November 2, 2011
For the 171 prisoners remaining in Guantánamo, a burning question — when, if ever, will any of them ever leave? — has apparently become unanswerable. The Obama administration failed to act swiftly and decisively enough during President Obama’s first year in office, and, ever since, lawmakers in Congress have repeatedly passed legislation to prevent prisoners being released. Their release has also been prevented in the courts by right-wing judges in the D.C. Circuit Court, who have, as I have repeatedly explained, gutted habeas corpus of all meaning.
This situation has been complicated by the fact that, under President Obama, the Justice Department has continued to deal with habeas corpus claims as though the Bush administration was still in office, and has not cross-referenced its cases with the findings of the President’s own Guantánamo Review Task Force, a sober collection of career officials, lawyers and representatives of the intelligence services, who concluded, after a year-long review of the prisoners’ cases, that only 36 of those still held should be tried, and that 89 should be released.
Add to that the President’s systematic aversion to confrontation on “national security” issues, and it becomes more comprehensible why we have reached a situation whereby the only prisoners to have left Guantánamo in the last nine months left in coffins, and why only three living prisoners have been released in the last 15 months.
To cite just the major examples of capitulation on the part of the administration, it is clear that the President has refused to contemplate any attempt to secure accountability for those who approved and introduced the Bush administration’s torture program, that he backed down on a plan to release cleared prisoners (the Uighurs) to live in the US in 2009, that he backed down on repatriating any cleared Yemenis (even though 58 cleared Yemenis are being held) in January 2010, after the failed underwear bomber was captured on Christmas Day 2009 and there was a outburst of general hysteria, and also that he backed down on plans to try Khalid Sheikh Mohammed and four other men in federal court in New York for their alleged connection to the 9/11 attacks, despite having announced it to the world in November 2009.
In this seemingly hopeless situation, it is important that journalists continue to shine a light on Guantánamo past, resent and future, and to that end I’m delighted to cross-post below a feature by Jenifer Fenton of CNN dealing with the Kuwaitis held in Guantánamo. Jenifer wrote another excellent article about the Kuwaitis in August, which I suggested at the time ought to serve as a spur to to break the deadlock by securing the release of the two remaining Kuwaiti prisoners in Guantánamo, Fayiz al-Kandari and Fawzi al-Odah.
Fenton has followed up with a devastating analysis (cross-posted below) of the manner in which false confessions were extracted at Guantánamo using threats or coercion, based on interviews conducted in Kuwait, and the extraction of false confessions is particularly apparent through her discussions with Fouad al-Rabiah, the Kuwait Airways employee and philanthropist who was portrayed in Guantánamo as an al-Qaeda supporter and a significant player in the conflict in Afghanistan until his habeas corpus petition was reviewed by a US judge in September 2009, and it was revealed that this entire narrative was constructed by the US authorities through the use of threats and abuse, and was dutifully repeated by al-Rabiah, who was afraid that he would otherwise be sent to another country for torture, and would never see his family again.
I discussed al-Rabiah’s successful habeas corpus petition in an article entitled, A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions, and I regard it still as one of the most devastating insights into how the supposed intelligence obtained in Guantánamo, which purports to support official claims that those held there are dangerous, is, for the most part, a mirage, composed of lies, dubious confessions and unverifiable hearsay extracted through the use of torture, coercion, bribery, threats and abuse.
Moreover, the failures of the intelligence are systematic, as I have constantly been trying to demonstrate through my work, and as I have been explaining in detail in my ongoing 70-part, million-word series, “The Complete Guantánamo Files,” in which I am analyzing all the prisoners’ stories in depth, and including the information contained in the classified military assessments released by WikiLeaks in April. These demonstrate a shocking lack of intelligence when it came to rounding up Afghan prisoners, and also reveal the extent of this web of false confessions made by prisoners about their fellow prisoners.
For her article, Jenifer Fenton also spoke with Abd al-Aziz al-Shammeri, whose story I discussed here, and who also has some important recollections about his experiences, but it is Fouad al-Rabiah’s story that remains supremely important, and that should be known about as widely as possible. If there will ever be a time when we can look back on Guantánamo as a vile aberration, never to be repeated, the story of Fouad al-Rabiah, and his successful habeas corpus petition, will figure prominently. However, we have not yet reached that time, and for now the stories told to Jenifer Fenton by the former prisoners still need to be used as part of the argument for why Guantánamo must be closed, and why the remaining Kuwaitis must be released. I hope you have time to read it, and also to share it as widely as possible.
“You know what this is?” Fouad Al-Rabiah asked as he held up a photograph of a cell in Guantánamo. “This is my house for eight years.” The cell is small, sterile and resembles a cage. It has a hole in the floor where the toilet is.
Al-Rabiah, a Kuwaiti father of four, then held up another piece of paper. “This is the first evidence that the United States government had given to the court to tell them that I am the worst of the worst in Guantánamo.”
The evidence is a two-page letter in Arabic, which Al-Rabiah was accused of writing. It was found in Tora Bora and was presented as evidence Al-Rabiah and his son Abdullah were the leaders of an attack in Afghanistan in 1991. His oldest son was only one year old in 1991. “This was not me.”
He showed more of the evidence used against him. The US government had accused Al-Rabiah of providing material support to al-Qaeda and the Taliban. Al-Rabiah was interrogated, by his own count, more than 200 times. He says he was tortured: “Lots and lots of torture.” He confessed to any and everything his interrogators said about him.
But in 2009 US District Court Judge Colleen Kollar-Kotelly ordered that Al-Rabiah, an aviation engineer who had studied in Scotland and America, be released, citing a lack of credible evidence that he was associated with al-Qaeda or the Taliban.
The evidence presented by the government to the court was “surprisingly bare,” and interrogators used “abusive techniques,” Judge Kollar-Kotelly wrote in a 65-page opinion [PDF]. The court said that Al-Rabiah’s confessions were so inconsistent or implausible even his interrogators did not believe them.
“It is also undisputed that Al-Rabiah confessed to information that his interrogators obtained from either alleged eyewitnesses who are not credible and as to whom the Government has now largely withdrawn any reliance, or from sources that never even existed,” the opinion stated.
The court concluded, “If there exists a basis for Al-Rabiah’s indefinite detention, it most certainly has not been presented to this court.” Al-Rabiah’s petition for habeas corpus was granted.
Al-Rabiah returned to Kuwait in December 2009. He had lost eight years of his life. “I lost so many things, but I know that I was right,” he said. “I know that they were wrong.” Al-Rabiah is one of 12 Kuwaiti detainees taken to Guantánamo.
Nine other Kuwaitis have been released, including Abd Al-Aziz Sayer Uwain Al-Shammeri. Al-Shammeri had been detained without charge and transferred to Kuwait in 2005 for reasons that remain unclear. Al-Shammeri and many of the freed detainees were charged in Kuwaiti courts following their release from Guantánamo but were acquitted of any wrongdoing.
One of those acquitted — Abdallah Saleh Ali Al-Ajmi — blew himself up in Iraq, according to Pentagon officials.
Al-Ajmi was one of two Kuwaitis who took part in a suicide attack in Mosul in April 2008, the officials said. Records show an attack that day targeted an Iraqi police patrol and left six people dead, including two police officers.
Two people who knew Al-Ajmi described him as unstable when he returned from Guantánamo.
I met with Al-Rabiah, Al-Shammeri and Khalid Al-Odah, Fawzi Al-Odah’s father, in Kuwait 10 years after America’s war on terror began.
Life before Guantánamo
Al-Rabiah, now 52, had a documented history of doing charitable work with reputable organizations in Kosovo, Bosnia and Bangladesh. Before leaving for humanitarian trips, Al-Rabiah routinely requested leave from his employer Kuwait Airlines, where he had worked since 1981.
For the first 30 minutes of our meeting Al-Rabiah, a serious and intense man, enthusiastically told me about his previous missions and expressed his view that as a wealthy Muslim country, Kuwait should help those less fortunate. “We are well off in comparison to other countries … We cannot see famine and natural disasters and do nothing about it.”
Al-Rabiah traveled to Afghanistan twice in 2001, July and October, for charitable reasons. He was on a fact-finding mission related to Afghanistan’s refugee problems and lack of medical infrastructure, he said. The government said that Al- Rabiah was a “devotee of Osama bin Laden who ran to bin Laden’s side after September 11.” The US court ruled that the evidence strongly supported Al-Rabiah’s story.
Al-Shammeri, 37, also said he traveled to Afghanistan in October 2001 for charitable reasons — to teach Islamic law in Afghanistan. His life was “normal” before Guantánamo. He was married and had two children, who in 2001 were six and two years old.
He was an Islamic scholar and worked at the Ministry of Islamic Affairs in Kuwait. He was planning to get a master’s degree in Egypt, where he had paid registration dues. He was accepted, he later learned, the same day he was captured in Afghanistan. He was 28 years old at the time.
I met Al-Shammeri at Khaled Al-Odah’s house, where the former detainees meet on a regular basis for support. He is a tall, relaxed and very funny man who smiles without interruption. He understands basic English. He is far from fluent, but he said with time he understood all the jargon related to Guantánamo.
“Terrorists,” he said and laughs. “Guilty,” that word too he added. “They never used the word innocent.”
The US said Al-Shammeri was a member of al-Qaeda and one of his known aliases was on a list of hard drives associated with al-Qaeda.
Road to Guantánamo
In October Al-Rabiah entered Afghanistan through Iran, where he had been looking at the situation of Afghan refugees. “The day that I went into Afghanistan is the day the [American] bombing started. Of course this is all documented because I had the stamp,” he said. The US authorities later took possession of his passport and they saw the stamp, he added.
But when the bombing started, the Iranians closed the border. He decided he would try to leave Afghanistan through Pakistan and wrote a letter to his family about the situation.
Al-Rabiah said at the time he weighed 108 kilograms (240 pounds) and could not see at night, which made him ill-suited physically for the Afghan terrain. On December 25, he was captured in a village outside of Jalalabad, Afghanistan.
The villagers took him to the anti-Taliban Northern Alliance, who he alleged tortured him. Al-Rabiah was in their custody he believes for about a month, and then, he alleges, the Northern Alliance sold him to the Americans for $5,000, the same price as his watch.
He was then sent to Bagram Air Base, a US military-controlled facility north of Kabul, where he said he was treated well. According to legal documents, at this point he told his family he was “detained by the American troops and thanks to God they are good example of humanitarian behavior.”
Al-Rabiah said he was told at Bagram that they were preparing for his transfer back to Kuwait, but that he would first need to move to Kandahar, Afghanistan. Al-Rabiah spent two and half months in Kandahar, where he alleges he was tortured.
“There are more ways of torturing a person than you can imagine,” he said.
A report by Human Rights Watch in 2004 [PDF] called attention to what it said was systemic abuse of detainees by US military and intelligence personnel.
Abuse of detainees in Afghanistan included being stripped, kicked and punched, being forced to endure freezing temperatures, sleep deprivation, sensory deprivation and forcing detainees to sit or stand in painful positions for extended periods of time, according to HRW.
“Abuse of detainees was an established part of the interrogation process,” the report said.
If the US Department of Defense “receives specific, credible information of mistreatment by its personnel, those allegations are taken seriously and thoroughly investigated,” according to Lt. Col. Joseph Todd Breasseale, a defense spokesperson.
He added, the “DoD does not tolerate the mistreatment of detainees and will continue to ensure proper training and accountability measures.”
Al-Shammeri was also sent to Kandahar. Before he was captured he said he realized the situation in Afghanistan was becoming increasingly more dangerous. He heard that every Arab was wanted dead or alive and Arabs were being bought and sold. So he said decided to leave via Pakistan, where he was arrested trying to cross the border.
He said he turned himself in to the Pakistanis thinking they would contact Kuwait and send him back home. “What first comes to anyone’s mind is that once a citizen of any particular nation travels abroad … when a problem takes place, the logic dictates that he should be handed to his native country of origin and not to be extradited to a third party nation. That’s what anyone in their sane mind would think,” he said.
“If I only knew that this would have been the way, I’d have just gone in hiding.”
The Pakistani government told him that they were going to send him back home, Al- Shammeri said. But according to Al-Shammeri, US forces took him by plane to a military camp in Kandahar. Al-Shammeri said he had no recollection of time or place. He too alleges he was tortured in Kandahar.
He was interrogated and beaten. He says he did not know what was happening because he did not understand all of the English, his eyes were covered, his hands and feet were tied and all he heard was the voice of an Arab interrogator.
When he was leaving Kandahar, Al-Shammeri said he had no idea where he was going.
“They just recited my number … and they took me, shaved my head and then they tied me up and blindfolded me,” he said.
“While I was walking toward the plane, there was a female military personnel who took the mufflers off my ears and told me that I am going home, in English, she said, ‘you are going back to your home,’ then she put them back on and, for a second, I thought they are taking me back to Kuwait.”
However Al-Rabiah, who speaks fluent English, knew that none of the detainees would be going home. Everybody would be going to Guantánamo.
Camp X-Ray, Guantánamo
Al-Rabiah arrived in Cuba on May 1, 2002. His first impression of the place was “heaven,” he said compared to his detention in Afghanistan. The camp was clean. It was not blistering hot during the day and freezing at night like Afghanistan. There were no sandstorms and no planes taking off around the clock. They were allowed to shower.
He was told that they would not be held at Guantánamo for more than six months, which he thinks now was a tactic to keep them from rioting. “The first year in Cuba, I left my cell … for recreation only 24 hours for the whole year,” Al-Rabiah said. He passed his time by reading the Koran. He spent a lot of time in isolation.
He said early on he was told by a woman working at the camp, “We have nothing against you. We know nothing about you, but the president said there is no innocent [person] in Cuba.”
Al-Rabiah said she continued advising him: “You cannot leave here so confess to something so we can charge you, sentence you and you go home. But if we don’t charge you, sentence you, you are not leaving.”
Al-Rabiah said he thought it was crazy and that he was not going to play that game. “I said this is absurd … that was way in the beginning and then they changed the tactics and started the torture.”
The US court opinion — parts of which are redacted — which freed Al-Rabiah reads: “The following day marked a turning point in Al-Rabiah’s interrogations … After using a [redacted] … featuring … for approximately [redacted]. From that point forward, Al-Rabiah confessed to the allegations that interrogators described to him.”
I asked Al-Rabiah what changed and why he started to “confess.”
“I was threatened by two major things. First, they asked: ‘Would you like to go home a drug addict,’” Al-Rabiah said. Then they threatened to send him to a place where he would “disappear.”
He said that he believed that these were not empty threats and he believed that people were sent to other countries and were tortured and “those people when they came back from there they were different people.” They were broken “beyond repair.”
In response to a query from CNN about alleged renditions and drug abuse, CNN was referred to a report by the Department of Defense on detainee conditions which said: “It is our judgment that the conditions of confinement, in Guantánamo, are in conformity with Common Article 3 of the Geneva Conventions,” which among other things prohibits violence to life and person and humiliating and degrading treatment.
In 2003, a US Justice Department memo by a Justice Department lawyer at the time, John Yoo, based on a previous memo to then attorney general Alberto Gonzales argued the drugs could be used on prisoners if the drugs did not “disrupt profoundly the senses or the personality,” and US law “does not preclude any and all use of drugs.”
Several released detainees have said they were drugged, according to media reports. The Department of Justice and the CIA denied the accusations, according to the Washington Post, which reported on allegations of detainees being drugged.
A US court said that threats against Al-Rabiah included “rendition to places where Al-Rabiah would either be tortured and/or would never be found,” and threats against him “were also reinforced by placing Al-Rabiah into the frequent flier program,” a sleep deprivation program where detainees were frequently moved from one cell to another.
Al-Rabiah concluded that if he resisted he was not going to be of any use to his family. But If he gave his captors what they wanted, he thought, “maybe I will be able to go back home and I will clear my name when I go back home. I reached a stage of desperation. I could not live any longer. I lost all hope. I had to play the game with them.” This is how his confessions were made, according to Al-Rabiah.
Al-Rabiah recounted the sort of questioning he faced. The interrogator would say:
“Fouad, you were with so and so, doing so and so.”
Al-Rabiah would say: “Yes I have been there.”
The interrogator said: “Did you see so and so person?”
Al-Rabiah would say: “I don’t know, did I?”
They said: “Yes you did.”
Al-Rabiah: “OK, I did.”
Interrogator: “What did you talk about?”
Al-Rabiah said the interrogators would also take him to a detainee recreation area to collect “intelligence” from other detainees, who knew that he was reporting it back to the interrogator.
“Can you believe that?” Al-Rabiah said. “This is the kind of intelligence gathering” they did. The US court noted Al-Rabiah once “made a full confession that is entirely different than his initial confession,” and “Al-Rabiah did not know what to admit” to.
Al-Shammeri, however, said he never “confessed,” even though he alleged he was tortured. “If I did confess, I wouldn’t be here,” he said, referring to Kuwait. But he too reached a point of desperation, not unlike Al-Rabiah’s.
Al-Shammeri said he was so desperate in 2005 that he went on a 100-day hunger strike which ended only when he was released. He also protested his detention in 2002 by refusing to eat.
Al-Shammeri denied all of the government’s claims against him.
According to a Department of Defense memorandum published by WikiLeaks, Al-Shammeri was alleged to have “received training on advanced counter-interrogation techniques, as well as above average terrorist training typically taught by al-Qaeda.”
According to court documents, Al-Shammeri said if he has wanted to kill Americans he did not need to travel to Afghanistan to do so as there were many Americans in Kuwait.
“If I wanted to fight with them, I would have fought them in Kuwait. You saw how people are bombing Americans in Saudi Arabia. If I had any hatred on my part, I would have done that to the Americans in Kuwait. There was no need for me to travel.”
Al-Shammeri said every time he was interrogated they would accuse him of something else (something Al-Rabiah said as well). For example, because he studied Islamic law, he said he was accused of being a Taliban judge, which he said would not be possible because he was in Afghanistan for such a brief time and because he did not speak the language.
He said he was tortured. “Yes, by God. I was tortured,” Al-Shammeri said. There are many ways of being tortured, he added, but he did not elaborate on specifics. “I believe that … if the devil would have been there and witnessed these torture sessions, he would … have said, ‘how would you come up with such twisted thoughts?’ Satan would say, ‘please come on.’ These thoughts would be even surprising to the Devil himself.”
In response to a query about detainee abuse, CNN was told via email by Cmdr. Leslie Hull-Ryde of US Defense Operations: “The Department of Defense requires all its detention operations to meet a high standard of humane care and custody … We have updated our laws, policies, procedures and training to ensure respect for the dignity of every detainee in our custody.”
Life after Guantánamo
When Al-Rabiah returned to Kuwait he said he was warmly received. Those who knew him never thought he was guilty, he said. When repatriated, Al-Rabiah was supposed to — according to a US request — live in a rehabilitation center, according to David Cynamon, the lead lawyer for the Kuwaiti detainees.
Cynamon said the request was improper. “It would be like the US demanding conditions of parole on a prisoner that the court ordered released because the prisoner didn’t commit a crime.”
But Kuwaiti authorities decided there was no case against Al-Rabiah and they allowed him to go free.
Al-Rabiah returned to his job at Kuwait Airways. But he says he has lost so much.
While he was in Guantánamo his father died, his brother died, two uncles passed away and his mother had a stroke while he was away and could not speak to him when he returned.
“I lost the childhood of my children,” he said. His youngest child was six years old when he left, and 15 when he finally returned home.
Al-Rabiah said he was blessed that God kept him sane during his Guantánamo ordeal. But he is not a free man. Per a US request, he is monitored, has to regularly report to a security post and he cannot travel, according to Al-Rabiah. He fears that, if he doesn’t comply, the US will hold his actions against the remaining two Kuwaiti detainees.
Al-Shammeri also has the same restrictions, which he follows mainly for the same reasons. For him, the Guantánamo issue is not finished. Since he was released, he says he has continued to suffer because of the association. Unlike Al-Rabiah, he was not ordered released by the court but rather he was released because of a US government decision. The details of his release are unknown.
When Al-Shammeri, who now works for a private oil company in Kuwait, was told he was going to be released, officials at Guantánamo took his DNA and his photograph, he said. The guards presented him with a paper with a clause that they said Al-Shammeri had written, which he denied, and they wanted him to sign it.
The clause said if Al-Shammeri was found at any time to be with terror suspects, the US would be allowed to imprison him for life, according to Al-Shammeri. This was frightening to Al-Shammeri, who said the list of the American suspects is huge and he worried about what would happen if he was with a suspect but did not know it. He refused to sign the document.
“The situation in Guantánamo is wrong 100%,” Al-Shammeri said. “In my case, I don’t even know why I was transferred there and how and then I have no idea how I was released.” He continued, ” I am so confused … I never understood the guidelines they used to release the detainees,” Al-Shammeri said.
“No one should just rule on the go, as they please. They can’t just imprison whomever as they wish and when you ask about the charge, they say, ‘it is classified evidence that incriminates you.’ This is what opens new gateways to terrorize people under the pretext of the law and this is not the law in any way.”
At its peak, Guantánamo held at least 779 men. But over the years some 600 men have been sent to their country of origin or to a country willing to take them. There are now fewer than 200 held at the facility.
When asked what the US should do about alleged terrorists, people who are a security threat at Guantánamo, Al-Rabiah answered, “take them to trial, let justice take its route. If a person is a terrorist, kills innocent people, he should not be set free.” But, he added, “I was kept there for eight years … saying about me that I am the worst of the worst. Only when I went to court I was cleared.”
Al-Rabiah fears that the evidence against the two remaining Kuwaiti detainees in Guantánamo may be as weak as the evidence was against him. “If you [America] are sure they are bad people, don’t you trust your legal system … or is it justice only for US citizens … since when do people not have a right for justice … isn’t that what the US is known for?”
In Al-Rabiah’s case, the courts also ruled that “none of the alleged eyewitnesses have provided credible allegations against Al-Rabiah.”
Fawzi Al-Odah is one of those two Kuwait detainees being held. According to a Department of Defense memorandum published by WikiLeaks, at least one person who provided evidence against Al-Rabiah gave evidence against Al-Odah.
“YM-252 [Yasim Basardah, a Yemeni known as the most notorious liar in Guantánamo] stated detainee (Al-Odah) and Fuad Mahmud Hasan Al-Rabia assisted KU-552 [Fayiz al-Kandari] in the production and distribution of jihad videos in Kuwait. The videos were created to encourage people to provide contributions or to fight in Bosnia and Chechnya … YM-252 also reported detainee was well-connected to religious leaders in Kuwait, and stated detainee recruited young males in Kuwait to fight in Afghanistan. He also collected money that was then funneled to Afghanistan in support of KU-217 [Al-Shammeri].”
Khalid Al-Odah, Fawzi Al-Odah’s father, says he spoke to him on August 28, and he said his son was not well. Fawzi Al-Odah was on a long hunger strike, close to two months, and he was in isolation.
Earlier this year, the US Supreme Court rejected an appeal from Fawzi Al-Odah challenging his indefinite detention. Fawzi Al-Odah said he went to Afghanistan to do charity work, but the government claims he was associated with al-Qaeda and the Taliban.
Fayiz Al-Kandari, the other Kuwait detainee at Guantánamo, has an appeal in November in the Court of Appeals for the District of Columbia Circuit, but his lawyer is not hopeful about the case.
The main difficulty in defending the detainee cases is the government is allowed to rely entirely on hearsay, which is not normally admitted in the US courts, according to Cynamon, who also represents Al-Kandari.
“They don’t have to bring any witnesses who are subject to cross-examination.” The government can simply submit “raw intelligence reports which basically are the summary write-up of what an interrogator says, the detainee or what other people have said,” Cynamon said.
Khalid Al-Odah fears his son is being punished in part because Kuwait has an independent judiciary. The US cannot force Kuwait to hold former detainees in jail.
Here in Kuwait “you cannot bring someone and put in them in jail unless you try them,” Khalid Al-Odah said. But the US has decided to release detainees to other countries that can put anyone they want to in jail without reason, he added. He feels these countries, which lack proper judicial systems, are being rewarded.
He also does not know what more he can do to assist his son’s case.
Khalid Al-Odah was told that the US wanted to make sure that the two Kuwaiti detainees previously released, which included Al-Rabiah, were monitored and reported back often to the Kuwaiti authorities.
After four months, if the system was working, his son would be released. But time passed and the US said it would not release the remaining two Kuwaitis, including his son, for security reasons. Khalid Al-Odah was told that the US said they were very dangerous.
“But they will never tell you why,” Khalid Al-Odah said.
Read all posts by Andy Worthington