The Man They Don’t Know: Saeed Bakhouche, an Algerian, Faces a Periodic Review Board at Guantánamo

On Tuesday May 24, Saeed Bakhouche, a 45-year old Algerian who has been held in the US prison at Guantánamo Bay since June 2002, became the 40th prisoner to face a Periodic Review Board at Guantánamo.

Like many Guantánamo prisoners, Bakhouche has also been known by another name – in his case, Abdel Razak Ali, a name he gave when he was captured – but to the best of my knowledge he is the only prisoner whose classified military file, compiled in 2008 and released by WikiLeaks in 2011, has a photo that purports to be him, but is not him at all. No one seems to know who it is, but it is not Saeed Bakhouche.

Moreover, his attorney, Candace Gorman, told me that a different photo – again, not of her client – was displayed outside his cell for a year and a half, a mistake that had disturbing ramifications, because this was the same photo shown to other prisoners during interrogations, leading to a situation whereby information about someone else was added his file as though it related to him.

The fact that the US authorities have, historically, not known who Saeed Bakhouche is, does not, however, appear to have been conveyed to the members of his PRB, which involves representatives of the Departments of State, Defense, Justice and Homeland Security, as well as the office of the Director of National Intelligence and the Office of the Joint Chiefs of Staff. Set up in 2013, the boards are reviewing the cases of 41 men previously described, by the high-level, inter-agency Guantánamo Review Task Force that President Obama established shortly after taking office, as “too dangerous to release,” although that has turned out to have been outrageous hyperbole. Of the 40 men whose cases have so far been reviewed, eleven are awaiting decisions, just seven have had their ongoing imprisonment approved, while 22 have had their release recommended — and nine of those have, to date, been freed.

20 of those whose release has been recommended by PRBs were originally described as “too dangerous to release” by the task force, while two others are amongst 23 other men put forward for PRBs who were initially recommended for prosecution by the task force until the basis for prosecutions largely collapsed. This was in 2012-13, when appeals court judges in Washington, D.C. — in the D.C. Circuit Court, well-known for its preponderance of conservative judges — nevertheless dismissed two of the only convictions secured in Guantánamo’s troubled military commission trial system, on the inarguable basis that the war crimes in question — providing material support for terrorism and conspiracy — had actually been invented by Congress.

A cursory glance at Saeed Bakhouche’s case suggests that he would have been a candidate for prosecution, as he was seized in a house raid in Faisalabad, Pakistan on March 28, 2002 that secured the capture of Abu Zubaydah, regarded as a “high-value detainee,” for whom the CIA’s brutal and ineffective post-9/11 torture program was first developed. Crucially, the Bush administration’s claims that he was a significant figure in Al-Qaeda — no. 3 in the organization, after Osama bin Laden and Ayman al-Zawahiri — have been thoroughly discredited in the years since, and in 2009 the Justice Department conceded that he was not a member of Al-Qaeda, and probably had not known in advance about the terrorist attacks on September 11, 2001.

Instead, Abu Zubaydah was the gatekeeper of a independent training camp in Afghanistan, Khaldan, which was not affiliated with Al-Qaeda, and which was closed by its emir, Ibn al-Shaykh al-Libi, after Osama bin Laden sought to bring it under Al-Qaeda’s control. The evidence suggests that, after the US-led invasion of Afghanistan, Abu Zubaydah, as would be expected from someone with a great experience of logistics, was responsible for helping men, women and children – civilians as well as soldiers – to escape from the chaos of Afghanistan, and to wait in Pakistan until arrangements could be made for them to return home.

However, at the same time that the wildly exaggerated claims of Abu Zubaydah’s importance were dropped, the Justice Department, evidently desperate to cling to some reason for having tortured him, came up with a new claim — that he had been the head of a militia force that was aligned with Al-Qaeda.

January 2011: Saeed Bakhouche’s habeas corpus petition is turned down

Saeed Bakhouche was caught up in this unlikely scenario when his habeas corpus petition was turned down by District Judge Richard Leon in January 2011. As I explained at the time, in an article entitled, “Algerian in Guantánamo Loses Habeas Petition for Being in a Guest House with Abu Zubaydah”:

Ali [Bakhouche] arrived at Guantánamo in June 2002, after being subjected to abuse in Pakistani custody and in US custody in Afghanistan, and has, presumably, always been thought of as being part of a group associated with Abu Zubyadah, even though there are verifiable problems with this presumption.

The first is that, when four of the other men seized in the raid were put forward for a trial by Military Commission in June 2008, he was not included; the second is that, in November 2008, another Algerian seized in the house, Labed Ahmed, was freed, after the Bush administration accepted his explanation that he had been delivered to the house by mistake, but had nevertheless been allowed to stay; and the third is because the government’s reliance on claims that Abu Zubaydah was a significant terrorist have been thoroughly discredited.

The four men put forward for military commission trials in June 2008 were Noor Uthman Muhammed (from Sudan), who eventually accepted a plea deal in a military commission trial, and was released in December 2013, Ghassan al-Sharbi and Jabran al-Qahtani, both Saudis, and Sufyian Barhoumi, another Algerian. The latter three are also facing PRBs. No date has yet been set for al-Sharbi, but al-Qahtani’s PRB took place on May 19, which I wrote about here, and I will soon be writing about Barhomi’s PRB, which took place on May 26.

Back in January 2011, the government ambushed Saeed Bakhouche by claiming it had a diary written by one of Abu Zubaydah’s associates — a man whose whereabouts and true identity were unknown, so he could not be questioned in any way — which, the government alleged, not only confirmed the existence of the militia, but also indicated that it included Bakhouche, under a previously unknown alias, Usama al Jaza’iri.

This was not the only example of the government playing games with Bakhouche. As I also explained in my article:

[O]n December 24, [2010,] the government withdrew a key allegation on which, until that date, it had been relying, having discovered that it contained “potentially exculpatory information that the Government had not turned over to detainee counsel because it was classified at a higher classification level than detainee counsel was authorized to view.”

That statement, made by another Guantánamo prisoner who was not even seized with Zubaydah and Ali, but was captured in a house raid in Karachi six months later, apparently related to a claim by the prisoner in question that he had seen Ali in Afghanistan, and its removal not only emphasizes the general unreliability of the government’s supposed evidence, but also indicates how difficult it is for prisoners’ defense teams to be sure that they have been given given access to all the exculpatory material they need to defend their clients.

In any other circumstance, the withdrawal of a key piece of evidence would have led to a new hearing, but with Guantánamo the normal rules do not apply, and while Abdul Razak Ali clearly has grounds to appeal, it seems unlikely that he will be able to dislodge the lies and misconceptions about Abu Zubaydah that have become accepted in the D.C. Circuit Court, or to challenge the dubious nature of statements made by his fellow prisoners, or that he will be able to succeed in reminding judges about the clear precedent for releasing a man who had nothing to do with Abu Zubaydah, as was established in the case of Labed Ahmed.

December 2013: The D.C. Circuit Court turns down Saeed Bakhouche’s appeal

Nearly three years after Saeed Bakhouche’s habeas corpus petition was turned down, his appeal was, predictably, turned down by the D.C. Circuit, which, in a series of rulings from 2009 up to the fall of 2011, had, for ideological reasons, thoroughly undermined the Supreme Court’s ruling, in June 2008, that the prisoners had constitutionally guaranteed habeas corpus rights. The court eventually gutted habeas corpus of all meaning for the Guantánamo prisoners by ruling that any information presented by the government that purported to be evidence had to be regarded as presumptively accurate, unless the prisoners and their lawyers could establish a clear case that it wasn’t – a tall order for men held at Guantánamo with little, if any means of seeking out exculpatory evidence in their cases.

In “The Mirror of Guantánamo,” an important article for the New York Times shortly after this ruling, Linda Greenhouse examined the largely unnoticed importance of Bakhouche’s failed appeal, running though the history of the legal basis for detention in the “war on terror,” and also examining “the burden of proof the government has to shoulder in proving that the detainee fits the definition.” As she noted, “Both parts have been hotly contested, but the Ali case strongly suggests that the contest is over.”

Examining the legal basis for detention, Greenhouse began with the Authorization for the Use of Military Force, passed just days after the 9/11 attacks, which allowed the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” As Greenhouse noted, “While Congress spoke of force, and not detention, the Supreme Court in 2004 held that the power to detain those who were ‘part of or supporting forces hostile to the United States or coalition partners’ in Afghanistan was an inherent part of the power to use military force there that Congress had granted.”

The detention powers were subsequently tweaked slightly, by George W. Bush’s Pentagon, the Obama administration — which indicated that the support necessary for detention had to be “substantial” and not “insignificant,” and which also made clear that “the definition applied anywhere in the world and was ‘not limited to persons captured on the battlefields of Afghanistan’ or to those ‘directly participating in hostilities’” — and by Congress, in the 2012 National Defense Authorization Act.

Turning to the burden of proof, Greenhouse noted, “These different iterations, each building subtly on what had gone before, have left plenty of room for judicial interpretation. The D.C. Circuit, with exclusive jurisdiction over the Guantánamo habeas cases, has jumped into the gaps. It has endorsed the government’s view that evidence should be viewed holistically, as a composite, even if individual pieces are missing or might have a benign explanation.”

She added, “The Ali case exemplified this approach. For example, when he was captured, Mr. Ali was staying at a guesthouse with Abu Zubaydah,” who she then wrongly described as “an Osama bin Laden ally who is now one of the highest of high-value detainees at Guantánamo.”

Continuing, she wrote:

Mr. Ali had been at the four-bedroom house for 18 days, and was studying English. The Zubaydah forces were known to teach English to terrorists in training, and others who were later determined to be enemy combatants had been captured at the same or similar houses.

The D.C. Circuit rejected the argument by Mr. Ali’s lawyers that it was applying a standard of “guilt by guesthouse.” The court said that “determining whether an individual is part of Al Qaeda, the Taliban, or an associated force almost always requires drawing inferences from circumstantial evidence, such as that individual’s personal associations.” Mr. Ali, Judge Brett M. Kavanaugh’s opinion concluded, “more likely than not was part of Abu Zubaydah’s force.”

Greenhouse also noted the strenuous objections made by one member of the D.C. Circuit, Judge Harry T. Edwards, formerly the court’s chief judge, who was part of the panel for Bakhouche’s appeal. In June 2013, as I discussed here, Judge Edwards had complained about how his fellow judges had turned down the habeas corpus petition of a Yemeni prisoner, Abdul al-Qader Ahmed Hussain, seized in another house raid on the same day as the raid on Abu Zubaydah’s house.

As she described it:

The other two judges on the panel, Karen LeCraft Henderson and Thomas B. Griffith, said it was appropriate to draw inferences from the facts the government presented about Mr. Hussain’s travels, affiliations and multiple stays in mosques owned by a Qaeda-affiliated Islamic missionary group, Jama’at al-Tablighi, known as J.T. [and which, it should be noted, is in fact a missionary organization with millions of members worldwide]. These facts, the two judges said, supported the conclusion that Mr. Hussain, a teenager at the time of his capture, was “a part of Al Qaeda or the Taliban when he was captured.”

Judge Edwards objected, quoting from the Authorization for the Use of Military Force, that “there is not one iota of evidence that Hussain ‘planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons.’” The government failed to carry its ostensible preponderance-of-the-evidence burden, Judge Edwards said. “I am disquieted by our jurisprudence,’ he added. “The time has come for the president and Congress to give serious consideration to a different approach for the handling of Guantánamo detainee cases.”

Turning to Judge Edwards’ contributions to Saeed Bakhouche’s appeal, Linda Greenhouse wrote:

While agreeing with the result, which he said was compelled by the circuit’s precedents, he again wrote a separate opinion. He said that the “personal associations” test the majority applied was “well beyond” the detention definition prescribed by Congress in the Authorization for the Use of Military Force and the more recent amendment. “It seems bizarre, to say the least,” Judge Edwards said, “that someone like Ali [Bakhouche], who has never been charged with or found guilty of a criminal act and who has never ‘planned, authorized, committed or aided any terrorist attacks,’ is now marked for a life sentence.” He said the circuit had “stretched the meaning” of the congressional enactments “so far beyond the terms of these statutory authorizations that habeas corpus proceedings like the one afforded Ali are functionally useless.”

This was an extremely powerful criticism of the Circuit Court’s overreach, but it yielded neither a climbdown by the court, nor any sign that the Supreme Court was perturbed by how its Boumediene ruling, granting the prisoners constitutionally guaranteed habeas corpus rights, had been gutted of all meaning by a lower court, as has been apparent every time requests have been made for the Supreme Court to intervene — see my article from June 2012, “The Supreme Court Abandons the Guantánamo Prisoners,” for example, and another article from September 2012, “Obama, the Courts and Congress Are All Responsible for the Latest Death at Guantánamo.”

Saeed Bakhouche’s Periodic Review Board

In the government’s unclassified summary for Saeed Bakhouche’s PRB, which described him as Said Bin Brahim Bin Umran Bakush, aka Abdul al-Rizak, it was stated that he “was a trusted associate of prominent al-Qa’ida facilitator Abu Zubaydah (GZ-10016) and al-Qa’ida trainer lbn al-Shaykh al-Libi (LY-212).” Neither description is accurate, because, as noted above, neither Zubaydah nor al-Libi were members of Al-Qaeda, and the Khaldan camp, led by al-Libi, and for which Abu Zubaydah was a facilitator, was an independent camp that Osama bin Laden had wanted shut down after al-Libi refused to allow it to come under al-Qaeda’s control.

In a report on Bakhouche’s PRB, Courthouse News mistakenly stated that “US forces say they captured Bakush at a safe house in Faisalabad, Pakistan, in March 2002, along with … Abu Zubaydah and … lbn al-Shaykh al-Libi,” but in fact al-Libi had already been captured, fleeing Afghanistan in November or December 2001, and while Abu Zubaydah’s post-capture odyssey was one of the bleakest in the “war on terror,” as he was sent first to Thailand and then Poland to be tortured in CIA “black sites,” al-Libi’s treatment was no better. Sent by the CIA to Egypt, he made a false allegation, under torture, that Saddam Hussein had been meeting with senior Al-Qaeda figures to discuss providing them with chemical and biological weapons, a lie that was used to justfy the illegal invasion of Iraq in March 2003. Al-Libi himself was shunted around various “black sites” before being returned to Col. Gaddafi’s Libya, where — conveniently for everyone involved — he died, allegedly by committing suicide, in May 2009.

The government’s unclassified summary for Bakhouche’s PRB continued by stating, “We assess that in the late 1990s, [he] traveled to Afghanistan, where he attended basic and advanced training and later served as an instructor at an extremist camp” — a reference to Khaldan. The summary added that Bakhouche “was captured at a safehouse with Zubaydah in March 2002, where safehouse members were training for future attacks, including against US interests.” It has never been verified independently if there is any truth in these claims. Bakhouche’s classified military files, released by WikiLeaks in 2011, contained more detailed allegations — suggesting that he was “arrested at a Faisalabad safe house as a member of GZ-0016’s [Abu Zubaydah’s] Martyr’s Brigade, a fighting unit that was preparing to conduct an IED insurgency campaign against US and Coalition forces in Afghanistan and ultimately carry out attacks against targets in the US” — but, as I noted above, in my discussions of Bakhouche’s habeas corpus petition, claims made about the existence of this militia, identified as the Martyr’s Brigade, are not necessarily reliable.

Turning to Bakhouche’s behavior in Guantánamo, the US authorities noted that he “has committed a low number of disciplinary infractions compared to other detainees and the majority of his infractions have been failures to comply with Guantánamo guard force orders,” adding that he “has assaulted or attempted to assault guard forces or other detainees on occasions, including a February 2015 incident in which he struck another detainee.”

It was also noted that Bakhouche “has never admitted to any involvement in extremist activities,” and that, because of this, and because he “has provided conflicting information to interrogators,” the authorities “lack insight into what motivated his activities before detention and whether he would pursue extremist activity after detention.” However, noticeably, he “has not expressed or demonstrated any sympathy or support for al-Qa’ida, its global jihadist ideology, or radical Islamic views,” and “has not had any contact with anyone outside of Guantánamo,” apart from with his legal counsel.”

The authorities also noted that he “has not shown a strong interest in his release, but when asked, said it would be okay if he went to a Western country.” This reticence may be because of his fears about being repatriated, which, in turn, may be what made him lie about his name and nationality after his capture, although this is not reflected in the authorities’ description, which is as follows: “After lying about his nationality for two years, [he] noted that he did not want to return to Algeria because he feared authorities would immediately arrest him.”

The summary also noted that “Algeria has advanced CT [counter-terrorism] capabilities and is committed to working with the US on terrorism and sharing information with the US. AQIM [Al-Qaeda in the Islamic Maghreb] and ISIL’s official branch in Algeria have been forced into remote areas of the country by counterterrorism pressure, but remain capable of conducting attacks.” Crucially, the summary added, “We have no reporting that either terrorist group has attracted any of the Guantánamo detainees that were transferred to Algeria.”

And finally, in terms of post-release work intentions — something the review boards are looking for, in addition to remorse and a lack of violent, anti-American rhetoric and threats — the summary noted that Bakhouche “indicated to interrogators that he has held a variety of menial jobs, and could return to such employment if resettled.”

Below I’m cross-posting the opening statement made by Bakhouche’s personal representatives, who are military personnel appointed to help the prisoners prepare for their PRBs. They told the board members that he “has been a quiet, compliant detainee earning the respect of his fellow detainees and detention facility staff,” and that he hopes to find work as a long-haul truck driver after his release — although, expanding on the mention of jobs in his summary, they added that he has also worked as a waiter, a welder, a fruit picker and a baker.

Periodic Review Board Initial Hearing, 10 May 2016 [actually 24 May 2016]
Said Bin Brahim bin Umran Bakush, ISN 685
Personal Representative Opening Statement

Good morning, ladies and gentlemen of the Board. We are the Personal Representatives (PR) for ISN 685, Mr. Said Bakush. We will be assisting Mr. Bakush with his case this morning.

Said has been overjoyed and eager to participate in the Periodic Review process since we first met with him 16 March 2016. When we explained why we were meeting with Said, he mentioned his fellow detainees had talked about their initial meetings with PRs. This filled him with cautious optimism about his own forthcoming meeting with his PRs. Said has maintained a positive attitude throughout all of our meetings.

Throughout our meetings, Said has expressed his desire to be transferred from Guantánamo Bay. He is open to transfer to any country, which will be helpful considering Said also speaks a regional dialect of French from Northern Africa, as well as Arabic. He is willing to participate in any rehabilitation or reintegration program as well.

Said looks forward to life after his transfer from Guantánamo Bay, meeting a woman to be his future wife, and starting a family together with her. He also hopes at some point in the future to return to his birthplace to reconnect with his siblings’ families and other relatives. Said did not have one career path prior to his detention.

Though his formal education ended at third grade, he worked many seasonal part-time jobs ranging from restaurant server, construction welder, vineyard harvester, and baking regional traditional breads and desserts. Said also served a two-year enlistment in the Algerian military upon reaching adulthood.

During his time here at Guantánamo, Said realized, once transferred, he could start a thriving career in driving long-haul trucks and operating / managing a small trucking business delivering food and products to other regional businesses and restaurants. This plan will build upon truck driving training he learned as an enlisted soldier in the Algeria military. His prior part-time job experiences give him an advantage in terms of understanding what seasonal products to prioritize at his future trucking business and will help him to find employment regardless of where he is transferred.

Said has been a quiet, compliant detainee earning the respect of his fellow detainees and detention facility staff. By being exposed to so many people of various cultural and religious backgrounds here at GTMO, Said has had many opportunities to better understand and appreciate their beliefs and customs. This exposure to other nations’ people, cultures and religious faiths will serve him well wherever he is transferred.

We are confident that Said’ s desire to pursue a peaceful way of life if transferred from Guantánamo Bay is genuine and that he does not harbor negativity towards anyone. We remain convinced that Said does not pose a significant threat to security of the United States or any of its interests.

Thank you for your time and attention and we look forward to answering any questions you may have during this Board.

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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