On Thursday, in the District Court in Washington D.C., Judge Paul Friedman took the tally of victories by the Guantánamo prisoners to 37, out of 51 cases decided, when he granted the habeas corpus petition of Hussein Almerfedi, a 33-year old Yemeni, and instructed the Obama administration to “take all necessary and appropriate steps to facilitate the release of petitioner forthwith.”
Judge Friedman’s unclassified opinion has not yet been released, so it is not, at present, possible to know why he granted Hussein Almerfedi’s habeas petition, but clues can be found in publicly available documents released by the Pentagon, which I drew on for my explanation of his story in my book The Guantánamo Files.
Extraordinarily, Almerfedi was one of ten prisoners transferred to Afghan custody by the Iranian government in early 2002, and then handed on to US forces, in circumstances that have never been explained. One of the ten, an Afghan taxi driver named Aminullah Tukhi, who was released from Guantánamo in December 2007, said that the Iranians had delivered six Arabs, two Afghans, an Uzbek and a Tajik to the Afghans.
Although six of these men ended up in Guantánamo, it is not known what happened to the other four — one of the Arabs, one of the Afghans, and the Uzbek and the Tajik.
However, it would be surprising if their stories ended well, because Aminullah Tukhi, Hussein Almerfedi and the four other men were all held in secret prisons run by the CIA before being sent to Guantánamo, even though most, if not all of them appear to have been nothing more than random foreigners seized opportunistically.
In Guantánamo, Almerfedi stated that he had been a student in Yemen, and had traveled to Pakistan in the hope of using members of Jamaat-al-Tablighi, an enormous missionary organization with headquarters in Pakistan, to help him emigrate to Europe. As the New York Times explained on Thursday, he said “he left Yemen because life was intolerable there and that he wanted to go to Europe and seek asylum in a more open, Western society.”
When he found that the Tablighi organization was unable to help him, he “paid a smuggler to take him through Iran and into Turkey and then Greece,” but was seized in Tehran. He added that “he had never been in Afghanistan until the Iranians handed him over to the United States military.” This was disputed by the US authorities, but in an unconvincing manner that was undoubtedly dismissed by Judge Friedman. Unidentified sources — often revealed in previous cases to have been other prisoners subjected to torture or other forms of coercion — alleged that Almerfedi “was seen” at al-Qaeda guesthouses in Afghanistan and described him as “an old junior al-Qaeda member,” and, in desperation, the authorities resorted to declaring, as they have in numerous Guantánamo cases, that although Jamaat-al-Tablighi, which has millions of members, is a “legitimate” organization, it was also used “as cover to mask travel and activities of terrorists including members of al-Qaeda.” This allegation is so vague and sweeping that the authorities might as well have substituted the word “Islam” for “Jamaat-al-Tablighi,” and thereby have attempted to justify imprisoning any Muslim who came into US custody.
In Guantánamo, Hussein Almerfedi also explained that he was held for a total of 14 months in three prisons in Afghanistan — “two under Afghan control and one under US control,” although he added that they all “seemed to be under US supervision.” One of these prisons was Bagram, and another was the “Dark Prison” near Kabul. Almerfedi stated that he was only interrogated on three occasions in Afghanistan, and that on each occasion he was told that the authorities knew he was innocent and would soon be released.
Almerfedi’s claims that he was not tortured tend to reinforce the suggestion that he was a nobody seized so that he could be sold to US forces — or used as a pawn in some sort of diplomatic deal — as most of the other men seized with him who ended up in Guantánamo have stated that they were tortured extensively in CIA custody, as described in a recent UN report on secret detention:
Wassam al-Ourdoni, a Jordanian released in April 2004, was seized with his wife and child while returning from a religious visit to Pakistan. In 2006, he told Clive Stafford Smith, the director of the legal action charity Reprieve, that the CIA “put me in jail under circumstances that I can only recall with dread. I lived under unimaginable conditions that cannot be tolerated in a civilized society.” He said that he was first placed in an underground prison for 77 days, in a cell that “was so dark that we couldn’t distinguish nights and days,” and was then moved to “prison number three”, where the food was so bad that his weight dropped substantially.
Walid al-Qadasi, a Yemeni transferred to Yemeni custody in April 2004, was held in the “Dark Prison” near Kabul. He told UN representatives that US officials “cut his clothes with scissors, left him naked and took photos of him before giving him Afghan clothes to wear. They then handcuffed his hands behind his back, blindfolded him and started interrogating him. The apparently Egyptian interrogator, accusing him of belonging to al-Qaeda, threatened him with death. He was put in an underground cell measuring approximately two meters by three meters with very small windows. He shared the cell with ten inmates. They had to sleep in shifts due to lack of space and received food only once a day. He spent three months there without ever leaving the cell.”
Rafiq al-Hami, a Tunisian released in Slovakia in January this year, explained in Guantánamo that he was held in secret prisons for “about a one-year period, transferring from one place to another. I was tortured for about three months in a prison called the Prison of Darkness or the Dark Prison.” He added, “Back in Afghanistan I would be tortured. I was threatened. I was left out all night in the cold … I spent two months with no water, no shoes, in darkness and in the cold. There was darkness and loud music for two months. I was not allowed to pray. I was not allowed to fast during Ramadan. These things are documented. You have them.”
Despite Hussein Almerfedi’s victory in court, which means that the Guantánamo prisoners have now won 73 percent of the cases decided, this success rate will mean little to him, as ten other prisoners who have won their habeas petitions are still held.
Moreover, as a Yemeni, Almerfedi is in an extraordinary, and, frankly, unjustifiable position, apparently doomed to be held for an unknown amount of time (even if the government does not appeal the ruling) because of a moratorium on releasing any Yemenis from Guantánamo that was issued by President Obama in January.
In a craven display of capitulation to political bullying, the President allowed critics to assert that, because the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, a Nigerian, had apparently been recruited in Yemen, it was acceptable not to release any Yemenis from Guantánamo — even if they had been cleared for release by military review boards under the Bush administration, by President Obama’s interagency Guantánamo Review Task Force, and by a US court, because no Yemeni could be trusted, and they were all potential terrorists.
The President did not use these words of course, but the subtext of his decision was unmistakable to anyone prepared to look beyond the bullish rhetoric at the time about Yemen as a failed state, which might need a good dose of US military aggression to sort it out.
When President Obama issued his moratorium, two Yemenis who had won their habeas petitions were still held, although one of these cases — that of Mohammed al-Adahi — had been appealed by the government (and was won today), and since the moratorium three more Yemenis (including Hussein Almerfedi) have won their petitions, putting the administration in a quandary of its own making.
Two weeks ago, government spokesmen told the Washington Post that, in the case of one of these men — Mohammed Hassan Odaini, a student seized in a house raid in Pakistan in March 2002, who was just a guest of other students on that particular night — the administration was prepared to lift the moratorium. One of the spokesmen stated that this was because senior officials were “comfortable” with making an exception for Odaini “because of the guy’s background, his family and where he comes from in Yemen,” thereby admitting that the perception of a prisoner’s family background is now more important than whether he is innocent or not. However, it was also because he was so clearly an innocent man seized by mistake and held for eight years that, for a change, it was embarrassing having to try to justify his detention. “This is a bad case to argue,” one of the officials explained. “There is nothing there. The bottom line is: We don’t have anything on this kid.”
Even so, Odaini was not released until today, even though it beggared belief that the US military could not spare one plane to accomplish the task of returning him immediately to his family. Moreover, the administration must now grapple with further problems relating to its moratorium, as highlighted by Judge Friedman in the case of Hussein Almerfedi.
In the New York Times, Charlie Savage explained that the administration was now in a truly ridiculous place because “[t]he suspension on transfers meant that habeas corpus lawsuits that had been frozen since the detainees were due to be released anyway started to move forward, putting the Justice Department in the position of fighting to keep the detainees imprisoned.” In other words, the Justice Department is arguing in court that the administration should be allowed to continue holding men that it has already conceded it has no reason to hold.
The scale of this problem is extraordinary. In its review of the prisoners’ cases last year, Obama’s Task Force approved 66 of the remaining 97 Yemenis for release, although 30 were put in a novel category — “conditional” detention — pending an improvement in the security situation in Yemen. Seven of the remaining 36 were freed last year, leaving 29 who may well have been freed had it not been for the moratorium.
Three weeks ago, the officials who spoke to the Washington Post acknowledged that these men presented a problem for the administration. One of the spokesmen stated that President Obama “may come under further pressure to quickly release Yemenis besides Odaini,” because “As many as 20 more Yemenis could be ordered released by the courts for lack of evidence to justify their continued detention.” The official added, “There is a group of Yemenis who are going to win their habeas cases. Some of them will not be as clear as this case, but some will be, and that poses a real dilemma.”
According to Charlie Savage, the truth may be even bleaker for the administration. Savage noted that all 59 of the men cleared for release by the Task Force “present weak cases for continued detention,” and secured advice from Robert Chesney, a national security law expert at the University of Texas, who explained that the moratorium had created “a difficult policy dilemma”:
If the administration lifts the moratorium to avoid losing those cases, it could be attacked by conservatives for sending detainees to Yemen whom it had not been ordered to release. But if it keeps the moratorium, it could face a string of defeats that will undercut its effort to keep holding other detainees.
The coverage of the Odaini case made them look ridiculous. Imagine them experiencing some 50-plus individual defeats. By the time they are done, the narrative of the innocent detainee being blindly or stupidly detained by the administration would be so entrenched that there would be real strategic harm to the administration’s case that there are people they actually need to and can justify keeping in military detention.
Ridiculous, blind, stupid: These are hard words to have directed at you if you’re an administration struggling to clean up a mess inherited from the previous President, but when courage and principles are lacking — and at stake is the freedom of men unjustly deprived of their liberty for up to eight and a half years — the words are entirely appropriate.