Shutting the Door on Habeas at Guantanamo

Andy Worthington was on RT TV yesterday (June 11) talking about the recent Supreme Court decision not to review seven lower court rulings denying habeas release to Guantanamo prisoners. (The Court also declined review of a lawsuit by US prisoner, and Jose Padilla, who was tortured in a US Navy brig as an "enemy combatant" and later sentenced to prison for "material support" to terrorism.)

Back in June 2008, then-Presidential candidate told election crowds, "That's why we're going to close down Guantanamo and restore habeas corpus." But as Lyle Denniston, at SCOTUSblog noted in an article yesterday -- "Court bypasses all new detainee cases (FINAL UPDATE)" -- that's not what actually happened.

The [2008] Boumediene case was the last major terrorism case that went against the government. There, while establishing a constitutional right for Guantanamo prisoners to file habeas challenges to their detention, the Crt left it to lower courts to sort out just how that judicial process would work, case by case. More than a dozen District Court judges in Washington then took on the initial review task and, for a time, found in a majority of cases that the government had not justified further detention of the individual involved. But, when the government appealed release orders, the D.C. Circuit ruled against the detainee, or else ordered the District judge to reconsider.

In a string of decisions, not one of which the Supreme Court has been willing to review, the D.C. Circuit fashioned its own legal rules for Guantanamo cases, including at least two review methods that strongly favored the government’s evidence. Along the way, three judges on the D.C. Circuit — Senior Judges A. Raymond Randolph and Laurence H. Silberman, and Circuit Judge Janice Rogers Brown — have publicly and sharply criticized the Boumediene decision. The Supreme Court, turning its judicial cheek, has never responded to any of those criticisms, other than to leave the D.C. Circuit with virtually sole control of continuing litigation by Guantanamo prisoners and their volunteer lawyers.

Denniston made the point, as well, that Obama appointee Elena Kagan was probably involved in the decision not to review. Even more to the point, though, the Obama administration argued against SCOTUS review of the detainees' appeals.

The implicit instigators of this decision are the liberals who have sold out any semblance of belief in civil rights and civil liberties, unless such pertains to their own favorite group. Instead, for the sake of electoral "lesser-evil" politics, human beings held in solitary confinement, in indefinite detention, many if not most innocent of any crimes, and subjected to brutal medical treatments like forced feedings, or violent cell extractions, and God knows what else, are reduced to merely chips in the poker game of US election politics. This attitude goes hand-in-hand with the bizarre cheerleading for Obama's drone killings, and his policies of military intervention from Afghanistan to Libya to Mexico, and (barely) covert warfare against Iran.

As Andy Worthington said at his blog, introducing the RT video, "On the fourth anniversary of Boumediene v. Bush, this is a truly depressing state of affairs, and one made all the more depressing because of the general indifference of the US media and the American people, and I hope my contribution, and RT’s interest in the story, will help people to understand how depressing it is that the men in Guantánamo have been so shamefully failed by all three branches of the US government."



Other important discussions of the recent SCOTUS decision are taking place at Emptywheel and Lawfare. Adam Serwer at Mother Jones also wrote a good story. The best review of all the coverage on this was by Jason Leopold at Truthout, who also talked to some of the Guantanamo attorneys affected by the decision:

Brent Mickum, an attorney who has spent nearly a decade working on the habeas cases of several Guantanamo detainees and currently represents the high-value prisoner, Abu Zubaydah, said, "For those of us who have been working in the trenches for years and years this is a really sad and disappointing day."

"All of our work has essentially been for naught," Mickum said. "This leaves open a glaring question, what is the next step? All of the habeas attorneys will be getting together for a major meeting to discuss that."

In an interview, Mark Denbeaux, the director of the Seton Hall Law Center for Policy and Research who has represented several Guantanamo detainees and is also a member of Zubaydah's legal team, said the Supreme Court's landmark decision in Boumediene is now as "legally effective as a law review article."

Colbert analyzes new NDAA indefinite detention provisions

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H/T Stephen Soldz

Guantanamo Lawyer on Judicial Presumption of Gov't Secret Evidence (the Latif ruling)

The following cross-post was a contribution to the blog Lawfare, and are the comments of Guantanamo attorney Sabin Willett, who represented the Uighurs in the Parhat and Kiyemba cases.

I originally came across the Willett statement from a cross-post of the same material at Andy Worthington's blog. Worthington gives the legal background leading up to the recent decision in the Latif habeas case, a decision that sent chills down the spine of every person who takes seriously the rights of the accused, and the rule of law. (PDF link to the Latif decision, but watch out: it's heavily redacted.)

Worthington:

The case that first shut down habeas corpus was Adahi v. Obama, involving a Yemeni, Mohammed al-Adahi, whose habeas corpus petition was granted in August 2009, on the correct basis that, although al-Adahi had accompanied his sister to Afghanistan for her marriage to a man with purported connections to al-Qaeda and the Taliban, he himself had no connection to either group, and was just a chaperone.

For Judge Randolph, however, ideology is more important than facts, when it comes to the Guantánamo prisoners, and, as a result, he granted the government’s appeal in Adahi, and, essentially, ordered the lower court judges to give more credence to the government’s claims than they had been doing. As a result, every habeas petition since July 2010 has been denied, and other successful petitions have been either reversed like Adahi (three in total) or vacated, and sent back to the lower court to reconsider (two in total).

The latest monstrous ruling delivered by Circuit Court judges (Judge Janice Rogers Brown and Judge Karen LeCraft Henderson, who share Judge Randolph’s ideological bent) came in October in the case of Adnan Farhan Abdul Latif, a Yemeni, with undisputed mental health problems, and a viable explanation for being in Afghanistan for medical reasons, who was the last prisoner to have his habeas petition granted before Judge Randolph’s new rules in Adahi took effect.

The ruling in Latif was not made available until last month, and, disturbingly, the judges took their endorsement of the government’s position one step further, declaring that the habeas judges must now regard the government’s own intelligence reports as reliable. This not only appalled the dissenting judge, David Tatel, but also appalled lawyers for the prisoners, who have long been aware of the unreliability of the intelligence reports relating to the prisoners. Anyone doubting this is directed to my ongoing series, “The Complete Guantánamo Files,” in which I analyze the chronic and repeated failures of intelligence revealed in the classified military files released by WikiLeaks last April.

Thanks to Benjamin Wittes, with whom I have had some serious disagreements, for posting the original.

Willett:

It is not hyperventilation to say, as so many have said, that Latif guts Boumediene, because — trust me — every prisoner has an intelligence report. Now the prisoner hasn’t just lost his judicial remedy to Kiyemba; if those reports control, factfinding is over, too.

But Latif, and before it Adahi, are not just law-of-war cases. They may raise the eyebrow of civil procedure sachems as well.

Because despite the gnashing of teeth over Boumediene’s failure to issue a manual, the Guantanamo habeas cases have mainly been about facts. Wedding guest or soldier? By the time review finally got on its legs in 2008, the President had had years to winnow away the silly and outrageous detentions (and Congress hadn’t yet taken up the blood sport of preventing him from doing so). Logically, we would have expected the government to have good facts in cases that remained, and to win most of them.

Something like that was happening in the district court, but then something else quite illogical began happening. On appeal, the government began to run the table. No habeas win could survive.

The district court was finding facts from old, cold and unreliable records, and so uniform results would have been a little surprising, but still possible, given the trial court’s broad factfinding discretion. You’d expect regular affirmance on appeal of both wins and losses, because in civil practice, the trial court‘s fact-finding is rarely disturbed. So where district court results are non-uniform, it is surprising–one might even say, conditionally improbable–that appellate results should make them so.

What’s going on here? The circuit is making up a new standard of appellate review.

Take Adahi. To a first approximation, Adahi is an “Oh, come on!” case: al Farouq, bin Laden at Sister’s wedding, shady characters on the bus, the Casio insignia–come on! But Judge Kessler wasn’t asking whether Adahi had thuggy associates. She was after the legally-relevant nut: has the government shown he is an enemy soldier? If General Petraeus attends my sister’s wedding, am I therefore a soldier? Suppose I go to Quantico and after ten days, they throw me out. Am I a Marine? (In doing this work I met a number of Marines. Each – I am quite sure of this – would declare ten days insufficient to make a Marine of me.)

As a matter of appellate procedure, the problem was this: Adahi testified. Judge Kessler found that testimony credible (leaving Farouq, denying he trained troops there). Adahi’s entire testimony is, “I wasn’t a soldier.” So if we have witness testimony the court deems credible, and it refutes enemy status, how does the circuit flip the judgment on appeal?

By not believing him, and crediting other evidence. That used to be for the trial court – remember?

My guess is that Judge Randolph saw the appellate review problem, for in addition to his famous innovation, he noted Judge Kessler’s failure to make an express credibility determination. Well, okay. But she did find facts for which the only record evidence was Adahi’s testimony, so she must have found him credible. If we’re not sure about that, why not remand for clarification?

Latif presents none of these distractions. Even the government agrees that the circumstantial evidence is down to one document, on which everything turns.

I tried Parhat. He had an intelligence report too. We picked it apart, as I’m sure Latif’s lawyers must have done with their report, and as Judge Garland did in the classified Parhat opinion. No one could make a straight-faced argument for a presumption after that was done. You have to–I can’t say this any other way, because Parhat’s documents remain classified–but you have to see an “intelligence report” to appreciate just how surreal the proposition is.

The trial lawyer would think this way: if this tissue of hearsay, speculation, and gossip comes in evidence at all, the trial court must at least be allowed to weigh it. But when the circuit lays the thumb of presumption on the scale, there’s no more judicial review — not even in the court of appeals. “Review” is in the anonymous DoD analyst who wrote the report.

Review was Judge Kennedy’s job, and he did his job. Whether we agree or disagree with his weighing, the scale had always been his before. This idea, I think, lies at the bottom of Judge Tatel’s thoughtful dissent. Can the jailer’s report trump the judicial officer, in civil cases that are supposed to be a check on the jailer itself? There’s not much evidence that anybody up at SCOTUS cares about the GTMO prisoners any more (whose imprisonments now treble WW2 detentions), but there may still be four of them who worry about trial judges.

Latif should worry the Law Faithful, too. If my client were stuck with this presumption, the first thing I’d bawl for is discovery of every scrivener, interpreter, interrogator – every scrap, jot and tittle behind the document. Last time we did that, in Bismullah, CIA averred the republic would be shaken to its knees.

* * *

Pause a moment. A man sits in government prison for ten years and counting, on the strength of a secret document created by the jailer, in haste, from hearsay, which didn’t persuade an experienced trial judge. Does that sound like the stuff of regimes we are prone to condemn?

Even Odysseus headed for home after ten years.

The other evening I saw an old friend whose client was, in 2001, an enemy belligerent under any definition. He was released from Guantanamo many years ago. He has a job, a family, a peaceful outlook on life; he’s grown up. Why is he out, and Latif in? Because he hales from the west. After ten years, it’s not about security any more. It’s all about politics: the politics of the 2012 elections, the politics of where you’re from.

Using Evidence from Water Torture to Hold Detainees at Guantanamo

Originally posted at FDL/The Dissenter

A few weeks ago, Truthout published an article that examined a number of instances of water torture, including evidence of near-drowning, on prisoners held by the Department of Defense. A second article, with further documentation, including other cases of submersion in water and also extreme forms of "water dousing," will be coming out soon. But not everything can be squeezed into even two articles.

One of the more egregious examples of water torture that I found in my investigations wasn't conducted by DoD, but was used by Egyptian interrogators contracted to torture U.S. rendition victim Mamdouh Habib. Habib was an Egyptian born Australian Muslim who was renditioned from Afghanistan to Egypt in late 2001 or early 2002. He has written a book about his experiences, My Story: The Tale of a Terrorist Who Wasn't. Earlier this year, Habib filed suit in Egypt against former intelligence chief, Omar Suleiman, a long-time ally of the United States.

According to a 2005 article in The Age, Habib declared in an affadavit that in Egypt he had been placed in a room by Egyptian authorities. The torturers would "gradually fill it with water, leaving only his head exposed and forced him to stand on tiptoe for hours."

In his memoir, My Story, Habib further described his experience in the water-filled room. "Every time I began to drown," Habib wrote, "they hauled me out, revived me, and put me back in.... I got to the stage where I didn't care anymore; I'd relax and close my eyes and start to drown, hoping I would die. I don't know how many days this went on for."

Habib also reports that one room he was put in had "electrified water."

While researching the subject of water torture in general, I discovered that in Habib's Combatant Status Review Tribunal (CSRT) hearing at Guantanamo (PDF), the tribunal specifically used statements drawn from Habib during torture, including the water torture described above, to identify him as an "enemy combatant."

Judge Green described the case of Mamdouh Habib, who alleged that he had been sent by the United States to Egypt for interrogation where he was subjected to severe beatings, locked in handcuffs in a room that gradually filled with water to a level just below his chin as he stood for hours on the tips of his toes, and that he was suspended from a wall with his feet resting on an electrified cylindrical drum. Mr. Habib alleged that, while undergoing this treatment, he admitted to doing many things he had never done.... Without resolving the accuracy of Mr. Habib’s allegations, the CSRT relied on the statements that he made while in Egypt and concluded that he was an enemy combatant.

Now this might not be news to many people, as the issue of using tortured evidence at both the CSRTs and the Military Commissions, including waterboarding or other water-type tortures, has long been an issue among human rights activists and critics of U.S. detention and torture policies. But one can become inured to such things, unaccustomed to reading about what kind of torture produced the evidence.

The CSRT panels, which consist of three military officers, were instituted after the Supreme Court rulings in Hamdi and Rasul in June 2004. According to a CSRT "fact sheet," the hearings were supposed to provide an "opportunity for detainees to contest their designation as enemy combatants, and thereby the basis for their detention."

The CSRTs were amply criticized by human rights groups. Human Rights First summarized some of their main problems:

The CSRTs fail to meet fair hearing standards in several ways:
-- There is no meaningful way for a detainee to challenge a CSRT’s determination as he has little or no access to witnesses or classified information on which the determination to detain is based.
-- The CSRT can rely on information obtained through unlawful methods, including information coerced from detainees who were subjected to torture or cruel, inhuman degrading treatment. Because CSRTs can also rely on secret evidence, the fact that evidence is obtained illegally, including through torture, might never be known.
-- The CSRTs lack an effective remedy as they are not mandated to release a detainee who is not designated as an enemy combatant.

They also deny the detainee the right to counsel, the right to call witnesses, and the right to present evidence. The detainee has no right to an impartial hearing.

In 2008, in a landmark ruling, Boumediene v. Bush , Guantanamo prisoners were supposedly granted actual habeas rights in U.S. courts, which were believed at the time to redress the problems with the CSRTs. But, as Andy Worthington noted in an article last month, the ruling has been effectively gutted.

The courts’ failure has come about largely because a number of judges in the D.C. Circuit Court, where appeals against the habeas rulings are filed, have revealed themselves to be at least as right-wing as the architects of the “war on terror” in the Bush administration. Led by Judge A. Raymond Randolph, whose previous claim to fame on national-security issues was that he supported every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court, the Circuit Court has, in the last year, succeeded in gutting habeas corpus of all meaning, when its relief is sought by any of the 171 men still held at Guantánamo....

... judges have whittled away at the lower courts’ demands that the government establish its case “by a preponderance of the evidence,” which is a very low standard in the first place; and secondly, because the Circuit Court has reinforced the misconception at the heart of the “war on terror,” almost delighting, it seems, in failing to acknowledge that soldiers are different from terrorists.

In fact, despite the Supreme Court’s attempt to recognize rights of the prisoners, both soldiers and terrorists are still, essentially, held at Guantánamo as a category of human being with almost no rights at all — what George W. Bush notoriously referred to as “unlawful enemy combatants."

While some detainees have won habeas cases due to evidence thrown out because of torture, as in the case of Uthman Abdul Rahim Mohammed Uthman last year, others, like Tawfiq al-Bihani, have not been so lucky. -- For more on the death of habeas in the D.C. Circuit, see this posting by bmaz over at emptywheel.net.

Meanwhile, the CSRT rules and procedures remain in place under Obama. DoD's official tribunal procedures can be accessed here (PDF).

The last major change occurred in December 2005, when as part of the Detainee Treatment Act the law stated " a Combatant Status Review Tribunal or Administrative Review Board, or any similar or successor administrative Tribunal or board, in making a determination of status or disposition of any detainee under such procedures, shall, to the extent practicable, assess-- (A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and (B) the probative value (if any) of any such statement."

But, as was pointed out in a Seton Hall study, "No-Hearing Hearings" (PDF), these changes came after the CSRT hearings were mostly complete. The study added, "While there is no way to ascertain the extent, if any, that witness statements might have been affected by coercion, fully 18% of the detainees alleged torture; in each case, the detainee volunteered the information rather than being asked by the Tribunal or the personal representative. In each case, the panel proceeded to decide the case before any investigation was undertaken."

But the issue is all forgotten today, just like the torture endured by Habib, and the thousands tortured by the U.S. military and intelligence agencies, and their allied forces. Good for a historical look, and that's all.

More on Obama's Pernicious Executive Order on Indefinite Detention

Marcy Wheeler's analysis of the latest Obama Executive Order, bringing back the military commissions, and setting up an extrajudicial apparatus within the Executive Branch for review of indefinite detention cases, hits the nail on the head. She takes apart the contentions of Ken Gude at the UK Guardian that the new EO represents "a clearly articulated standard for continued detention."

Here’s the actual language of Obama’s EO:

Sec. 2. Standard for Continued Detention. Continued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States. [Emphasis added]

The grammar of the EO is a clear admission on the government’s part that it is willing to indefinitely detain a human being not for what he has done, but because of the big swirling boogeymen it believes to lurk out there.

And it’s important that those who write about this make that distinction clear.

Amen.

In addition, Gude’s claim that “A detainee must be lawfully held under the laws of war, must have had that detention upheld by a federal court in a habeas proceeding,” doesn’t jibe with my reading. The EO states that “Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention....”

As I read it, the latter is a pro forma statement, because it appears the Obama administration believes it can indefinitely hold someone despite a habeas decision. Moreover, they have been quite active in appealing successful habeas petitions, and is doing so with, as Andy Worthington puts it, "a political bent."

Since last January, when President Obama announced a moratorium on releasing any Yemenis from Guantánamo — in response to the hysteria that greeted the news that Umar Farouk Abdulmutallab, the failed Christmas 2009 plane bomber, had been recruited in Yemen — every successful habeas petition by a Yemeni (with the exception of Mohammed Hassan Odaini, a student whose clearly mistaken detention was picked up by the mainstream media) has been appealed.

The U.S. government is seeking to eviscerate habeas (as has already been done, really) not by formally taking away habeas petitions, but ignoring or contesting their outcome, and claiming a new entity, their Periodic Review Board, will determine who is actually released, not some (cough) court.

And who is on the Periodic Review Board?

“Periodic Review Board” means: a board composed of senior officials tasked with fulfilling the functions described in section 3 of this order, one appointed by each of the following departments and offices: the Departments of State, Defense, Justice, and Homeland Security, as well as the Offices of the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff.

This puts the national IC community and military in charge of indefinite detention review. DOJ and State are mere rumps, at this point, of a militarist state seeking to put in place new institutions that will better represent their interests and rule.

Human Rights Watch, alone among human rights groups, while condemning the resumption of the military commissions, calls the latest position on indefinite detention "authorized but restricted," noting it "provides an additional layer of review not previously available."

While these new provisions are an improvement over the current system, which does not have such a review, the use by the US of indefinite detention without trial still fails to meet the most basic elements of due process under international law, Human Rights Watch said. Importantly however, the order only applies to detainees currently held at Guantanamo and not to anyone who might be captured in the future, a significant limitation given calls for sweeping detention authority by critics of the administration.

"Is added review an improvement? Yes. Does it make US detention policies lawful? No,"

said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. "Signing an executive order does not suddenly make it legal to lock people up and hold them forever without proving they have committed a crime."

It's strange, this search for something positive to say by HRW, as if the EO represented any kind of moral victory by providing a "significant limitation" of its abrogration of rights, and usurpation by the executive branch of unchecked review. It's quite clear that Obama is setting up a new version of the Combatant Status Review Boards set up during the Bush years, with bogus oversight by high defense department and intelligence officials, with fig leaf cover by State and DoJ.

Sabin Willett, an attorney at Bingham McCutchen in Boston, representing the Chinese Uighurs at Guantanamo since 2005, had an apt question for the leaders of this country, or perhaps really for those unconvinced the U.S. government is out of control here (H/T powwow at Emptywheel/FDL).

The thing I’ve never understood is, why at least not convert GTMO to a POW camp? A real one? With real, honorable treatment of the enemy, as required by law and the service field manuals? Why the cages, interrogations, etc etc etc? Why aren’t there gardens, orchestras, newsletters, canteens, jobs — or were the Nazis (who had all those things in camps in Texas and Alabama) less dangerous than Taliban privates?

America is Winston Smith. You remember how Orwell’s 1984 ends.

Powwow adds:

It is all the more important that the Supreme Court act to rein in the D.C. Circuit, because evidently no branch of our federal government is the least bit inclined to forcibly remind the President that he too has “a solemn duty to follow” the law of war in wartime, including “competent tribunal” review of the default POW status of any (actual belligerent) wartime detainees captured or held by the United States military during a Congressionally-authorized armed conflict.

For aspects of the latest EO has they pertain to issues of indefinite detention at Bagram and elsewhere in Afghanistan, see also this article by Marcy Wheeler.

Obama Seizes Power from the Courts

That may sound sensationalistic to some, but what else could a proposal for the Executive Branch to set up its own determinations regarding the indefinite detention of prisoners mean? No habeas appeal will release a prisoner, if the President says so. No charges brought. Hope of liberty will rest in a kangaroo "parole board" assembled by the President. If this is not the epitome of tyranny, I don't know what is.

See some great coverage here:

White House Drafts Executive Order For Indefinite Detention by Dafna Linzer

Guantánamo Prisoners Sacrificed In Political Horse-Trading Over “Don’t Ask, Don’t Tell”
by Andy Worthington

Obama’s EO on Indefinite Detention: Wanting Bud McKeon’s Cake and Eating It Too
by Marcy Wheeler

The Obama Administration's Indefinite Detention Policy: The Return Of The President As King? by Big Tent Democrat

From the latter, who was willing to consider, grant you, some kind of system of indefinite detention, if it had checks and balances:

The key to my analysis was the President's statement that:

If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight[.]

The reported proposed executive order on indefinite detention violates this condition. Instead, it reverts to the Bush system that President Obama criticized by saying "we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone." Now the Obama Administration appears to be proposing an indeifinte detention system that indeed is based "simply on what [he] or the executive branch decide alone."

Such a system is in violation of the Geneva Conventions and the Constitution. It would be a travesty, and likely, a war crime.

Judge Denies Guantánamo Prisoner’s Habeas Petition, Ignores Torture in Secret CIA Prisons

Cross-posted, with permission, from Andy Worthington's blog

On September 22, in the District Court in Washington D.C., Judge Reggie B. Walton denied the habeas corpus petition of Tawfiq al-Bihani (described in court documents as Toffiq al-Bihani), a Yemeni who was raised in Saudi Arabia, giving the government its 18th victory out of 56 cases decided, with the other 38 having been won by the prisoners.

However, as in the majority of the cases in which the prisoners have lost, there was nothing in the ruling that could be construed as representing the delivery of justice after the eight and a half years that al-Bihani has spent in US custody, as he has been consigned to indefinite detention in Guantánamo, on an apparently legal basis, despite the fact that there is no evidence that he ever took up arms against anyone, or had any contact with anyone involved in preparing, facilitating or supporting acts of international terrorism.

Moreover, in examining his habeas corpus petition, Judge Walton appeared to remain blissfully unaware that, despite being, at most, a lowly foot soldier, al-Bihani was held in a variety of secret CIA prisons in Afghanistan before his transfer to Guantánamo, where he was subjected to torture.

As revealed in the background to al-Bihani’s case, accepted by both al-Bihani and the government, he cut a depressing figure prior to traveling to Afghanistan in the summer of 2000. As Judge Walton explained, “During the time he resided in Saudi Arabia, the petitioner was abusing various drugs, including alcohol, marijuana, hashish, crystal methamphetamine, and depression pills,” Judge Walton also noted, “The petitioner began to ‘increase [his] intake of alcohol and drugs,’ when his fiancee ended their engagement due to her concerns that ‘she would fall out of grace with her father if she married a Yemeni against his wishes.’”

Apparently persuaded to travel to Afghanistan by his brother Mansour, described as “an experienced fighter who fought against the Russians in Chechnya,” and who “had close relationships with senior Chechen fighters and other individuals who were engaged in training men to fight in Chechnya and in other countries,” he traveled to Afghanistan with his brother, where, as Judge Walton concluded, he “received, at a minimum, weapons training” at the al-Farouq training camp, established by the Afghan warlord Abdul Rasul Sayyaf in the early 1990s, but associated with Osama bin Laden in the years before the 9/11 attacks, and also stayed in Afghan guest houses reportedly associated with al-Qaeda.

In authorizing al-Bihani’s ongoing detention, Judge Walton gave weight to al-Bihani’s admission that he “became, and was part of, al-Qaeda at least during the five months period he was training at al-Farouq,” even though he also noted that his training was far from rigorous. “Although he was enrolled at al-Farouq for approximately five months,” Judge Walton explained, “he only ‘received approximately two months of training,’ because he would train for approximately ‘a week or two weeks’ before feigning illness in order to leave and ‘do hashish or tobacco.’” Judge Walton added that al-Bihani “repeated this cycle several times,” and also explained, “Towards the end of his time at al-Farouq, the trainers at the camp informed him that he was ‘not ready physically because [he] keep[s] leaving and going back, — adding that the trainers reportedly “concluded that he was of ‘no use,’ and ‘they kick[ed him] out of the camp.’”

Personally, I find it troubling that an obviously drug-addled, inconsistent and unreliable recruit can nevertheless be regarded as “part of” al-Qaeda, as it tends to render meaningless the supposed threat posed by al-Qaeda if useless recruits can legitimately be held, even when, as with al-Bihani, they had no knowledge of international terrorism, and not even a demonstrable commitment to al-Qaeda’s military activities in Afghanistan.

Judge Walton, however, seemed unconcerned that there appeared to be no basis for concluding that al-Bihani had ever posed a threat to the United States. Proceeding to an explanation of how he was captured, he explained that, in late 2001, having become separated from his brother Mansour (who was “ill” and was transported to Quetta in “a tractor-trailer truck” for those “who appeared sick or injured”), al-Bihani traveled through Pakistan to Iran, “with a group of other men.” Near Zahedan, he was supposed to be reunited with his brother, and with Hamza al-Qa’eity, who ran a guest house in Kabul described by al-Bihani as “one that jihad fighters used as a transition point.” However, as Judge Walton explained, at “the exact time” that al-Qa’eity arrived to pick him up from the house of an Iranian family, where he was staying, the Iranian police — or intelligence services — “descended on the house and apprehended” him — and, presumably, Hamza al-Qa’eity as well.

The hidden story of ten men rendered from Iran to Afghanistan — including Tawfiq al-Bihani

As I mentioned in the introduction to this article, what Judge Walton appeared not to know — or ignored in his ruling — was the fact that, after al-Bihani was subsequently “flown to Afghanistan” and “transferred to United States custody,” he was held in a variety of secret CIA prisons.

This information is readily accessible, because I explained in my book The Guantánamo Files that al-Bihani was one of ten men seized in Iran who were flown to Afghanistan and then handed over to US forces. One of these men, Aminullah Tukhi, an Afghan released from Guantánamo in December 2007, explained that six Arabs, two Afghans, an Uzbek and a Tajik had been delivered to the Americans, and I was able to identify six of them — Tukhi, Tawfiq al-Bihani, Walid al-Qadasi, a Yemeni transferred to the custody of his home government in April 2004, Wassam al-Ourdoni, a Jordanian released in April 2004, Rafiq Alhami, a Tunisian released in Slovakia in January this year, and Hussein Almerfedi, a Yemeni who won his habeas petition in July this year. Unaccounted for are the other four men mentioned by Aminullah Tukhi — an Arab, an Afghan, the Uzbek and the Tajik — although it seems possible that one of the disappeared was Hamza al-Qa’eity.

Confirmation that al-Bihani was one of the men came from an unexpected source. Abu Yahya al-Libi, one of four prisoners who escaped from Bagram in July 2005, described, in a post on an obscure French language website, which has since disappeared from the Internet, 12 prisoners who were held with him in Bagram, one of whom was Tawfiq al-Bihani. He also explained how all the men had passed through a network of secret CIA prisons in Afghanistan, where they had endured “hard torture,” and added, in al-Bihani’s case, that he was captured in Iran at the start of 2002, that he had met him in June 2002 in a prison he identified as “Rissat 2,” and that he was taken to another prison in September 2002, after which he never saw him again, and thought that he may have been transferred to Guantánamo.

Al-Libi also explained that Tawfiq al-Bihani thought that his brother Ghaleb, who had also been in Afghanistan, had been killed, but that the Americans had told him that he had been captured — and it later emerged that this was correct. Ghaleb al-Bihani lost his habeas corpus petition in January 2009, on the basis that he was a cook for Arab forces supporting the Taliban, and also had his appeal denied in January this year, consigning him to the same form of court-approved indefinite detention as his brother.

The torture in secret CIA prisons of three men rendered from Iran to Afghanistan

The accounts of three of the men rendered from Iran to Afghanistan are publicly available, and they are, to be blunt, horrific. Al-Ourdoni, a missionary seized with his wife and new-born child, explained after his release that his American captors “put me in jail under circumstances that I can only recall with dread. I lived under unimaginable conditions that cannot be tolerated in a civilized society.” He said that he was first placed in an underground prison for 77 days, and stated, “this room was so dark that we couldn’t distinguish nights and days. There was no window, and we didn’t see the sun once during the whole time.” He added that he was then moved to “prison number three”, where the food was so bad that his weight dropped substantially, and was then held in Bagram for 40 days before being flown to Guantánamo.

In an interview with a UN rapporteur, Walid al-Qadasi provided the following explanation of his treatment, which, like al-Ourdoni’s account, was included in a major UN report on secret detention earlier this year:

He was held in a prison in Kabul. During US custody, officials cut his clothes with scissors, left him naked and took photos of him before giving him Afghan clothes to wear. They then handcuffed his hands behind his back, blindfolded him and started interrogating him. The apparently Egyptian interrogator, accusing him of belonging to al-Qaeda, threatened him with death. He was put in an underground cell measuring approximately two meters by three meters with very small windows. He shared the cell with ten inmates. They had to sleep in shifts due to lack of space and received food only once a day. He spent three months there without ever leaving the cell. After three months, Walid al-Qadasi was transferred to Bagram, where he was interrogated for one month.

In a lawsuit filed in April 2009, Rafiq Alhami stated that, for a year, he was held in three CIA “dark sites,” where “his presence and his existence were unknown to everyone except his United States detainers,” and where, at various times, he was “stripped naked, threatened with dogs, shackled in painful stress positions for hours, punched, kicked and exposed to extremes of heat and cold.” Moreover, at Guantánamo, he told a military review board that one of the prisons was the “Dark Prison” near Kabul, which I have previously described as “a medieval torture dungeon with the addition of ear-splittingly loud music and noise, which was pumped into the cells 24 hours a day,” based on accounts by prisoners who were held there, including the British resident Binyam Mohamed, who described his time there as “the worst days of his captivity” — worse than the 18 months in Morocco, where the CIA’s proxy torturers regularly sliced his genitals with a razorblade.

Alhami told his review board that he was tortured for three months in the “Dark Prison,” where, he said, “I was threatened. I was left out all night in the cold … I spent two months with no water, no shoes, in darkness and in the cold. There was darkness and loud music for two months. I was not allowed to pray … These things are documented. You have them.”

The torture of Tawfiq al-Bihani

However while Judge Walton may not have come across my book, or the inclusion of this information in the UN report on secret detention earlier this year, I can’t understand how he would not have known about al-Bihani’s treatment from his lawyer, George M. Clarke III, because, in the book The Guantánamo Lawyers: Inside a Prison, Outside the Law, published last year, Clarke reproduced a letter from al-Bihani in which he provided a detailed explanation of what had happened to him after he was delivered to Afghanistan from Iran.

In his letter, al-Bihani explained that he was initially held in a vile Afghan prison in Kabul, where he and the other prisoners from Iran were hidden from Red Cross representatives until one of their fellow prisoners informed them of their existence. His first encounters with US agents — he believes they were from the FBI — took place in this prison, and he described his first interrogation as follows:

I was handcuffed behind and they put a hood on my head so that I could not see anything. When I entered the interrogation room, the American guards pushed me down to the ground in a very savage manner. They started to cut my clothing with scissors. They undressed me completely and I was nude. They made me sit on a chair and it was very cold. I was also afraid and terrorized because the guards were aiming their weapons towards me. The interrogator put his personal gun on my forehead threatening to kill me.

Al-Bihani explained that he stayed in this prison for around ten weeks, and was then moved to another prison where he was held in solitary confinement for “approximately five months and ten days.” He added that the guards were Afghan, that they handed out “very bad treatment,” and that “The interrogation was also very savage.” He was then moved to a third prison, which appears to have been the “Dark Prison,” and en route US soldiers “started to hit me and strangle me, they would put a rope around my neck and I was about to die.” This is his description of the “Dark Prison”:

This was absolutely the worst prison. It was a very dark prison and there was no light, no bed or a carpet, the floor was semi cement. The restraints on my feet were very tight; they put me into a cell and kept me hanging tied to the wall for almost ten days. […]

The irritating music 24 hours a day was very loud and hard banging on the door. When I used to go for interrogations, I was unable to walk because of the restraints on my legs and tightness on my feet.  Would fall down to the ground and scream that I cannot walk. They would pick me up from the ground and I would walk with them while they were hitting me on the way to the interrogation until I would bleed from my feet. When I would fall to the ground, they would drag me while I am on the ground. Then they would bring me back to the cell and sprinkle cold water on me. Sometimes they would put a weapon on my head threatening to kill me using some provocative statements which I cannot mention in this letter.

After ten days, they brought me down from the hanging position and made me sit on the floor. Then they tied my hands upwards for approximately one month so that I could not lie down on the floor for comfort, therefore I was unable to sleep except for quarter of an hour every day.

After one month and ten days, they removed all my restraints, however I was unable to rest or sleep because of extreme hunger and cold and the loud irritating music and the banging on the door. I stayed in this prison for approximately two months and a half and I had no idea whether it is day or night as it was extremely dark and oppressive conditions.

After this, al-Bihani was moved to Bagram, where, he said, “the treatment was very bad there as well,” and was then flown to Guantánamo.

A bleak conclusion

Beyond a rather obvious question raised by the accounts above — did Tawfiq al-Bihani confess that he was “part of” al-Qaeda (when he so obviously wasn’t) because of the torture to which he was subjected in Afghanistan? — what this apparently overlooked torture account most vividly and balefully demonstrates is how effortlessly the torture of al-Bihani has become irrelevant to his case.
The exposure of torture has derailed other habeas petitions challenged by the government — in, for example, the cases of Mohamed Jawad and Fouad al-Rabiah (who were subsequently released), Farhi Saeed bin Mohammed, an Algerian who is still held, and, less successfully, in the cases of Saeed Hatim and Uthman Abdul Rahim Mohammed Uthman (whose successful petitions are being appealed by the government).

However, in Tawfiq al-Bihani’s case it is difficult to escape the conclusion that, even had Judge Walton known, or chosen to pay attention to these reports, it would not have fundamentally altered his conclusion that this failed recruit was sufficiently involved with al-Qaeda to justify his ongoing detention. That, as I concluded above, already demonstrates that the classification process for determining who may be legally detained is far too loose, but when evidence that al-Bihani was tortured in secret prisons is also removed from the picture, the end result is far bleaker.

Somewhere along the line, questions need to be raised not only regarding the justification for continuing to hold insignificant individuals at Guantánamo who never raised arms against anyone and were not involved in terrorism, but also regarding the ease with which detailed information about the torture of prisoners in a series of secret prisons run by the CIA can be so thoroughly ignored that Judge Walton failed to mention it at all.

Andy Worthington's Series: "Who Are the Remaining Prisoners in Guantánamo?"

What follows is one example of the summaries collected by Andy Worthington regarding the status and history of the detainees who remain at Guantánamo prison. Andy is presenting them in an eight part series. The story of Umar Abdulayev is taken from Part Five. Like many of the tales about the men still languishing in the U.S. detention site, it is a tale of wild, reckless policy and lawless subversion of U.S. and international law. I highly recommend readers follow the entire series, and send links to their friends, Facebook pages, etc.

Regarding Abdulayev's story, note the attempt by the Obama administration to repatriate a prisoner back to a country (Tajikistan in this case), where the prisoner refuses to return, for fear of persecution and/or torture. Already, the Obama administration (with Congressional notice in advance) has violated the Convention Against Torture and the Convention Relating to the Status of Refugees by forcibly repatriating Abdul Aziz Naji back to Algeria, despite his fear of attack by Islamic extremists in that country, and imprisonment or arrest by the Algerian government as a former Guantánamo prisoner. In fact, Naji was charged by the Algerian government, with unspecified charges, and ultimately returned to his family under government supervision. The former detainee told an Algerian newspaper that Guantánamo prisoners were tortured to give false confessions, and forced "to take some medicines for three months to drive them crazy, loosing [sic] memory and committing suicide."

ISN 257 Abdulayev, Umar (Tajikistan)
A refugee from Tajikistan, who had arrived in Afghanistan with his family in 1992 (when he was around 13 years old), Abdulayev was living in a refugee camp near Peshawar, Pakistan, in November 2001, when he was seized in a bazaar by operatives of Pakistan’s Inter Services Intelligence Directorate (ISI), who asked him for a bribe which he couldn’t pay, and then imprisoned him, and, it seems, made him copy information relating to insurgency and military activity into a series of notebooks that were then used to justify his detention as a terrorist. In June 2009, as Abdulayev’s habeas case neared the District Court, the Justice Department abruptly announced that they would “no longer defend his detention,” and that they “want[ed] US diplomats to arrange to repatriate him” This decision was distressing to Abdulayev and his lawyers for two reasons: firstly, because Abdulayev is terrified of returning to Tajikistan, as he was threatened by Tajik agents who visited him in Guantánamo; and secondly, because the Task Force’s decision also led the Justice Department to ask a judge to drop Abdulayev’s habeas petition, prompting his lawyers to point out that the Task Force’s decision was “not a determination that [Abdulayev’s] detention was or was not lawful,” and that it therefore “does nothing towards removing the stigma of being held in Guantánamo or being accused of being a terrorist by the United States.” As one of his lawyers, Andrew Moss, explained to me, the Justice Department’s maneuverings meant that the writ of habeas corpus was “effectively suspended.”

ACLU Press Release: Federal Court Rules No Habeas Rights for Bagram Prisoners

The following is an important ACLU press release on today's federal court of appeals ruling on whether or not non-Afghan prisoners, kidnapped via rendition and sent to Bagram can challenge their incarceration in a U.S. court. As the ACLU explains, the court ruled in favor of the position of the Obama administration, which is continuing and seeking to extend the heinous prisoner policies of the Bush/Cheney years. I hope to write more about the news here, and the Stephen Soldz story mentioned below, as time allows. (Bold emphasis below is added.)

Federal Court Rules Bagram Prisoners Can't Challenge Their Detention In U.S. Courts

Decision Gives Government Unchecked Power To Detain Individuals Indefinitely Without Due Process Or Transparency, Says ACLU

NEW YORK - May 21 - A federal court of appeals ruled today that three prisoners who are being held by the United States at Bagram Air Base in Afghanistan cannot challenge their detention in U.S. courts. The non-Afghan prisoners, some of whom were captured outside of Afghanistan far from any battlefield and "rendered" or transferred to Bagram, have been held at the detention facility for more than seven years without access to a court or counsel. The American Civil Liberties Union has filed habeas cases on behalf of several Bagram detainees and a Freedom of Information Act (FOIA) lawsuit for records relating to the detention, rendition and treatment of prisoners held there. The ACLU's Bagram habeas cases were not addressed by the court of appeals ruling today; the cases at issue were brought by the International Justice Network, the organization coordinating Bagram habeas litigation.

"Today's decision ratifies the dangerous principle that the U.S. government has unchecked power to capture people anywhere in the world, unilaterally declare them enemy combatants and subject them to indefinite military detention with no judicial review and little to no process for challenging their detention in any forum. The rule embraced by the court of appeals permits the executive branch to manipulate whether its actions will or will not be subject to judicial scrutiny, simply by choosing whether to fly a prisoner to Bagram or Guantánamo," said Melissa Goodman, staff attorney with the ACLU National Security Project. "Locking up people who were picked up far from any battlefield for years without telling them why, without giving them access to lawyers and without giving them a fair chance to contest the evidence against them is unlawful and un-American."

In response to the ACLU's FOIA lawsuit for records related to the detention, rendition and treatment of prisoners at Bagram, the Defense Department in January released for the first time a list of the people imprisoned at the notorious detention facility. The list contains the names of 645 prisoners who were detained there as of September 2009, but other vital information including their citizenship, how long they have been held, in what country they were captured and the circumstances of their capture has been withheld. The ACLU is challenging the withholding of this information in court.

The government also continues to withhold information about the implementation of its new detainee status review procedures as well as information about a separate "secret jail" on the base, reportedly run by either the Joint Special Operations Command or the Defense Intelligence Agency, where detainees maintain they have been abused and guards and interrogators may not be subject to the same rules that apply at the main Bagram detention facility.

"Today's decision makes the need for greater transparency at Bagram all the more pressing. The Obama administration has instituted a new military process for determining whether prisoners should be released but has not disclosed any information about the implementation of the process, such as transcripts of the new Detainee Review Board proceedings," said Goodman. "The military disclosed this kind of information about Guantánamo proceedings and should do the same for the Bagram proceedings. The military should also come clean about the secret 'second' prison at Bagram Air Base the Red Cross confirmed existed last week."

More information about the ACLU's Bagram FOIA lawsuit is available online at: www.aclu.org/national-security/bagram-foia

More information about the ACLU's Bagram habeas cases is at: www.aclu.org/national-security/aclu-files-habeas-corpus-petitions-behalf-four-bagram-detainees

CONTACT: ACLU
Rachel Myers, National ACLU, (212) 549-2689 or 2666; media@aclu.org

For more on the situation with the second, secret black site at Bagram see the excellent article by Stephen Soldz, The "Black Jail": Obama's Afghan Torture Center and the American Psychological Association. Soldz ties together the American Psychological Association and CIFA/DCHC psychologists, some of whom may be tied to ongoing secret interrogation activities, including abuse of prisoners, at Obama's black site prisons.

Finally, see also Glenn Greenwald's article today on the court decision:

One other point: this decision is likely to be appealed to the Supreme Court, which serves to further highlight how important the Kagan-for-Stevens replacement could be. If the Court were to accept the appeal, Kagan would be required to recuse herself (since it was her Solicitor General's office that argued the administration's position here), which means that a 4-4 ruling would be likely, thus leaving this appellate decision undisturbed. More broadly, though, if Kagan were as sympathetic to Obama's executive power claims as her colleagues in the Obama administration are, then her confirmation could easily convert decisions on these types of questions from a 5-4 victory (which is what Boumediene was, with Stevens in the majority) into a 5-4 defeat. Maybe we should try to find out what her views are before putting her on that Court for the next 40 years?

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."

Andy Worthington Kicks Off "Guantánamo Habeas Week"

Andy Worthington, who has conscientiously and effectively documented the fates of hundreds of prisoners held at the U.S. prison at Guantanamo (see his book The Guantanamo Files), has posted a "Habeas Corpus Scorecard" at his website.

Surely it is a scandal that the government has been shown not to have a reason to hold 34 of the 47 Guantánamo cases brought before Federal judges with habeas petitions. In other words, the courts have refused to accept the U.S. government's claim that these people are dangerous, the "worst of the worst," in almost three-quarters of the cases that have come before them. As Worthington describes it, the explanation for this incredible statistic lies in the flimsiness of the cases. And even more:

Primarily, the judges have exposed that the government has been relying, to an extraordinary extent, on confessions extracted through the torture or coercion of the prisoners themselves, or through the torture, coercion or bribery of other prisoners, either in Guantánamo, the CIA’s secret prisons, or proxy prisons run on behalf of the CIA in other countries.

This week, Worthington plans to dedicate his postings to covering these 47 cases decided to date, in what he calls "Guantánamo Habeas Week". His first entry in the series considers the case of Yasin Qasem Muhammad Ismail, a Yemeni who was captured (or sold to U.S. forces) in Afghanistan in 2001. He was either 19 or 22 at the time (as his age is uncertain). There is plausible evidence, from his testimony and witnesses, that Ismail, a small-time jihadist at best (despite claims from the government that he was "Emir" of the Bagram front), was tortured at Guantanamo. Despite that, his habeas petition was denied by Judge Henry H. Kennedy, Jr. of the U.S. District Court, Washington, DC. His unclassified opinion in the case has not yet been released.

Worthington writes of the plight of prisoners like Ismail:

If anything, Ismail — and other prisoners who have lost their habeas petitions, like Ghaleb al-Bihani, who served as a cook for Arab forces supporting the Taliban — should have been held as prisoners of war and protected from ill-treatment according to the Geneva Conventions. On this basis, they could be held until the end of hostilities, and we would now be arguing about whether it is conceivable that an invasion to overthrow the Taliban, which began eight and a half years ago, and which met its immediate aims, leading to the fall of the Taliban as Afghanistan’s government and the election of Hamid Karzai as the Afghan President, is legitimately part of a “War on Terror” that might last forever, and that, as a result, even the most minor players in that initial conflict can be detained indefinitely.

As it stands, however, Yasin Ismail — a man who, by all accounts, never took up arms against anyone — remains imprisoned in Guantánamo on an apparently legal basis, and those of us who regard his continued detention as an overreaction, to put it mildly, must also reflect on the fact that, far from being treated humanely for the last eight years, he has been subjected to physical abuse and sexual humiliation for no justifiable reason, but that this is considered irrelevant to the case against him.

This kind of injustice is even more galling in the light, as Worthington points out, of revelations in a sworn statement by Colonel Lawrence Wilkerson, former Chief of Staff to Secretary of State Colin Powell, that the vast majority of the prisoners at Guantanamo were not dangerous at all. In fact, they were never even properly vetted, but sucked up by U.S. forces for political reasons, and neither Bush, nor Cheney, nor Rumsfeld cared a whit about the innocence of any of these people. Wilkerson says former Vice President Cheney, for instance, "had absolutely no concern that the vast majority of Guantánamo detainees were innocent, or that there was a lack of any useable evidence for the great majority of them."

From Mr. Wilkerson's filing (PDF):

With respect to the assertions by Mr. Hamad that he was wrongfully seized and detained, it became apparent to me as early as August 2002, and probably earlier to other State Department personnel who were focused on these issues, that many of the prisoners detained at Guantánamo had been taken into custody without regard to whether they were truly enemy combatants, or in fact whether many of them were enemies at all. I soon realized from my conversations with military colleagues as well as foreign service officers in the field that many of the detainees were, in fact, victims of incompetent battlefield vetting. There was no meaningful way to determine whether they were terrorists, Taliban, or simply innocent civilians picked up on a very confused battlefield or in the territory of another state such as Pakistan....

It was clear to me that, as I learned about how the majority of the Guantánamo prisoners had been detained, the initial group of 742 detainees had not been detained under the processes I was used to as a military officer. It was also becoming more and more clear that many of the men were innocent, or at a minimum their guilt was impossible to determine let alone prove in any court of law, civilian or military. If there were any evidence, the chain protecting it had been completely ignored.

So it comes as no surprise that the majority of the habeas cases have been granted by the courts. Yet still, many of these prisoners formally freed remain in Guantanamo, and others, unable to obtain a lawyer, or too depressed or ignorant to defend themselves, remain in the limbo of indefinite detention, while the Obama administration debates how to keep some of them in prison for the rest of their lives, feeding the Cheneyesque lie that these people are the worst criminals on the planet.

If some of them are criminals, then let that be decided in a court of law. Hundreds of thousands have died over the decades to make that principle stand. Let us not unceremoniously bury it because of fear-mongering.

I applaud Andy Worthington's work in telling us these prisoners' stories, and hope readers will follow his new series, and show him support. I hope readers will also look carefully at his excellent analysis behind issues such as the resuscitated military commissions, the trials of the terrorist suspects, and the continuing obeisance to the deeply flawed Authorization for the Use of Military Force passed after 9/11.

I also applaud those other news sources who are keeping track of the habeas decisions, such as The Washington Independent, Center for Constitutional Rights, and the Miami Herald. They're all worth looking at.

Ghost Prisoners? Indefinite Detention? "Hitherto acceptable norms of human conduct do not apply."

In a report at Truthout, Andy Worthington described a new UN report on secret detention policies by governments around the world. The report, available in an advance, unedited version here (long PDF), concentrates on the situation over the last nine years, with "a detailed account of US policies... and also running through the practice of secret detention in 25 other countries, including Algeria, China, Egypt, India, Iraq, Iran, Israel, Libya, Pakistan, Russia, Saudi Arabia, Sri Lanka, Sudan, Syria, Uganda and Zimbabwe."

A major new report on secret detention policies around the world, conducted by four independent UN human rights experts, concludes that, “On a global scale, secret detention in connection with counter-terrorist policies remains a serious problem,” and that, “If resorted to in a widespread and systematic manner, secret detention might reach the threshold of a crime against humanity"....

Of particular concern to the authors of the Joint Study — beyond the overall illegality of the entire project conceived and executed by the Bush administration — is the fate of dozens of men held in secret prisons run by the CIA, or transferred by the CIA to prisons in other countries. Based on figures disclosed in one of the Office of Legal Counsel’s notorious “torture memos” (PDF), written in May 2005 by Assistant Attorney General Stephen Bradbury, the CIA had, by May 2005, “taken custody of 94 prisoners [redacted] and ha[d] employed enhanced techniques to varying degrees in the interrogations of 28 of these detainees.”

The 28 men subjected to “enhanced techniques” are clearly the “high-value detainees” — including Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, Abu Zubaydah and twelve others — who were transferred to Guantánamo in September 2006, but no official account has ever explained what happened to the other 14 “high-value detainees,” or, indeed, to the majority of the other 66 men.

Tracking the missing men has been difficult, and the report looks into the various black prison sites in Afghanistan, including Bagram. In addition, the report examines "the cases of 35 men rendered by the CIA to Jordan, Egypt, Syria and Morocco, between 2001 and 2004." For many of these "ghost prisoners", we have no idea of where they were ultimately sent, or even if they are even alive.

The Bagram Project

Andy Worthington has begun a project on Bagram prisoners not dissimilar to the research he conducted on the Guantanamo prisoners, which culminated in the excellent book, The Guantanamo Files. Ever since the Pentagon released a list of the names of 645 prisoners it was holding at Bagram as of September 22, 2009 (PDF).

Worthington has been examining this list, and trying to determine who many of these prisoners are, as well as who may be missing from the list.

However, although it is probable that a number of former “ghost prisoners” have been repatriated to face death or further detention, it is not inconceivable that some prisoners were not included in the list because they are being held elsewhere — perhaps in a corner of Bagram to which the list does not extend.

One indication that this is so is the apparent omission from the list of Amanatullah Ali, a Pakistani who was seized by British forces in Iraq in 2004 and rendered to Bagram. His detention in Bagram has been confirmed through letters to his family, and his story, which was told by David Rose in Britain’s Mail on Sunday on December 9, is significant not only because it sheds light on the British government’s complicity in the Bagram rendition program, but also because it reveals the extent to which depriving the prisoners of the right to challenge the basis of their detention perpetuates the same mistakes that were made at Guantánamo.

Andy is producing an annotated version of the Bagram prisoner list, and you can read the initial form of it here. He asks that if anyone has any further information about any of the names on this list to email him.

Obama OLC Supports Indefinite Detention Policies, or Marty Lederman Turns to the Dark Side

As I was reading the articles on the secret detentions, I was reminded that Obama's Office of Legal Council (OLC) has been quite active in promoting indefinite detentions for some of the Guantanamo prisoners. According to Joe Palazzolo at Main Justice, OLC -- which under Bush's appointees Yoo and Bybee had authored the memos approving torture -- has been quite active in advising Department of Justice attorneys who are fighting the habeas cases of Guantanamo prisoners in the federal courts. OLC also "worked closely with the [detention] task force that recently completed a yearlong review of the Guantanamo Bay detainees. The task force determined that of the 198 detainees at the military-run prison, about 50 are unprosecutable but thought to be too dangerous to transfer [i.e., they will be held indefinitely, without charges], underscoring the importance of the habeas corpus cases — the chief means for testing the Obama administration’s detention regime.

One wonders what apostasy former supposed civil liberties proponent Marty Lederman underwent once he joined Obama's Justice Department. But Palazzolo quotes a recent study by Benjamin Wittes and Rabea Benhalim of the Brookings Institution and Robert Chesney of the University of Texas Law School, who expound upon the crucial importance of the Obama administration's legal actions on this front (emphasis added):

They are more than a means to decide the fate of the individuals in question. They are also the vehicle for an unprecedented wartime law-making exercise with broad implications for the future. The law established in these cases will in all likelihood govern not merely the Guantánamo detentions themselves but any other detentions around the world over which American courts acquire habeas jurisdiction. What’s more, to the extent that these cases establish substantive and procedural rules governing the application of law-of-war detention powers in general, they could end up impacting detentions far beyond those immediately supervised by the federal courts. They might, in fact, impact superficially-unrelated military activities, such as the planning of operations, the selection of interrogation methods, or even the decision to target individuals with lethal force….

The other thing the detentions issue reminded me of was a quote from a document I was recently reading. The document has historical significance, and is of great importance in understanding how the dark and secretive forces that are now essentially running this country gained such power and influence.

A Look Back at the Doolittle Report

From the Report on the Covert Activities of the Central Intelligence Agency, commissioned by the President of the United States, Dwight D. Eisenhower, 1954 (otherwise known as the Doolittle Report - PDF, bold emphases added):

As long as it remains national policy, another important requirement is an aggressive covert psychological, political and paramilitary organization more effective, more unique, and, if necessary, more ruthless than that employed by the enemy. No one should be permitted to stand in the way of the prompt, efficient and secure accomplishment of this mission....

It is now clear that we are facing an implacable enemy whose avowed objective is world domination by whatever means and at whatever cost. There are no rules in such a game. Hitherto acceptable norms of human conduct do not apply. If the United States is to survive, long-standing American concepts of "fair play" must be reconsidered. We must develop effective espionage and counterespionage services and must learn to subvert, sabotage and destroy our enemies by more clever, more sophisticated and more effective methods than those used against us. It may become necessary that the American people be made acquainted with, understand and support this fundamentally repugnant philosophy.

Looks like it took them almost 50 years to fulfill the latter prediction, when Dick Cheney informed us the U.S. was going over to the “dark side”. Of course, they’d made their infernal choice decades ago, and the U.S. citizenry is still catching up with the ramifications of those hidden decisions and multiple crimes.

Also, now the enemy is not world communism, but the forces of Al Qaeda, who (supposed) wish to found a world-wide Islamic Caliphate. Of course, tomorrow the enemy may be world communism again, when the war drive against China is activated in earnest, or perhaps it will be the “Asian hordes” once again.

This is not a time for politics as usual. The "consensus building" of President Obama's administration is a cruel joke upon the people of America and the world. What is needed is boldness in opposition, a readiness to speak the complete truth, and the preparation of the American people to accept this truth, and make the links between Wall Street's stranglehold over any economic "reform", and the insane military drive for extension of U.S. power around the world. The latter has led this country into the darkest crevices of human historical actions: to the secret prison and dungeon, to the torture chamber, to the use of technological devices and sciences to watch, control, and murder countless human beings.

"Hitherto acceptable norms of human conduct do not apply." It is worth considering well the implications of this statement for all of us.

Cross-posted at FDL/The Seminal

Andy Worthington on U.S. Tour: "Outside the Law: Stories from Guantanamo" (video)

As Andy Worthington is wrapping up his tour promoting the documentary, "Outside the Law: Stories from Guantanamo" (co-directed by Andy and filmmaker Polly Nash), a notice at his blog announces today that the Future of Freedom Foundation has made the film a talk Andy gave before the sceening of the film in Fairfax, VA, available as a 38-minute video entitled “An Evening with Andy Worthington”.

An Evening with Andy Worthington - "Outside the Law: Stories from Guantanamo" from The Future of Freedom Foundation on Vimeo.

Andy was also interviewed at Democracy Now! yesterday. The discussion concentrated on plans by the U.S. to try Khalid Sheikh Mohammed and four other prisoners (Walid Muhammad Salih Mubarak Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali and Mustafa Ahmed al Hawsawi) in federal courts, and other Guantanamo prisoners, including Abd al-Rahim al-Nashiri and Omar Khadr, at Obama's newly refurbished -- and deeply flawed -- military commissions.

What follows is from Worthington's interview with Juan Gonzalez and Amy Goodman:

AMY GOODMAN: .... At the time of this broadcast, Eric Holder is about to hold a news conference, the Attorney General, announcing Khalid Sheikh Mohammed and four others will be tried in a New York civilian court.

ANDY WORTHINGTON: Yes.

AMY GOODMAN: Your response?

ANDY WORTHINGTON: Well, I mean, this is what actually we’ve all been waiting for, to be honest. This was what it was all supposed to be about, was rounding up the people who had a connection to the 9/11 attacks. And, of course, what we’ve actually had over the years is eight years of a prison outside the law holding nearly 800 people, most of whom had nothing to do with it, not to mention all the other prisons that have been used, the secret prisons, the whole CIA program. So, to that extent, it’s good news.

I’m rather disturbed to hear that the second tier of justice, which is the military commission system, has been—we’re apparently going to hear that that’s where one of the men, Abd al-Rahim al-Nashiri, is going to be prosecuted, because the administration and the Senate have tinkered with the military commissions, which were essentially revived as the terror trials by Dick Cheney in November 2001. They were once ruled illegal by the Supreme Court. Congress brought them back. They failed spectacularly throughout their history to demonstrate that they were a viable form of justice. And even with these latest amendments, they still fall short of the standards that we would expect from trials and the standards that we would expect from federal court. So it’s rather disturbing to hear that these two layers of justice are still planned....

And, I mean, there is already a problem, which was identified by the administration in summer, and they told the Senate about this, that the charge of providing material support for terrorism is a charge that they think will be subject to appeal in the military commissions system. But the administration has also said they don’t have any problems with trying that in federal courts. So I’m really confused as to why they’re going ahead with it. And, you know, the overall impression it gives me is that they’re trying to rig the system. You know, they have a premier league trial system, and if they have doubts maybe that that’s going to work, then they’ve got this reserve system. And that’s not the way that justice should work, and especially not after the horrors of the last eight years....

I’m surprised there’s no mention there of the habeas corpus petitions, because, you know, this has been an important, very crucial part of the story this year, is that when the men finally secured the right to habeas corpus. And, you know, the Supreme Court last June gave them those rights and made them constitutionally guaranteed, so that lawmakers couldn’t interfere, as they had before. We’ve had thirty-eight cases decided by judges, and in thirty of those cases the judges have said, you know, that the government has failed to provide the evidence used to justify holding these men. Now, that leaves eight people who have—the judges have said, you know, “By a preponderance of the evidence, you have demonstrated that these people had a connection to al-Qaeda and the Taliban, and you can continue to hold them.” So, all these people have habeas petitions that are ongoing. And, you know, the administration has to, I think, let this process carry on. And it will result, I have no doubt, in some of these—was it seventy-five?—being cleared.

AMY GOODMAN: Let’s turn to an excerpt from your new film, Outside the Law: Stories from Guantánamo. This is Omar Deghayes, a Libyan British resident who was freed from Guantánamo in December of 2007.

OMAR DEGHAYES: The interrogator said to us, “You will be released one day, yes. You will be released, I’ll tell you that. You will be released. But you will not be released from this place until you are broken wrecks. We will release you. You are terrorists. And we will release you, yes. But you will be physically finished, psychologically finished, and you will be nothing.”

The last time I saw my son was when they abducted us in Lahore, and he was six month years old, I think. Very young. Now he’s seven years old. I haven’t seen him since. I think it is the biggest loss I can, the biggest loss I have lost in Guantánamo, really. Not my eye, not my broken finger, not my broken ribs, not my broken nose, not the humiliation, not the sexual abuse, not all that transport and things. All these are bad enough, but the worst, I think, thing that can—that did happen, I lost there, is not the eye; it’s those years of seeing Suleiman growing up.

AMY GOODMAN: And here’s another clip from the film, featuring British lawyers Gareth Peirce and Clive Stafford Smith.

CLIVE STAFFORD SMITH: They will close Guantánamo, but so what? That’s not the end of the story, because there are many, many thousands of prisoners held in US secret custody around the world. Guantánamo is the tiniest tip of the iceberg of that.

GARETH PEIRCE: Bagram Air Base in Afghanistan is being reinforced, rebuilt, has now far more prisoners than Guantánamo had.

I had the good fortune to catch Andy on his tour when he spoke in Berkeley at Revolution Books on Wednesday night. He is a rare specimen of an impassioned researcher and activist, a man who, with his landmark book, The Guantanamo Files, really shined light into the dark places of ignorance that surrounded the identities and stories of the hundreds of prisoners rendered to Guantanamo -- a darkness, I may add, deliberately engendered by the United States government. Thank you, Andy, for all your hard work.