the United States is turning its back on its faithful ally. The United States may be legitimately reluctant to return detainees to countries such as Tunisia or Libya where former prisoners may face further torture or persecution. But there are no such concerns about Kuwait. To the contrary, Kuwait treats its returned detainees humanely and helps reintegrate them into society with a rehabilitation program modeled after the successful Saudi program.

No one likes to tell their friends they are wrong. But there comes a time in every relationship when a little push back is necessary. And the friendship survives. Now is the time for the Government of Kuwait to take a stand. It might be outside its comfort zone, but it is the right thing to do for its two citizens still imprisoned at Guantánamo.

Note: The other Kuwaiti held at Guantánamo is Fawzi al-Odah, who lost his habeas corpus petition last August. As I explained at the time, Judge Colleen Kollar-Kotelly agreed with the government that it was “more likely than not” that he “became part of Taliban and al-Qaeda forces in Afghanistan,” even though her ruling “was based on a dubious assemblage of information that relied more on inconsistencies in al-Odah’s account of his activities than it did on anything resembling concrete evidence, as she herself admitted, when she wrote that there were ‘significant reasons why the Government’s proffered evidence may not be accurate or authentic.’”

For more articles on Fayiz al-Kandari and Barry Wingard, see the archive at The Political Carnival.

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.