Said Bakush Repatriated From Guantánamo To Algeria – OpEd

On April 20, the last Algerian in Guantánamo, Said Bakush (also known as Saeed Bakhouche), was repatriated after being held for nearly 21 years without charge or trial.

Bakush, a Berber, who is now 52 years old, was freed just over a year after his approval for release, when a Periodic Review Board (a parole-type process established under President Obama) “determined that continued law of war detention [was] no longer necessary to protect against a continuing significant threat to the national security of the United States,” and it is to be hoped that he will somehow be able to pick up the pieces of his broken life, even though he was not married, and has no children, and no one seems to know whether he has any relatives who are in a position to provide him with the support that will be needed after he lost over a third of his life in Guantánamo.

30 men now remain at Guantánamo, and 16 of them, like Bakush, have been approved for release. His release is to be commended, but it is imperative that these other men are also freed as swiftly as possible, although the release of the majority of them is complicated by the fact that they cannot be repatriated, because of provisions preventing their return to their home countries that have been included by Republicans in the annual National Defense Authorization Act for over a decade, and third countries must be found that are prepared to offer them new homes.

Bakush’s attorney, Candace Gorman, who has represented him since 2006, worked assiduously to secure his release, but after his first PRB approved his ongoing imprisonment without charge or trial, in July 2016, he “became withdrawn,” as Gorman explained to me last year, and, in 2017, he stopped seeing her, although he continued to receive correspondence from her.

I covered Bakush’s story extensively when he was approved for release last year, in an article entitled, Algerian Suffering from PTSD, and Mistakenly Identified as an Associate of Abu Zubaydah, Is Approved for Release from Guantánamo, and I recommend that article for anyone who wants the most detailed account available anywhere of how shamefully he was treated by the US.

Said Bakush’s story

Briefly, however, Bakush had been captured in a house raid on March 28, 2002, in Faisalabad, Pakistan, which had led to the capture of Abu Zubaydah, who was mistakenly regarded as a senior figure in Al-Qaeda, and subjected to the CIA’s notorious “black site” torture program. Although Bakush proclaimed his innocence, when his habeas corpus case came before a District Court judge in Washington, D.C., in 2010, the judge in question, Judge Richard Leon, accepted unsubstantiated claims by Justice Department lawyers that he was part of a “force” associated with Al-Qaeda, and had traveled with Zubaydah from Afghanistan to Pakistan, despite protestations by Bakush that the had never been in Afghanistan, and was not associated with Abu Zubaydah.

Bakush appealed, but three years later, in 2013, the D.C. Circuit Court upheld the earlier ruling, with Judge Brett Kavanaugh (subsequently, and contentiously promoted to the Supreme Court under Donald Trump) claiming that he “more likely than not was part of Abu Zubaydah’s force.”

As I explained last year, “The ruling came despite a strenuous objection by Judge Harry T. Edwards, formerly the court’s chief judge, who stated that the court’s ‘guilt by association’ ruling was ‘well beyond’ the detention definition authorized by Congress in the Authorization for the Use of Military Force, passed in the days after the 9/11 attacks, which only authorized the imprisonment of those who ‘planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons.’”

“It seems bizarre, to say the least,” Judge Edwards stated, “that someone like [Bakush], who has never been charged with or found guilty of a criminal act and who has never ‘planned, authorized, committed or aided any terrorist attacks,’ is now marked for a life sentence.” He said the circuit had “stretched the meaning” of the congressional enactments “so far beyond the terms of these statutory authorizations that habeas corpus proceedings like the one afforded [Bakush] are functionally useless.”

Those were powerful words, but they didn’t help Bakush, who had now become a “forever prisoner,” his fate in the hands of a Periodic Review Board, consisting of “senior officials from the Departments of Defense, Homeland Security, Justice, and State; the Joint Staff; and the Office of the Director of National Intelligence.”

When he tried and failed to secure approval for release in July 2016, that decision came despite Gorman, as I described it last year, “pointing out that the government had failed to demonstrate in any credible manner that he was involved with Abu Zubaydah or Al-Qaeda, and despite Bakush’s military representatives (assigned to represent him in Guantánamo) noting that he was ‘a quiet, compliant detainee,’ and that they were ‘confident’ that his ‘desire to pursue a peaceful way of life if transferred from Guantánamo Bay is genuine and that he does not harbor negativity towards anyone.’ They added that they were also ‘convinced’ that he ‘does not pose a significant threat to the security of the United States or any of its interests.’”

After Bakush became withdrawn, refusing to meet with Gorman or his military representatives, he boycotted his next PRB, in August 2018 (as did the majority of those eligible for the PRBs because they correctly concluded that, under Trump, it had become a sham), and also refused to take part in his next PRB, under President Biden, on January 11, 2022 — ironically, the 20th anniversary of the opening of Guantánamo.

However, Gorman not only submitted a powerful statement explaining the circumstances of his capture, in what he genuinely thought was a guest house for those seeking to return to their home countries; she also “secured a psychological report about her client’s mental state, produced by Spyros Orfanos, a licensed psychologist in New York State and New Jersey State, who, after reviewing ‘the available Guantánamo records,’” concluded that Bakush had been subjected to torture after his capture, and was “likely suffering from Post-Traumatic Stress Disorder (PTSD) due to almost 20 years of detention and to traumas both prior to and after arriving at Guantánamo (i.e., torture, sleep deprivation),” and that “[h]is suffering from PTSD has likely been continuous.”

On April 13, when the review board finally approved his release, they did so on the basis of his “lack of a leadership role in al Qaida, [his] compliance while in detention, and the support available to [him] on transfer.”

Candace Gorman discusses Said Bakush’s release

When I contacted Candace Gorman for some comments on Bakush’s release, she focused on a particular aspect of his story that she had first alerted me to in 2016 — the fact that, as I described it at the time, “to the best of my knowledge he is the only prisoner whose classified military file, compiled in 2008 and released by WikiLeaks in 2011, has a photo that purports to be him, but is not him at all. No one seems to know who it is, but it is not Saeed Bakhouche.”

As Gorman explained to me in an email, “Something that we spoke about many times in relation to Saeed is that the government has never had an actual photo of my client. It is amazing and depressing that we held this man for more than 21 years based on supposed identifications of him by other detainees who were shown photos of someone who was not him and asked to identify his misdeeds. These men, who were torture victims, then identified that individual from the photo as having been in different places and doing various misdeeds. Those misdeeds of someone who was not Saeed were then used to hold Saeed for these 21 years.”

She added, “Whether or not the information was even accurate for the person in the photo is for the most part unknown — although I do happen to know that one of the individuals in one of the photos was actually Algerian and had been in Afghanistan and then Guantanamo and was released to Algeria early on. I was able to document the photo problem by using the military’s own documents because the military knew for years that identifications were made of Saeed based on wrong photos, but of course the military did not care because they are not held accountable.”

As she also explained, “That brings me to the other amazing and depressing part of Saeed’s case — the judiciary didn’t (and doesn’t) care either. Saeed had, in my opinion, an awful judge (Leon) but even the so-called good judges refused, and still refuse to seriously question clearly documented errors in the military’s own investigations of these men.”

Finally, she noted, “I am so happy Saeed is home now but what we did to him (and so many others) is a travesty and my government should be held accountable. I, of course, do not hold out hope that anyone in the US will ever be held accountable, but I will not stop trying.”

I thank Candace Gorman for all her work on Saeed Bakhouche’s behalf, and I too continue to pledge that I will not stop trying to hold the US government accountable for their crimes at Guantánamo.