Thursday, April 22, 2010

Federal Judge Grants Habeas To Gitmo Prisoner Because of Torture

Originally posted at FDL/The Seminal

It seems like just yesterday that I was talking about Andy Worthington's "Guantánamo Habeas Week." Well, as of today he can update his Guantánamo Habeas Scorecard, because the same judge who denied the habeas petition for Yasin Ismail last week, Judge Henry H. Kennedy, Jr. of the U.S. District Court, Washington, DC, approved the petition for a different prisoner, Uthman Abdul Rahim Mohammed Uthman, primarily because the evidence against him had been produced by torture. (See quote from the decision below.) The two tortured "witnesses" against Uthman were presumed al-Qaida members, also held at Guantanamo, Sharqwi Abdu Ali Al-Hajj and Sanad Yislam Ali Al Kazimi.

This brings the scorecard to 35 of 48 34 of 47 [see update at end of article] habeas cases from Guantanamo decided against the government. I don't know how many of them were due to tortured evidence. One would be too many, but it is far, far more than one. The U.S. released a cascade of evil when it decided it would torture whomever they could get their hands on, all to create a false narrative of fear, of a "homeland" under increasing attack by waves and waves of jihadists, armed with fictional "dirty bombs" and visions of heavenly virgins.

That a nation would fall, hook-line-and-sinker, for the lies of the son of a man who himself pardoned government officials who traded with a supposed national enemy so they could send guns to terrorists in Central America, would be laughable, if the lost blood and treasure were not so great. It took a gigantic terrorist attack in America, and a host of smaller but frightening anthrax attacks to push the nation into apoplexy. But rather than calm the nation, the leaders of America fanned the flames and built a serious but isolated group of terrorists into a phantasmic army for never-ending war. They used torture to extort with violence the evidence they needed, and Boeing, Raytheon, Mitre, and a host of defense and tech companies, and a generation of academia, were thrown billions of dollars to staff and plan and arm this never-ending war.

But the war drive had one flaw: it was built on lies, on tortured lies, and its legitimacy is defeated by a statistic. 35 out of 48 34 out of 47, lies, tortured and/or flimsy evidence, years spent in isolation, beaten, sleep deprived, and worse, some who didn't come out alive, all to feed a war machine whose economy dwarfs those of most countries in the world.

When will it end? How many op-eds by soldiers apologizing for atrocities will we have to bear? How vast the vengeance awaiting this nation from the sons and daughters and other relatives of those slaughtered for no reason, or tortured so some could be rich with defense company profits?

Read the latest story of another innocent granted petition for release from a government that held him for near a decade in a tropical hell because they had no evidence but what they could manufacture by coercion, and, then reflect. Consider that this decision will not allow Mr. Uthman to finally walk out of prison, because the U.S. government doesn't know what to do with him and prisoners like him. Reflect, then act.

The latest habeas decision was reported by Andy Jones at Blog of Legal Times:

A federal trial judge in Washington today granted a petition for a writ of habeas corpus from a detainee who has been held at the Guantanamo Bay, Cuba, detention facility since 2002. The judge found the government had failed to demonstrate that the detainee was a member of al-Qaida.

The Obama administration contends that Uthman Abdul Rahim Mohammed Uthman, a Yemeni citizen, traveled to Afghanistan to join al-Qaida and became a fighter and bodyguard for Osama bin Laden. Uthman, who contends he is not an al-Qaida member, argues that he went to Afghanistan to teach the Quran to children....

In a 20-page opinion [PDF], Judge Henry Kennedy Jr. of the U.S. District Court for the District of Columbia concluded that evidence was not credible because both men had been recently tortured when they made their statements.

From Judge Kennedy's unclassified decision:

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 [Al-Hajj and Kazimi] made the statements, both men had recently been tortured.

a. Evidence of torture

Uthman has submitted to the Court a declaration of Kristin B. Wilhelm, an attorney who represents Hajj, summarizing Hajj's description to her of his treatment while in custody. The declaration states that while held in Jordan, Hajj "was regularly beaten and threatened with electrocution and molestation," and he eventually "manufactured facts" and confessed to his interrogators' allegations "in order to make the torture stop." JE 142 at 2. After transfer to a secret CIA-run prison in Kabul, Afghanistan, Hajj was reportedly "kept in complete darkness and was subject to continuous loud music." Id. at 3.

Uthman has also submitted a declaration of Martha Rayner, a Professor at Fordham University Law School who represents Kazimi, regarding Kazimi's description of his treatment in detention. Rayner reports that while Kazimi was detained outside the United States, his interrogators beat him; held him naked and shackled in a dark, cold cell; dropped him into cold water while his hands and legs were bound; and sexually abused him. Kazimi told Rayner that eventually "[h]e made up his mind to say' Yes' to anything the interrogators said to avoid further torture." JE 145 ~ 13. According to Rayner's declaration, Kazimi was relocated to a prison run by the CIA where he was always in darkness and where he was hooded, given injections, beaten, hit with electric cables, suspended from above, made to be naked, and subjected to continuous loud music. Kazimi reported trying to kill himself on three occasions. He told Rayner that he realized "he could mitigate the torture by telling the interrogators what they wanted to hear." Id. ~ 34. Next, Kazimi was moved to a U.S. detention facility in Bagram, Afghanistan, where, he told Rayner, he was isolated, shackled, "psychologically tortured and traumatized by guards'desecration of the Koran" and interrogated "day and night, and very frequently." Id. ~ 37. Kazimi told Rayner that he "tried very hard" to tell his interrogators at Bagram the same information he had told his previous interrogators "so they would not hurt him." Id. ~ 42.

b. Failure to rebut

Respondents replied to these declarations by presenting as a witness a criminal investigator for CITF [Criminal Investigation Task Force] , but the testimony of the investigator fails to effectively rebut the evidence of abuse of Hajj and Kazimi. The investigator conducted interviews of Hajj and Kazimi in June 2004 at the Air Force Base in Bagram, Afghanistan at which both men were then held, as well as later that year in Guantanamo Bay. The FM40s [intelligence reports] that report each man's identification of a photograph of Uthman as Hudaifa, an Usama bin Laden bodyguard, are the investigator's summaries of the Bagram interviews. See JE 28 at 1; JE 29 at 1.5 The investigator's testimony added to the record persuasive evidence that the investigator herself did not mistreat Hajj or Kazimi and that the investigator did not observe any torture, or even any signs of abuse in the demeanor or physical state of either man, while the investigator was with them. But the investigator has no knowledge of the circumstances of either detainee's confinement before his arrival at Bagram and quite limited knowledge of his treatment there. The investigator testified to meeting with each man in an interrogation room on several days for approximately four hours at a time. The investigator did not see Hajj or Kazimi other than during those four-hour sessions and did not inquire of them, or anyone else, about their treatment in the various prisons in which they were held.

Update, Thursday morning: Andy Worthington kindly writes, "The Uthman opinion is actually from a decision made last month, so the score's still 34-13, but it's an important opinion, with the judge's explicit reference to torture. The opinion was made available last month, then inexplicably withdrawn - although the Miami Herald kept it on its website."

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