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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).
Despite the Bush administration’s fearsome rhetoric regarding Guantánamo — that it contained “the worst of the worst” terrorists, who, as a result, should be held indefinitely without charge or trial — attempts to back up these allegations with evidence have, for the most part, failed dismally. This is partly because the majority of the men held were not seized by US forces on the battlefield, as alleged, but were rounded up by the US military’s allies, in Pakistan as well as Afghanistan, at a time when bounty payments averaging $5,000 a head were being paid for al-Qaeda or Taliban suspects. However, the failures can also be ascribed to overreaction on the part of the Bush administration, and to a system of torture and coercion — and, in some cases, bribery — designed to produce confessions that, as a result, are overwhelmingly unreliable.
By the time George W. Bush left office in January 2009, 532 of the 779 prisoners held at Guantánamo had been released, and only three men had been tried and convicted of any crimes. These took place in the Military Commission trial system established by Vice President Dick Cheney in November 2001, which was revived by Congress in 2006 after the Supreme Court ruled it illegal, and the results were as follows:
- David Hicks, an Australian, accepted a plea bargain in March 2007, admitting to “providing material support to terrorism” in exchange for dropping his well-documented claims that he was abused in US custody. As a result, he received a nine-month sentence and was returned to Australia, where he is now a free man.
In addition, by the time Bush left office, judges in the US District Courts had also begun considering the habeas corpus petitions of the prisoners. The prisoners’ right to ask a judge why they were being held was unprecedented in wartime, but the Supreme Court granted the prisoners habeas rights in June 2004, because the justices recognized that they were not being held as prisoners of war protected by the Geneva Conventions, but as “enemy combatants,” who had been given no way of challenging their detention if they claimed that they had been seized by mistake. Congress subsequently stepped in to take away these rights, but they were reaffirmed in June 2008, when the Supreme Court ruled that Congress had acted unconstitutionally.
The first rulings were made in the four months before Bush left office, and the District Court judges empowered to rule on the prisoners’ detention had more bad news for the government. The Courts delivered rulings on the habeas corpus petitions of 26 prisoners, granting the petitions of 23 of these men, and only refusing them in three cases.
Under President Obama, the Courts have delivered 21 more rulings, and although the balance has swung slightly less against the government, with the prisoners winning eleven of these petitions, and the government winning ten, the only valid conclusions that can be drawn again reflect badly on the government (see “Guantánamo Habeas Results: Prisoners 34, Government 13” for links to all these rulings).
In the cases won by the prisoners, judges have demonstrated, time and again, that the government’s supposed evidence is largely unreliable, and consists primarily of information extracted through the torture or coercion of the prisoners themselves, or through the torture, coercion or bribery of other prisoners. Moreover, even in the cases won by the government, little evidence has been produced to demonstrate that the men in question were anything more than low-level Taliban recruits, who had traveled to Afghanistan to take part in a long-running civil war (in which the enemy was the Northern Alliance, who were also Muslims), and who should, as result, have been held as prisoners of war, protected by the Geneva Conventions from “cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.”
Despite the government’s many setbacks, senior officials in the Obama administration, which has largely been content to consider the Bush administration’s body of tortured, coerced or bribed evidence against the men as somehow reliable, must have been hoping for confirmation of its policies on March 22, when Judge James Robertson delivered his ruling on the habeas corpus petition of Mohamedou Ould Slahi (described in court documents as Mohamedou Ould Salahi).
The case of Mohamedou Ould Salahi
 A Mauritanian, Salahi had been seized by the Mauritanian authorities in November 2001, at the request of the US, and had then been rendered by the CIA to a prison in Jordan, as part of a project of outsourcing torture to allies in the Middle East and North Africa (including Egypt, Morocco and Syria) that was prevalent until the CIA brought torture in-house, and established its own secret torture prisons.
After eight months in Jordan, he was flown to Guantánamo (via Bagram, in Afghanistan), where he was subjected to another round of torture between June and September 2003, after which he became so compliant that, as the Washington Post reported last month, he has come to be regarded by the authorities as one of “the most significant informants ever to be held at Guantánamo,” living in his own well-equipped cell, where he has a television and “a well-stocked refrigerator,” and access to a garden, which he shares with another informer, Tarek El-Sawah (identified as Tariq al-Sawah), where the two men reportedly “grow mint for tea.”
Despite the torture, and the well-known fact that, in May 2004, Lt. Col. Stuart Couch of the Marine Corps, who had been assigned his case as a prosecutor the year before, resigned rather than pursuing the case, stating that, “in addition to legal reasons, he was ‘morally opposed’ to the interrogation techniques” used on Salahi, the Obama administration — and, specifically, the Justice Department — was confident that it had a case.
Once described as the “highest-value detainee at the facility,” Salahi was obviously no stranger to al-Qaeda. His cousin and brother-in-law is Mahfouz Walad al-Walid (better known as Abu Hafs al-Mauritania), a religious scholar regarded by US authorities as a spiritual advisor to Osama bin Laden, and he also lived in Germany, where he met Ramzi bin al-Shibh (who reportedly helped Khalid Sheikh Mohammed plan the 9/11 attacks) and several of the 9/11 hijackers, and, briefly, in Canada, where he moved in circles that included Ahmed Ressam, the failed “Millennium Bomber.” He was also in contact, at various points in the 1990s, with a handful of other men who were later convicted for terrorist activities.
However, as Judge Robertson explained in his unclassified opinion (PDF), issued on April 9, “Associations alone are not enough … to make detention lawful.” Although he accepted, as Salahi himself admitted, that “he traveled to Afghanistan in early 1990 to fight jihad against communists and that
there he swore bayat to al-Qaeda,” he also, essentially, accepted Salahi’s assertion that “his association with al-Qaeda ended after 1992, and that, even though he remained in contact thereafter with people he knew to be al-Qaeda members, he did nothing for al-Qaeda after that time.” This was in marked contrast to the government’s claim that he “was so connected to al-Qaeda for a decade beginning in 1990 that he must have been ‘part of’ al-Qaeda at the time of his capture.”
No knowledge of “Millennium Plot,” no knowledge of 9/11
In dealing with the various components of the government’s allegations, Judge Robertson’s unclassified opinion contains two particularly important concessions by the government. The first is that, although Salahi was originally seized in connection with Ahmed Ressam’s thwarted “Millennium Plot,” the government now “does not allege that Salahi participated in the Millennium Plot.” The second — even more extraordinarily, given how Salahi has been sold to the public over the years — is that the government now “acknowledg[es] that Salahi probably did not even know about the 9/11 attacks.”
These are crucial concessions, of course, which fatally undermine any claim that Salahi was a significant al-Qaeda operative, but in granting his habeas petition, Judge Robertson was also obliged to dismiss a number of other allegations. He began by noting that the case “relies heavily on statements made by Salahi himself, but the reliability of those statements — most of them now retracted by Salahi – is open to question.” He added that, “until very recently, the government has focused entirely on its assertion that Salahi was ‘part of’ al-Qaeda, relying on evidence of Salahi’s pre-capture support of al-Qaeda only to bolster that assertion,” but that, “In an eleventh hour brief, the government has invoked the ‘purposeful[] and material[] support’ standard that was approved in Al-Bihani v. Obama [PDF].”
This is a reference to a disturbing Court of Appeals ruling in January, in which two of the three judges on the panel denied the appeal of Ghaleb al-Bihani, a Yemeni cook for Arab forces supporting the Taliban, who lost his habeas petition in January 2009. In this contentious ruling, the two judges claimed that the President’s war powers are not “limited by the international laws of war,” provoking dissent from the third judge, who noted that, in 2004, Justice Souter of the Supreme Court had explicitly stated, “[W]e understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.” In addition, the judges insisted that the government’s power to detain “includes those who are part of forces associated with al-Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against US Coalition partners” (emphasis added).
However, Judge Robertson ruled that this latter claim was “a non-starter,” stating that, “although Salahi may very well have been an al-Qaeda sympathizer, and the evidence does show that he provided some support to al-Qaeda, or to people he knew to be al-Qaeda, [s]uch support was sporadic … and, at the time of his capture, non-existent.” He added, “In any event, what the standard approved in Al-Bihani actually covers is ‘those who purposefully and materially supported such forces in hostilities against US Coalition partners,’” and “The evidence in this record cannot possibly be stretched far enough to fit that test.”
As a result, Judge Robertson examined the evidence submitted by the government to ascertain whether it met the existing test, first formulated by Judge John D. Bates in another habeas case (PDF): “whether the individual functions or participates within or under the command structure of the organization — i.e., whether he receives and executes orders or directions.”
After noting that “the question of when a detainee must have been a ‘part of’ al-Qaeda to be detainable is at the center of this case,” and pointing out that the government “had to show that he was still (or again) within its command structure when he was captured in November 2001,” Judge Robertson noted, almost in passing, that “the al-Qaeda that Salahi joined in 1991 was very different from the al-Qaeda that turned against the United States in the latter part of the 1990s,” and proceeded to dismiss the government’s claim that it was up to Salahi to prove that he had dissociated himself from al-Qaeda after 1992. In doing so, he took another swipe at the Court of Appeals’ ruling in Al-Bihani, in which the court indicated that “there is nothing unconstitutional about shifting the burden to a detainee to rebut a credible government showing ‘with more persuasive evidence,’” by stating, with palpable incredulity:
If that is the rule, one might reasonably ask, how can Guantánamo detainees — locked up for years on a remote island, cut off from the world, without resources, with only such access to intelligence sources and witnesses as the government deigns to give them — how can such people possibly carry the burden of rebuttal, even against weak government cases? The answer, unfortunately for detainee petitioners, is that they are indeed at a considerable disadvantage, and that successful rebuttals of credible government cases will be rare events. The Court of Appeals has acknowledged this imbalance and approved it: “[P]lacing a lower burden on the government defending a wartime detention — where national security interests are at their zenith and the rights of the alien petitioner at their nadir — is permissible.”
In response, Judge Robertson made a point of noting that a habeas court must, since the Al-Bihani ruling, “consider the government’s factual showing of probable cause and look to the petitioner for rebuttal when that showing is both credible and significant,” but added, “It is only fair to the petitioner, however — and, considering the government’s built-in advantage, not unfair to the government — to view the government’s showing with something like skepticism, drawing only such inferences as are compelled by the quality of the evidence.”
Dissecting the evidence
 That evidence, as Judge Robertson noted at the outset, “relies heavily on statements made by Salahi himself,” and, as he explained, there is “ample evidence in this record that Salahi was subjected to extensive and severe mistreatment at Guantánamo from mid-June 2003 to September 2003,” as I explained in a recent article, “Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit.” He added that “Salahi made most, if not all, of the statements that the government seeks to use against him during the mistreatment or during the 2 years following it.” and that, as a result, Salahi’s own position is that “every incriminating statement he made while in custody must therefore be disregarded.”
While not entirely agreeing that every statement must be disregarded, Judge Robertson was clearly skeptical of the government’s claim that some statements should be acceptable because there was “a clean break” after the acknowledged abuse, and was also skeptical of an allied claim that some statements were corroborated by “the statements of other persons (some of them detainees).” After noting that Salahi attacked these corroborating statements as “unreliable hearsay, or subject to the same coercive tactics described above, or both,” the judge explained that his approach was “to formally ‘receive’ all the evidence offered by either side, and to give it the weight I believe it deserves.”
In a timeline, running from 1998, when Salahi began studying at the University of Duisberg in Germany, until his capture in November 2001, Judge Robertson accounted for the years in Afghanistan (1990-92) Salahi’s return to Germany to compete his studies in March 1992, when his wife joined him, and his employment during that period, with various companies in Germany. He also laid out every other claim that, between March 1993 and the time of his capture, he traveled with Abu Hafs to Sudan (in 1993) and twice transferred sums of $4,000 for him (in 1997 and 1998), was involved with Ramzi bin al-Shibh and some of the 9/11 hijackers, and with Ahmed Ressam and other terrorist suspects in Canada (during his brief stay there from November 1999 to January 2000), and that he had some involvement with individuals who were later convicted of charges related to terrorism, including Karim Mehdi, a Moroccan convicted of an alleged bomb plot on the French island of Réunion in 2003, who received a nine-year prison sentence in France in October 2006, Christian Ganczarski, a Polish-born German citizen, who received an 18-year sentence in France in February 2009, in connection with the bombing of a synagogue in Tunisia in April 2002, and Christopher Paul, a US citizen who received a 20-year sentence in Ohio, on charges related to terrorism, in February 2009.
This is an impressive list, of course, and one that, on the surface at least, seems to implicate Salahi in a number of terrorist plots, and to give weight to the government’s claim that he “actively recruited” for al-Qaeda from 1991 until at least 1999, but on examining the evidence Judge Robertson was not convinced.
In dealing with the “most damaging allegation” against Salahi — that, “in October 1999, he encouraged Ramzi bin al-Shibh, [and 9/11 hijackers] Marwan al-Shehhi, and Ziad Jarrah to join al-Qaeda” — Judge Robertson drew less than expected on bin al-Shibh’s dubious role in fostering this claim (during the four years that he was held in secret CIA prisons and subjected to the US torture program), and more on the unreliability of Salahi’s own statements, and those of Karim Mehdi.
As Judge Robertson explained, “Under coercive interrogation, Salahi confessed to facilitating travel for ‘several of the 9/11 hijackers to Chechnya,’ justifying his assistance as ‘just’ jihad.” As I explained in my book The Guantánamo Files, “even if it were true, it proves only that he was a recruiter for a war in Chechnya that was regarded by many Muslims as a legitimate struggle, who sent would-be recruits for training in long-established training camps in Afghanistan, and does not connect him in any meaningful way to 9/11.” However, as the judge noted, “Salahi’s testimony now is that he did nothing more than give bin al-Shibh and his friends lodging for one night.”
Further evidence is supposed to have come from Karim Mehdi, who alleged that Salahi “encouraged them to travel to Afghanistan for training – rather than Chechnya as they had intended; that he housed them for at least one night [and] that he gave them instructions for traveling to Afghanistan and contacts for their arrival; and that he drove them to the train station the next morning.”
However, Salahi countered by stating that “the two men accompanying bin al-Shibh were not al-Shehhi and Jarrah, and that he did not convince bin alShibh to travel to Afghanistan instead of Chechnya,” and also by arguing that Mehdi’s statements “are too unreliable to serve as corroboration,” because they were “coerced by mistreatment,” including sleep deprivation, and because Mehdi “was fed information by his interrogators” and “has admitted to lying.”
In an explanation of this latter point, Judge Robertson noted that “some of Mehdi’s information is inconsistent with the statements of Salahi … Mehdi said that they [Salahi, bin al-Shibh and the hijackers] met more often than twice, including a meeting that took place at Salahi’s house at a time when Salahi was in custody. Upon learning that fact, Mehdi withdrew his statement about the meeting.” He added that “Mehdi’s statements indicate only that Salahi knew bin al-Shibh and Jarrah were going to Afghanistan for training, not that Salahi encouraged them to do so.”
Beyond this central claim, dismissed by the judge, the most persuasive other piece of evidence is a fax sent by Salahi to Christopher Paul in January 1997, asking this “man of great respect in al-Qaeda” for advice on how to “facilitate getting brothers to fight.” Although Salahi rather feebly tried to claim that he had not sent this fax, Judge Robertson found that it “appears to be authentic,” but refused to draw an inference from it beyond stating that it demonstrated that Salahi “continued to be in touch with people he knew to be al-Qaeda members, and that he was willing to refer would-be jihadists to them when the opportunity arose.”
After concluding that the government “has not credibly shown Salahi to have been a ‘recruiter,’” Judge Robertson turned his attention to claims that he had been involved in al-Qaeda telecommunications projects — for Abu Hafs in Sudan, and for Christian Ganczarski in Afghanistan. However, the judge did not give much weight to either allegation, and also dismissed allegations of his involvement with Karim Mehdi, Christopher Paul and two “important figures in al-Qaeda’s Montreal cell” as “too brief and shallow to serve as an independent basis for detention,” adding that much of Salahi’s behaviour “tend[s] to support [his] submission that he was attempting to find the appropriate balance — avoiding close relationships with al-Qaeda members, but also trying to avoid making himself an enemy.”
Moreover, although Judge Robertson acknowledged that there were “unanswered questions” about Salahi’s relationship with Abu Hafs, and noted that he once stated, under interrogation, that he “would have done almost anything that was asked of him,” he dismissed claims that the two money transfers were significant, noting, “Two money transfers in modest amounts a year apart would not even amount to material support (if support were the issue here, which it is not),” and also recognized that, around November 1999, when Abu Hafs “encourag[ed] him to return to Afghanistan, and sent him two passports and money for the trip,” he refused, because he was about to travel to Canada. It should also be noted — although Judge Robertson did not pick up on it — that, according to the 9/11 Commission Report (PDF, p. 252), Abu Hafs was opposed to the 9/11 attacks and “wrote Bin Laden a message basing opposition to the attacks on the Qur’an.”
Judge Robertson’s conclusion
In a final statement, Judge Robertson summed up his findings as follows:
The government’s problem is that its proof that Salahi gave material support to terrorists is so attenuated, or so tainted by coercion and mistreatment, or so classified, that it cannot support a successful criminal prosecution. Nevertheless, the government wants to hold Salahi indefinitely, because of its concern that he might renew his oath to al-Qaeda and become a terrorist on his release. That concern may indeed be well-founded. Salahi fought with al-Qaeda in Afghanistan (20 years ago), associated with at least half-a-dozen known al-Qaeda members and terrorists, and somehow found and lived among or with al-Qaeda cell members in Montreal. But a habeas court may not permit a man to be held indefinitely upon suspicion, or because of the government’s prediction that he may do unlawful acts in the future — any more than a habeas court may rely on its prediction that a man will not be dangerous in the future and order his release if he was lawfully detained in the first place. The question, upon which the government had the burden of proof, was whether, at the time of his capture, Salahi was a “part of” al-Qaeda. On the record before me, I cannot find that he was.
What will happen to Salahi now?
Despite Judge Robertson’s thorough repudiation of the government’s claims, it is clear that Salahi will not be released anytime soon — if at all. Almost as soon as the ruling was announced, Attorney General Eric Holder responded to shrieks of alarm raised by Republican lawmakers (who couldn’t care what a judge had actually decided based on the evidence) by announcing that the government would appeal, and it may well be that, whatever happens, Salahi will remain as one of 47 prisoners that President Obama’s interagency Task Force recommended should be held indefinitely without charge or trial.
The very fact that this is being contemplated is a disgrace, of course, but what Salahi’s case reveals, above all, is how the Bush administration’s detention policies have fundamentally warped notions of justice, so that even those who claim to respect the rule of law are happy to hold a man forever, even if he wins a habeas petition, and also how they have had a baleful effect on the United States’ ability to recruit and protect informers.
On this first point, Judge Robertson explained that, although there was insufficient evidence to justify Salahi’s ongoing detention, the evidence of his activities in Canada “might well be enough to support a criminal charge of providing material support to al-Qaeda, if Salahi were criminally charged, and if the evidence were admissible in a criminal proceedings.” That is a big “if,” of course, given the inadmissibility of most of Salahi’s statements, but it should demonstrate, above all, how counter-productive was the use of torture on a man who was no more than a peripheral figure in al-Qaeda, beyond the easily-obscured fact that such treatment is illegal under domestic and international law.
Just as significant, however, are the revelations about Salahi (and Tarek El-Sawah) contained in the Washington Post article mentioned above. After noting, “The US government has rewarded them for their cooperation but has refused to countenance their release,” the Post’s reporter, Peter Finn, wrote, “Some military officials believe the United States should let them go — and put them into a witness protection program, in conjunction with allies, in a bid to cultivate more informants.” Finn spoke to W. Patrick Lang, a retired senior military intelligence officer, who explained, “I don’t see why they aren’t given asylum. If we don’t do this right, it will be that much harder to get other people to cooperate with us. And if I was still in the business, I’d want it known we protected them. It’s good advertising.”
Good advertising, indeed, and a point that echoes what veteran FBI interrogator Jack Cloonan told Jane Mayer of the New Yorker back in 2006. Reflecting on the self-defeating nature of brutality, Cloonan, an old school interrogator, who succeeded in securing confessions without the use of torture, told Mayer that resorting to such tactics would cut off “the possibility that other people with useful information about al-Qaeda [would] consider becoming informants.” As he explained, “You think all of this stuff about torture is going to make people want to come to us? That’s why I get upset when I hear people talking about stress positions, loud music, and dogs.”
Had he known what we know now, he would surely have added that publicizing the fact that Salahi was one of “the most significant informants ever to be held at Guantánamo,” but then insisting that he be held forever, is even more counter-productive. In Guantánamo, however, common sense has evaporated, and all that is left for those who have aided the United States are illusory escape routes that lead only to indefinite detention.
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