Just two weeks ago, in a habeas corpus case in a Washington, DC, court, Judge Richard Leon turned the clock back to January 11, 2002 (the day Guantánamo opened) by ruling that the US government could continue holding two prisoners at Guantánamo the Yemeni Muaz al-Alawi and the Tunisian Hisham Sliti because the authorities had demonstrated, to his satisfaction, that they met the criteria for being regarded as "enemy combatants."
According to the definition of an "enemy combatant" that Leon himself had been obliged to choose from several options before proceeding with the cases, this meant that they were "part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the US or its coalition partners," which "includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces."
This was a disturbing development, because both men, who have been held for seven years, remain in an unprecedented legal limbo, despite having secured the right to have their cases reviewed in a court of law following a ruling by the Supreme Court last June. Unlike enemy prisoners of war, who are held in accordance with the Geneva Conventions, or criminal suspects, who are expected to face a trial in a timely manner, the "enemy combatants" imprisoned solely on the President’s whim in the wake of the 9/11 attacks can apparently be held indefinitely.
As I explained in a recent article, Judge Leon was observing the law as it currently stands when he ruled that al-Alawi and Sliti were "enemy combatants" (and when he also held, in November, that although the government had failed to establish a case against five Bosnians of Algerian origin, the sixth, Belkacem Bensayah, had also been correctly designated as an "enemy combatant"), but it remains a cruel and unjust law, as the three men in question continue to be held with less rights than those afforded to the most murderous individuals imprisoned on the US mainland, even though none of them is alleged to have harmed a single US citizen.
While this remains a deeply disturbing problem that Barack Obama will have to remedy if he is to have any chance of fulfilling his stated ambition to "regain America’s moral stature in the world," Judge Leon struck another blow for justice yesterday by ruling that the government had failed to establish a case against another prisoner, Mohammed El-Gharani, and ordering his release "forthwith."
Torturing a teenager
A Chadian national and Saudi resident, El-Gharani was just 14 years old when he was seized by Pakistani forces in October 2001, in a raid on a mosque in Karachi, Pakistan, 700 miles from the battlefields of Afghanistan. As with all but three of the 22 confirmed juveniles who have been held at Guantánamo, the US authorities never treated him separately from the adult population, even though they are obliged, under the terms of the UN’s Optional Protocol on the Rights of the Child (on the involvement of children in armed conflict) to promote "the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict."
Instead, El-Gharani was treated with appalling brutality. After being tortured in Pakistani custody, he was sold to US forces, who flew him to a prison at Kandahar airport, where, he said, one particular soldier "would hold my penis, with scissors, and say he’d cut it off." His treatment did not improve in Guantánamo. Subjected relentlessly to racist abuse, because of the color of his skin, he was hung from his wrists on numerous occasions, and was also subjected to a regime of "enhanced" techniques to prepare him for interrogation including prolonged sleep deprivation, prolonged isolation and the use of painful stress positions that clearly constitute torture. As a result of this and other abuse, including regular beatings by the guard force responsible for quelling even the most minor infractions of the rules, El-Gharani has become deeply depressed, and has tried to commit suicide on several occasions.
A case without evidence
This is distressing enough, in and of itself, but as Judge Leon revealed yesterday, this sustained mistreatment took place even though the authorities had no case against El-Gharani. Although he insisted, for over seven years, that he "traveled to Pakistan from Saudi Arabia at the age of 14 to escape discrimination against Chadians in that country, acquire computer and English skills, and make a better life for himself," and that he "remained there until his arrest," the government claimed that he "arrived in Afghanistan at some unspecified time in 2001," and was "part of or supporting Taliban or al-Qaeda forces," because he
(1) stayed at an al-Qaeda-affiliated guesthouse in Afghanistan;
(2) received military training at an al-Qaeda-affiliated military training camp;
(3) served as a courier for several high-ranking al-Qaeda members;
(4) fought against US and allied forces at the battle of Tora Bora; and
(5) was a member of an al-Qaeda cell based in London.
In his ruling, Judge Leon demolished the government’s claims with the same dispassionate rigor with which he demolished the claims from a single, unverifiable source against five of the six Bosnian Algerians whose release he ordered in November.
"Unlike most of the other cases reviewed to date by this Court," Leon wrote, the government’s supposed evidence against El-Gharani consisted "principally" of statements made by two other prisoners at Guantánamo. "Indeed," he added, these statements are either exclusively, or jointly, the only evidence offered by the Government to substantiate the majority of their allegations," and, in addition, "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."
Dismissing the allegations, one by one
Dismissing the allegation that El-Gharani stayed at an al-Qaeda-affiliated guesthouse, Leon explained that the government "relies "exclusively on the statements of a particular Guantánamo detainee whose reliability had been characterized by the Government’s own interrogators as undermined," and added that the account was "plagued with internal inconsistencies."
Dismissing the allegation that El-Gharani took part in the battle of Tora Bora, Leon explained that the government "relies exclusively on a different detainee, to establish this fact," but that this prisoner’s credibility has also been "seriously called into question by Government personnel who have specifically cautioned against relying on his statements without independent corroboration." He added that the government "did not produce any such corroboration."
Dismissing the allegation that El-Gharani attended an al-Qaeda-affiliated training camp, Leon explained that the government "pointed to statements of both of the detainees described above." However, after noting that he suspected that the government believed that this constituted corroborating evidence, he dismissed both accounts, because, "when viewed together, [they] are not factually compatible, each placing the petitioner at the camp at different points in time, multiple months apart, during the year 2001."
Dismissing the allegation that El-Gharani was an al-Qaeda courier, Leon explained that, although this claim relied on classified evidence "which did not include statements of any other detainees" the information was "woefully deficient to establish this point by a preponderance of the evidence." He added, "besides having internal inconsistencies, the Government’s evidence raises serious questions about whether certain alleged al-Qaeda correspondence was even on the person of the petitioner as opposed to one of eight other individuals who were turned over to US authorities at Kandahar at the same time as petitioner."
And finally, dismissing the allegation that El-Gharani was a member of an al-Qaeda cell in London in 1998, Leon explained that the government was "relying exclusively on the statements of the detainee whose reliability is described above as being undermined." This was, indeed, the most extraordinary allegation, as El-Gharani was just 11 years old at the time, and, as his lawyer, Clive Stafford Smith, explained in his book, The Eight O’Clock Ferry to the Windward Side: Seeking Justice In Guantánamo Bay, "he must have been beamed over to the al-Qaeda meetings by the Starship Enterprise, since he never left Saudi Arabia by conventional means."
Leon’s verdict was marginally less colorful, but no less devastating. "Putting aside the obvious and unanswered questions as to how a Saudi minor from a very poor family could have even become a member of a London-based cell," he wrote, "the Government simply advances no corroborating evidence for these statements it believes to be reliable from a fellow detainee, the basis of whose knowledge is at best unknown."
A hopeful precedent
Judge Leon then granted El-Gharani’s habeas claim, with another statement that soundly trounced the government’s basis for holding him, and that ought to have struck fear into those parts of the Pentagon and the Justice Department that are responsible for presenting the government’s evidence in the Guantánamo habeas cases. "Simply stated," he wrote, "a mosaic of tiles bearing images this murky reveals nothing about the petitioner with sufficient clarity, either individually or collectively, that can be relied upon by this Court."
While El-Gharani’s imminent release demonstrates, however belatedly, that justice is possible for the prisoners at Guantánamo, the fundamental problem with the definition of an "enemy combatant" and its implications for those against whom the government manages to establish some sort of a case must not be brushed aside because of this latest victory.
However, there is reason to hope that the ruling in El-Gharani’s case will lead to the release of other men against whom the government’s only evidence of alleged wrongdoing are statements made by other prisoners whose reliability has been called into doubt by government officials. As was revealed in a declaration in November 2007 by Lt. Col. Stephen Abraham, a veteran of US intelligence who worked for the organization responsible for compiling the evidence against prisoners, "Most of the information collected consisted of information obtained during interrogations of other detainees," because the organization had little or no access to the intelligence agencies. This is worrying enough, as there is ample evidence that prisoners were tortured, coerced or bribed into producing false confessions, but what makes it even more disturbing is that lawyers for the prisoners and those who have studied the documentation closely, as I did for my book The Guantánamo Files are aware that statements made by a number of "unreliable" prisoners (including the two cited in El-Gharani’s case) are being used as evidence in many other cases.
As I have explained in a previous article (drawing on some exemplary research conducted by Corine Hegland for the National Journal), a military official discovered in 2004 that one of these prisoners, described as a notorious liar by the FBI, had made groundless allegations against 60 prisoners in total, which were, nonetheless, being used by the government as evidence, and this is just one example of an infection so widespread that it suggests that Judge Leon’s description of the evidence as a murky mosaic of tiles should be replaced by an even more skeptical conclusion: that it is, instead, the tip of a particularly murky iceberg.
As Clive Stafford Smith said to me today, "It is a sad day when patently false information produced by people who have been tortured to inform results in a child being imprisoned in Guantánamo Bay. Mohammed El-Gharani has spent a third of his young life in prison for the most unjustifiable of reasons, and it is my fervent hope, as the habeas cases proceed, that the revelation of other false confessions will be followed by rulings that are as just as the one delivered yesterday by Judge Leon."