29th Periodic Review Board at Guantánamo – for Sharqawi Ali Al-Hajj, Alleged Al-Qaeda Facilitator

Last week, Sharqawi Abdu Ali Al-Hajj (aka Abdu Ali Sharqawi), a 41-year old Yemeni, became the 29th Guantánamo prisoner to have his case considered by a Periodic Review Board, the review process that, since 2013, has been reviewing the cases of all the prisoners not facing trials (just ten men) and those not already approved for release by the high-level, inter-agency Guantánamo Review Task Force that President Obama established shortly after taking office in January 2009.

Of the 91 men currently held, 24 were approved for release by the task force but are still held, while 12 others have been approved for release by Periodic Review Boards. Discounting the ten facing trials, that leaves 45 men awaiting PRBs, or the results of PRBs, which, it seems certain, will add to the number of men approved for release.

23 men have so far had decisions taken on their PRBs, and in 19 of those cases the review boards have recommended them for release, a success rate of 83%. What ought to make this shameful for the administration is that the men facing PRBs were described by the task force as “too dangerous to release” six years ago, but those claims have unravelled under further scrutiny. At the time, the task force accepted that it was holding men who couldn’t be put on trial, because the information used to defend their detention wouldn’t stand up in a court, but refused to acknowledge that this meant that it was fundamentally unreliable. The task force also regarded men as dangerous based on their resistance in Guantánamo, but the PRBs are now functioning more like a parole process, and allowing prisoners the opportunity to demonstrate why they do not pose a threat, and will not pose a threat  in the future.

While most of the PRBs to date have been for men regarded by the task force as “too dangerous to release” (initially 46 men), 25 others were recommended for prosecution by the task force, until the basis for prosecutions largely collapsed as a result of a number of damning verdicts in the appeals court in Washington, D.C., where judges overturned some of the few guilty verdicts secured in the much-criticized military commissions, pointing out that the war crimes in question were not legitimate, and had been invented by Congress.

Of the 25, Al-Hajj is just the fourth to face a PRB, and just one decision has so far been taken (to release Tariq al-Sawah, an Egyptian, who was freed in January), although five others are also scheduled from April to July — see the definitive list I prepared for the Close Guantánamo website for further details.

The government’s case against Sharqawi Abdu Ali Al-Hajj

In Sharqawi Abdu Ali Al-Hajj’s case, his review board will, I’m sure, not look favorably on the fact that “he chose not to participate at his hearing,” as Human Rights First described it in the only article that was published after his PRB. Most of the prisoners reviewed to date have accepted that a recommendation for their release can only come about, if at all, through their full engagement with the process, and it is, of course, unimaginable that anyone in the penal system would have parole granted if they refused to turn up to attend a hearing.

However, it also seems likely that the board will have serious problems overcoming claims in al-Hajj’s files that, as the unclassified summary prepared by the military describes it, he “is a career jihadist who acted as a prominent financial and travel facilitator for al-Qa’ida members before and after the 9/11 attacks.” This bold opening is slightly undermined by the concession that, although he “probably provided logistic or financial support for al- Qa’ida operations,” he “may not have had foreknowledge of the plots,” but the summary proceeds to explain how he “developed ties to senior al-Qa’ida leaders, such as Usama Bin Ladin and Khalid Shaykh Muhammad, and associated with al-Qa’ida plotters and operatives, including members of the USS Cole bombing and some of the 9/11 hijackers.”

However, what is interesting, I think, is that the summary than describes how “he repeatedly has denied being an al-Qa’ida member, claiming instead that the group trusted him because of his facilitation support.” It should be noted that his nickname, by which he is often referred, is “Riyadh the Facilitator.”

The summary also runs through a history of what is described as “his extremist activity,” which “began in Bosnia in 1995, where he was injured fighting Serbian forces.” It continues, “He tried to join other jihadist causes in Chechnya, East Africa, and Southeast Asia before returning to Yemen in 1999. From there, he facilitated the travel of fighters to Afghanistan, many of whom became Bin Ladin’s bodyguards. In mid-2000, [he] traveled to Afghanistan, where he received basic training at an al-Qa’ida camp, before relocating to Pakistan to help Arab fighters reach Afghanistan. Once Coalition operations began, he ran a guesthouse in Karachi that he used to help Arab fighters flee the region. During this period he also funneled Saudi donations to al-Qa’ida and dispersed money to group members and other Arab fighters.”

The summary also noted that, at Guantánamo, he “has been somewhat compliant, although he has physically assaulted the guards when he perceived his grievances were not addressed.” it was also noted that, “Until late 2004, he provided his interrogators with a wealth of information on his extremist activities and associations before his capture — cooperation he leveraged to improve his living situation.” He has also according to the summary, “demonstrated leadership abilities, which he has used to influence other detainees and manipulate camp dynamics.”

It also seems clear that al-Hajj’s “comments on life after detention,” if he were to be released, will not encourage the board members to approve his release. The summary described how his comments have “centered on continuing to engage in jihad in defense of his religion,” adding that he “remains steadfast in his support for extremist causes and groups — praising recent acts of terrorism — which indicates that he views terrorist attacks as a legitimate form of jihad.” It was also noted that he “probably views America as his enemy, given that he has expressed a desire to fight and kill Americans.”

While the summary also noted that there are “no indications” that his family members, in Taiz, Yemen, “have engaged in extremist activities,” it is alleged that “they are affiliated with al-Qa’ida in the Arabian Peninsula members and other Guantánamo detainees,” some of whom are regarded as significant, as another passage makes reference to, noting that al-Hajj “has corresponded with former Guantánamo detainees suspected of reengaging in extremist activity” — although, for the record, I must note that this is both an intrusion on his privacy, and constitutes claims that may or may not be true, but which he cannot adequately address.

Al-Hajj’s torture recognized by the US courts

In contrast to this view is the one presented by his lawyers, who dispute the claims that al-Hajj was significantly involved with Al-Qaeda, and who also point out that he was tortured (a position also accepted by a number of US judges). In a document prepared by the Center for Constitutional Rights, it was stated that, after his capture, in a house raid in Karachi in February 2002, he was “[i]nitially questioned by American interrogators,” and “he freely answered questions about his business in Pakistan, explaining that he was doing what he could to help Yemeni refugees. He was promised that, if he continued to answer questions, he could go home to Yemen.”

Instead, as I have previously discussed, he was sent to Jordan to be tortured on behalf of the US, and was held for two years. He was then sent to Afghanistan, where he was held at the CIA’s “Dark Prison,” and at Bagram, before ending up at Guantánamo in September 2004. In February 2010, his torture was examined by Judge Henry H. Kennedy Jr. during his deliberations regarding the habeas corpus petition of another Yemeni, Uthman Abdul Rahim Mohammed Uthman.

Judge Kennedy excluded statements made by al-Hajj — and by another “black site” prisoner, Sanad al-Kazimi, whose PRB is forthcoming — because, as he wrote, “The Court will not rely on the statements of Hajj or Kazimi because there is unrebutted evidence in the record that, at the time of the interrogations at which they made the statements, both men had recently been tortured.”

As I noted at the time:

As Judge Kennedy explained, he [al-Hajj] told his lawyer, Kristin B. Wilhelm, that, “while held in Jordan, he ‘was regularly beaten and threatened with electrocution and molestation,’ and he eventually ‘manufactured facts’ and confessed to his interrogators’ allegation ‘in order to make the torture stop.’” In the “Dark Prison,” he added, he was “kept in complete darkness and was subject to continuous loud music.”

I also explained how, in “Double Jeopardy,” a report by Human Rights Watch in 2008 about the men rendered to Jordan by the CIA and subjected torture at Jordanian hands, al-Hajj explained how prisoners were shown photo albums prepared by US interrogators — generally known as “the family album” — and pressurized to identify the men in the photos and to make statements about them, whether they knew them or not. As al-Hajj said:

I was being interrogated all the time, in the evening and in the day. I was shown thousands of photos, and I really mean thousands, I am not exaggerating … And in between all this you have the torture, the abuse, the cursing, humiliation. They had threatened me with being sexually abused and electrocuted. I was told that if I wanted to leave with permanent disability both mental and physical, that that could be arranged. They said they had all the facilities of Jordan to achieve that. I was told that I had to talk, I had to tell them everything.

In 2011, during deliberation regarding Al-Hajj’s habeas corpus petition (which, incidentally, never reached a final decision), Chief Judge Royce Lamberth found that, as CCR described it, al-Hajj “had been tortured.”

In a document related to his Civil Action No 09-745 (RCL), dated June 8, 2011, Judge Lamberth wrote, “At the outset, the Court finds that respondents — who neither admit nor deny petitioner’s allegations regarding his custody in Jordan and Kabul — effectively admit those allegations. Accordingly, the Court accepts petitioner’s allegations as true. In Jordan, petitioner experienced patent coercion during interrogations — including intimidation, regular beatings, and threats of electrocution and violence. In Kabul, he was forced to endure complete darkness and continuous loud music. The Court thus finds that petitioner was subject to physical and psychological coercion in Jordan and Kabul.”

His civilian lawyer, John A. Chandler, added, “After years of torture, an FBI clean team came in to start interrogations anew in the hope of obtaining information that was admissible and not the product of torture. The Courts, however, have held that torture after Karachi excludes all his interrogations. Nearly 10 years later, Sharqawi sits in Guantánamo. His health is ruined by his treatment by or on behalf of our country. He can eat little but yogurt. He weighs perhaps 120 pounds. The United States of America has lost its way.”

While we wait to hear what decision the PRB makes in al-Hajj’s case, it is also important, I believe, for the government to try to revive a case against him that can be presented in a court, if he is to continue to be held. President Obama’s plan for closing the prison envisages a number of men being moved to the US mainland – some for trials, and some for ongoing imprisonment without charge or trial.

This latter number will become ever smaller the more the PRBs recommended prisoners’ release, but I understand that the authorities will continue to declare that some men — perhaps a few dozen — must continue to be held without charge or trial. I believe that these men will have the ability to make fresh legal challenges if they are moved to the US mainland, and I also believe that it will be hard for the government to justify their ongoing imprisonment, so if the government has a case against people like al-Hajj, it needs to be looking at ways that it can present a case in court — or accept that people cannot be held indefinitely without charge or trial.

Below is the opening statement made by al-Hajj’s personal representatives (military representatives assigned to represent him) at his PRB, where, it is worth noting, the government’s claims that al-Hajj “remains steadfast in his support for extremist causes and groups,” including “praising recent acts of terrorism,” were explicitly refuted. The representatives noted that he “does not support extremist organisations,” and “does not approve of the recent acts by the Islamic State.”

Periodic Review Board Initial Hearing, 15 Mar 2016
Sharqawi Abdu Ali Al-Hajj, ISN 1457
Personal Representative Opening Statement

Members of the Board, we appreciate this opportunity to present you with the case for the transfer of Sharqawi Abdu Ali Al-Hajj. Sharqawi took the occasion of our first meeting to describe his experiences and his hope for the future.

In 1998, as a young man full of idealism and wanting to help oppressed people, Sharqawi travelled to Bosnia. While there, he met with forces from the United States and the United Kingdom and joined the Bosnian Army. After the war, he turned in his weapon and left Bosnia and the army. While being interested in the plight of the poor, meek and oppressed, Sharqawi has disavowed his involvement in war and aggression, because he believes it to be against the will of God.

Sharqawi will be able to rely on the support of his family, who are a respected family and have no relationships with extremists; they were against his leaving Yemen. He has prepared himself for the future, by taking many courses at Guantánamo, including Adobe Photoshop and English.

Sharqawi does not support extremist organizations. He does not approve of the recent acts by the Islamic State as he feels they have killed a lot of innocent people, creating instability in the region. He could never defend such heinous acts.

Sharqawi wants to make it perfectly clear to the Board that he is seeking to go to a stable, peaceful country to start his life over and that he is not a threat to the United States.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album, ‘Love and War,’ is available for download or on CD via Bandcamp — also see here). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — 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. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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