As the Obama administration prepares to relaunch Dick Cheney and David Addington‘s reviled military commissions (with claims that they will be used for less than 20 of the 241 prisoners still held), senior officials have been largely silent about the eventual fate of the rest of the prisoners, with the exception of a few recent remarks indicating that they are also thinking of pressing for a form of "preventive detention" for 50 to 100 of the prisoners.
The irony – that all the prisoners have been enduring a form of "preventive detention" for over seven years – is apparently lost on the government, which has also maintained a resolute silence in response to a handful of habeas corpus cases (in which the prisoners are seeking to have their cases dismissed by the courts, as mandated by the Supreme Court last June) that have resulted in judges pouring scorn on the government’s supposed evidence.
In an article last week, "Judge Condemns ‘Mosaic’ of Gitmo Intel and Unreliable Witnesses," I analyzed a devastating ruling by District Court Judge Gladys Kessler in the habeas corpus hearing of Alla Ali Bin Ali Ahmed. A Yemeni, Ali Ahmed has always maintained that he was a student, staying in a guest house in Faisalabad, Pakistan, and that, when he was seized in a raid on the house, on March 28, 2002, he had no knowledge that the house was, apparently, tangentially connected to the alleged senior al-Qaeda operative Abu Zubaydah. Furthermore, in response to the government’s other allegations, he has also "denie[d] ever going to Afghanistan, training at an al-Qaeda camp, fighting against anyone, or being a member of a terrorist group."
Authorizing Ali Ahmed’s habeas claim, Judge Kessler demolished the government’s case against him, painting a disturbing picture of unreliable allegations made by other prisoners who were tortured, coerced, bribed, or suffering from mental health issues, and a "mosaic" of intelligence, purporting to rise to the level of evidence, which actually relied, to an intolerable degree, on second- or third-hand hearsay, guilt by association, and insupportable suppositions.
This follow-up article looks in depth at Ali Ahmed’s story, and those of the 15 men seized with him in the "Issa" guest house in Faisalabad, with the aim of encouraging the Justice Department to abandon its cases against these other men, either as part of its secretive executive review of the prisoners in Guantánamo (with its uncomfortable echoes of the Bush administration’s love of executive decisions made without consulting Congress or the judiciary) or by refusing to contest their habeas cases in the district courts.
I propose this course of action because the cases against these other men demonstrate a similar reliance on dubious allegations and a similar "mosaic" of inferences that will not stand up to outside scrutiny, as was noted by Judge Kessler in her ruling, when she wrote, "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."
Alla Ali Bin Ali Ahmed’s Testimony at Guantánamo
Ali Ahmed, who was just 17 years old at the time of his capture (although the Pentagon claims that he was 18), repeatedly explained at Guantánamo that he was seized and held by mistake. His statements were made in his combatant status review tribunal, convened to assess whether, on capture, he had been correctly designated as an "enemy combatant" who could be held without charge or trial, and in the subsequent annual administrative review boards, convened to assess whether he still posed a threat to the U.S. or its allies.
As I have explained at length in my book The Guantánamo Files and in numerous articles over the last two years, these hearings were monstrously unjust, as they relied on classified evidence that was not disclosed to the prisoners and also prevented them from having legal representation. In addition, as Lt. Col. Stephen Abraham, a veteran of U.S. intelligence, has explained, based on his involvement in the tribunals in 2004 and 2005, the body responsible for compiling the information to be used as evidence had little or no access to the databases of the relevant intelligence agencies, and, as a result, relied largely on "generic" information that did not specifically relate to the prisoners, and, in most cases, on "information obtained during interrogations of other detainees," which, as Judge Kessler’s recent ruling confirms, were often made by prisoners who were tortured, coerced, bribed, or suffering from mental health issues.
Nevertheless, the transcripts of these hearings are often the only means by which we know anything about the prisoners at Guantánamo, and in his most recent publicly available review (made available by the Pentagon four months ago, and dating from 2007), Ali Ahmed made it clear that, after five years in Guantánamo, he was still struggling to understand why he was being held, as the following exchange makes clear:
Presiding officer: "Can you tell us why you were arrested?"
Detainee: "I learned about why after I was arrested. They told me that this house is for the al-Qaeda and the Taliban. … They told us after we were arrested in the house and in the interrogations."
Presiding officer: "Do you have any idea why they would think that?"
Detainee: "I do not know."
After refuting the allegations against him, it was unsurprising that, when Ali Ahmed was given the opportunity to make a statement, he delivered the following plea:
Detainee: "What is the main accusation against me that kept me here for five years? What is the main accusation? Is it my travel to Pakistan? Is that an accusation? True, I went during a very difficult situation, but is that an accusation that would keep me here for five years?"
The following exchange then took place:
Presiding officer: "The purpose of this board is for an administrative review. To determine whether you should be released, transferred, or continue to be detained. Your status as an enemy combatant has already been determined."
Detainee: "I don’t even know why they made that decision when I don’t have a problem with Americans. I’ve never fought Americans, I’ve never fought anybody. I’ve never ever participated in any wars, any, anything else. Why would I be an enemy combatant?"
Presiding officer: "We understand and take your statements on board and will consider those in our decision."
Detainee: "I know an enemy combatant is someone who participates in the war and helps the war, or someone who is a threat and dangerous to the United States, but I was 17 years old, I’ve never done anything. What makes me dangerous to the United States at that time?"
Although the review board had no response to Ahmed’s questions, the officers involved refused to approve his release from Guantánamo, and it has taken another two years, and the Supreme Court ruling granting habeas corpus rights to the prisoners last June, for him to be able to test the government’s allegations against him in a court of law and to secure the resounding legal victory that was delivered by Judge Kessler last week.
Even so, it should be noted that judges do not actually have the power to order the government to release prisoners, even if, as in Ali Ahmed’s case, they have established, "by a preponderance of the evidence," that he should never have been detained in the first place, because of a truly disturbing appeals court ruling in the case of 17 Uighurs at Guantánamo (Muslims from China’s Xinjiang province), which took place in February, after the government dropped its claims that they were "enemy combatants," and a district court judge ordered their release into the United States. As lawyer Jana Ramsay explained, two judges – although ostensibly dealing with the right of the Uighurs to be admitted into the U.S. – stated that "the due process clause does not apply to detainees at Guantánamo," because it is "not sovereign territory of the United States," and that "the right to be released" was not "a necessary corollary to unlawful detention or compensation for such detention."
The Stories of the Other Prisoners Seized With Alla Ali Bin Ali Ahmed
Moving beyond Ali Ahmed’s story, an analysis of the stories of the 15 other men seized in the raid on the "Issa" guest house – mostly Yemenis, and mostly aged between 18 and 24 – reveals that the majority of them have also maintained, throughout their long imprisonment, that they never set foot in Afghanistan, never trained or fought with al-Qaeda or the Taliban, and had no connection whatsoever with terrorism. This analysis also reveals that the government’s allegations against them rely, for the most part, on similar witnesses and a similar "mosaic" of intelligence as those dismissed so comprehensively by Judge Kessler in Ali Ahmed’s case.
Although one of the 15, Ali Abdullah Ahmed al-Salami, was one of three prisoners who died in Guantánamo in June 2006, apparently by committing suicide, nine of the surviving 14 prisoners have maintained that they were students at Salafia University, run by the vast missionary organization Jamaat-al-Tablighi, two have stated that they traveled to receive medical treatment, and another, Fahmi Ahmed, said that he went to Pakistan to buy fabrics, taking money that he had borrowed from his mother, but explained that he actually spent most of his time "like a wild man," drinking and smoking hashish. Another young man, Mohammed Hassen, was not even living at the house. He was caught up in the raid after visiting for dinner and staying the night, and two others – a Russian and a Yemeni – arrived at the house just two weeks before the raid.
In hearings at Guantánamo, several of the men have pointed out that they were told shortly after their capture that they had been seized by mistake. Mohammed Tahir, one of the Yemeni students, explained,
"The army translator and the interrogator from the Pakistani intelligence said, ‘yes, all of what this man said … about his story in Pakistan is correct, and therefore that is why we are going to give him back his passport that we took.’ … I was really surprised that the American intelligence refused all of these proofs and they said no. ‘We still need him,’ they said, and then they took me."
Another Yemeni student, Emad Hassan, who stated that he was near the end of a seven-month trip to the university to study the Koran when he was seized, said that, while in Pakistani custody, "the person who was in charge came and told us we didn’t have anything to worry about," and that "our sheet was clean."
Fayad Ahmed, also a Yemeni student, told his tribunal four years ago that he had recently been told in Guantánamo that he would be released. "The interrogator and the investigator about a month ago that met with me told [me] that there was nothing against me and that I am an innocent man and should [be] released," he said.
Of the two prisoners who said that they had traveled to Pakistan to receive medical treatment, Abdul Aziz al-Noofayee, a Saudi, said that he went to receive treatment for a back problem, and Mohammed Salam, a Yemeni, said that he went for treatment on his nose. After explaining that a "generous person" paid for his trip, the following exchange took place, which demonstrated a cultural gap between the U.S. military and Muslims from the Gulf:
Tribunal member: "I don’t know your culture very well, but … in our culture people just don’t step up and say, ‘I’ll pay for the trip for you.’"
Detainee: "In our culture, in Islam, there is such a thing. … Indeed, it is an obligation for any Muslim who is rich to pay for someone who is poor."
Despite the protestations of these prisoners, the authorities at Guantánamo have persistently claimed that Jamaat-al-Tablighi was "used to mask travel and activities of terrorists" – even though this allegation has never been regarded as legitimate outside Guantánamo. But what should be troubling the Justice Department right now, after Judge Kessler’s ruling, is the extent to which the cases against these other 15 men rely, as with Ali Ahmed, not on confessions made by the prisoners themselves, but on statements made by other prisoners that appear to be just as dubious as those derided by Judge Kessler.
The Weakness of the Supposed Evidence
To give just a few examples, the transcripts of the most recently publicly available ARBs (from 2007) include the sweeping statement that "Students at Salafia University are encouraged to fight in the jihad against the West," and, to cite just one case, Emad Hassan, who denied ever being in Afghanistan or attending a training camp, "was identified as an al-Qaeda recruiter and travel facilitator who help ‘fund other individuals’ travel’ to Afghanistan," as "a member of al-Qaeda who swore bayat [an oath of loyalty] to Osama bin Laden," and as "one of 50 men" at the al-Farouq training camp in Afghanistan, who were identified as bin Laden’s bodyguards.
In the case of Mohammed Hassen, who was only visiting the house when he was seized (and who is one of only two of the "Issa" guest house prisoners to be cleared for release after a military review), the allegations in the previous round of ARBs consisted of precisely three allegations: that "An individual who was in Afghanistan identified [him] as a fighter who traveled between Kandahar and Khost, Afghanistan," that "A student who trained at al-Farouq identified [him] as a Yemeni who trained at al-Farouq," and that "A senior al-Qaeda operative noted that a photo of the detainee may be a Yemeni and that he may have seen him at one point ‘inside,’ meaning Afghanistan."
In the case of Abdul Aziz al-Noofayee (also cleared for release after an ARB, but, like Hassen, still held), the only allegations were that "A senior al-Qaeda operative stated that [he] attended the Khaldan camp in approximately 1997," and that he "was captured with a Casio F-91W watch," allegedly "used in bombings that have been linked to al-Qaeda and radical Islamic groups with improvised explosive devices" (and this, believe it or not, is an allegation that has been leveled at dozens of prisoners over the years).
In some of the other cases, no allegations whatsoever have been made publicly available beyond the "guilt by association" of staying in the guest house, and although in a handful of cases the government claims to have secured confessions that the men "admitted to fighting with enemy forces," doubts about the circumstances in which these confessions were produced indicate that, under scrutiny in a court, even these allegations may be less clear-cut than they appear. As a result, I hope to have demonstrated, as I stated at the start of this article, that the Justice Department would be well advised to abandon its cases against these other men before it suffers similar defeats in future habeas hearings.
The Bigger Picture Regarding False Allegations
Moreover, the Justice Department also needs to take a long, hard look at the information it is relying on as evidence in numerous other cases. With one exception, the identities of the four unreliable witnesses in Ali Ahmed’s case were redacted by the government, but enough evidence is publicly available, from the statements of released prisoners, to demonstrate that the coercive techniques that were widely used at Guantánamo between 2002 and 2004 (and derived from the U.S. military’s SERE program) caused numerous prisoners to make false confessions in order to bring an end to their suffering.
In addition, further publicly available information also demonstrates that certain witnesses at Guantánamo – whether through torture-induced fear, in one case, or bribery, in others – made false allegations against dozens of their fellow prisoners, which, crucially, are still used by the government as part of its supposed evidence.
The first example to surface in public – who appears to be one of the men whose testimony was dismissed by Judge Kessler, and by another judge in the case of another prisoner, Mohammed el-Gharani – was described by Corine Hegland in February 2006, in an article for the National Journal. Hegland described how, in the tribunal of a Yemeni prisoner, Farouq Ali Ahmed, his personal representative (an officer assigned in place of a lawyer) had discovered, by investigating his case files, that a key allegation against him had been made by a prisoner described in an FBI memo as a notorious liar. In another case, of a Syrian prisoner, Mohammed al-Tumani, the personal representative discovered that this same prisoner had made false allegations against 60 of his fellow inmates, placing each of them in Afghanistan before they even arrived in the country.
The prisoner who made all these false allegations is Yasim Basardah, who was cleared for release after a habeas review six weeks ago. Profiled in the Washington Post in February, a disturbing picture emerged of a man who, "with other informers," lives in a group of cells away from the other prisoners. As the Post described it, "he has received a CD player, chewing tobacco, coffee, library books, and other perks, according to court documents," including a video game console, even though the man described by some officials at Guantánamo as their "star witness" has, in the opinion of other officials, been the subject of " reservations about [his] credibility" since 2004.
As the Post‘s article made clear, Basardah is not the only liar whose false confessions have infected the government’s "evidence." An Iraqi, repatriated in January, was also well-known in Guantánamo, as is Abdul Rahim al-Ginco, a Syrian "rescued" by U.S. forces from a Taliban jail. Tortured by al-Qaeda operatives, because they thought he was a spy, al-Ginco suffers from severe mental health problems (and may also be one of the witnesses dismissed by Judge Kessler), but although he has renounced some of his false confessions, others remain, locked forever in the case files of the prisoners, with no way of challenging them except in a court.
Most importantly, however, false allegations are not the exclusive preserve of a handful of industrious informants. As I mentioned above, almost any prisoner could be persuaded to make up false stories when they could no longer bear the grueling interrogations, or the use of "enhanced interrogation techniques" to wear them down, and, as the few examples of the Faisalabad guest house prisoners cited above also indicate, the case files are also littered with allegations made by "senior al-Qaeda operatives" – individuals like Abu Zubaydah, Khalid Sheikh Mohammed and the other "high-value detainees" who were held (and tortured) for years in secret CIA prisons before their transfer to Guantánamo in September 2006, and others, like Ibn al-Shaykh al-Libi, who died in a Libyan prison last week, who were held in a network of secret prisons and proxy prisons around the world.
In all these prisons – and in Guantánamo, and in the prisons in Afghanistan – prisoners were shown what Chris Mackey, the pseudonym of a senior interrogator in Afghanistan, referred to in his book The Interrogators as the "family album," which featured photos of other prisoners. And from all these places, therefore, it is difficult to see how much of the "evidence" against the prisoners can be anything other than a tissue of lies, extracted using the same techniques of torture, coercion, bribery, and the exploitation of mental illness that Judge Kessler identified in the case of Alla Ali Bin Ali Ahmed.
