Guantanamo and Habeas Corpus

Judge Rules Yemeni's Detention Based Solely on Torture
By ANDY WORTHINGTON

On February 24, as I reported in an article entitled, “The Black Hole of Guantánamo,” Judge Henry H. Kennedy Jr. granted the habeas corpus petition of Uthman Abdul Rahim Mohammed Uthman, a Yemeni who was seized crossing the border from Afghanistan to Pakistan in December 2001. In the absence of the judge’s unclassified opinion explaining why he had ordered his release, I provided only a brief explanation of what was publicly known of his story, stating:

As I explained in my book The Guantánamo Files, Uthman, who was 22 years old at the time of his capture, “said that he had traveled between Kabul and Khost teaching the Koran from March to December 2001.” Although he “admitted that he had stayed at a Taliban house in Quetta, Pakistan, which was the normal entry point for volunteers who had come to fight with the Taliban,” he stated that this was “only because he had been told that it was the only way for him to enter Afghanistan.”

Judge Kennedy’s opinion was released a month ago (PDF), but was then abruptly withdrawn, and, perhaps with unnecessary delicacy, I held off from analyzing it, waiting for it to be reissued, as I was uncertain how much would be redacted. When the revised opinion was finally released on April 21 (PDF), I realized that the name of a criminal investigator with the Naval Criminal Investigative Service had been removed, as had other named operatives, but that other key elements had not; specifically, the names of two other prisoners who alleged that Uthman “acted as a bodyguard for Osama bin Laden.” These two men are Sharqwi Abdu Ali al-Hajj and Sanad Yislam Ali al-Kazimi, and in the most important part of the opinion, Judge Kennedy stated:

The Court will not rely on the statements of Hajj or Kazimi because there is unrebutted evidence in the record that, at the time of the interrogations at which they made the statements, both men had recently been tortured.

The torture of Sharqwi Abdu Ali al-Hajj

This, alarmingly, was something of an understatement. Al-Hajj (also identified as Abdu Ali Sharqawi, but more commonly known as Riyadh the Facilitator) was seized in a house raid in Pakistan in February 2002 and was then rendered to Jordan, one of at least 15 prisoners whose torture was outsourced to the Jordanian authorities between 2001 and 2004, where he was held for nearly two years before being transferred to the CIA’s “Dark Prison” near Kabul, and then, via Bagram, to Guantánamo.

As Judge Kennedy explained, he told his lawyer, Kristin B. Wilhelm, that, “while held in Jordan, he ‘was regularly beaten and threatened with electrocution and molestation,’ and he eventually ‘manufactured facts’ and confessed to his interrogators’ allegation ‘in order to make the torture stop.’” In the “Dark Prison,” he added, he was “kept in complete darkness and was subject to continuous loud music.”

Al-Hajj’s descriptions of the “Dark Prison” correspond with those of numerous other prisoners, including the British resident Binyam Mohamed, whose descriptions were included in my article, “Hit Me Baby One More Time: A History of Music Torture in the War on Terror.” However, what is missing from the analysis of his time in Jordan is a more sustained narrative of torture, false confessions and his torturers’ regular contact with the CIA, which emerged ina letter given to Joanne Mariner of Human Rights Watch during a visit to Jordan in 2008, which had been written by al-Hajj during his detention, around October 2002. In this note, which was smuggled out of the prison, he explained that he “was held as a secret prisoner by the Jordanian intelligence service: unregistered, cut off from all communication and hidden during visits by representatives of the International Committee of the Red Cross,” and gave the following “short summary of my sufferings,” as reported by Mariner:

“They beat me up in a way that does not know mercy,” Sharqawi wrote, referring to his Jordanian captors, “and they're still beating me. They threatened me with electricity, with snakes and dogs ... [They said] we'll make you see death.”

Sharqawi described his interrogations, explaining that the Jordanians were feeding his responses back to the CIA.

“Every time that the interrogator asks me about a certain piece of information, and I talk,” Sharqawi said, “he asks me if I told this to the Americans. And if I say no he jumps for joy, and he leaves me and goes to report it to his superiors, and they rejoice.”

In Human Rights Watch’s final report, “Double Jeopardy,” the extent to which he was interrogated about other men -- using photos that, in Afghanistan and Guantánamo, were apparently described as “the family album” -- was revealed in the following passage, which not only explains the pressures that led to him providing a false allegation against Uthman Abdul Rahim Mohammed Uthman in Bagram, but also indicates how hundreds -- or thousands -- of other false allegations may have been extracted:

I was being interrogated all the time, in the evening and in the day. I was shown thousands of photos, and I really mean thousands, I am not exaggerating ... And in between all this you have the torture, the abuse, the cursing, humiliation. They had threatened me with being sexually abused and electrocuted. I was told that if I wanted to leave with permanent disability both mental and physical, that that could be arranged. They said they had all the facilities of Jordan to achieve that. I was told that I had to talk, I had to tell them everything.

The torture of Sanad al-Kazimi

The story of Sanad al-Kazimi’s false confession is just as distressing. Seized in the United Arab Emirates in January 2003, he was subsequently handed over to U.S. forces, who rendered him to an unidentified secret CIA prison, and then to the “Dark Prison” and Bagram, and, as Judge Kennedy explained, he told his lawyer, Martha Rayner, that, “while [he] was detained outside the United States, his interrogators beat him; held him naked and shackled in a cold dark cell; dropped him into cold water while his hands and legs were bound; and sexually abused him. Kazimi told Rayner that eventually “[h]e made up his mind to say ‘Yes’ to anything the interrogators said to avoid further torture.”

After this he was relocated to the “Dark Prison,” where, he said, “he was always in darkness and … was hooded, given injections, beaten, hit with electric cables, suspended from above, made to be naked, and subjected to continuous loud music. Kazimi reportedly tried to kill himself on three occasions. He told Rayner that he realized ‘he could mitigate the torture by telling the interrogators what they wanted to hear.’”

At Bagram, he continued, “he was isolated, shackled, ‘psychologically tortured and traumatized by guards’ desecration of the Koran’ and interrogated ‘day and night, and very frequently.’ [He] told Rayner that he ‘tried very hard’ to tell his interrogators in Bagram the same information he had told his previous interrogators ‘so they would not hurt him.’”

This is damning enough, but back in August 2007, Jane Mayer of the New Yorker spoke to Ramzi Kassem, another of al-Kazimi’s lawyers, who, as I explained in an article at the time, added further details, telling her that:

[Al-Kazimi] was “suspended by his arms for long periods, causing his legs to swell painfully … It’s so traumatic, he can barely speak of it. He breaks down in tears.” He also said that al-Kazimi “claimed that, while hanging, he was beaten with electric cables,” and explained that he also told him that, while in the “Dark Prison,” he “attempted suicide three times, by ramming his head into the walls”: “He did it until he lost consciousness. Then they stitched him back up. So he did it again. The next time he woke up, he was chained, and they’d given him tranquillizers. He asked to go to the bathroom, and then he did it again.” On this last occasion, Kassem added, he “was given more tranquillizers, and chained in a more confining manner.”

The story of Uthman Abdul Rahim Mohammed Uthman

These accounts, sadly, fit a pattern of torture and false confessions that only becomes clearer as time passes and more evidence is revealed, and they also confirm that the two men described above were amongst the 94 prisoners -- many still unaccounted for -- who were held in secret CIA prisons and subjected to particularly brutal treatment (PDF). Compared to them, Uthman’s own story is easily overshadowed.

This is perhaps understandable, as nothing in the government’s supposed evidence thoroughly refutes his own assertions that he was in Afghanistan as a missionary, because the entire case against him is based on allegations made by other prisoners (in addition to al-Hajj and al-Kazimi), or attempts to infer guilt by association on the part of the government that make him something of a cipher in his own case.

Throughout the rest of the judge’s opinion, further attempts by the government to prove that Uthman was a bodyguard for bin Laden, that he trained in an al-Qaeda camp and was present at the battle of Tora Bora (where al-Qaeda and the Taliban fought the U.S. military and its Afghan proxies in November and December 2001) are bedeviled with identifications based on a photograph and a variety of kunyas (nicknames) that Judge Kennedy found unconvincing. The only allegations given any substantial weight are claims that an individual who “supported jihad” financed his trip, that he followed a route that was typically used by al-Qaeda recruits, and that he was seen in two guesthouses in Afghanistan that were reportedly associated with al-Qaeda.

Other prisoners drift in and out of this narrative -- Abdul Hakim Bukhari, a Saudi (released from Guantánamo in September 2007) who arrived in Afghanistan after the 9/11 attacks for jihad but was imprisoned as a spy, who unconvincingly alleged that Uthman “was a member of the Osama bin Laden … security detail” before 9/11, when Bukhari wasn’t in the country and could have had no such knowledge; and Richard Belmar, a British citizen (released in January 2005), who was seized in Pakistan in February 2002, and who, “when shown a picture of Uthman,” stated that he “’may have been a lower amir,’ or leader, ‘in the Kandahar guest house,’” even though, as seems apparent, Belmar was not in Kandahar at the same time as Uthman.

The judge refused to disregard this statement entirely, but, to be honest, it is difficult to see why not, as its basis in reality appears to be as flimsy as everything else thrown at Uthman by the government in the hope that some of it would stick, and, moreover, Belmar stated on his release that, on one occasion in Bagram, “a handgun was forced into his mouth,” and he explained, “It tasted cold, bitter. I thought, ‘Yeah, this is getting serious, there’s a good chance they will pull the trigger.’”

Elsewhere, the government resorted to trying out guilt by association, claiming that, because Uthman was seized in the vicinity of Tora Bora with approximately 30 other men, “a few of whom he knew from Yemen,” who “were admitted -- or at least, alleged, al-Qaeda members, some of whom were likely coming from Tora Bora,” the Court should draw an inference that Uthman’s missionary story was a lie.

The truth, to be honest, is difficult to establish, as Judge Kennedy recognized. The group of approximately 30 men with whom Uthman was seized have long been referred to by the government as the “Dirty Thirty,” and portrayed, as in Uthman’s case, as bodyguards for bin Laden. Until this case came to court, it had been presumed that the bodyguard allegations came solely from Mohamed al-Qahtani, the supposed 20th hijacker for the 9/11 attacks, whose torture at Guantánamo is well-known (and was admitted by Pentagon official Susan Crawford in January 2009), but al-Qahtani is mysteriously absent from Uthman’s case, as are alleged al-Qaeda member Ibrahim al-Qosi (currently facing a trial by Military Commission) and convicted al-Qaeda member Ali Hamza al-Bahlul, who were also captured at this time.

It may dismay the government to have to concede that it is all but impossible to establish that everyone seized at this time was part of al-Qaeda, and that some of the men may have been missionaries or humanitarian aid workers, attempting to flee the chaos of post-invasion Afghanistan as part of general Arab exodus, but it is not beyond the bounds of reason that this is the case, as Judge Kennedy accepted in his conclusion, when he stated:

In sum, the Court gives credence to evidence that Uthman (1) studied at a school at which other men were recruited to fight for al-Qaeda; (2) received money for his trip to Afghanistan from an individual who supported jihad; (3) traveled to Afghanistan along a route also taken by al-Qaeda recruits; (4) was seen at two al-Qaeda guesthouses in Afghanistan; and (5) was with al-Qaeda members in the vicinity of Tora Bora after the battle that occurred there.

Even taken together, these facts do not convince the Court by a preponderance of the evidence that Uthman received and executed orders from al-Qaeda. Although this information is consistent with the proposition that Uthman was a part of al-Qaeda, it is not proof of that allegation. As explained, the record does not contain reliable evidence that Uthman was a bodyguard for Osama bin Laden or fought for al-Qaeda. Certainly, none of the facts respondents have demonstrated are true are direct evidence of fighting or otherwise “receiv[ing] and execut[ing] orders” … and they do not, even together, paint an incriminating enough picture to demonstrate that the inferences respondents ask the Court to make are more likely accurate than not. Associations with al-Qaeda members, or institutions to which al-Qaeda members have connections, are not alone enough to demonstrate that, more likely than not, Uthman was part of al-Qaeda.

In granting Uthman’ habeas petition, Judge Kennedy added that, “at first blush,” some of the government’s evidence was “quite incriminating of Uthman and supportive of the position that he is lawfully detained,” but that, on close examination, there was “reason not credit some of it at all and reason to conclude that what remains is not nearly as probative of respondent’s position as they assert.”

An alarming conclusion

This is indeed the case, but what is missing from Judge Kennedy’s conclusion, but is glaringly obvious from his opinion as a whole, is that the shadows which never quite coalesce around the barely fleshed-out figure of Uthman Abdul Rahim Mohammed Uthman are populated not by reliable witnesses, but by a procession of torture victims or other prisoners worn out by endless interrogation, who, when shown photographs, invented stories to get the torture to stop, or to get the interrogators off their back.

As a demonstration of how to produce false confessions to incriminate insignificant prisoners at Guantánamo, it would be harder to find a document that more perfectly expresses the brutal pointlessness of the “War on Terror” than this opinion, and when the bigger picture is examined -- Sharqwi Abdu Ali al-Hajj ‘s statement that, in Jordan, “I was shown thousands of photos, and I really mean thousands” -- the scale of this shocking witch-hunt is explicitly revealed.

Beyond Guantánamo, where habeas judges are not empowered to tread, who knows how many other men were seized because of false confessions made through the use of torture?

Note: For more on Guantánamo and habeas corpus, see my project, “Guantánamo Habeas Week.”