Last Tuesday, while activists, journalists and lawyers were holding a rally outside The White House
to ask President Obama to honor his pledge to close Guantánamo, and to raise awareness of the plight of the remaining 173 prisoners, Judge Richard Leon, in the District Court down the road, refused to grant the habeas petition of an Algerian prisoner in Guantánamo (PDF
), bringing the total of government victories in the habeas litigation to 20, out of 58 cases decided to date
Abdul Razak Ali, a 40-year old Algerian, whose real name is, apparently, Saeed Bakhouche, never stood a chance of winning his habeas petition, as it was his great misfortune to have been staying at a house in Faisalabad, Pakistan on March 28, 2002, when it was raided by Pakistani forces, and he, along with several other men staying in the house, were seized and sent to Guantánamo.
For Ali, the biggest problem was not these other men (although many of them came to be regarded as significant figures), but the fact that another man, touted as the biggest catch in the raid, was Abu Zubaydah, a Saudi-born Palestinian who had served as a gatekeeper for a training camp in Afghanistan.
After the raid, Zubaydah was immediately flown to Thailand, where a plan to torture him -- later applied to dozens more "high-value detainees" seized in the "War on Terror" -- was implemented
, which was formally approved
by lawyers in the Justice Department's Office of Legal Counsel -- in what are now referred to as the "torture memos
" -- on August 1, 2002. Zubaydah eventually surfaced at Guantánamo in September 2006, with 13 other "high-value detainees" previously held in secret CIA prisons
, but others seized in the raid were even less fortunate. A handful of other prisoners seized with Zubaydah, including at least one teenager, were rendered to a torture prison in Syria
, never to be seen or heard from again
Why Abdul Razak Ali may not be as significant as the US alleges
Ali arrived at Guantánamo in June 2002, after being subjected to abuse in Pakistani custody and in US custody in Afghanistan, and has, presumably, always been thought of as being part of a group associated with Abu Zubyadah, even though there are verifiable problems with this presumption.
The first is that, when four of the other men seized in the raid were put forward for a trial by Military Commission in June 2008, he was not included; the second is that, in November 2008, another Algerian seized in the house, Labed Ahmed, was freed, after the Bush administration accepted his explanation that he had been delivered to the house by mistake, but had nevertheless been allowed to stay; and the third is because the government's reliance on claims that Abu Zubaydah was a significant terrorist have been thoroughly discredited.
In its allegations against Ali, the government contended that:
[He] was a member of Abu Zubaydah's force that was reorganizing at a guesthouse in Faisalabad, Pakistan, and preparing for future operations against US and Allied forces. In particular, the Government contends that the petitioner: (1) lived with Abu Zubaydah and a cadre of his lieutenants during a two week period; (2) previously traveled with Abu Zubaydah's force through Afghanistan and ultimately fled with them through Afghanistan to Pakistan; and (3) took an English course (with an American accent) when he was staying at Abu Zubaydah's guesthouse.
In response, Ali claimed that:
Although he acknowledges being captured in the same guesthouse as Abu Zubaydah, he denies: (1) ever being in Afghanistan, let alone being with Abu Zubaydah's force there; (2) ever taking an English course from Abu Zubaydah's trainers at the guesthouse; and (3) ever being a member, permanent or otherwise, of Abu Zubaydah's force. In essence, he claims that the Government has mistakenly identified him as a member of Abu Zubaydah's force, who traveled with Abu Zubaydah in Afghanistan and fled with him to Pakistan before gathering at this particular guesthouse to start preparing for their next offensive against US and Allied forces.
In denying Ali's habeas claim, Judge Leon failed to recognize that, if he was so significant, he would, in all likelihood, have been put forward for a trial by Military Commission in May or June 2008, when four other men
seized in the raid -- Noor Uthman Muhammed (from Sudan), Ghassan al-Sharbi and Jabran al-Qahtani (both Saudis), and Sufyian Barhoumi (another Algerian) -- were charged
. In addition, he might also have recognized that Labed Ahmed (also captured in the house and also not put forward for a trial by Military Commissions) had spelled out how he had been staying at the house but had not been involved in any way with Abu Zubaydah.
Before his release in November 2008, after being “approved for transfer” by a military review board, Ahmed explained how he had ended up at Zubaydah’s house by accident, and how he had been allowed to stay, despite not knowing anyone in the house, for 12 days -- a stay that would clearly have lasted longer has the house not been raided.
After explaining that he had traveled from Germany to Afghanistan at the start of September 2001, and had left for Pakistan in December, Ahmed said that he had stayed for three months in safe houses in Bannu and Lahore, and had then been advised to go to Faisalabad, where some people would come to give him his passport and send him back to Germany. He explained that he was with two other people, a Russian and a Yemeni, but that, after they arrived at Shabaz Cottage (the house where he was captured with Zubaydah and the others), they were told that they had been brought there by mistake and would be moved to another house after the evening prayer.
Ahmed insisted that he didn’t want to leave, because the previous houses had been crowded, whereas this house was “big and nice” and “everybody had their own room,” and explained that he refused to leave in the vehicle that was brought in the evening. Several days later, he said, “The guy from al-Qaeda, Daoud [identified in the hearing as Zubaydah] questioned me as to who I was, what I was doing here and who brought me. I said I’m from Germany waiting on my passport. When I get it, I will leave. He said, no problem, you can stay here for a week. I stayed there for about 12 days and the Pakistani police came. They took us to prison. Daoud was arrested with us, you can ask him about us.”
While this example should have provided a precedent for Judge Leon, he chose to ignore it, describing "the obvious and common-sense inference that a terrorist leader like Abu Zubaydah would not tolerate an unknown and untrusted stranger to dwell in a modest, two-story guesthouse for two weeks with himself and ten or so of his senior leadership, while they [were] preparing for their next operation against US and Allied forces."
How the US courts are ignoring the bitter truth about Abu Zubaydah
Leon also chose to focus on the Washington courts' history of believing a discredited narrative about Abu Zubaydah. As I have been explaining in articles for many years, Zubaydah, although intitially considered as a senior al-Qaeda operative -- perhaps even the number three in the organization -- was no such thing, and was, instead, the mentally damaged gatekeeper for a training camp, Khaldan, that had little to do with al-Qaeda, and was, in fact, closed down by the Taliban in 2000 after its emir, Ibn al-Shaykh al-Libi, refused to cooperate with Osama bin Laden.
In 2006, the author Ron Suskind reported
in his book The One Percent Doctrine
that FBI agents, who had been involved in Zubaydah's interrogations before the CIA's torturers took over, had concluded that he was mentally ill, and was not a major player in al-Qaeda, and further statements from knowledgeable insiders downplaying Zubaydah's alleged role were the focus of articles in the Washington Post
in December 2007
and March 2009
By October 2009, the government officially conceded
that Zubaydah was not a member of al-Qaeda. In response to 213 requests by his lawyers for discovery in his habeas corpus petition, officials turned down the requests by stating (PDF
) that it “has not contended … that Petitioner was a member of al-Qaeda or otherwise formally identified with al-Qaeda” and “has not contended that Petitioner had any personal involvement in planning or executing either the 1998 embassy bombings in Nairobi, Kenya, and Dar-es-Salaam, Tanzania, or the attacks of September 11, 2001.”
This was enormously significant, although it was entirely ignored by the D.C. Circuit Court in June last year, as I explained in a detailed article last July, In Abu Zubaydah’s Case, Court Relies on Propaganda and Lies
. In that article, I noted that, in reviewing an appeal by Sufyian Barhoumi, who lost his habeas petition in September 2009, the court claimed, based on long-discredited information, that Zubaydah was “the person in charge” of the Khaldan training camp, and that he was “an associate of [Osama bin Laden]” who “coordinates and cooperates with [bin Laden] in the conduct of training and trainee movements between [redacted] camps and al-Qaeda camps.”
For his part, Judge Leon also chose to ignore this evidence, not only describing Zubaydah as a "terrorist leader" (as mentioned above), but also citing a District Court opinion from last May, in which it was stated, "There appears to be no dispute that Abu Zubaydah was an al-Qaeda operative and that al-Qaeda-related activities took place in his [Faisalabad] house." He also drew on the Circuit Court's ruling in Barhoumi's appeal, stating:
it is worth noting that our Circuit Court has unequivocally recognized that Abu Zubaydah and his band of followers have well established ties to al-Qaeda and the Taliban and thus constitute an "associated force" under the AUMF [the Authorization for Use of Military Force
, passed by Congress the week after the 9/11 attacks, which is used by the government to justify the detention of prisoners at Guantánamo]. See Barhoumi v. Obama
(affirming the district court's conclusion that Barhoumi was part of "Abu Zubaydah's militia -- an 'associated force that was engaged in hostilities against the United States or its coalition partners'" and affirming denial of petitioner Barhoumi's writ).
Why the government's new ploy in Abu Zubaydah's case is troubling
Here, the problem is not only Judge Leon's reliance on a discredited appraisal of Zubaydah's significance, but a new ploy introduced by the government after it acknowledged that Zubaydah was not a member of al-Qaeda, which first surfaced
in its response to Zubaydah's lawyers in October 2009, and was then used in Barhoumi's case. In this new scenario, the government claimed that the ongoing detention of Abu Zubaydah was "based on conduct and actions that establish [that he] was ‘part of’ hostile forces and ‘substantially supported’ those forces,” and that he “facilitat[ed] the retreat and escape of enemy forces” after the US-led invasion of Afghanistan in October 2001.
Zubaydah's lawyers countered this by stating that “the persons whom [Zubaydah] assisted in escaping Afghanistan in 2001 included ‘women, children, and/or other non-combatants’” and that the government has “evidence to support those assertions,” but in Barhoumi's case, the government pushed the line that Zubaydah "was ‘part of’ hostile forces and ‘substantially supported’ those forces,” persuading the judges to accept, as evidence, the diary of an alleged associate of Zubaydah, Abu Kamil al-Suri, to demonstrate that Zubaydah was in charge of a militia, which included Sufyian Barhoumi.
As I explained at the time, "Whether there is any truth in this is difficult to ascertain, as Abu Kamil al-Suri is not available to ask about his diary, [because] his whereabouts are unknown." I also noted other problems:
Al-Suri’s diary also identifies 15 members of what is described as “Zubaydah’s militia,” although, in the translation of al-Suri’s own words, it is described, less spectacularly, as a “group,” and a fractious one, moreover, with al-Suri noting that several of the members were “trying to take over this group,” to “lead us to join Sheikh Osama bin Laden.”
Nevertheless, the shadowy figure of Abu Kamil al-Suri and his dubious diary resurfaced in Abdul Razak Ali's habeas petition, clearly exciting Judge Leon, who noted that a man with the same alleged alias used by Ali -- Usama al Jaza'iri -- was listed "as a permanent member of Abu Zubaydah's group," and "also placed him in at least one of the same locations in which [an] eyewitness identified him."
Why Judge Leon's reliance on eyewitnesses is of dubious value, and why the goverment's withdrawal of a key witness is unacceptable
Judge Leon was also happy to accept the word of the eyewitness mentioned above, and others included in the government's submissions, describing "credible accounts by fellow guesthouse dwellers who not only positively identified the petitioner by one of the various names he was using at that time -- i. e., Abdul Razak -- but who also credibly account for petitioner participating in one of Abu Zubaydah's various training programs while he was staying in the guesthouse (i.e., taking a class in English)."
The obvious problem with these accounts is the suspicion that the eyewitnesses -- the "fellow guesthouse dwellers" described by Judge Leon -- may not have produced their statements willingly. This is particularly true if one of them was Abu Zubaydah, as the extent of his torture and the false confessions it yielded has been thoroughly established over the years
, but there are also reasons to suspect that any of the four men put forward for trials by Military Commission in 2008 (who are the likely source of the statements) would also have been subjected to interrogations in conditions that ought to cast doubt on the veracity of their allegations.
For Abdul Razak Ali, the only hope now is that an appeal willl be successful. This seems unlikely, in light of the D.C. Circuit Court's bullish assertions
that the government has more rights to continue holding priosners at Guantánamo than it has asserted itself, but there is clearly a flaw in Ali's case, beyond the obvious problems with the statements of his "fellow guesthouse dwellers" -- namely, that, on December 24, the government withdrew a key allegation on which, until that date, it had been relying, having discovered that it contained "potentially exculpatory information that the Government had not turned over to detainee counsel because it was classified at a higher classification level than detainee counsel was authorized to view."
That statement, made by another Guantánamo prisoner who was not even seized with Zubaydah and Ali, but was captured in a house raid in Karachi six months later, apparently related to a claim by the prisoner in quesion that he had seen Ali in Afghanistan, and its removal not only emphasizes the general unreliability of the government's supposed evidence, but also indicates how difficult it is for prisoners' defense teams to be sure that they have been given given access to all the exculpatory material they need to defend their clients.
In any other circumstance, the withdrawal of a key piece of evidence would have led to a new hearing, but with Guantánamo the normal rules do not apply, and while Abdul Razak Ali clearly has grounds to appeal, it seems unlikely that he will be able to dislodge the lies and misconceptions about Abu Zubaydah that have become accepted in the D.C. Circuit Court, or to challenge the dubious nature of statements made by his fellow prisoners, or that he will be able to succeed in reminding judges about the clear precedent for releasing a man who had nothing to do with Abu Zubaydah, as was established in the case of Labed Ahmed.
Two years and seven months after the Supreme Court granted constitutionally guaranteed habeas corpus rights
to the Guantánamo prisoners, it is impossible to conclude that, for the majority of the men who have lost their petitions (including Abdul Razak Ali), anything resembling justice has been delivered.