At the end of a hectic week at Guantánamo, which saw the Obama administration overcome its previous inability to release prisoners (just two were released from January to May), it was announced that, following the release of four Uighurs to Bermuda, the return of Guantánamo’s youngest prisoner, Mohammed El-Gharani, to Chad, and the repatriation of the last Iraqi in Guantánamo, three Saudi prisoners had also been repatriated, leaving 230 men at the prison.
As I explained in March, the release of the Saudis was long overdue, because military review boards, convened on an annual basis under the Bush administration, had approved their release from Guantánamo, having concluded that they were no longer a threat to the U.S. (although it is also worth noting that they did not necessarily pose a threat in the first place). As a result, there appeared to be no excuse for the men not to be returned to the custody of the Saudi government, which has been running a well-respected rehabilitation program for former prisoners for several years.
In the case of one of these men, Kahlid Saad Mohammed (who was 28 years old when seized), the decision to approve his transfer from Guantánamo had taken place in 2006, but no explanation was provided as to why he was not released when 63 other Saudis were repatriated in 2007, especially as he had so clearly been seized by mistake.
In the publicly available documents from Guantánamo, he explained that he had traveled to Pakistan to provide humanitarian aid to Afghan refugees fleeing the chaos of Afghanistan, following the U.S.-led invasion and the fall of the Taliban, and was injured while buying food and supplies for the refugees in a market at Spin Boldak, on the Pakistani border, when U.S. forces began bombing the area.
He was then seized from a hospital in Quetta, Pakistan, by Pakistani forces, and sold, with a number of other wounded men, to the U.S. military, but the authorities in Guantánamo had never managed to build up anything resembling a credible case against him, resorting instead to claims that he "was identified" by another, unnamed prisoner as having stayed at a guest house in Afghanistan, and that an unidentified "senior al-Qaeda member" had identified him as "possibly having clerical status amongst Saudi fighters."
The first allegation is worrying, because, as recent court cases dealing with the prisoners’ habeas corpus petitions have demonstrated (see the stories of the Uighurs, the Bosnian Algerians, Mohammed El-Gharani, and the recent case of a Yemeni, Alla Ali Bin Ali Ahmed, discussed below), the authorities have frequently resorted to relying on claims made by other prisoners whose reliability has been called into question by military personnel and agents from the intelligence services.
The second allegation is just as troubling, because the unidentified "senior al-Qaeda member" could have been one of the supposed "high-value detainees" – including Abu Zubaydah and Khalid Sheikh Mohammed – who were held for many years in secret CIA prisons, where they were subjected to torture, and who, as documents released to the ACLU have just demonstrated, both stated in Guantánamo that they made false confessions as a result.
The second prisoner released is Abdul Aziz al-Noofayee, whose case I wrote about just a month ago, in an article entitled, "Guantánamo: A Prison Built On Lies." He was one of 17 men seized in a guest house in Faisalabad, Pakistan, on March 28, 2002, ostensibly because the house had some tangential connection to Abu Zubaydah, although, as I discussed in my book The Guantánamo Files, there appeared to be little or no evidence connecting the men seized in the house – mostly Yemenis, and mostly aged between 18 and 24 – to Zubaydah or to any kind of terrorist activity.
Most of the men stated that they were students, and that the house functioned as a university dorm for the nearby Salafia University. Al-Noofayee, who was 25 years old at the time of his capture, had a slightly different story, as he explained in Guantánamo, but this too had no connection whatsoever with terrorism or militancy. Like another house guest (Mohammed Salam, a Yemeni), he said that he had traveled to Pakistan to receive medical treatment – specifically, for a back problem – and had never set foot in Afghanistan.
As with most of the prisoners seized in the guest house, the U.S. authorities had struggled, in the years following his capture, to come up with anything resembling evidence to justify his detention, and, in fact, had managed to produce only two pieces of information, neither of which appeared to be remotely reliable. The first was that an unidentified "senior al-Qaeda operative" – under the same unknown circumstances as Kahlid Saad Mohammed’s accuser – had stated that al-Noofayee had attended the Khaldan training camp in Afghanistan "in approximately 1997," and the second was 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," a ludicrous allegation, which, nevertheless, has been leveled at dozens of prisoners over the years.
As with the majority of the Guantánamo cases, it was, until last year, impossible for al-Noofayee’s lawyers to challenge the basis of his detention, but last June, after the Supreme Court ruled in a historic case, Boumediene v. Bush, that the prisoners had habeas corpus rights (in other words, the right to ask a judge why they were being held), his case – like those of the majority of the Guantánamo prisoners (except a handful who, either by accident or design, had not secured a habeas lawyer) – was assigned to a district court judge, whose intention, under the directions provided by the Supreme Court, was to ensure that, after six and a half years of detention without adequate review, "The costs of delay are no longer borne by those who are held in custody."
It was a worthy aim, but on the first anniversary of Boumediene (last Friday), only 29 cases had been decided. In 25 of these, judges had ruled that the government had failed to establish a case against the prisoners concerned. This is an 86 percent success rate, which is a vindication for those, like myself, who have maintained for years that the cases against the majority of the prisoners would not stand up to any kind of independent scrutiny, but it is disappointing that so few cases have been heard, and more disappointing still to realize that the main reason for the delay is obstruction by the Justice Department.
When a schedule for hearing the cases was first established last July, the Justice Department resorted to delaying tactics almost immediately, first by complaining that it was understaffed to deal with the task, and that it needed more time to compile allegations against the prisoners (despite having already had six and a half years to do so). The DOJ followed up with what appears to be a systemic failure to provide the prisoners’ defense attorneys with exculpatory material – in other words, material that tended to disprove the government’s claims – or, in fact, any of the material they required to mount a successful defense. More disturbing still is the realization that this policy of obstruction did not change at all when Barack Obama and Eric Holder took over from George W. Bush and Michael Mukasey.
Abdul Aziz al-Noofayee, like Kahlid Saad Mohammed, left Guantánamo a year after Boumediene without having had the opportunity to have his case heard in a U.S. court, but he at least had the opportunity to hear about the success in court of one of the other men seized with him, Alla Ali Bin Ali Ahmed, a Yemeni student whose habeas case was heard last month by Judge Gladys Kessler. I described this ruling in an article at the time, "Judge Condemns ‘Mosaic’ of Guantánamo Intelligence, and Unreliable Witnesses," and summarized it as follows in "Guantánamo: A Prison Built On Lies":
"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 unsupportable suppositions."
Moreover, although Judge Kessler was ruling only on Ali Ahmed’s habeas case, she made it clear that, in her review of the government’s supposed evidence, she had also concluded that identical problems plagued the cases of the majority of the other men seized in the guest house. "It is likely, based on evidence in the record," she wrote, "that at least a majority of the [redacted] guests were indeed students, living at a guest house that was located close to a university."
For Abdul Aziz al-Noofayee, Judge Kessler’s conclusion no longer addresses the question of whether he will ever be released, but it’s noticeable, as the Obama administration finally begins to free prisoners from Guantánamo, that the rest of the men seized in the Faisalabad guest house, who are still held, have not yet received any confirmation that senior officials have taken Judge Kessler’s criticisms on board.
There is, moreover, no word from the administration about its plans for three other Saudi prisoners who were also cleared for release after military review boards at Guantánamo, but in the end what is revealed most of all through the story of Kahlid Saad Mohammed, Abdul Aziz al-Noofayee, and the third released prisoner, Ahmed Zuhair (who will be discussed in an article to follow) is that the Obama administration not only dawdled on taking office when it should have acted swiftly to release prisoners whose repatriation posed no difficulties, but also that these delays prevented President Obama from seizing a priceless opportunity to refute the damaging propaganda of former vice president Dick Cheney and the many politicians who have jumped on his fearmongering bandwagon, and who, as a result, have not only derailed the president’s plan to raise funds to close Guantánamo, but have also succeeded in putting their distortions back in the headlines, where they most emphatically do not belong.
The irony is that, while Obama did little to counter this unprincipled attack on his promise to close Guantánamo, he could have fought back by simply stating that he did not have time to address Cheney’s lies and distortions about the "hardcore terrorists" still in Guantánamo, because he was too busy ensuring that prisoners who did not pose a threat to the United States, and never had, were being released after their long, cruel, and pointless ordeal at the hands of his predecessors.
Obama’s failure to do so has made his mission far more complicated than was necessary, and he is still playing from a defensive position, by refusing to state categorically why nine prisoners were released in the last week (because the courts found that the Bush administration had failed to provide evidence to justify the men’s detention, or because his own inter-departmental review reached the same conclusion), but at least while prisoners are being released the public has some opportunity to understand the lies peddled by Dick Cheney, nearly eight years after he embarked on his aberrant assault on America’s core values.