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Why Judges Can’t Free Torture Victims From Guantánamo

By Andy Worthington

29 April, 2010

Note: This article is published as part of “Guantánamo Habeas Week” (introduced here, and also see the articles here, here and here), which has now been extended as “Guantánamo Habeas Fortnight.” This project also includes an interactive list of all 47 rulings to date (with links to my articles, the judges’ unclassified opinions, and more).

Last December, I wrote about the case of Saeed Hatim, a Yemeni in Guantánamo whose habeas corpus petition had been granted by Judge Ricardo Urbina. At the time, Judge Urbina’s unclassified opinion had not been made publicly available, so all I had to go on were Hatim’s own statements at Guantánamo. In publicly available documents, he told his interrogators that he wanted to find a way to fight in Chechnya but concluded that he needed to train in Afghanistan. However, although he admitted attending the al-Farouq camp (associated with Osama bin Laden in the years before 9/11), he said that he “did not like anything about the training,” that he faked a fever so that he could leave the camp, and, after some time hanging around behind the Taliban’s front lines, made his way to the Pakistani border, where he surrendered to the Pakistani police, and was then handed over to US forces.

As I also mentioned at the time, “I await Judge Urbina’s ruling with some interest, primarily … to discover whether this account bears any resemblance to the story uncovered by the judge in what, despite the persistent fog of classified evidence that clouds so many of the Guantánamo cases, will undoubtedly be the first time that something close to an objective analysis of his case has been undertaken, after eight years in US custody.”

As part of a project aimed at analyzing all the Guantánamo habeas cases, I have now had the opportunity to study Judge Urbina’s unclassified opinion (PDF). Although the broad outline of Hatim’s story was the same as he reported in Guantánamo, and Judge Urbina noted that “The government’s allegations rest[ed] almost entirely upon admissions made by the petitioner himself,” what was missing — and was only brought to light in Judge Urbina’s courtroom — was Hatim’s contention that he made these admissions “only because he had previously been tortured while in US custody.” In addition, the judge noted that “The government’s justification for detention also rests heavily on a third-party identification by a GTMO detainee whose reliability has been seriously called into question by the court as well as by GTMO intelligence officers.”

In dissecting and dismissing the government’s claims that Hatim “trained with, lived with, operated under the command of, and worked for al-Qaeda and Taliban forces and their affiliates,” Judge Urbina had to decide whether to accept Hatim‘s own claim that, although “he fled to Pakistan out of fear for his personal safety, [he] maintains that there is no basis for his detention because there is no evidence that he was connected to the September 11, 2001 attacks, was part of al-Qaeda or the Taliban or engaged in hostilities against the United States or its coalition partners.”

The government’s case relied on claims that Hatim trained at al-Farouq, stayed in al-Qaeda and Taliban guesthouses, “operated under the command of al-Qaeda and the Taliban at the battlefront against the Northern Alliance,” and was identified by a fellow prisoner as having fought at the battle of Tora Bora, a showdown between al-Qaeda and US forces in November and December 2001.

The unreliable witness, who made false claims against 60 prisoners

The last of these was easily dismissed, because the only statement presented by the government to justify its Tora Bora claim was made by one of Hatim’s fellow prisoners at Guantánamo, who, as Judge Urbina explained, “has exhibited an ongoing pattern of severe psychological problems while detained at GTMO.” The judge cited an interrogator, who, in May 2002, stated, “I do not recommend [redacted] for further exploitation due in part to mental and emotional problems [and] limited knowledgeability,” and also noted that he had attempted to hang himself in his cell in February 2003, and had again tried to commit suicide in March 2003, “saying that he had received ‘command hallucinations’ to do so.”

He also noted that the Guantánamo hospital record stated that the witness “had ‘vague auditory hallucinations’ and that his symptoms were consistent with a ‘depressive disorder, psychosis, post traumatic stress, and a severe personality disorder,’” and concluded by “refus[ing] to credit what is arguably the government’s most serious allegation in this case based solely on one statement, made years after the events in question, by an individual whose grasp on reality appears to have been tenuous at best.”

The use of unreliable witnesses is no surprise, sadly, as the records of the habeas cases to date are littered with claims made by witnesses whose unreliability was called into question by the authorities at Guantánamo but is still cynically used by the Justice Department.

However, this particular witness is noteworthy because, in June 2007, the Office of Administrative Review of the Detention of Enemy Combatants (OARDEC), which compiled the evidence against the prisoners for their tribunals and review boards, “warned that because [his] first-hand knowledge had come into serious question since 2005, all information provided by [him] should be adequately verified through independent sources,” because this statement was made in 2006, and because, as Judge Urbina also explained, “the personal representative of another GTMO detainee determined that none of the detainees that [the witness] had identified as having trained at al-Farouq were even in Afghanistan during the time that [he] said they attended the camp.”

This, rather shockingly, is a reference to the personal representative in the case of Farouq Ali Ahmed (aka Farouq Saif), a Yemeni released last December, who uncovered the extent of false claims made by the unreliable witness back in 2004, when he discovered that he had made false claims about attending al-Farouq in the cases of 60 prisoners in total — and the presumption, therefore, is that the government continues to rely on these discredited claims in dozens of other habeas cases that have not yet seen the light of day.

I confess that I find the repeated use of this discredited witness (and others identified in other habeas cases) to be alarming, because they indicate a deep cynicism on the part of the Justice Department, which appears to be hoping that it can manage to fool the judges, rather than dropping all the claims made by this man unless, as OARDEC advised, they can be “adequately verified through independent sources.”

Saeed Hatim’s torture claims

Just as disturbing, however, are Saeed Hatim’s claims that he only confessed to attending al-Farouq because he was tortured. As Judge Urbina explained:

The petitioner claims that after he was captured in Pakistan, he was held for six months at a military base in Kandahar, Afghanistan, where he was severely mistreated, including being beaten repeatedly, being kicked in the knees and having duct tape used to hold blindfolds on his head. To this day, he cannot raise his left arm without feeling pain. The petitioner also alleges that he was threatened with rape if he did not confess to being a member of the Taliban or al-Qaeda. As a result, he claims that the inculpatory statements that he made in Kandahar were made only because of these threats. He further alleges that after being transferred to GTMO in 2002, he repeated those inculpatory statements in 2004 because he feared that he would be punished if he changed his story.

This is not the first time that a prisoner has alleged that he made up a false story under torture and/or threats, and that he repeated it in his tribunal because he feared reprisals if he changed his story. Last September, I was genuinely disturbed — despite studying Guantánamo incessantly for four years — to discover that this had happened in the case of a Kuwaiti, Fouad al-Rabiah, who had been trained to repeat a false confession about meeting Osama bin Laden and running a supply counter at Tora Bora, even though he was, in fact, nothing more than a humanitarian aid worker caught in the wrong place at the wrong time.

In Saeed Hatim’s case, I had not expected such claims to surface, as it seemed plausible that he had attended al-Farouq, had managed to leave by feigning illness, and had then been captured after traveling independently to the Pakistani border. However, Judge Urbina made it clear that, because the government “does not refute the petitioner’s allegations of coercion or the widespread allegations of torture of other detainees prior to their arrival at GTMO”:

Hatim’s unrefuted allegations of torture undermine the reliability of the statements made subsequent to his detention at Kandahar. Thus, the government faces a steep uphill climb in attempting to persuade the court that the petitioner’s detention is justified based on the allegation that he trained at al-Farouq, given that the sole evidence offered in support of that allegation is tainted by torture.

Judge Urbina added that, even if Hatim had attended al-Farouq, there was “scant evidence” that he “actually participated in al-Qaeda’s command structure by receiving and executing orders,” and that this interpretation was reinforced by his departure from the camp, and also because no third-party witness “indicate[d] that [he] was even seen at al-Farouq, much less that he was seen following orders on al-Qaeda’s behalf.”

He then proceeded to dismiss claims that Hatim had participated in al-Qaeda’s command structure either behind the front lines or in the guesthouses in which he had stayed, concluding that “the government has offered the court an inherently flawed justification for detention.”

No escape from Guantánamo

Despite this, Saeed Hatim remains in Guantánamo, over four months after Judge Urbina told the government in no uncertain terms that it had “failed to carry its burden of persuading the court that [his] detention is lawful.” The government has not appealed Judge Urbina’s ruling, as it has in other cases it has lost, but this may well be because officials are secure that Saeed Hatim’s release from Guantánamo will not be happening anytime soon.

When Saeed Hatim won his habeas petition, on December 15, 2009, the prospects of release for Guantánamo’s Yemenis looked less bleak than they had for many years. Alla Ali bin Ali Ahmed, who had won his habeas petition in May 2009, had been successfully repatriated in September, breaking through a long-standing reluctance, on the part of both George W. Bush and Barack Obama, to release any of Guantánamo’s population of nearly 100 Yemenis, which was based, apparently, on fears that the Yemeni government was unable to guarantee that they would be monitored adequately on their release.

Just before Christmas, it seemed that further progress had been made, as six more Yemenis were released, but when, on Christmas Day, a Nigerian, Umar Farouk Abdulmutallab, tried to blow up a plane, and it was revealed that he had apparently been groomed in Yemen, President Obama capitulated to the tsunami of hysteria that greeted this news by suspending the release of any more cleared prisoners to Yemen for the foreseeable future.

Almost immediately afterwards, the President’s interagency Task Force, which had been reviewing the prisoners’ cases all year in a parallel universe with scant regard for the judges in the prisoners’ habeas petitions, revealed that “at least 110 detainees” had been cleared for release, and that this number included about 30 Yemenis, who were “eligible for immediate repatriation or resettlement in a third country,” and about 30 other Yemenis, who were “placed in a category of their own, with their release contingent upon dramatically stabilized conditions in their home country.”

As a result of Obama’s capitulation, of course, not a single one of these 60 men is leaving Guantánamo anytime soon, and it seems clear, therefore, that it doesn’t matter whether Saeed Hatim — or any other Yemeni, for that matter — wins his habeas petition, as they will remain in Guantánamo until someone in the administration decides that releasing them is politically appropriate.

This not only makes a mockery of habeas corpus; it also demonstrates to the prisoners that, regardless of anyone’s best intentions, their fate is dependent not on notions of justice, but, as it was under George W. Bush, on the political winds that blow through Washington D.C. And if no one in the administration finds the will to do what is correct, rather than what is politically expedient, they may find that those winds are forever blowing against them, ensuring that the exit door out of Guantánamo remains firmly shut.

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 currently on tour in the UK), and, if you appreciate my work, feel free to make a donation.