Now that the time is approaching when the Supreme Court will once more decide whether the detainees at Guantánamo have the right to challenge their detention in the US courts (a right the Supreme Court gave them in June 2004, but which was snatched away from them in subsequent legislation fuelled by paranoia and Democratic inertia), the recent release of 16 Saudis provides an opportunity to reflect on how, nearly six years after 9/11, the Guantánamo detainees remain in a shocking legal limbo and in desperate need of a legally-binding assertion of their rights under US and international law.
While most media outlets have been content to treat their readers and viewers to headlines about the men's release, backed up by very little comment or analysis, I have been able to build up a detailed picture of this latest group of men, based on the extensive research I conducted for my forthcoming book The Guantánamo Files, and through discussions with the detainees' lawyers over the last few days.
Freed after five and a half years from the prison in which they were initially accused of being "the worst of the worst," what the Saudis' stories reveal most of all is the general ineptitude of the administration on all fronts -- from the circumstances of their capture, to the screening process in the US prisons in Afghanistan, to the quality of the "intelligence" gathered from them in Guantánamo -- which only serve to reinforce the need for tough action from the Supreme Court this fall.
Of the 16 men released on Thursday, not one deserved to be labeled as "the worst of the worst." Two of the men -- Abdul Aziz al-Oshan and Abdullah al-Anazi -- recently came to prominence when poems they had written were declassified and included in Poems From Guantánamo: The Detainees Speak, an anthology of Guantánamo prison poetry compiled by law professor Marc Falkoff, who represents a number of Yemeni detainees.
Al-Oshan, who marked his 28th birthday in Guantánamo the week before his release, went to Afghanistan in late September 2001, after taking his final exam at university, to find his brother Saleh (who was also captured, but released in July 2005), in order to persuade him to return to Saudi Arabia. Caught up, in late November 2001, in the fall of Kunduz, the last Taliban bastion in the north of Afghanistan, he was "tied down and taken with other detainees" to Qala-i-Janghi, the mud-walled fort of General Dostum, one of the leaders of the Northern Alliance, where he survived a US-led massacre that followed an uprising by some of the prisoners. Despite the fact that he had not been involved in any kind of military training and had not raised arms against either the Northern Alliance or the US-led coalition, he explained to his tribunal in Guantánamo that he was afraid of being tortured, because he had previously been tortured in Afghanistan. "When I was first captured," he said, "it was the Afghani police there. They were threatening me and torturing me. If I didn't say that I was from al-Qaeda or Taliban I was tortured. I went to Kandahar and I was tortured there. The guy was speaking English saying 'Al-Qaeda? Taliban? Al-Qaeda? Taliban?' Evidence of the torture is that they broke my tooth which was fixed here." He added, "Once I arrived here, things were a little better. There was no torture or things like that but, because of what happened in the past I was dwelling on the fact that, are these people treating me good and they are going to come back and torture me again?" Gentle, softly-spoken, literate and with a wry sense of humor that five and a half years in Guantánamo could not extinguish, al-Oshan recently wrote a critical account of the library facilities at Guantánamo that was published here in July.
The other poet, Abdullah al-Anazi, was rather less fortunate than Abdul Aziz al-Oshan. After responding to appeals for aid workers to help out with the "humanitarian crisis" in Afghanistan, which was publicized widely in Saudi Arabia both before and after 9/11, and which featured prominent sheikhs appearing on television explaining, as his lawyer described it, that "Muslims were in dire straits in Afghanistan, and that it was the responsibility of fellow Muslims to help them," the 21-year old duly traveled to Afghanistan to provide humanitarian aid. After fleeing the Jalalabad region during the US-led bombing campaign, he was one of several dozen Guantánamo detainees caught in a bombing raid in the mountains near the Pakistani border, and was then taken to a hospital where one of his legs was amputated.
Seized from his hospital bed by local warlords, he was then sold to US forces for a bounty (after which the people who had sold him and labeled him a terrorist disappeared with the money), and had his other leg amputated in US custody. By the time he arrived at Guantánamo, on February 7, 2002, he weighed just 101 pounds (7 stone 3 pounds, or 46 kg). Described by his lawyer as "the gentle double amputee poet of Guantánamo," the terrorist tag that his bounty hunters gave him clung to him in US custody, and, despite being "forced to walk on prosthetic limbs held together with duct tape," as Marc Falkoff described it, lawyer Candace Gorman explained that one interrogator in Guantánamo assessed him as being "unsuitable for repatriation ever, because his lack of legs ... would make him 'less attractive to his wife,' thereby making him a 'prime candidate for suicide bombing recruitment.'"
Four more humanitarian aid workers were captured in Pakistan. 22-year old Zaban al-Shammari, who, according to one of his lawyers, "suffers from a form of epilepsy and experienced seizures" in Guantánamo, traveled to the southern Pakistani city of Karachi to work for a charity organization in July 2001, and was captured by bounty-hungry Pakistani soldiers 600 miles from the battlefields of Afghanistan, and Abdulhadi al-Sharikh, who was 19 at the time, had been in Pakistan for a year, on a mission to help the poor, when he too was seized without setting foot in Afghanistan.
Two others -- Fahd al-Fawzan and Mohammed al-Qurbi -- were not only captured in Pakistan, but also had to contend with allegations made by unspecified "members of al-Qaeda" -- either their fellow detainees, coerced or bribed, or, more worryingly, some of the "high-value" detainees in secret CIA-run prisons, including Khalid Sheikh Mohammed and Abu Zubaydah -- that they had connections with al-Qaeda in Afghanistan. Al-Fawzan, who was just 17 years old when he was captured, had apparently been working for al-Haramain, a vast Saudi charity that was closed down in 2004, under pressure from the US government, which alleged that parts of the organization were used as a front for terrorist financing.
Unwittingly tarred as a terrorist because of this association, what counted against him more was an allegation that he had been "identified by a senior al-Qaeda member," who was probably also responsible for the claim that he had trained at a military camp, and that he had previously been in Afghanistan for ten months in 1999, when he was only 15 years old. In his defense, al-Fawzan stated that he wished to return to Saudi Arabia "to continue his laundry business and raise his family," that Osama bin Laden was a "bad man," and that "those types of attacks [9/11] are not a good reflection on Muslims."
Al-Qurbi, who was 23 years old at the time of his capture, maintained that he was arrested by the Pakistani police in Quetta in October 2001, and was handed over to the Americans on November 25. He explained that he had traveled once to Pakistan via Syria and Malaysia, and had then traveled again to Pakistan, to attend a conference run by Jamaat-e-Tablighi, an enormous worldwide missionary organization, but was arrested before he got there. He insisted that he had never set foot in Afghanistan, even though it was alleged that he was identified as an al-Qaeda operative by one of Osama bin Laden's bodyguards, that he had managed a hostel for the Taliban, and that he was part of the "security element" for Abdul Rahim al-Nashiri, the alleged facilitator of the bombing of the USS Cole in 2000. Captured in the UAE in November 2002, and held in secret CIA-run prisons until his transfer to Guantánamo in September 2006, al-Nashiri may, therefore, have been the source of all these allegations.
Another non-combatant, 20-year old Rami al-Juaid, was arrested in Kohat, Pakistan, at the house of a Pakistani who had traveled with him from Afghanistan, after the US-led invasion began, in a car driven by an Afghan guide. In his tribunal at Guantánamo, he accepted that he traveled to Afghanistan in August 2001, but denied receiving training at a "terrorist camp," as alleged, saying that his training was religious, that it took place at a mosque in Kandahar, and that he had only planned on visiting Afghanistan for three weeks to see for himself the Islamic state run by the Taliban. When questioned by the tribunal, he explained that he was an only son, and that "If you are the only son/male child you are exempt in going to jihad."
Four others were either accused of, or admitted taking part in military training, but none rose above the level of a foot soldier, and there are few, if any indications that any of them actually took part in any kind of combat. Abdulrazak al-Sharikh, the younger brother of Abdulhadi al-Sharikh, was only 16 years old when he arrived in Afghanistan in late 2000, and only 17 when he was captured in Pakistan, having crossed the border from Afghanistan after the US-led invasion began. Explaining his reasons for going to Afghanistan, he said in his tribunal that he wanted to receive training so that he could fight in Chechnya, where another of his brothers had been killed, but that although he had wanted to "go over there so I can die and meet up with him," a friend of his brother's had advised him that he "wouldn't last one day" in Chechnya, and suggested that he went to Afghanistan instead. He added, "The Muslim scientists, or clergymen, were telling me to fight in Afghanistan. They convinced me to fight there, and told me how to get there, so I went."
Although he admitted training for two months at the al-Farouq camp for Arab volunteers (where he attended a speech given by Osama bin Laden) and serving on the Taliban front lines for three months in Kabul and five months further north, with Pakistani members of the militant group Jaish-e-Mohammed, he explained that he never fired a weapon at anyone, and that there was little activity until after 9/11, when the Northern Alliance attacked them so hard that they retreated. He denied an allegation that he was "captured by Pakistan police while traveling with a group of Arabs and Afghanis, some of whom were security guards for Osama bin Laden," saying, "This is not true. When I went to Pakistan, I only had two people with me. When I was turned over, they captured the Arab and Pakistani people. When they sent me to prison, I was taken along with the other group."
He added that he had traveled with two Pakistani guides, and that, after surrendering, he was met by a representative of the Saudi government, who knew of him because "I am from a very well known family." Despite assurances from the representative that he would help him return to Saudi Arabia, however, he was then handed over to US forces.
Less is known about the three others accused of involvement in militancy. Khalid al-Sharif, who was 26 years old when he was captured crossing the Pakistani border, denied an allegation that he had attended the al-Farouq camp, but admitted that he had attended another military training camp. He refuted an allegation that he was second-in-command of a group of fighters in Tora Bora, however, insisting that he had never been to Tora Bora, and also refuted an allegation that he met Osama bin Laden, saying, "All I did was see a photograph of him. If I see a photograph of President Bush does that mean I met President Bush?"
The story of Salim al-Shihri, who was 20 years old when he was captured, is even more vague. Captured after the fall of Kunduz and taken to Qala-i-Janghi, where, he said, "I was there but I did not take part in the uprising," he denied allegations that he traveled to Afghanistan in August 2001 "to join the jihad and fight with the Taliban," and that he received military training and fought on the front lines, admitting only that he traveled to the front lines "for a visit," and saying that he went to Afghanistan because he read a fatwa "calling for people going there to help people."
Asked to define the fatwa, he said, "I don't know how to explain it. I don't have the knowledge ... I just know that an important sheikh talks," and when asked what this particular fatwa was for, he said that it was "about helping those who needed help." While this could have been a deliberately evasive response, it's also possible that, like many others, he obeyed the fatwas unquestioningly, and did not really understand what he was getting into.
Even less is known about Fahd al-Harazi, who was 23 years old when he was captured. Although he had secured legal representation, he refused to meet his lawyers, and also refused to take part in either his tribunal or his review boards, so that the allegations against him went unanswered. While the first set of allegations -- that he traveled to Afghanistan in March 2001 "to fight the jihad," attended "an al-Qaeda affiliated camp," fought on the front lines against the Northern Alliance, and was wounded in Qala-i-Janghi - seem plausible, additional claims -- that he was actually a trainer at al-Farouq, and that his name was found on a document at the "Military Committee al-Mujahideen Affairs Office," which contained "nominees for the al-Qaeda Trainers Preparation Center" - look more dubious, and may well have evaporated as the years have passed.
As with the 16 Saudis released just seven weeks ago, which I reported here, some of the latest group -- four in total -- had no legal representation, and, like Fahd al-Harazi, spent five and a half years in Guantánamo without seeing any non-military personnel except occasional representatives of the Red Cross. Two of these four men also refused to take part in their tribunals, and what little can be gleaned of their stories is taken from the Unclassified Summaries of Evidence for their tribunals. Majid Barayan, born in 1972, was captured on the Pakistani border and was accused of training at al-Farouq, where he allegedly "received weapons and explosives training," and fighting on the front lines north of Taloqan against the Northern Alliance, where he was reportedly "in charge of an anti-aircraft missile launcher mounted on a truck."
Also captured on the Pakistani border was Mousa al-Amri, born in 1978, who was subjected to conflicting allegations. Reportedly recruited after seeing fatwas issued by various sheikhs on bulletin boards around his hometown and in mosques, which called on Saudi citizens "to travel to Afghanistan and help the Taliban," it was suggested that, after arriving in Pakistan, a Saudi named Mohammed Abdul Razzaq facilitated his journey to Afghanistan and took him to a Taliban center near Kabul, which functioned as a reserve camp, providing training in small arms, medical care and guard duty.
Other contradictory accusations involved him arriving in Afghanistan in March 2001, when he was promptly issued with a Kalashnikov and assigned to a position near the front lines, fighting on the front line in Bagram, and, in another scenario, staying in a Taliban house a few minutes from the Pakistani border, where Mohammed Abdul Razzaq (this time appearing as an Afghan) directed him to a supply center, where he spent six weeks loading trucks. In his defense, al-Amri stated that he had actually been visiting mosques and teaching the Koran with Jamaat-al-Tablighi, and added that he told the Pakistani authorities that he fought with the Taliban because he was told that, "if he told the truth about performing missionary work with Jamaat al-Tablighi, the Saudi delegation would not help him." He also said that he "never participated in military actions or affiliations of any type with the Taliban," and that he 'knows no one who is or has claimed to be with al-Qaeda, nor has anyone ever asked him to join the Taliban or al-Qaeda."
The other two men are Bakri al-Samiri and Amran Hawsawi. Al-Samiri, who was 24 years old when he was captured, was accused of training in a camp run by the Pakistani militant group Lashkar-e-Tayyiba (LeT), fighting on the front lines against the Northern Alliance, and retreating from Bagram to Jalalabad, where he was wounded by shrapnel. Although he admitted that he met a man in Mecca who told him about the work of LeT, he insisted that he only went to Afghanistan for a few weeks' vacation "to help others any way I could help." Like all the men who refused legal assistance, he appears to have taken part in hunger strikes at Guantánamo, and at one point, in May 2006, his weight dropped to just 103 lbs.
The last of the four, Amran Hawsawi, had a less confusing story to tell, and joins the ranks of the wrongly imprisoned humanitarian aid workers and religious teachers described above. 26 years old at the time of his capture, Hawsawi, who taught the Koran in Saudi Arabia, traveled to an Afghan refugee camp near the border with Iran, where he suffered shrapnel injuries after a bombardment. He then tried to cross the border into Iran, but was turned back by Iranian officials, and made his way to Pakistan instead, where he was subsequently arrested in a Saudi Red Crescent hospital in Quetta, even though he was seriously ill. "Even the doctor refused but they took [me] by force," he explained. "He [the doctor] said you can release anybody but this one."
Like Fahd al-Fawzan and Mohammed al-Qurbi, Hawsawi also ran up against allegations produced, in dubious circumstances, by alleged members of al-Qaeda. It was stated that "a senior al-Qaeda lieutenant," who was "on the media committee along with Khalid Sheikh Mohammed," described him as a member of al-Qaeda, and it may have been this source that was also responsible for another groundless allegation: that he was "identified" in Kabul at the al-Farouq camp. Not only was al-Farouq nowhere near Kabul, but it was also alleged that Hawsawi traveled to Afghanistan in September 2001, which was when the camp closed down.
I have saved until last the story of Abdul Hakim Bukhari, a 46-year old former mujahideen fighter, who met Osama bin Laden 14 or 15 years previously while fighting against the Russians, when the CIA was covertly funding the anti-Soviet resistance that would, in time, become the basis of al-Qaeda. Although his motives were far from peaceful -- he admitted that he traveled to Afghanistan to fight the US after 9/11, because "President Bush declared war on the Taliban" and "the Taliban called a jihad" -- he never raised arms against either the US or its allies, but was instead suspected of being a spy after declaring that he admired Ahmed Shah Massoud, the leader of the Northern Alliance.
Fanatically opposed to al-Qaeda and the Taliban, Massoud was assassinated two days before 9/11, and Bukhari's admission resulted in his imprisonment by the very people he had traveled to help. "They got mad when I said I liked Massoud," he said. "They are crazy. They don't like him. If I had known they didn't like him, I wouldn't have spoken. For saying that, they punished me ... they beat me, they hit me very badly. They accused me of being a spy. They are stupid." Freed from a Taliban jail after the US-led invasion, he was one of at least eight Guantánamo prisoners imprisoned and tortured by the Taliban and/or al-Qaeda, who, instead of being released, were transferred to Guantánamo, where several of them still remain.
As the 16 released Saudis prepare -- after a suitable period of "reprogramming" -- to attempt to rebuild their shattered lives, their cases should demonstrate to the justices of the Supreme Court that the time is long overdue to conclude, emphatically, that the President and his advisors have no right to hold prisoners - mostly innocent men or Taliban foot soldiers from an inter-Muslim civil war that long preceded 9/11 - for over 2000 days without charge or trial, in circumstances that would try the hardest of convicted criminals on the US mainland.
It is also, I believe, incumbent on the justices to insist that the United States returns forthwith to the rule of law, reestablishing the inalienable right of anyone captured by US forces -- whether an American citizen or not -- to be treated as an Enemy Prisoner of War in accordance with the Geneva Conventions (in a war that is defined by time and place, rather than one that is nebulous and open-ended) or to be charged and brought before a reputable court of law, where the nature of much of the "evidence" produced in Guantánamo -- hearsay, and statements obtained through torture, coercion or bribery, as described in the stories above -- can be tested and shown up as the tissue of lies that so much of it clearly is.
The Pentagon's disdain for the law was demonstrated, in a typically haphazard and arrogant fashion, when the Department of Defense released these 16 men without even notifying the lawyers of the 12 who had representation. And while dozens of other cleared detainees remain in Guantánamo, despite being approved for release through the administrative review process that is held up as providing fair and thorough investigations of their status, it also transpired that the 16 Saudis were released without being cleared, indicating that political maneuvering, rather more than justice, is driving the evacuation of the reviled prison.
As Anant Raut, one of the lawyers for the Saudis, declared on the news of their release, "I hope this puts an end to the absolutely false argument that the only reason the US can't transfer many of these prisoners out of Guantánamo is that their own countries don't want them back. Clearly, the Saudis are willing to take their citizens home. The administration has said it only plans to charge some 30-60 of the prisoners; the remaining 300-plus it has no interest in keeping. If the Saudis are willing to take theirs back, my question is, what's stopping the transfer of the others?"
The answer, sadly, is that up to 150 detainees remain in Guantánamo because the administration is finding it difficult to undo the lawless fiasco it has created. While two-thirds of the Saudis have now been released, almost all the Yemeni detainees -- 96 men, whose profiles largely match those of the Saudis -- are still there, apparently because the governments of the US and the Yemen cannot reach an agreement about the terms of their repatriation that will satisfy both parties.
Dozens of North Africans are also still stranded, unwilling to return to the countries of their birth, where, despite being cleared, they face the risk of torture. These men are being subjected to particularly cynical moves on the part of the US administration, which, with the UK government, is engaged in bypassing international anti-torture legislation preventing the return of individuals to countries where they face the risk of torture by securing "diplomatic assurances" and "memoranda of understanding" with the abusive regimes in charge of their home countries that are not worth the paper on which they are printed.
The tide of opinion may slowly be turning against Guantánamo in the United States, but although the release of the Saudis contributes to its closure, the circumstances of many others -- as touched on above -- reveals that it is much easier to set up an illegal interrogation camp and torture prison than it is to close it down.