Why is a Yemeni Student in Guantánamo, Cleared on Three Occasions, Still Imprisoned?

On the evening of March 28, 2002, Mohammed Hassen (also identified as Mohammed Hassan Odaini), an 18-year old Yemeni student at Salafia University in Faisalabad, Pakistan, made a decision that was to change his life forever. He had been visiting fellow students in another house connected with the university, had stayed for dinner, and had decided to stay the night rather than traveling back to his own accommodation. Within hours, however, Hassen, along with 15 other people living in the house, was seized in a raid by Pakistani police, transferred to US custody and sent to Guantánamo, where he remains to this day.

In all, 15 men were seized in this house — victims of a mistaken belief on the part of Pakistani and US intelligence that there was a meaningful connection between the house and the supposed “high-value detainee” Abu Zubaydah. Seized on the same night in another house in Faisalabad, Abu Zubaydah then became the first official victim of a torture program approved for use by the CIA and initiated at the highest levels of the Bush administration, even though it has been revealed in the years since that he was not even a member of al-Qaeda, and was, instead, a mentally damaged gatekeeper for a training camp that was closed down by the Taliban because its leader, Ibn al-Shaykh al-Libi (another victim of CIA-directed torture), refused to cooperate with al-Qaeda.

Publicly, neither the Bush administration nor the Obama administration has conceded that those staying at the house were seized by mistake, and that Mohammed Hassen was particularly unfortunate. The lowest point was reached in June 2006, after one of the men seized in the house, Ali al-Salami (also identified as Salah Ahmed al-Salami), died in Guantánamo. Al-Salami was one of three men who allegedly committed suicide on June 9, 2006, and although this narrative was challenged in January this year by Scott Horton in an extraordinary article in Harper’s Magazine, in which it emerged that the men may have been killed, either deliberately, or as part of a torture session, the Pentagon’s response to his death was to wheel out unsubstantiated allegations, based on the untrustworthy interrogations of other prisoners, including Abu Zubaydah, that he was “a mid- to high-level al-Qaeda operative who had key ties to principal facilitators and senior members of the group.”

Despite these deeply disturbing incidents, the truth about the house and its inhabitants has gradually come to light in the last few years, partly as the story of Abu Zubaydah has unraveled, but primarily through statements made by the prisoners’ lawyers, through decisions to release some of the men seized in the house, made by President Obama’s Guantánamo Review Task Force, and through rulings made in the District Court in Washington D.C., where judges have granted the habeas corpus petitions of three of the men, and have concluded that the government failed to establish, by a preponderance of the evidence, that they were connected to al-Qaeda and/or the Taliban.

Objectively, the most significant development in dismissing the government’s claims came last May, when Judge Gladys Kessler granted the habeas corpus petition of Alla Ali Bin Ali Ahmed, one of the 15 prisoners seized in the house. Ali Ahmed was the first of the three prisoners to win their habeas petitions, and in a savage denunciation of the government’s supposed evidence, Judge Kessler dismissed statements made by four other prisoners, concluding that they were all unreliable, and also dismissed the government’s attempts to implicate Ali Ahmed in wrongdoing through a “mosaic” of information drawn from a variety of intelligence reports. Stating, bluntly, that the “mosaic” is “only as persuasive as the tiles which compose it and the glue which binds them together,” she then proceeded, as I explained at the time, “to highlight a catalog of deficiencies in the tiles and the glue.”

Even more significantly, Judge Kessler made a point of casting her net wider than the specific case of Ali Ahmed, noting, “It is likely, based on evidence in the record, that at least a majority of the [redacted] guests were indeed students, living at a guest house that was located close to a university.”

Ali Ahmed was finally released last September, and in the meantime another student in the house, Abdul Aziz al-Noofayee, a Saudi, was released last June, following the deliberations of the Task Force. In addition, two other Yemeni students, Mohammed Tahir and Fayad Yahya Ahmed, were released in December.

As a result, in January this year, on the eighth anniversary of Guantánamo’s opening, ten of the 15 men seized in the house were still at Guantánamo, despite Judge Kessler’s assertions about the majority of these men, and, moreover, despite the fact that it was almost certain that the Task Force had reached the same conclusion.

With bullish insensitivity, the Task Force — comprising representatives of key government departments and the intelligence agencies — announced the results of its year-long review of the prisoners’ cases on the anniversary, dismaying those who believed that Guantánamo would close within a year (as President Obama promised) and that indefinite detention without charge or trial would be thoroughly repudiated. Announcing the results of its investigations, the Task Force declared that 35 prisoners had been designated to face trials, that 48 had been designated for ongoing indefinite detention without charge or trial, and that the rest (97 at the time of writing) had been cleared for transfer or release.

This latter category included 66 of the remaining 97 Yemenis, and it is clear from an analysis of the Task Force’s report, released by the Washington Post on Saturday (PDF), that the 31 Yemenis designated for trials or for ongoing detention without charge or trial include five men regarded as particularly significant (including Ramzi bin al-Shibh, one of the alleged 9/11 plotters), and 26 others (regarded as facilitators for al-Qaeda, bodyguards for Osama bin Laden, or “well-trained operatives who were being groomed by al-Qaeda leaders for future terrorist operations”), and do not, therefore, include the men seized in the guest house in Faisalabad.

Despite this, the remaining ten men seized in the house in Faisalabad — eight Yemenis, including Mohammed Hassen, a Palestinian and a Russian — have continued to languish in Guantánamo, awaiting an opportunity to follow the example of Alla Ali Bin Ali Ahmed and have their habeas petitions granted in the District Court.

Two weeks ago, the Russian, Ravil Mingazov, won his habeas petition, and last Wednesday, Mohammed Hassen also secured a victory. The judge in both cases was Henry H. Kennedy Jr., and although his unclassified opinions have not yet been released, it is obvious that, in both cases, he reached a similar conclusion to Judge Kessler in the case of Alla Ali Bin Ali Ahmed.

Distressingly, however, the ruling means little to either man. In Ravil Mingazov’s case, a third country must be found that is prepared to offer him a new home, as he is at risk of torture if he is repatriated, and in Mohammed Hassen’s case, he is the victim of politically inspired inertia on the part of the Obama administration.

Although seven Yemenis were released last year (including Alla Ali Bin Ali Ahmed and two others seized in the guest house), President Obama capitulated to pressure from critics in Congress in January, following the failed Christmas Day plane bombing by a Nigerian, Umar Farouk Abdulmutallab, who had apparently received training in Yemen, and declared what the Task Force referred to as a “moratorium on the transfer of detainees to Yemen.”

In the Task Force’s words, “The involvement of Al-Qaeda in the Arabian Peninsula — the branch of al-Qaeda based in Yemen — in the recent attempted bombing of an airplane headed to Detroit underscored the continued need for a deliberate approach to any further effort to repatriate Yemeni detainees.” Missing from this analysis was any mention of the fact that the Yemenis cleared for release had been cleared precisely because they had not demonstrated any commitment to terrorist activities, and that the moratorium had largely been declared because President Obama found himself unable to tell critics that a small number of former prisoners from Saudi Arabia, who were reportedly involved with Al-Qaeda in the Arabian Peninsula, had been freed by President Bush, in spite of the recommendations of the intelligence services, as part of a diplomatic deal with the Saudi government.

As a result, Mohammed Hassen finds himself still held despite being cleared for release from Guantánamo on three occasions, the first of which took place nearly four years ago. As one of his lawyers, Marc Falkoff, explained in October 2007, Hassen was first recommended for release in June 2005, although his transfer was not approved by a military review board until the spring of 2006. On June 26, 2006, Gordon England, the deputy secretary of defense, signed off on his transfer, but like dozens of other prisoners approved for transfer under the Bush administration, the decision did not lead to his release.

With the near-certainty that the Task Force also approved his transfer, and with Judge Kennedy’s ruling last week, the full horror of his plight becomes clear. Almost four years after he was first approved for transfer, Mohammed Hassen appears to have no way of being released from Guantánamo.

Concerned readers may wish to use his example to reflect on the continuing injustice of Guantánamo, and to tilt against the prevailing hysteria regarding the prison — manufactured largely by opportunistic lawmakers and media pundits — to ask the administration to find its moral compass and to lift the moratorium on transferring prisoners to Yemen so that Mohammed Hassen can begin to recover from his eight lost years in Guantánamo, and so that others — the remaining men seized with him, two other Yemenis who recently won their habeas petitions, and the dozens of other Yemenis who pose no threat to the United States — can also be freed.

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.

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

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