Libyan Who Abandoned Habeas Corpus Petition, Citing Its “Futility,” Asks Review Board to Approve His Release from Guantánamo


Libyan prisoner Ismail Ali Faraj al-Bakush, in a photo from Guantanamo included in the classified military files released by WikiLeaks in 2011.Last week, a Libyan prisoner at Guantánamo, Ismail Ali Faraj al-Bakush (aka Ismael al-Bakush), who is 48 years old, became the 53rd prisoner to face a Periodic Review Board. The PRBs were set up in 2003 to review the cases of prisoners who had not already been approved for release, or were not facing trials, and to date 29 men have been approved for release, while 13 have had their ongoing imprisonment upheld.

This is a 69% success rate for the prisoners, which is remarkable — and remarkably damaging for the credibility of the Obama administration — because the majority of these men were described, by the high-level, inter-agency Guantánamo Review Task Force that President Obama set up shortly after taking office in January 2009, as “too dangerous to release,” when the reality has not borne out that caution. Others were recommended for prosecution, until the basis for prosecutions in Guantánamo’s military commission trial system largely collapsed after a series of devastating appeals court rulings, confirming that the war crimes being tried were illegitimate, having been invented by Congress.

Ismail al-Bakush is one of 41 men eligible for the PRBs who was initially regarded as “too dangerous to release,” even though the task force acknowledged that insufficient evidence existed against any of these men to put them on trial. 23 others were initially recommended for prosecution, and just eleven men are still awaiting reviews, while 12 others (including al-Bakush) are awaiting the results of their reviews. See my definitive Periodic Review Board list on the Close Guantánamo website for further information.

Little has been heard from al-Bakush during his almost 14 years in Guantánamo. Seized in Lahore in April 2002, he arrived in Cuba four months later. In an article in October 2010, I wrote the following about him:

Apparently a former mujahid in the dying days of Afghanistan’s Communist regime, al-Bakush reportedly stated that he returned to Afghanistan “to help the Taliban fight the Northern Alliance,” and the US authorities allege that he “and his group would fight sporadically whenever there was a fight between the Taliban and the Northern Alliance.” However, al-Bakush also provided a detailed explanation for doing so, stating that “the reason he decided to help fight with the Taliban was because he lived in Afghanistan both prior to Taliban control and after Taliban control. Prior to Taliban control there were robberies, thefts, and fights between groups. After the Taliban took over the area became safe.”

Beyond these claims, there was nothing to indicate that he took up arms against the United States, or had any desire to do so. He stated that he “had never met bin Laden,” said that “at no time did he conduct any operations against the American Forces,” and, moreover, “said he had no feelings towards the United States and considered the United States like any other country.” “His main concern,” he explained, “is Libya and the overthrow of [Colonel] Gaddafi.” Much of the evidence against Bakush consisted of allegations about his involvement with Libyan groups opposed to the Gaddafi regime, and the question of Bakush’s continued detention, therefore, seems, as with other Libyans held in Guantánamo, to hinge on whether it is acceptable to hold dissidents opposed to a regime that, until the “War on Terror” began, was regarded as a terrorist dictatorship by the very government that has been holding Bakush for the last eight and a half years.

Nevertheless, in its unclassified summary for al-Bakush’s PRB, the US government sought to emphasize connections, or alleged connections between the Libyan Islamic Fighting Group (LIFG), an exiled organization dedicated to the overthrow of Col. Gaddafi, and al-Qaeda. The summary claimed he was an LIFG “explosives expert who trained al-Qa’ida members and probably associated with and provided operational support to key al-Qa’ida figures.” That use of the word “probably” suggests doubt, of course, and it is also worth noting that al-Bakush himself “has consistently denied his close association with al-Qa’ida and expertise with explosives, and he has presented himself to US interrogators as a low-level fighter.”

Running through his history, the summary stated — again with doubts — that he “probably was in Afghanistan from 1991-1994 and again starting in 1998,” and that, as an LIFG member, “he almost certainly plotted to kill Libyan leader Moammar Qadhafi.”

The summary also noted how, after his alleged explosives training, given “to LIFG and al-Qa’ida operatives, including some who later conducted attacks in Kuwait and Morocco,” he “fled in early 2002 to Pakistan, where he probably helped al-Qa’ ida and LIFG members plan external operations and communicated regularly with prominent al-Qa’ida figures, including possibly Abu Zubaydah (GZ-10016) and probably senior al-Qa’ida leader Abu Faraj al-Libi (LY-10017).” Note, again, the conditionals — “probably,” twice, and even less convincingly, “possibly,” when discussing an alleged relationship with “high-value detainee” Abu Zubaydah.

Moving on to Guantánamo, the summary noted that he “has been compliant but uncooperative during his detention … providing little information of value while outlasting a series of interrogators,” and adding, “He attended interviews regularly until September 2015 but has avoided discussing his ties to al-Qa’ida, which suggests that he wishes to pass his detention in relative comfort and anonymity, confident that the extent of his extremist activity remains unknown to US officials.” That seems to me to be a huge leap on the part of those compiling the summary, but in practical terms, in his PRB, al-Bakush would be required to acknowledge and respond to allegations against him to have a chance of being approved for release.

The summary also noted that al-Bakush “has told interrogators that he is not interested in fighting again, but has not renounced extremism.” This should count against him, but the “extremism” is not directed at the US. Instead, it was noted that he “has expressed frustration over the current civil war in Libya, blaming Egypt and claiming General Haftar is a new dictator like Qadhafi, suggesting he may be motivated to violence if he returned to Libya” — although that would not happen, because Congress has banned the release of prisoners to Libya.

More worryingly, the summary notes that al-Bakush “has not expressed a clear plan for how he would support himself if he left Guantánamo Bay, and he probably would struggle to acclimate to civilian life without substantial assistance.” This is worrying, because being able to demonstrate a convincing plan for a peaceful life after Guantánamo is a prerequisite for a review board recommending release. Also troubling is a claim that “[e]xtremist groups probably would find his experience as an explosives and electronics expert and trainer for LIFG valuable,” and it was also claimed that al-Bakush “has ties to several prominent extremists in Libya.”

Below, I’m cross-posting the opening statement made by al-Bakush’s personal representative (a military officer appointed to help him prepare for his PRB), who spoke about how he has become “more opened minded, tolerant and accepting to others,” and how his mother would be able to help support him financially if he were to be released.

He did not appear to have an attorney for his PRB, and below I’m posting excerpts from an interview with his Minneapolis-based attorney, Matthew Melewski, back in 2013, conducted by a friend of mine, the Brooklyn-based blogger The Talking Dog, when Melewski explained that al-Bakush had become so disillusioned with the situation at Guantánamo that he had cut off contact with him. I have not yet been able to find out if that is still the case, although I suspect that it is.

Periodic Review Board Initial Hearing, 14 Jul 2016
Isma’il Ali Faraj Al-Bakush, ISN 708
Personal Representative Opening Statement

Members of the Board, I am the Personal Representative for Isma’il Ali Faraj al-Bakush, ISN 708. I will be presenting this case this morning. First off, let me start by stating that lsma’il is pleased to have the opportunity to have his case heard, to tell his story and to answer your questions in detail. Additionally, Isma’il has been cooperative and receptive while meeting with me.

As a result of our meetings, I can surely say that Isma’il is eager and excited to begin a new chapter in his life. lsma’il wishes only to move forward and to put the past behind him. As an example, Isma’il has learned to be more opened minded, tolerant and accepting to others while living in a communal living setting. lsma’il believes that his communal living arrangement allows him more opportunities to gain exposure for himself to other detainees’ cultural and religious backgrounds. As a result, lsma’il now respects and values the opinions of others from various cultural backgrounds.

lsma’il has been compliant and only wishes all others well. He enjoys the company of others and would not jeopardize the opportunities that this brings to share life experiences with other detainees. lsma’il routinely partakes in gatherings where he and others are able to share stories of their childhood.

Unfortunately, I was not able to contact his family, but understand from our discussions that his mother has properties that would enable her to offer Isma’il financial support. His cousin is employed and is also willing to help lsma’il financially.

lsma’il enjoys watching and playing many sports such as soccer and swimming. While at Guantánamo Bay, Isma’il has taken classes in health and life skills classes. Isma’il also enjoys cooking for others and as a result, lsma’il would like to work in the restaurant industry. Isma’il looks forward to having his own family someday. He particularly looks forward to raising children of his own.

I am confident that lsma’il’s desire to pursue a peaceful and productive life is sincere. His demeanor is one of an individual that has learned from his mistakes and actions of the past. He is willing to concentrate on a bright and meaningful future. While Isma’il prefers to live in an Arabic speaking country, he is willing to relocate to a country that provides him opportunities for a successful future. lsma’il is willing to participate in a rehabilitation or reintegration program as well.

lsma’il and I appreciate your time in this matter and your consideration for a transfer recommendation.

Excerpts from Matthew Melewski’s interview with The Talking Dog

In his interview, Matthew Melewski explained how al-Bakush had become “hopeless,” adding, “Like most of the detainees, he understands the reality of the situation far better than most Americans. He realized long ago that if he ever got out of GTMO alive, it would be the result of some political calculation, not a legal determination. And certainly not the consequence of any sense of fairness or justice. By the time I first met Ismael, he had been imprisoned without charge for the better part of a decade. Instilling hope into a situation like that is nearly impossible, and what little hope might have remained in that prison, Obama has now extinguished. That is what we are seeing with the most recent hunger strike.”

Dealing with the LIFG claims, Melewski cut through many of the US claims by stating that it was ironic that al-Bakush was “ostensibly being held for being a member of the Libyan Islamic Fighting Group,” because it was “an organization that just played a central role in the US-supported overthrow of Muammar Gaddafi.” As Melewski noted, “If he wasn’t in GTMO, he’d be our ally.”

Melewski also explained how al-Bakush had given up on his habeas corpus petition. “The last time I saw Ismael,” he said, “he asked me and my co-counsel to dismiss his habeas case. He understood before we got there what had happened – the D.C. Circuit determined that the government of the United States can imprison someone indefinitely so long as they present a piece of paper that says “he meets the definition of bad guy under the AUMF [Authorization for Use of Military Force],’ even if it doesn’t identify any sources or authors.”

Melewski was referring to rulings taken by the D.C. Circuit Court, in 2010-11, ordering District Court judges to treat everything the government presented as evidence as presumptively accurate, which had the effect of gutting habeas corpus of all meaning for the Guantánamo prisoners, who, between 2008 and 2010, had actually won dozens of their cases, and had had their releases ordered by US judges.

Since the D.C. Circuit Court changed the rules, not a single prisoner has had his release granted by the courts. As Melewski put it, “Ismael said forget it, what’s the point? I tried to argue with him. But he was right. We voluntarily dismissed his case a few months ago, citing futility.”

Asked when he had last seen al-Bakush, Melewski explained, “I haven’t seen Ismael in over a year. And he won’t return my letters any more. He has given up. And it gets harder the more time passes. He becomes more depressed. I struggle to be encouraging. By sheer attrition and retirement, five attorneys representing him have left since I started working on his case in 2008.”

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’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). 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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5 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, looking at the Periodic Review Board last week for Ismail al-Bakush, a Libyan at ‪Guantanamo‬ who is accused of being involved with al-Qaeda, when it seems more likely that, like many of the Libyans held at Guantanamo, he was only really interested in overthrowing Col. Gaddafi. It remains to be seen if he can persuade the board to approve his release. In the article, I also discuss how he abandoned his habeas corpus petition a few years ago, having concluded that it was futile – and with good reason, it should noted, after judges took steps to gut habeas of all meaning for the Guantanamo prisoners in 2010-11, in decisions that, shamefully, have never been overturned.

  2. Andy Worthington says...

    And the breaking news from the Periodic Review Boards is that torture victim and best-selling author Mohamedou Ould Slahi has been approved for release. Article to follow soon!

  3. Andy Worthington says...

    Also approved for release, Abdul Zahir, an Afghan, who will also be discussed in my forthcoming article.

  4. Martin says...

    Congratulations Mr. Worthington. Slahi has clearly been rehabilitated and Abdul Zahir (despite his famous raspberry photo) was the last insignificant Afghan who hadn’t been approved for transfer. Haroon and Mohammed Rahim are senior commanders and Haji Wali Mohammed is a senior facilitator.

    As for Bakush, I doubt he will be approved for transfer. His links to terrorist attacks in Kuwait and Morocco don’t sound good nor does him not renouncing extremism. Also, he and another detainee Omar Rammah haven’t contacted their families for help in being rehabilitated which is key in being approved for transfer. Trying to kill Qaddafi is irrelevant. We helped rebels do that in 2011. The only question is would Bakush conduct terrorist attacks against Libya?

  5. Andy Worthington says...

    Thanks, Martin. Yes, the failure to – or refusal to – engage fully with the process is clearly a problem that will prevent prisoners from being approved for release, but it must be difficult when the men in question have lost faith with any notion of justice being delivered. Perhaps, as time goes on, and they comprehend how much genuine involvement leads to releases, they’ll have a change of heart – although in a few cases I suspect that no one can actually get through to them, as they no longer see lawyers, for example, or don’t have legal representation.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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