A month ago, rulings made by District Court judges in the habeas corpus appeals of prisoners held at Guantánamo seemed, for the most part, to confirm that the courts were uniquely placed to deliver justice to the prisoners after their long years of imprisonment, largely without charge or trial. Even more crucially, the judges’ rulings were allowing justice to be seen to be done, unlike the secretive interagency Task Force established by Barack Obama on his second day in office, whose deliberations are, sadly, as inscrutable as those of Obama’s predecessor, even though the Task Force has at least taken the time to consult with lawyers and other experts.
As I recently reported in a series of three articles (here, here and here), despite persistent obstruction from the Justice Department, where Bush-era officials have been behaving as though Dick Cheney is still breathing down their necks, judges had, by the end of July, reviewed 33 cases, and in 28 of those had ruled that the government had failed to establish, "by a preponderance of the evidence," that it was justified in holding the men. The judges concluded that, amongst other failings, the government was relying on information provided by dubious informers, on multiple levels of hearsay that failed to stand up to outside scrutiny, and on a supposed "mosaic" of evidence from various sources that was also unconvincing.
Nevertheless, although these rulings confirmed what those, like myself, who have been studying Guantánamo in depth for many years, have always maintained — that the majority of the prisoners are either innocent men seized for bounty payments (or through the incompetence of US forces and other government agencies) or low-level Taliban foot soldiers recruited to help the Taliban defeat Afghanistan’s Northern Alliance in an inter-Muslim civil war that had nothing to do with al-Qaeda or the 9/11 attacks — the courts still face a number of peculiar problems.
These problems have arisen not only because almost all of the government’s supposed evidence consists of the inherently dubious statements of informers, of multiple levels of hearsay and of feeble "mosaics" of intelligence (as mentioned above), but also because when the Supreme Court granted the prisoners constitutionally guaranteed habeas corpus rights in June 2008, the justices failed to provide a clear definition of the extent to which prisoners were required to be involved in al-Qaeda and/or the Taliban to have their habeas appeals refused.
The "gossamer thin" case against Adham Mohammed Ali Awad
The resultant confusion was on full display in August, when three rulings were made. In the first, on August 12 (PDF), Judge James Robertson denied the habeas appeal of Adham Mohammed Ali Awad, a Yemeni prisoner, even though he conceded that "The case against Awad is gossamer thin," and added, "The evidence is of a kind fit only for these unique proceedings and has very little weight."
This was Robertson’s first habeas ruling, and in the hands of another judge, the ruling may well have tipped the other way. Certainly, the case was as "gossamer thin" as Robertson declared. Awad, who was just 19 years old at the time, was seized in Mirwais Hospital in Kandahar, Afghanistan in late 2001. According to his own account, he had "traveled to Afghanistan in mid-September 2001 in order to visit another Muslim country for a few months," but in early November 2001 "was injured and knocked unconscious during an air raid while walking through a market in Kandahar." When he woke up in the hospital, he said, he discovered that he had lost his right foot, "that he was heavily medicated, floated in an out of consciousness, slept constantly, and could barely sit up." He added that he "remained in this condition until his capture."
Over the long years of his detention, as I explained in a profile of Awad last year, the US authorities have claimed that he "stated he went to Afghanistan to become a fighter," have suggested that he received injuries "in a two-car collision, involving ten individuals, while trying to avoid coalition air strikes," and have also claimed that he, "along with seven other Arabs suspected of being al-Qaeda, were reportedly armed with weapons and used a hospital as a safe haven to elude coalition forces." These allegations, which surfaced in the Unclassified Summary of Evidence during Awad’s Combatant Status Review Tribunal at Guantánamo in 2004, formed the basis of the government’s case in court, even though, by 2006, in a review board at Guantánamo, the authorities had dropped all mention of the car crash, Awad’s supposed al-Qaeda associates, and his involvement in the siege, and, instead, suggested only that he was "captured on 2 November 2001 when he was injured near the airport in Kandahar."
Judge Robertson perceived that Awad’s case "relie[d] mostly on weaknesses and holes in the government’s evidence," which, as noted above, he was swift to condemn for its "gossamer thin" nature, but although he noted that the government "relie[d] mostly on newspaper articles" for background information about the hospital siege, which took place from early December to late January and ended with the deaths of the seven al-Qaeda fighters, and although he gave "no weight" to the "only first hand evidence offered by the government" — an interview with a man (whose name was redacted), who "claimed that he led the group that had taken Awad into custody", whose report he dismissed as "internally inconsistent" and "completely unreliable" — he nevertheless concluded that "it appears more likely than not that Awad was, for some period of time, ‘part of’ al-Qaeda."
To reach this conclusion, Judge Robertson was required to accept the government’s supposed evidence that Awad had attended Osama bin Laden’s Tarnak Farms training camp, an allegation that was based on a variation of his name, "Waqas" (he was sometimes listed by the Pentagon as Waqas Mohammed Ali Awad), being found on a list associated with the camp. Although Judge Robertson refused to accept the government’s claim that Awad trained at the camp, finding it to be "unsupported," noting, "we do not know the purpose of the list or when it was written," and adding that the translator "claimed only that it was ‘possibly’ a list of trainees," he returned to the allegations of Awad’s presence at Tarnak Farms to substantiate his conclusion that "it appears more likely than not that Awad was, for some period of time, ‘part of’ al-Qaeda." He noted that the names of the other men killed in the siege and Awad’s purported alias, "Waqas," were closely grouped together on the list, and inferred from statements provided by another man who was present in the hospital and was also taken to Guantánamo (a Saudi released in 2007) that Awad and "Waqas" were one and the same.
Missing throughout all this analysis was any reflection on whether it was true that Awad only arrived in Afghanistan in mid-September 2001, and if, therefore, it was likely that he would have been immediately recruited for training at an advanced facility in the few weeks before the US-led invasion began, which strikes me as close to impossible. Also missing was any recognition that, as the government claimed in 2006, Awad was seized before the siege began, or, if that was a typographical error (as was indicated in court), that he was injured on December 2, when the siege began, and that he was booted out of the hospital by the al-Qaeda fighters inside (or, as the government put it, "Awad’s comrades gave him up because they could not care for his severely injured [redacted]").
Even with the government’s spin, there is something suspicious about would-be al-Qaeda martyrs sending one of their own to be captured, rather than staying and being martyred instead, but rather than examining these questions, Judge Robertson ruled that "At the very least Awad’s confessed reasons for traveling to Afghanistan and the correlation of names on the list [redacted] clearly tied to al-Qaeda make it more likely than not that he knew the al-Qaeda fighters at the hospital and joined them in the barricade."
Quite where this leaves Awad is unknown, as the government does not seem to have enough evidence for a trial, and may, therefore, consider him a suitable candidate for its proposal to legislate for new powers of "indefinite detention," to be reviewed by Congress and judges, which are supposed to provide an acceptable veneer to what is nothing more than a continuation of the Bush administration’s despised policies. To this end, what may disappoint Awad the most is that, although Judge Robertson described him as a "marginally literate" young man, who "has spent more than seven of his twenty-six years — since he was a teenager — in American custody," and, moreover, stated, "It seems ludicrous to believe that he poses a security threat now," he added, limply, "but that is not for me to decide."
In doing so, he ignored an earlier ruling (PDF), in which Judge Ellen Segan Huvelle noted that the Authorization for Use of Military Force (the legislation passed in the week after 9/11 which authorized the President "to use all necessary and appropriate force" against those "he determines" to have been involved in any way in the 9/11 attacks) "does not authorize the detention of individuals beyond that which is necessary to prevent those individuals from rejoining battle," and ignored another ruling, in the case of a Syrian prisoner, Abdul Rahim al-Ginco, in which Judge Richard Leon ruled that whatever relationship al-Ginco may have had with al-Qaeda was "utterly destroyed." In al-Ginco’s case, this was because he had been tortured by al-Qaeda as a spy, but it was also noteworthy that Judge Leon stated that al-Ginco’s prior experience of al-Qaeda — "five days at a guest house in Kabul combined with eighteen days at a training camp — does not add up to a longstanding bond of brotherhood."
Instead, however, Judge Robertson raised and dismissed a little-voiced question — whether it is appropriate to continue holding men who were seized in connection with a specific conflict (the overthrow of the Taliban and the installation of a new government, which came to an end years ago) — by stating, "Combat operations in Afghanistan continue to this day and — in my view — the President’s ‘authority to detain for the duration of the relevant conflict’ which is ‘based on long-standing law-of-war principles’ has yet to ‘unravel.’"
Mohammed al-Adahi and the al-Qaeda mirage
One judge who may have dealt more robustly with the "gossamer thin" evidence in the case of Adham Mohammed Ali Aawad is Judge Gladys Kessler, who, on August 21, granted the habeas appeal of Mohammed al-Adahi, a Yemeni who was 39 years old when he was seized on a bus in Pakistan (PDF). I described the broad outline of al-Adahi’s story in my book The Guantánamo Files as follows:
Married with two children, al-Adahi had never left the Yemen until August 2001, when he took a vacation from the oil company where he had worked for 21 years to accompany his sister to meet her husband … As he told his tribunal, "In Muslim society, a woman does not travel by herself." After flying to Karachi, they traveled to Kandahar, where his brother-in-law was living. Al-Adahi stayed in Afghanistan for a month, "to ease his sister’s transition to life in Afghanistan," and then made his way back to Pakistan, where he was arrested by soldiers while traveling on a bus. "They were capturing everybody with Arabic features," he said. "I gave them my passport and that shows that I’m an Arab. They said, ‘why don’t you follow us, we need you at the Center.’ From that point on they brought us over here."
However, while this was a fair précis, the government believed that it could establish a case that al-Adahi was actually a member of al-Qaeda, for a number of reasons that appeared, on the surface at least, to be plausible. As Judge Kessler explained, "There is no question that the record fully supports the Government’s allegation that Petitioner had close familial ties to prominent members of the jihad community in Afghanistan." The brother-in-law, it appears, was "a prominent man in Kandahar," who had fought the Russians in Afghanistan, and Judge Kessler also noted that it was "undisputed" that Osama bin Laden "hosted and attended [the] wedding reception in Kandahar," that al-Adahi "was briefly introduced to bin Laden," and that "A few days later, al-Adahi met bin Laden again and the two chatted briefly about religious matters in Yemen."
However, Judge Kessler refused to accept the government’s contention that these familial ties and the two brief meetings with bin Laden proved that al-Adahi "was part of the inner circle of the enemy organization al-Qaeda," and accepted instead that there was no reason to doubt that al-Adahi’s visit was, as he stated, to accompany his sister to her wedding (and also to receive medical treatment for a back problem). She noted also that he had not tried to hide the fact that he had met bin Laden, and that he had, in addition, stated that it was "common for visitors to Kandahar" to do so.
As in May, when she granted the habeas appeal of another Yemeni, Alla Ali Bin Ali Ahmed, Judge Kessler had serious doubts about the manner in which the government established its case, which focused primarily on its claim that its various allegations should be considered as part of a "mosaic" of intelligence, to be viewed as a whole, rather than being examined in isolation. Dismissing this approach, she stated that, although she understood that "use of this 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 which satisfy appropriate and relevant legal standards as to whether the Government has proven by a preponderance of the evidence that the Petitioner is justifiably detained."
She proceeded to stress that "the mosaic theory is only as persuasive as the tiles which compose it and the glue which binds it together," and that, "if the individual pieces of a mosaic are inherently flawed or do not fit together, then the mosaic will split apart." Having dealt with the government’s first "tile," she methodically dismantled the others, refuting a claim that al-Adahi had "stayed at al-Qaeda and/or Taliban guesthouses during his stay in Afghanistan," and demolishing the government’s "central accusation": that al-Adahi’s brief attendance at al-Farouq (the main training camp for Arabs, associated with Osama bin Laden in the years before 9/11) helped to confirm that he occupied "some sort of ‘structured’ role in the ‘hierarchy’ of the enemy force."
Noting his claim that he "pursued training at al-Farouq to satisfy ‘curiosity’ about jihad, and because he found himself in Afghanistan with idle time," she took particular exception to the government’s claim because, "After seven to ten days at al-Farouq, the camp leaders expelled al-Adahi for failing to comply with the rules." Referring, incredibly, to the case of Abdul Rahim al-Ginco, the Syrian who was tortured by al-Qaeda (and whose case the Justice Department had pursued in the habeas courts until it was thoroughly humiliated by Judge Richard Leon in June), the government’s lawyers attempted to claim that, because al-Adahi was not imprisoned and tortured as a spy after he was expelled (like al-Ginco), this proved that he was being given preferential treatment because of his ties to al-Qaeda. However, Judge Kessler concluded instead that it was more likely that he "was being protected by a concerned family member" with considerable influence, and that "it most certainly is not affirmative evidence that al-Adahi embraced al-Qaeda, accepted its philosophy, and endorsed its terrorist activities."
She was also dismissive of an allied claim — that al-Adahi was an instructor at al-Farouq in February 2000 — noting that the only source for this allegation was another prisoner at Guantánamo, for whom "the record contains evidence that [he] suffered from ‘serious psychological issues,’" and dismissed another claim — that al-Adahi was a bodyguard for bin Laden — by pointing out that this claim had been made by another prisoner who "suffers from serious credibility problems that undermine the reliability of his statements." It seems probable, from references to a "report of torture by the Taliban" in the case of this witness, that he was Abdul Rahim al-Ginco, who, as Judge Kessler noted, admitted in August 2005 that he had "lied in the past." She also noted that "interrogators had expressed concern that he was being manipulated by another detainee," and quoted from a report stating that "before being placed next to that detainee [he] had never made any of the claims that he made to interrogators, including the accusation against al-Adahi."
With the bulk of the government’s claims dismissed, it remained only for Judge Kessler to destroy the rest of the "mosaic" by noting that, with reference to the rest of al-Adahi’s time in Afghanistan after being expelled from al-Farouq, it was "only speculation" on the part of the government that injuries he received to his arm and leg in Kandahar were the result of combat, and not, as he stated, because of a motorcycle accident. She also pointed out that, although the government attempted to pin "associational evidence" of militancy on a claim that al-Adahi "was captured while traveling in the company of Taliban fighters" on a bus in Pakistan, the only source for this was something al-Adahi himself had been told after his capture, when he "heard that there were members of the Taliban on the bus." Noting, in addition, that he was "unarmed" at the time of his capture, she concluded that "He appeared to be attempting to escape the chaos of that time by any means he could," and granted his habeas appeal (although, as with all the cases of prisoners whose habeas appeals have been granted, the ruling provides no guarantee that he will actually be released).
Fawzi al-Odah: the Kuwaiti who trained for one day
On August 24, the government secured another shallow victory when Judge Colleen Kollar-Kotelly denied the habeas petition of Fawzi al-Odah, a Kuwaiti prisoner, agreeing with the government that it was "more likely than not" that he "became part of Taliban and al-Qaeda forces in Afghanistan" (PDF). Judge Kollar-Kotelly’s ruling was based on a dubious assemblage of information that relied more on inconsistencies in al-Odah’s account of his activities than it did on anything resembling concrete evidence, as she herself admitted, when she wrote that there were "significant reasons why the Government’s proffered evidence may not be accurate or authentic." She explained that some of it was produced "in circumstances that have not allowed the Government to ascertain its chain of custody, nor in many instances even to produce information about the origins of the evidence," that other evidence was "based on so-called ‘unfinished intelligence," information that has not been subject to each of the five steps in the intelligence cycle (planning, collection, processing, analysis and production, and dissemination)," and that other evidence was "based on multiple layers of hearsay (which inherently raised questions about reliability), or is based on reports of interrogations (often conducted through a translator) where translation or transcription mistakes may occur."
The basic facts of the case, as I explained in an article for the BBC’s website in December 2007, are as follows. Al-Odah, a 24-year old primary school teacher, whose father, a retired air force pilot, fought with US forces during the Gulf War in 1991,
took a short holiday from work and traveled to Afghanistan in August 2001 to teach the Koran and provide humanitarian aid. This was something he had done before, in other countries, and his family had had a history of providing humanitarian aid, establishing libraries and wells in various countries in Africa.
After establishing contact with the Taliban, which he said "was necessary because that was the government in Afghanistan at that time," Mr. Odah said he had been "touring the schools and visiting families," teaching the Koran and handing out money, until his activities had been curtailed following 9/11.
He said that in Kandahar the Taliban representative "told me that was a dangerous place because it was the capital for the Taliban," and had advised him to go to Logar, in the east of the country, where he had stayed with a family for a month, and left his passport and belongings for safekeeping. "If the Afghans saw I had a passport indicating I was an Arab, and they saw the money and the camera I had, I would have been killed," he added.
He had then moved to Jalalabad, where he had stayed with another family, who had given him an AK-47 assault rifle to protect himself, Mr. Odah said. He had then joined other people crossing the mountains to Pakistan, where he had handed himself in to the border guards, he added. Mr. Odah said he expected to be escorted to the Kuwaiti embassy, but had instead been handed over to US forces.
In dissecting al-Odah’s story, Judge Kollar-Kotelly took exception to apparent inconsistencies in his account of his journey to Afghanistan, suggestions that he had lied about his plans to teach, and about the length of time he intended to stay. She concluded, by comparing his route — to Dubai, and then to Karachi, Quetta, Spin Boldak and Kandahar — with the same route taken by jihadists that the record "supports a reasonable inference that al-Odah may have also been traveling to Afghanistan to engage in jihad, and not to teach the poor and needy for two weeks."
She followed up by casting doubts on his claim that he innocently "sought to contact a Taliban official upon reaching Afghanistan and that he subsequently moved around the country at the direction of this official," and on his explanation that he visited a training camp "supervised by the Taliban, where "he took one day of training on an AK-47 rifle." Following the government’s lead, she suggested that it was "more likely than not" that the camp was in fact al-Farouq, and that al-Odah arrived there on September 10, 2001, the day before the 9/11 attacks, when the camp was closed down.
She also took exception to al-Odah’s apparent inability to explain why he had not left Afghanistan after the 9/11 attacks, why there was at least a month’s gap in his account of what happened afterwards, and why, three months after the attacks, he was captured, armed with an AK-47, having crossed the border into Pakistan from the Tora Bora region (where al-Qaeda and the Taliban had been engaged in combat with Afghan and US forces), in the company of a group of armed men who, according to "credible evidence" provided by the government, included one man "who had substantial ties to al-Qaeda."
To be fair, it was understandable that Judge Kollar-Kotelly drew the inferences she did from the information provided, as her summing up made clear, when she explained that al-Odah "has admitted that he sought to meet with a Taliban official upon his arrival in Afghanistan; that he was subsequently brought by a Taliban official to a Taliban-operated training camp near Kandahar, Afghanistan; that he took one day of training with an AK-47 at this camp: that the Taliban official sent him to stay with an associate in Logar, Afghanistan, after September 11, 2001; that he surrendered his passport and other possessions to this individual; that he met with individuals who were armed and appeared to be fighters; that he accepted an AK-47 from these individuals; and that he traveled with his AK-47 into the Tora Bora mountains, remained there during the battle of Tora Bora, and was captured shortly thereafter by border guards while still carrying his AK-47."
From this outline of events, the government certainly had a stronger case than it did with Adham Mohammed Ali Awad, but even if this analysis is correct, the end result is that, nearly eight years after the 9/11 attacks, the United States is still asserting that it has the right to hold a young man who spent just one day at a training camp, who did not flee Afghanistan after the 9/11 attacks (perhaps because he feared reprisals if he was found escaping), who traveled with other men to Kabul, and then to Logar and then to Tora Bora and his eventual capture, with no evidence that he ever used the weapon he was given, and no evidence that his training involved anything more than firing a few rounds from an AK-47 in a practice session.
The long shadow of Salim Hamdan’s freedom
Back in January, when Judge Leon refused the habeas appeal of Ghaleb al-Bihani, a Yemeni who had worked as a cook for Arab forces supporting the Taliban, I made a comparison with the case of another prisoner, Salim Hamdan, which demonstrated to me that, although justice was finally within reach for some of the prisoners at Guantánamo, seven years after the prison opened, it was both farcical and unjust that Hamdan, a man who had worked as a driver for Osama bin Laden, had been tried in a Military Commission in which he was convicted of material support for terrorism, had served a five-month sentence delivered by a US military jury, and was now a free man in Yemen, while al-Bihani, who had never even met bin Laden, and who had, instead, worked as a cook before the 9/11 attacks and had subsequently failed to teleport himself out of the country after the US-led invasion began, continued to languish in Guantánamo, with no end to his detention in sight.
As the eighth anniversary of the 9/11 attacks approaches, I, like all those who oppose Guantánamo and everything it stands for, still hope that the small number of prisoners involved in the attacks, or in other terrorist attacks against the US, can be brought to justice, but I fail to see how rulings like those delivered last month in the cases of Adham Mohammed Ali Awad and Fawzi al-Odah contribute to that end. I believe that, with just four months to go until President Obama’s deadline for closing Guantánamo expires, all concerned would do well to direct their attention towards the few dozen prisoners at Guantánamo who are alleged to have been directly involved in terrorism, and to stop trying to defend the detentions of all the other men still held; men who, at best, were foot soldiers in a specific conflict that, in contrast to Judge Robertson’s words, came to an end no later than November 3, 2004, when Hamid Karzai was elected as the President of post-Taliban Afghanistan.
When Salim Hamdan was freed from Guantánamo, I wrote that his release spelled the end of the Bush administration’s justification for holding prisoners who had no meaningful connection to al-Qaeda or international terrorism. Ten months on, I stand by those words, and note that, although judges have now granted the habeas appeals of 29 of the 36 prisoners whose cases they have considered, nothing about the cases of the other seven men prevents Hamdan’s freedom from casting a longer and longer shadow over their continued detention.