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 240
prisoners still held), senior officials have been largely silent about
the eventual fate of the rest of the prison's population, 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,
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 unsupportable 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 Guantanamo (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 Guantanamo
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
Guantanamo 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 US or its allies.
As I have explained at length in my book The Guantanamo Files, and in numerousarticles
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 US 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
Nevertheless, the transcripts of these hearings are often the only
means by which we know anything about the prisoners at Guantanamo, 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 Guantanamo, 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
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. [W]hat makes me dangerous to the United States at that
Although the review board had no response to Ahmed's questions, the
officers involved refused to approve his release from Guantanamo, 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
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.
This is because of a truly disturbing appeals court ruling
in the case of 17 Uighurs at Guantanamo (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 last October. As lawyer Jana Ramsay explained,
two judges -- although ostensibly dealing with the right of the Uighurs
to be admitted into the United States -- stated that "the due process
clause does not apply to detainees at Guantanamo," 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 Guantanamo
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, and 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 Guantanamo, 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 Guantanamo 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 US 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
Guantanamo 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 Guantanamo --
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 which
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 helps '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 Guantanamo between 2002 and 2004 (and derived from the US 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 Guantanamo -- 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 Guantanamo 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 Guantanamo, as is Abdul Rahim al-Ginco,
a Syrian "rescued" by US 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
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 Guantanamo 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 Guantanamo, 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.