By Andy Worthington

From Andy Worthington | Original Article

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

On March 25, as I explained in a recent article, “Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit,” Chief Judge Royce C. Lamberth of the District Court in Washington D.C. denied the habeas corpus petition of Mukhtar al-Warafi, a Yemeni who was 27 years old when he was seized in northern Afghanistan in November 2001. As I explained in that article, according to the available records:

[Al-Warafi] survived a massacre in a mud-walled fortress, Qala-i-Janghi, where hundreds of prisoners — mostly, but not all foot soldiers for the Taliban — had been taken after surrendering to the Northern Alliance. According to a statement read out by a military officer assigned to represent him at a review board at Guantánamo, al-Warafi studied medical procedures in Yemen, “had nothing to do whatsoever with the Taliban,” and went to Afghanistan “to help provide medical assistance to the poor and the public.”

As I also noted, “It is certain that Judge Lamberth will not have been convinced by al-Warafi’s story, and will not have accepted his statement that, although he admitted traveling to Khawaja Ghar in Afghanistan and carrying an AK-47, he said that he had it for self-defense and that it was given to him by a doctor he worked with at a clinic, nor his statement that he provided first aid at the al-Ansar clinic in Kunduz, for all types of people, but not ‘to wounded soldiers.’”

Now that Judge Lamberth’s unclassified opinion has been made publicly available (PDF), it is indeed fair to say that he was not entirely convinced by al-Warafi’s explanation of how he came to be in Afghanistan, and what he was doing there. It remains, nonetheless, a depressing outcome, for a variety of reasons that I will elucidate below, but which, to provide a brief flavor of what is wrong with much of the existing framework for detaining men at Guantánamo on a legal basis, involves a familiar failure to distinguish between those involved with al-Qaeda (a terrorist organization) and the Taliban (the government of Afghanistan at the time of the US-led invasion of Afghanistan).

More shockingly, the ruling also relies on a refusal to exclude from detention those who worked as medical personnel, because of legislation passed by Congress under George W. Bush (which still applies under Barack Obama), and which prevents those seeking habeas relief from calling upon the protections of the Geneva Conventions.

In addition, in his concluding remarks, Judge Lamberth also echoed another judge who, last December, made a point of injecting dissent into his own ruling by stating that he did not believe that the man whose ongoing detention he had just approved constituted a threat to the security of the United States.

For the judges ruling on the habeas cases, the advice — or lack of it — given to them by the Supreme Court, when, in June 2008, it granted the prisoners constitutionally guaranteed habeas corpus rights, has led to certain difficulties, particularly regarding the extent of involvement with al-Qaeda or the Taliban that is required to continue to deprive prisoners of their liberty.

Different definitions have been put forth, but in common with many other judges, Judge Lamberth explained that he was drawing on the detention standard put forward by Judge John D. Bates in Hamlily v. Obama (PDF), which only authorizes the ongoing detention of prisoners who were “part of the Taliban, al-Qaeda or associated enemy forces.”

Mukhtar al-Warafi’s story

To establish that al-Warafi fit this description, Judge Lamberth (photo, left) ran through more of his story than has previously been revealed, explaining how he was born in Taiz, Yemen, and how he “has only a few years of formal education and has worked since a young age” in “a variety of odd jobs, including stints as a waiter, a dishwasher, a custodian, and, for a short while, a lab assistant at his brother’s medical clinic in Taiz,” where “he learned several basic medical skills, including how to administer IVs and take blood samples.”

In the spring of 2001, he “read two fatwas at the Jamal al-Din Mosque in Taiz,” which “discussed the Taliban and its victories in Afghanistan and encouraged individuals to assist the Taliban,” and in August 2001, after borrowing $400 from his father (telling him that he was making a pilgrimage to Mecca), he set off, locating the Taliban office in Quetta, Pakistan (as advised by one of the fatwas) and entering Afghanistan, where he made his way to the front line at Khawaja Ghar in northern Afghanistan.

He only “spent approximately one to two weeks” at the front, where “he received training on an AK-47, but did not engage in any active combat,” and then, when “A superior … sought volunteers to serve as medics at a nearby clinic,” he “volunteered and was transferred to a clinic run by a Saudi doctor, Dr. Abdullah Aziz,” who taught him “how to clean wounds, draw blood, and recognize the symptoms of malaria.”

After 25 days at the clinic, where he “treated approximately six to seven sick and wounded Taliban fighters per day,” he was transferred to the al-Ansar clinic in Kunduz, also run by Dr. Aziz, where he “treated wounded and sick Taliban fighters.” He then spent a month at a hospital, “because the area in which the al-Ansar clinic was located had become too dangerous as the Northern Alliance advanced toward Kunduz,” and on November 23, 2001, as the Taliban surrendered, traveled to Mazar-e-Sharif with other men, as part of a deal negotiated by a man named Thakker, described as his “Taliban commander,” whereby he and the others were led to believe that they would be returned to their home countries.

Instead, they were taken to Qala-i-Janghi by the Northern Alliance’s General Dostum, and, when the prisoners staged an uprising, Dr. Aziz and hundreds of other prisoners were killed, and al-Warafi was shot in the arm and only survived because he hid in the basement with about 100 other men. When these men finally surrendered, after being bombed and flooded, they were taken to the shockingly cruel and overcrowded Sheberghan prison, and al-Warafi was then taken by US forces to Kandahar, where he remained for three months until his transfer to Guantánamo.

Justifiably detaining a medic

At the heart of Judge Lamberth’s contention that al-Warafi can continue to be detained is a cluster of contradictions in his own statements, essentially undermining claims that he “traveled to Afghanistan to provide medical assistance” because of other statements admitting that he “went to Afghanistan to fight against the Northern Alliance after reading two fatwas in Yemen.”

To these can be added the judge’s perhaps understandable conclusion that, even while working as a medic, al-Warafi was still working “within the command structure of the Taliban,” and that his surrender at Mazar-e-Sharif was also undertaken as part of the same command structure. As a result, Judge Lamberth was entitled — indeed, obliged — to conclude that he can be considered as “part of the Taliban”.

This may well be the case, but it is still depressing that a man who, at most, spent a week with a gun on the front line and “did not engage in combat” can continue to be deprived of his liberty in Guantánamo after more than eight years of imprisonment without charge or trial.

Even more depressing, however, is the fact that, under Article 24 of the First Geneva Convention (Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field), medics like al-Warafi are supposed to qualify as “non-detainable medical personnel.” The Convention explicitly states that medical personnel “exclusively engaged in … treatment of the wounded or sick, or in the prevention of disease” are not detainable, except as necessary to treat other prisoners.

However, as Judge Lamberth explained, this provision was eradicated in Section 5 of the Military Commissions Act of 2006 (PDF, p. 32), passed by Congress under George W. Bush, which cynically insists, “No person may invoke the Geneva Conventions … in any habeas corpus proceeding … as a source of rights in any court of the United States.”

As he added in a footnote, “In Boumediene v. Bush, the Supreme Court declared Section 7 of the Military Commissions Act … unconstitutional because it ‘effects an unconstitutional suspension of the writ [of habeas corpus.]’” However, “The Court left the remaining provisions of the act intact,” and therefore, “Section 5 of the Military Commissions Act remains constitutional and does not effect a suspension of the writ of habeas corpus.”

There is, of course, a dark irony to the fact that the limitless detention of a medic is justified on the basis of legislation passed by Congress under George W. Bush (and retained, largely intact, by Obama), because stripping prisoners of the protections of the Geneva Conventions was one of the hallmarks of the Bush administration’s extraordinary arrogance, and was supposed to have been banished.

Moreover, the realization that the Bush administration’s lawlessness lives on, and, for the first time, has explicitly prevented a medic from receiving anything approaching justice, is even more darkly ironic when one considers that US medical personnel at Guantánamo — and elsewhere in the “War on Terror” — have been involved in torture, but, unlike Mukhtar al-Warafi, who tended to soldiers in wartime, appear not to be regarded as remotely accountable for their actions.

In that analogy, however, is contained the kernel of the injustice of the phony “War on Terror” — not the criminal side of things, which should have involved the detention and prosecution of genuine terrorist suspects in federal courts, but the manner in which warfare itself has been refashioned, so that those on one side — the US military and its allies — can do no wrong, whereas those on the other side are not afforded the most minimal rights, and even a medic becomes a terrorist.

To be fair to Judge Lamberth, it’s clear that he was not entirely happy with following the letter of the law to reach his conclusion that Mukhtar al-Warafi can continue to be detained indefinitely at Guantánamo. In his concluding remarks, he echoed comments made in December by Judge Thomas E. Hogan, when he denied the habeas petition of Musa’ab al-Madhwani, a Yemeni seized in Karachi, Pakistan, in September 2002, who was tortured in the CIA’s “Dark Prison” before his transfer to Guantánamo.

On that occasion, Judge Hogan noted that he was “not convinced that it is more likely than not that [p]etitioner is a threat to the security of the United States.” After quoting Judge Hogan, Judge Lamberth added, pointedly:

Petitioner was a low-level member or associate of the Taliban. He spent no more than a few weeks at the front line, and there is no evidence that he “planned in, participated in, or knew of any terrorist plots.” The Court hopes that this Memorandum does not foreclose the government from continuing to review petitioner’s file and assess whether he continues to pose a threat to the national security of the United States.

Anyone interested in justice — and not in the perpetuation of a flawed system based on the Bush administration’s cruel and inept overreaction to the 9/11 attacks — must be hoping that Judge Lamberth’s words have been noted in the corridors of power.