Judge Orders Release From Guantanamo Of Al-Qaeda Torture Victim

In over three years of researching and reporting about the prisoners
held at Guantanamo Bay, Cuba, I learned early on to expect, as one of
Guantanamo's first commanders, Maj. Gen. Michael Dunlavey explained,
that many of the men were "Mickey Mouse" prisoners, with no connection
to terrorism whatsoever, and, in hundreds of cases, not even a
tangential involvement in the Taliban's inter-Muslim civil war with
Afghanistan's Northern Alliance, which preceded the 9/11 attacks, but
morphed into a war against the U.S. after "Operation Enduring Freedom"
-- the U.S.-led invasion of Afghanistan -- began on October 7, 2001.

I learned about how the wrong people had ended up in Guantanamo not
just from Maj. Gen. Dunlavey, but also from a former interrogator at
the US prisons in Kandahar and Bagram, which were used to process the
prisoners for Guantanamo. Using the pseudonym Chris Mackey, he wrote a
book about his experiences, The Interrogators,
in which he explained that the military commanders on the ground in
Afghanistan received instructions from the highest levels of government
that every Arab who ended up in U.S. custody was to be transferred to
Guantanamo, even if those on the front line had concluded that they had
been seized by mistake.

The dismay that this instilled in me was only heightened when I learned from my own research, for my book The Guantanamo Files -- and from research conducted by the Seton Hall Law School in New Jersey, based on documents released by the Pentagon (PDF)
-- that 86 percent of the prisoners were not seized by US forces "on
the battlefield," as senior officials alleged, but were picked up by
their Afghan and Pakistani allies and handed over -- or sold -- at a
time when the U.S. military was offering bounty payments of $5000 a
head -- equivalent to about $250,000 in the U.S. -- for "al-Qaeda and
Taliban suspects"; in other words, any Muslim with a beard who could be
passed off as a terrorist.

Even so, some of the stories I came across revealed such depths of incompetence that I was repeatedly surprised: by the stories of the Afghan schizophrenic who ate his own excrement; the boys who were no more than 12 or 13 years old
when they were captured; the 88-year old who was seized when his house
was bombed; and another old man who was seized because he was deaf and
couldn't hear what the U.S. soldiers who came to his house in the
middle of the night were saying to him.

These stories only scratch the surface of the multitude of prisoners
seized for no good reason, but although these particular prisoners were
released in the first few years of Guantanamo's existence, there has
been little improvement in the last two years. While assiduously
chronicling the stories of the 153 prisoners released since June 2007,
I have repeatedly come across similarly wronged prisoners, because of
the systemic failures in the Bush administration's "War on Terror,"
including, to cite just a few examples, Sami al-Haj, the al-Jazeera cameraman, who spent his entire time in captivity fending off attempts to recruit him as a spy, and Adel Hassan Hamad,
a Sudanese hospital administrator in Pakistan -- hailed by almost
everyone who has met him as one of the sunniest personalities on the
face of the earth -- who was sold to U.S. forces by unscrupulous
Pakistan soldiers who were taking revenge on him because he had
complained when they had stolen supplies from his warehouse.

Habeas cases and Justice Department obstruction

According to one reading of history -- the one favored by Vice President Dick Cheney, the prime architect of America's post-9/11 flight from the law, which has been embraced by fearmongering politicians
of both parties -- these stories, if acknowledged at all, are mere
blips in Guantanamo's history, and the remaining prisoners are all
hardcore terrorists. However, while President Obama has done far too
little to counter these groundless and unprincipled claims, judges in
the District Courts, empowered to review the prisoners' cases after a Supreme Court ruling last June
confirmed that they had habeas corpus rights (the right to ask a judge
why they are being held), have been slowly but surely demolishing the
false, self-serving rhetoric of Cheney and the hysteria of the
blinkered politicians.

The judges have not been aided by the Justice Department, which has
followed the lead established under the Bush administration, and has,
under Attorney General Eric Holder, done all in its power to disable the habeas reviews
by preventing the prisoners' defense teams from having access to
exculpatory material -- or any other material essential to mounting a
meaningful defense. However, despite the obstruction -- which has been
so severe in some cases that judges have taken the unprecedented step
of dismissing the government's lawyers -- two judges have ordered
Yemeni prisoners to be released, and in the most recent example, that
of Alla Ali Bin Ali Ahmed,
the judge, Gladys Kessler, "paint[ed] 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."

On Monday, Judge Richard Leon, who demolished the Bush administration's case against five Algerians and Guantanamo's youngest prisoner, a Chadian named Mohammed El-Gharani,
before Obama took office, dealt what may well be the most savage blow
yet to Dick Cheney and his supporters, for their lies and distortions
about the men still held, and also to Barack Obama and Eric Holder, for
pursuing habeas cases that were doomed to fail.

The story of Abdul Rahim al-Ginco

The case in question was that of Abdul Rahim al-Ginco (also
identified as Abdul Rahim Janko). Born in Syria in 1978, al-Ginco moved
to the United Arab Emirates with his family, at the age of 13, but in
December 1999, as Tim Reid of the London Times
explained in an article five months ago, he "fell out with his strict
father," and "left home without a passport," in the belief that, as a
friend explained to him, "if he could get to Afghanistan he could
travel to Europe as a refugee."

In Afghanistan, as he has admitted all along, he spent five days at
an al-Qaeda-affiliated guest house in Kabul, and 18 days in January and
February 2000 at al-Farouq, a military training camp established by the
Afghan warlord Abdul Rasul Sayyaf but associated with Osama bin Laden
in the years before the 9/11 attacks. However, he also explained that,
although he cleaned guns at the guest house, he was not there
voluntarily, and did not attend the training camp on a voluntary basis
either. "It wasn't my choice," he said during a military review board
at Guantanamo. "I was hated. They believed I was a spy, so they took me
to the camp by force."

Crucially, when he tried to leave the camp, after telling the
instructors that he did not want to fight, and that he especially did
not want to fight against Ahmed Shah Massoud, the leader of the
Northern Alliance (who was assassinated two days before 9/11), because
"the jihad does not say anything about killing innocent civilians in
Afghanistan," he was tortured by al-Qaeda for three months "to the
extent that he had little use of his right arm," and was forced to
admit that he was a spy for the United States and Israel. According to
Tim Reid, he was "given electric shocks, and had the soles of his feet
beaten," and his torture "was overseen by Mohammed Atef, the military
chief of al-Qaeda who was killed by a U.S. airstrike in Kabul in
November 2001."

He was then imprisoned by the Taliban for 18 months, in what Tim
Reid described as a "squalid, vermin infested" prison in Kandahar,
which held around 2,000 prisoners of the Taliban, but was left behind
-- with four other foreign prisoners -- when the Taliban abandoned the
prison following the U.S.-led invasion. It was then that the story
became truly surreal. Tim Reid and several other journalists arrived in
Kandahar in January 2002 to find "a bizarre scene playing out in the
jail." As Reid explained, "The entire prison had been emptied except
for five men who had chosen to stay there because they had nowhere else
to go. There was a man from Manchester called Jamal Udeen [aka
al-Harith], two Saudis, a student from Tatarstan -- and Mr. al-Ginco.
They became known as the 'Kandahar Five.'"

Reid recalled that all five men asked the Americans to help them,
and that "A French colleague, on a visit to the U.S. base at Kandahar
airport the next day, told an American officer about the men," but a
few days later, after two Americans -- "one in uniform and a civilian"
-- had turned up at the jail to take photographs of the five, "they
returned with armed soldiers and took the men to the U.S. jail in
Kandahar airport."

The logic behind this was always non-existent, but whereas the other
four men were eventually released from Guantanamo -- the Tatar (Airat Vakhitov) in February 2004, Jamal Udeen in March 2004, and the Saudis (Saddiq Turkistani and Abdul Hakim Bukhari)
in 2006 and 2007 -- al-Ginco's story was transformed into the darkest
of nightmares, when, during an investigation of Mohammed Atef's house,
U.S. soldiers found a videotape that included footage of him.

Abdul Rahim al-Ginco's U.S. nightmare

As al-Ginco explained in Guantanamo, the tape contained the
"confession" he had made, as the result of his torture by al-Qaeda,
which had led to a sentence of 25 years in prison for spying. He added,
"When the Americans came I told them about the videotape the Taliban
made of me. By me telling them about the video it created confusion to
the point where the Americans believed I was working with al-Qaeda."
This was putting it mildly. Although the tape did indeed contain
al-Ginco's confession, and, apparently, footage of his torture,
Attorney General John Ashcroft "believed otherwise," as Tim Reid put
it, adding, "On January 17, 2002, Mr. Ashcroft held a press conference
naming and showing pictures of five men sought as potential terrorists.
One he called 'Abd al-Rahim' -- Mr. al-Ginco."

Eleven days later, Time magazine "published an article
containing Mr. al-Ginco's picture and the allegation that he was a
terror suspect," which "found its way to the U.S. jail in Kandahar
airport," and suddenly, al-Ginco said, "the Americans' attitude towards
him changed. He was accused of being a terrorist. He was subjected to
long periods of stress positions, sleep deprivation and snarling dogs.
In May 2002, after two years of being called an Israeli spy by the
Taliban and al-Qaeda, Mr. al-Ginco was sent to Guantanamo Bay, now
accused of being al-Qaeda and a U.S. enemy."

Back in January, following discussions with al-Ginco's lawyers, Tim
Reid wrote, "When I met Mr. al-Ginco in January 2002, he was a quiet
character but lucid and hopeful that things would get better. Today he
is being treated inside Guantanamo for post-traumatic stress disorder."
This was not the only way in which he has suffered in Guantanamo. In
his administrative review board in 2005, he explained that other
prisoners were also convinced that he was a spy, and had threatened
him, with the result that he had tried to harm himself in Guantanamo,
"because of my emotional issues" -- being picked on by the other
prisoners -- and had spent three years in the psychiatric ward, and
added that he was receiving medication for epilepsy.

By the time Barack Obama took office, al-Ginco had been moved to
Camp 4, where compliant prisoners -- and those who are not regarded as
a threat -- are allowed to live communally, and to have "access to
books, magazines and a chance to exercise." This was certainly an
improvement, but it remains inexplicable that the Obama administration
considered his case worth pursuing, and on Monday Judge Leon made this
clear in the strongest terms possible (PDF).

The government's position "defies common sense"

After explaining that he was required to rule on "whether the
Government has shown by a preponderance of the evidence that [al-Ginco]
is being lawfully detained ... because he was 'part of' the Taliban or
al-Qaeda at the time he was taken into custody by U.S. forces," Judge
Leon noted that, although the government "effectively concedes [that
al-Ginco] was not only imprisoned, but tortured by al-Qaeda into making
a false 'confession' that he was a U.S. spy, and imprisoned thereafter
by the Taliban for over eighteen months at the infamous Sarousa prison
in Kandahar," officials still contend, "[n]otwithstanding these
extraordinary intervening events," that he was "still 'part of' the
Taliban and/or al-Qaeda when he was taken into U.S. custody."

Judge Leon then ran though al-Ginco's claims -- of his short and
unwilling attendance at the training camp, and his subsequent torture
(which he described as arguably "barbaric") and imprisonment at the
hands of al-Qaeda and the Taliban -- and noted that he "contends, in
essence, that even if he had a prior arrangement with al-Qaeda or the
Taliban in 2000, his subsequent torture and imprisonment for eighteen
months vitiates that relationship to such a degree that he no longer
was 'part of' al-Qaeda or the Taliban when he was taken in custody in
2002."

Ruling for al-Ginco, Judge Leon then mocked the government for
"taking a position that defies common sense," by asking the court to
address whether a relationship with al-Qaeda or the Taliban "can be
sufficiently vitiated by the passage of time, intervening events, or
both." Concluding that "The answer, of course, is yes," he then
dismantled the government's case point by point, stating, "To say the
least, 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," adding that al-Ginco's torture "evinces a total
evisceration of whatever relationship might have existed!" and that his
abandonment in the Taliban prison "is even more definitive proof that
any preexisting relationship had been utterly destroyed," and
concluding that an analysis of all these factors "overwhelmingly leads
this Court to conclude that the relationship that existed in 2000 --
such as it was -- no longer existed whatsoever in 2002 when Janko was taken into custody."

The ruling could not have been harsher, but while Lyle Denniston on SCOTUSblog
noted that it may have an impact on other cases, explaining that
"Colleagues on the District Court pay attention to each other's
rulings, and Leon's interpretation of the effects of torture during
captivity, other forms of mistreatment, and lengthy confinement in
harsh conditions could be read more broadly to establish breaks with
past terrorism," I have to say that, from my point of view, I hope that
what it demonstrates to the Obama administration -- and specifically,
to Eric Holder's Justice Department -- is that, with more habeas cases
forthcoming, more time and effort would be better spent on working out
which cases to drop, and on doing further damage to Dick Cheney's
credibility, than on pressing ahead with cases that, when viewed
objectively, are also bound to fail.

There may be no more cases that are quite as bleakly ridiculous as
that of Abdul Rahim al-Ginco, but there are many, many others in which
the Justice Department's long efforts to construct a viable case have
come to nothing, because there was never any evidence in the first
place, and it would be better for all involved if the administration
worked this out now, rather than face further humiliation as it presses
ahead with what, in most cases, is nothing more than a doomed and
pointless attempt to defend the bitter fruits of the Bush
administration's colossally incompetent "War on Terror" detention
policy.