The Black Hole of Guantánamo

Andy Worthington

March 3, 2010

it comes to dealing with the thorny question of how to close
Guantánamo, the remaining prisoners have been caught between two
competing systems since President Obama took office last January, and
the result, to put it mildly, has been confusing.

Under President Bush, prisoners
were cleared for release by military review boards, established to
review the supposed evidence against them, and to determine whether
they constituted an ongoing threat to the US. This appeared to be a
maddeningly arbitrary system, but it led to the release of hundreds of
the prisoners.

In June 2008, the Supreme Court added a second layer of review, of a more substantial nature, when it gave the prisoners constitutionally guaranteed habeas corpus rights;
in other words, the right to challenge the basis of their detention in
a US court. This right had been established by the Supreme Court in
June 2004, leading to the filing of habeas petitions on behalf of the
majority of the prisoners, but these were all stalled when Congress
submitted to the President’s wishes and passed legislation that
purported to strip the prisoners of these rights, in the Detainee
Treatment Act of 2005 and the Military Commissions Act of 2006.

Guantánamo and habeas corpus under George W. Bush

Following the Supreme Court
ruling in June 2008, District Court judges began hearing the prisoners’
habeas corpus petitions, and the prisoners secured, for the first time,
an objective review of what the government claimed to be evidence
proving that they were connected to al-Qaeda and/or the Taliban. The
result was a disappointment for the government, although it came as no surprise
to those who had been studying Guantánamo closely, and who knew that
the majority of the prisoners had been seized by America’s Afghan and
Pakistani allies, at a time when substantial bounty payments were being
offered, and that the majority of the supposed evidence
against the men came from their own interrogations, or those of other
prisoners, which were often conducted in conditions where torture,
coercion or bribery were prevalent.

From October 2008 to January 2009, 23 prisoners won their habeas petitions, and just three cases were won by the government. In the case of 17 Uighurs
(Muslims from China’s Xinjiang province), the government gave up all
pretense that they were "enemy combatants," having established, soon
after they were seized in December 2001, that their only enemy was the
Chinese government, and having suffered a humiliating court defeat shortly after the Supreme Court ruling last June. A judge also dismissed the government’s claims against five Algerian-born Bosnian citizens,
who had been kidnapped by US agents from Sarajevo in January 2002, in
connection with a non-existent plot to bomb the US embassy, and the
case against a Chadian national, who was a child at the time of his capture by Pakistani police in a raid on a mosque in Karachi.

In both cases, the judge —
Richard Leon, an appointee of George W. Bush — dismissed the
government’s supposed evidence by ruling, in the case of the Bosnians,
that a supposed informer was unreliable, and in the case of the former
child prisoner, Mohammed El-Gharani,
that unreliable witnesses in Guantánamo (whose unreliability was known
to the authorities) had concocted a fictional story about him.

Judge Leon also ruled that the
government had established a case against one of the Bosnians — in
connection with purported plans to recruit men to fight in Afghanistan
— and against two other prisoners
with supposed connections to the Taliban or al-Qaeda in Afghanistan,
but it was a poor start for the government’s defense of its rationale
for holding men for seven years without charge or trial, and these same
problems resurfaced under Barack Obama.

Guantánamo and habeas corpus under Barack Obama

In Obama’s first year in office, nine prisoners won their habeas petitions, and six lost. Those who won included a Syrian who had been tortured by al-Qaeda as a spy, an Afghan (also a child at the time of capture) whose confessions were tainted by threats of torture, and a Kuwaiti businessman who had been tortured in Guantánamo
until he came up with false confessions that were only finally exposed
by a judge last September. In all these cases, false confessions and
unreliable witnesses fatally undermined the government’s case.

Moreover, in the majority of
cases that the government won, the fault lines in the Bush
administration’s rationale for defining men as "enemy combatants"
became apparent: most were, at best, peripheral characters in the war
between the Taliban and the Northern Alliance that preceded al-Qaeda’s
terrorist attacks on September 11, 2001, and should, by any objective
measure, have been held as enemy prisoners of war, and protected by the
Geneva Conventions.

Although the majority of the
nine prisoners who lost their habeas petitions were cast back into the
unprecedented world of indefinite detention conceived by the Bush
administration, awaiting a substantial overhaul of the very basis of
detention policies in the "War on Terror" that has not yet happened, it
was clear that the courts provided the first objective review of the
Bush administration’s policies. It muddied the waters, therefore, when
President Obama established an interagency Task Force
to review all the prisoners’ cases, and to come up with its own
conclusions about who should be released, and who should be put on

Obama’s Task Force muddies the waters

The Task Force struggled to pull together information about the prisoners that was scattered throughout various department and agencies, and took until January this year to complete its findings,
advising the President that 35 prisoners should be put forward for
trials, that 47 should continue to be held indefinitely without charge
or trial, and that the rest — around 110 prisoners at the time — should
be released.

The announcement revealed both
the strengths and the weaknesses of the review process. It was, of
course, heartening that only 35 prisoners would face trials, as this
figure corresponded to analyses
revealed by intelligence officials over the previous eight years,
demonstrating that less than 5 percent of the 779 prisoners held
throughout Guantánamo’s history had any meaningful connection to
al-Qaeda, the Taliban leadership or international terrorism. Similarly,
the decision to release 110 men was a swifter judgment than the courts
were able to achieve — although it should be noted that the progress of
the habeas petitions was severely obstructed by the Justice Department,
where lawyers dragged their heels providing necessary information to
the defense, and also that an executive decision to release a prisoner did not carry the weight of a court verdict, and did not, crucially, remove the stigma of having been held for years as an "enemy combatant."

However, the biggest
disappointment was the Task Force’s recommendation that 47 men be held
indefinitely without charge or trial. "Preventive detention" was at the
heart of the Bush administration’s baleful experiment in holding
prisoners neither as prisoners of war, protected by the Geneva
Conventions, nor as criminal suspects to be put forward for trial on
charges related to terrorism, and it was profoundly disturbing to hear President Obama explain,
as he did in May last year, that the men in question were those who
"cannot be prosecuted for past crimes, in some cases because evidence
may be tainted, but who nonetheless pose a threat to the security of
the United States." Essentially, what this statement revealed was that
the administration was prepared to rely on information obtained through
torture as a reason for continuing indefinite detention without charge
or trial.

Moreover, the Task Force’s
announcement in January — and Obama’s apparent endorsement of it — also
ignored the role of the courts, for the simple reason that the majority
of these men had outstanding habeas corpus petitions, and that, as a
result, it was up to the District Court judges, and not the executive,
to decide whether the supposed evidence against them was at all

Such is the muddle created by
the Task Force — and such is the secrecy surrounding its decisions —
that it is impossible to know whether the nine men consigned to
indefinite detention after losing their habeas petitions in the courts
are included in the 47 men that the Task Force advised should be held
indefinitely. I can only presume that this is the case, but, as events
last week showed, we are now in a position where rulings on prisoners’
habeas petitions no longer stand independently, but are actively
compared to the results reached by a Task Force whose findings are

The latest habeas corpus rulings

Last week, judges ruled on the
habeas petitions of three Yemeni prisoners. The unclassified opinions
have not yet been released, so the judges’ reasoning is not yet
available, but in two cases the prisoner’s habeas petitions were
denied, and in the third case the petition was granted. The two men who lost their petitions are Suleiman al-Nahdi and Fahmi al-Assani, and the man who won
was Uthman Abdul Rahim Mohammed Uthman. To confuse matters further,
both al-Nahdi and al-Assani had been cleared by a Bush-era military
review board, while Uthman had not. It is, of course, not known what
decision had been reached by the Task Force regarding these men.

Although the judges’
unclassified opinions are not yet available, a glance at these men’s
stories, as available through publicly accessible Pentagon documents,
indicates how the decisions may have been made. As I explained in my
book The Guantánamo Files,
Othman, 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."

If Othman had a plausible
argument that he had traveled to Afghanistan as a missionary, this was
not the case with al-Nahdi and al-Assani. Both had been seized in the
Tora Bora region of eastern Afghanistan (where a major showdown between
al-Qaeda and the US military’s Afghan proxies had taken place in
November and December 2001), and, although it is clear from the cases
of many of the men held at Guantánamo that passing through Tora Bora to
escape the chaos of Afghanistan did not prove that they were involved
in any kind of military activity (because thousands of civilians were
also trying to escape), both men came up with accounts which suggested
that they were at least peripherally involved in the conflict.

As I explained in The Guantánamo Files, al-Assani, who was 24 years old at the time of his capture:

was a recent recruit
to the Taliban cause, a foot soldier in an inter-Muslim civil war that
had suddenly gone global. He traveled to Afghanistan in the summer of
2001, trained briefly at al-Farouq [a training camp established by an
Afghan warlord but associated with Osama bin Laden in the years before
the 9/11 attacks] and ended up in Tora Bora, but only, he said, because
"I was fleeing for my life with many other people to avoid the bombing
that was imminent," and not, as was alleged, because he "was assigned
to augment Taliban and al-Qaeda forces already in defensive positions
in Tora Bora." He added that he was with a group of Pakistanis, trying
to get to Pakistan, when they were bombed by US forces and he was "the
sole survivor."

He was then taken by Afghan forces to a hospital in Jalalabad, and delivered to US forces some months later.

Al-Nahdi, who was 27 years old
at the time of his capture, explained that he had been inspired to
assist the Taliban through a fatwa issued by a notorious cleric, and
had spent a month at al-Farouq. He added that:

[He] saw Osama bin
Laden in Tora Bora, when he "talked about the jihad for approximately
one hour and then a senior al-Qaeda operative [identified as Ayman
al-Zawahiri, al-Qaeda’s No. 2] made a few comments," and then went into
the mountains, where he took turns guarding a foxhole with 15 other
people. Responding to an allegation that he "may have fought in Tora
Bora," he said, "I never fired a weapon. I was only sitting," and, when
asked if he would have shot at Americans, he [said]: "I did not see any
Americans. If I had seen any Americans, I would not have shot at them.
I would have only shot at them if they had shot at me first, to defend

Guantánamo’s continuing existence as a legal black hole

Over eight years after
Guantánamo opened, it is clear from these three rulings that the fate
of the men in question is still dictated more by the disgraceful
innovations of the Bush administration than it is by any objective
notions of justice. Othman may be released, but only when the Obama
administration decides that it is politically safe to free any cleared
Yemeni prisoners (having capitulated to unprincipled criticism
following the failed Christmas Day bombing attempt by suspending all
releases to Yemen until further notice). Moreover, it is impossible to
know whether any of these three men were cleared for release by Obama’s
Task Force, and, if so, what it means if a prisoner loses his habeas
petition, when the Task Force had recommended his release.

Behind all this, of course, lies
the problem that I have been highlighting ever since Judge Leon ruled,
last January, that Ghaleb al-Bihani, another Yemeni, could continue to be held indefinitely
because he had worked as a cook for Arab forces supporting the Taliban,
and had not magically spirited himself out of Afghanistan on the day
that the US-led invasion began, in October 2001. Absurdly, it seems to
me, this was when the Taliban’s civil war with the Northern Alliance
suddenly became a "War on Terror," in which US forces, who hooked up
with the Northern Alliance after years of indifference to their cause,
were conventional soldiers, but those who opposed them were terrorists.

If there were truly any justice,
Ghaleb al-Bihani — and Suleiman al-Nahdi and Fahmi al-Assani — would
have been held as prisoners of war according to the Geneva Conventions,
and not as special "War on Terror" prisoners whose detention was
endorsed by Congress in the Authorization for Use of Military Force,
passed in the wake of the 9/11 attacks, which empowered the President
to seize and hold anyone he regarded as having a connection to al-Qaeda
and/or the Taliban. Crucially, this would mean that they could continue
to be held until the end of hostilities (whenever that may be), but it
would also mean that they would not have been subjected to the abusive
innovations of the "War on Terror," and would have been shielded from
coercive interrogations and "enhanced interrogation techniques."

I have serious doubts about
whether it is acceptable to continue holding peripheral figures seized
during the US-led invasion of Afghanistan in October 2001 for longer
than the duration of the Second World War, but even if this were the
case, no one in the Executive branch, Congress or the judiciary has
fully addressed the fact that, instead, they are still effectively in
the black hole dreamed up by the Bush administration when the President
accepted, in February 2002, that he had the right to hold a new
category of human being — "enemy combatants" without rights — outside
the Geneva Conventions.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, "Outside the Law: Stories from Guantánamo" (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the "Enemy Combatants" of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns "Mosaic" Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (September 2009), 75 Guantánamo Prisoners Cleared For Release; 31 Could Leave Today (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Justice Department Pointlessly Gags Guantánamo Lawyer (November 2009), Judge Orders Release Of Algerian From Guantánamo (But He’s Not Going Anywhere) (November 2009), Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait (December 2009), What Does It Take To Get Out Of Obama’s Guantánamo? (December 2009), "Model Prisoner" at Guantánamo, Tortured in the "Dark Prison," Loses Habeas Corpus Petition (December 2009), Judge Orders Release From Guantánamo Of Unwilling Yemeni Recruit (December 2009), Serious Problems With Obama’s Plan To Move Guantánamo To Illinois (December 2009), Appeals Court Extends President’s Wartime Powers, Limits Guantánamo Prisoners’ Rights (January 2010), Fear and Paranoia as Guantánamo Marks its Eighth Anniversary (January 2010), Rubbing Salt in Guantánamo’s Wounds: Task Force Announces Indefinite Detention (January 2010).

Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan "Rendered" To Bagram In 2002 Has No Rights (July 2009), Bagram Isn’t The New Guantánamo, It’s The Old Guantánamo (August 2009), Obama Brings Guantánamo And Rendition To Bagram (And Not The Geneva Conventions) and Is Bagram Obama’s New Secret Prison? (both September 2009).

:: Article nr. 63849 sent on 03-mar-2010 22:50 ECT


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