David Remes, an attorney for 16 Yemeni prisoners in Guantánamo, claimed today that the government’s detention policy was "in tatters," after District Court Judge Gladys Kessler comprehensively demolished the Justice Department’s case against a Yemeni prisoner held in Guantánamo without charge or trial for seven years (PDF).
Judge Kessler ruled last Monday that the government had failed to establish, "by a preponderance of the evidence," that Alla Ali Bin Ali Ahmed was "part of, or substantially supported, Taliban or al-Qaeda forces that are engaged in hostilities against the United States or its coalition partners," and stated that the government "should take all necessary diplomatic steps to facilitate" his release.
This was not the first time that a judge had ordered a prisoner freed from Guantánamo because of the weakness of the government’s evidence. Since the Supreme Court reinstated the prisoners’ habeas corpus rights last June, judges have ordered the release of 25 prisoners in the 29 cases that have so far been heard.
However, although Judge Richard Leon dismissed the testimony of two witnesses in Guantánamo four months ago in the case of the Saudi resident and Chadian national Mohammed El-Gharani, stating that "the credibility and reliability of the detainees being relied upon by the government has either been directly called into question by government personnel or has been characterized by government personnel as undermined," last week’s 45-page ruling reveals (despite extensive redactions) that Judge Kessler expressed even more comprehensive doubts about both the reliability of witnesses in Guantánamo, and the overall quality of the government’s supposed evidence. This will, I believe, have a knock-on effect on other cases, and may well be causing tremors of fear in those parts of the Justice Department and the Pentagon where, bizarrely, all indications suggest that, despite the change of administration, career officials who worked under George W. Bush are behaving as though it is still business as usual.
The case against Alla Ali Bin Ali Ahmed
Ali Ahmed, who was seized, with at least 15 other prisoners, in a raid on a house in Faisalabad, Pakistan, on March 28, 2002 (on the same night that the alleged senior al-Qaeda operative Abu Zubaydah was captured in another house raid), has always stated that he traveled to Afghanistan "in order to find a religious school at which to study the Koran," as Judge Kessler described it, and "denies ever going to Afghanistan, training at an al-Qaeda camp, fighting against anyone, or being a member of a terrorist group."
In a military review board at Guantánamo in 2007, he explained that he traveled to Pakistan, on a one-month visa, "to learn the Koran so he could be a teacher," but ended up stuck in the guest house "because the situation at that time was they were arresting any Arab that was found there in Pakistan so we were just sitting and waiting in that house."
In its case against him, the government drew on allegations made by four prisoners in Guantánamo, and also attempted to rely on a "mosaic theory" of intelligence. As Judge Kessler described it, drawing on documents submitted by the government,
[the] theory is that each of these allegations — and even the individual pieces of evidence supporting these allegations — should not be examined in isolation. Rather, "[t]he probity of any single piece of evidence should be evaluated based on the evidence as a whole," to determine whether, when considered "as a whole," the evidence supporting these allegations comes together to create a "mosaic" that shows the Petitioner to be justifiably detained.
Judge Kessler then noted that, although it "may well be true" that "use of the mosaic approach is a common and well-established mode of analysis in the intelligence community … at this point in this long, drawn-out litigation the Court’s obligation is to make findings of fact and conclusions of law" to consider the government’s case. After pointing out that the mosaic theory "is only as persuasive as the tiles which compose it and the glue which binds them together," she then proceeded to highlight a catalog of deficiencies in the tiles and the glue.
Judge Kessler dismisses the testimony of four witnesses
Dealing first with the witnesses, she excluded the testimony of the first, "whose credibility has been cast into serious doubt — and rejected" by Judge Leon in the case of Mohammed El-Gharani. Noting that he "has made accusations against a number of detainees" at Guantánamo, and that "Many of those accusations have been called into question by the government," Judge Kessler dismissed his claim that he "overheard" conversations at Guantánamo about Ali Ahmed’s travels in Afghanistan, stating that, "In addition to coming from an unreliable witness," it was "based upon multiple levels of hearsay."
Judge Kessler then dismissed the testimony of a second witness, whose allegation was redacted, because he had made several contradictory statements to interrogators, and, moreover, because his allegation was "riddled … with equivocation and speculation," and also dismissed the account of a third witness, who claimed to have seen Ali Ahmed while he was allegedly being smuggled from Afghanistan to Pakistan, because, as Ali Ahmed stated, he "has been diagnosed by military medical staff as having a ‘psychosis.’"
Judge Kessler was particularly troubled that Ali Ahmed "learned of the witness’ medical condition only through the diligent work of his counsel, and not as a result of the government’s obligation to provide him exculpatory information." She was also unimpressed that the witness provided "inconsistent identifications," and was concerned by "evidence that [he] underwent torture," at Bagram and in the CIA’s "Dark Prison" near Kabul, "which may well have affected the accuracy of the information he supplied to interrogators."
According to the government, the last witness, identified as al-Qahtani (probably Jabran al-Qahtani, an alleged al-Qaeda operative who was captured with Abu Zubaydah), identified Ali Ahmed, from a photograph shown to him in Bagram, as someone who had received military training near Kabul. However, Judge Kessler dismissed this statement when it became apparent that, in Bagram, where Ali Ahmed had been given the prisoner number 191, the government admitted that two detainees were given this same number," and she therefore concluded that it was "completely unclear" to whom the allegation referred.
Judge Kessler dismisses the "mosaic" theory of intelligence
While the dismissal of all four witnesses’ statements fatally undermined the government’s case, Judge Kessler also took apart the "mosaic theory" conjured up from the prisoners’ statements, which purported to show that Ali Ahmed trained and fought in Afghanistan, and was associated with al-Qaeda because of his presence in the guest house in Faisalabad.
Dismissing the claim that he fought in Afghanistan, Judge Kessler noted that, bizarrely, the government asked that his "participation in battle be inferred from a web of statements made by witnesses who were commenting on [his] non-military activity," by suggesting that military activity could be inferred because the witnesses claimed that Ali Ahmed undertook military training in Afghanistan and "stayed in the company of al-Qaeda fighters," and "because Ali Ahmed’s denial of such behavior is not credible."
Noting that "The government’s position on this charge rests on its mosaic theory," Judge Kessler added decisively, "The theory cannot support the charge," and proceeded to explain that it was "extremely significant" that there was "absolutely no ‘direct’ evidence, at whatever hearsay level, of Ali Ahmed’s participation in battle." She also made the following withering dismissal of the government’s claims:
Even if the evidence is to be believed that Petitioner’s story is false and that he was in Afghanistan, there simply is no affirmative proof that he took up arms. The Court will not make the leap that the government does.
After dismissing other pieces of the mosaic that dealt with Ali Ahmed’s purported military training in Afghanistan, and his supposed use of a particular kunya (nickname), for reasons connected to the unreliable witnesses discussed above, Judge Kessler also refused to accept that, because Ali Ahmed stated at a guest house in Faisalabad, which, according to the government, housed at least a few individuals who "were involved with terrorist groups," it was logical to infer, as "one more piece of the mosaic," that he was "a substantial supporter of al-Qaeda and/or the Taliban, as well as a trainee and fighter for one or both of these groups."
Reiterating her profound doubts about the witnesses, she stated that the government’s allegation was "not the material of which a reliable hearsay identification is made. Once those pieces of the mosaic have been removed because of their unreliability, the government is left with what is essentially a charge of guilt by association."
She added,
The problem with this charge is that there is no solid evidence that Ali Ahmed engaged in, or planned, any future wrongdoing while [redacted]. There is no evidence that he was arrested with any weapons or other terrorist paraphernalia; nothing of this kind was found in his locker. Though others at the house admitted their affiliation with al-Qaeda, they did not implicate Ali Ahmed in any terrorist activity.
She also noted that there was "ample evidence in the record to indicate that guest houses are common features of the region, serving as way stations for impoverished young men spending time away from home," and — in a comment that is worth noting in the cases of the other men seized in the house, whom I discussed in my book The Guantánamo Files, and in an article last December — stated, "It is likely, based on evidence in the record, that at least a majority of the [redacted] guests were indeed students, living at a guest house that was located close to a university," and added that she thought it significant that, "even though the police arrested all of the [redacted] men staying at the house, they appeared to have ignored [redacted], the man who operated the house."
This was a valid point, as the house owner, Issa, was a Pakistani, and, as many Guantánamo prisoners seized in Pakistan have attested (see, for example, the story of two Sudanese prisoners released in 2007), the Pakistani police often made a point of apologizing to foreign Muslims as they were captured, stating that they had to seize foreign Arabs — but not, by inference, Pakistanis — to please the Bush administration.
In conclusion, Judge Kessler provided a succinct recap of her response to the government’s evidence, which should leave no one in any doubt about the extent of the administration’s failure to create a convincing case out of selection of profoundly dubious witnesses, and a "mosaic" with more holes than tiles:
As to the claim of participating in fighting, the government produced virtually no credible evidence; as to the claim of receiving military training, the conclusory nine-word hearsay statement by [redacted] does not show that it is more likely than not that he received such training; as to the claim that he traveled around Afghanistan in 2001 and 2002 in the company of terrorist fighters fleeing the battlefield, even if the government had proven this charge, which it did not, such a fact would not constitute substantial support; as to the evidence that he stayed at [redacted], the government has certainly proven that he stayed there, but has utterly failed to present evidence that he was a substantial supporter of al-Qaeda and/or the Taliban while he did stay there; as to the government’s position about the significance of locating Petitioner’s alleged kunya on a list, the Court finds this argument without any merit whatsoever.
The long reach of Judge Kessler’s ruling
As a result, Judge Kessler’s ruling casts serious doubts on the wisdom of pursuing the cases of the other men seized in the house, except, perhaps, for those few who, as the government described it, "admitted to fighting with enemy forces" — although even these bold statements may prove, under scrutiny, to be rather less clear-cut.
Moreover, her unwavering condemnation of four separate witnesses, including one who was responsible for making unreliable allegations against dozens of prisoners (which still seem to be included as part of the government’s "evidence" against these men), and her equally unwavering condemnation of a "mosaic" of intelligence composed of second- or third-hand hearsay, guilt by association and unsupportable suppositions, have repercussions that extend far beyond the case of Alla Ali Bin Ali Ahmed and the other Faisalabad guest house prisoners.
As David Remes explained to me, "Judge Kessler’s opinion exposes the flimsiness of the government’s evidence and blows a hole in many of the government’s cases. Specifically, the court rejected the government’s reliance on guilt-by-association and accusers of dubious reliability. These are two of the pillars of the government’s cases against many if not most of the prisoners. The opinion also shows that the courts will not give the government the unquestioning deference it has been counting on to win its cases. If the other judges of the court should apply the opinion in their cases, the government’s claims of detention authority will lie in tatters."
If justice is indeed to be delivered to the Guantánamo prisoners, through a legal process that has taken many long years to establish, and is not to be hijacked instead by the Obama administration’s Executive review (which, noticeably, sidelines Congress and the judiciary in a manner that recalls the Bush years), I foresee that the release of many other prisoners will be ordered by judges in the coming months.
The government’s failure to comprehend the scale of the Bush administration’s cruelty and ineptitude
As a result, the administration might want to reflect on its reasons for claiming, as defense secretary Robert Gates stated two weeks ago, that there are 50 to 100 of the remaining 241 prisoners "who we cannot release and cannot try," and who, it was suggested, might be held under some new kind of legislation authorizing preventive detention. If many of these cases are looked at closely enough, I suspect that it will be become apparent that the reasons that the government does not want to put them forward for trial is because the evidence against them is unreliable (in other words, that it was obtained through the use of torture, coercion or bribery), and that, moreover, much of it is composed of exactly the sort of "mosaic" of intelligence that, under close scrutiny, is revealed to be full of holes.
In addition, Attorney General Eric Holder would do well to focus significant attention on the pending habeas cases, and, preferably, to drop those which are infected by the testimony of liars (whether coerced or bribed) and are composed of broken "mosaics" of intelligence that will not convince judges seeking "findings of fact and conclusions of law."
No one in the Obama administration should be surprised that so many of the Guantánamo cases will not stand up in a court of law, but I find myself surprised that senior officials seem to have been content to let a Bush-era approach to prosecution survive unchanged in the offices of the Justice Department and the Pentagon. Perhaps they haven’t been informed that the reason that there is no case against most of these men is because torture, coercion and bribery were used to fill in the blanks when the majority of these men were sold to the U.S. military by their Afghan and Pakistani allies, who handed them over with a smile, and a simple phrase, "This man is an al-Qaeda/Taliban fighter. You owe me $5,000."
