Last November, US District Court Judge Gladys Kessler granted the habeas corpus petition of Farhi Saeed bin Mohammed, a 48-year old Algerian, held in Guantánamo, who was seized in Pakistan in December 2001 after fleeing the chaos in Afghanistan following the US-led invasion, and has been in US custody ever since.
As I explained in an article at the time, bin Mohammed is one of many essentially stateless refugees in Guantánamo, a drifter, who, after serving as a conscript in the Algerian army from 1981 to 1983, “fled his homeland and lived between Britain, France and Italy as an itinerant laborer in the 1990s before going to Afghanistan months before the 9/11 attacks.”
The government clearly struggled to link bin Mohammed to any kind of militant activity. Bin Mohammed persistently claimed that he had traveled to Afghanistan to find a wife (apparently a Swedish woman recommended by a Moroccan friend in England), and in its first unclassified summary of evidence at Guantánamo, compiled in 2004, the Pentagon had so little information about him that the authorities resorted to claiming that he visited two “known extremist mosques” in London in an attempt to portray him as a danger.
In the years that followed, new allegations, culled from the interrogations of other prisoners, led the government to claim, in 2005, that he “received weapons training at the Bagram Front,” and that “Another detainee identified [him] as an individual who trained at the Algerian camp and they eventually traveled to Kandahar,” and, in 2007, to claim that he “reportedly attended training at al-Qaeda’s Durunta and al-Farouq Training Camps,” and was, therefore, “a suspected member of al-Qaeda.”
Despite this, these claims were obviously so weak that, in September 2007, a military review board at Guantánamo approved bin Mohammed’s release, although he remained in the prison because, as his lawyer Jerry Cohen explained, he “fears return to his homeland,” and “seek[s] resettlement in a third country, where he would like to work in construction and marry.”
Two years and two months after this decision was reached -- and with no third country willing to offer bin Mohammed a new home -- Judge Kessler finally ruled on his long-standing habeas corpus petition, which, like hundreds of other petitions, had been frozen while the Supreme Court and Congress fought over the prisoners’ rights. The Supreme Court had given the prisoners habeas corpus rights in June 2004, but Congress had attempted to strip them of these rights in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, and it was not until June 2008 that the Supreme Court ruled again on their status, deciding that Congress had acted unconstitutionally, and this time making sure that their habeas rights were constitutionally guaranteed.
The ensuing habeas rulings have, in general, been a triumph for the prisoners, who have won 34 of the 47 cases so far decided, thereby clearing them, in an objective and authoritative forum, of the “taint” of terrorism associated with Guantánamo, although it should also be noted that they have not always led to the prisoners’ release. At the time of writing, eleven of those who won their habeas petitions are still held (including Farhi Saeed bin Mohammed).
In an attempt to raise awareness of his plight, this article analyzes Judge Kessler’s unclassified opinion in bin Mohammed’s case (PDF), which is particularly noteworthy because most of the information relied upon by the government to justify his detention came from Binyam Mohamed, the British resident, seized in Pakistan in April 2002, and rendered by the CIA to Morocco, where he was tortured for 18 months.
In February this year, Judge Kessler’s ruling regarding the use of Binyam Mohamed’s testimony played a crucial role in the High Court in the UK, where the publication of the unclassified opinion was used to demolish a claim by the British government, maintained for 18 months, that a summary by two High Court judges of information passed to the British intelligence services by their US counterparts, describing the treatment that Binyam Mohamed endured in US custody in Pakistan, could not be released because it would threaten the intelligence-sharing relationship between the US and the UK. Conceding defeat, foreign secretary David Miliband noted that the court only ordered the release of the intelligence summary “because in its view their substance had been put into the public domain by a decision of a US court in another case” (that of Farhi Saeed bin Mohammed), and added that “Without that disclosure, it is clear that the court of appeal would have overturned the divisional court’s decision to publish the material.”
As a result, this article should also be helpful because it presents the first detailed public analysis of Judge Kessler’s ruling on the false confessions extracted from Binyam Mohamed that was central to the disclosure of British complicity in his torture by US agents, which has ensured that, when it comes to accountability for crimes committed in the “War on Terror,” the UK is some way ahead of the US in holding senior officials responsible for their actions.
Farhi Saeed bin Mohammed’s story
As described by Judge Kessler in her unclassified opinion, the government’s case against bin Mohammed rested on seven claims: that there was some significance to his use, prior to his detention, of false name and a false passport; that his visits to two mosques in London were significant; that his travel to Afghanistan was facilitated by a recruiter at one of these mosques, as part of a “terrorist network”; that his stay at an Algerian guesthouse in Jalalabad was significant; plus “whether or not [he] trained at a terrorist camp,” and “whether or not [he] participated in battle.”
In addressing most of these claims, Judge Kessler maintained a healthy degree of skepticism about bin Mohammed’s counter-claims, in particular, dismissing his account of traveling to Afghanistan to find a Swedish woman to marry so that he could legally stay in Europe. This, she explained at one point, was “patently fantastic.”
However, although she recognized that his use of false names and his use of a false passport in his travels between France, Italy and the UK was, as he claimed, “essential for him to survive as an undocumented alien trying to find work and a home in Europe,” and was not, as the government contended, proof that he was “a deceitful person” per se, she conceded that it “demonstrate[d] his willingness and ability to lie to the authorities and evade compliance with the law when it suited his purposes.”
This alone, however, was not enough to justify his detention, and nor, it transpired, was the weight that the government tried to give to his visits to the Finsbury Park mosque, and his more regular visits to the Baker Street mosque. Again, she seemed inclined to accept his claim that they were “simply centers of worship and community for him,” as they would be for any Muslim visitor to London, and not to follow the “guilt by mosque” scenario put forward by the government, which considered both mosques as “critical posts within an al-Qaeda recruiting network” -- and, by inference, all who attended them as al-Qaeda supporters or sympathizers. As bin Mohammed explained in one of his interrogations, “[T]here was no sign on the mosque that said extremist mosque.”
However, she did accept that bin Mohammed was recruited -- by a man named Abdul Rahim, who “allegedly was a recruiter for al-Qaeda” -- who “conceived, planned and funded [his trip] to Afghanistan” in June 2001, and provided contacts who took him from Islamabad to Peshawar, and then across the border to Jalalabad. It is here, at the “Algerian house” run by Abu Jaffar al-Jazeeri, and his assistant Abdul Hafiz, that bin Mohammed’s story started to look particularly shaky. The government contended that the guesthouse was run “to facilitate the transfer of recruits to training camps in the region,” and presented evidence, drawn from the cases of other prisoners (some still held; others released as long ago as 2004), to demonstrate that, by their reckoning, everyone who stayed at the house did indeed travel to training camps.
If confirmed in bin Mohammed’s case, this would undoubtedly have led to Judge Kessler denying his habeas petition, because it would have demonstrated an unmistakeable involvement with the command structure of al-Qaeda or the Taliban that would have justified his ongoing detention. However, it was not entirely certain that everyone who attended the house was required to attend a training camp. As one former prisoner explained, in a passage of enormous significance for bin Mohammed, “occupants of the guesthouse were ‘encouraged to attend training in one of the camps,’ but not ‘pressured’ to do so.”
At this point in the unclassified opinion, Judge Kessler “fully credit[ed] the Government’s argument that [bin Mohammed] was recruited and traveled via a terrorist pipeline,” and also fund that the government had “provided credible evidence that Mohammed arrived at the Jalalabad guesthouse as part of a recruiting network, and stayed with other individuals who went on to train with al-Qaeda.”
However, when it came to the most important allegations – that bin Mohammed himself attended a training camp, and that he engaged in battle – she was not persuaded. Denying the government’s allegation that he engaged in battle, she noted that the allegation “rests only on highly speculative evidence,” drawn from a solitary mention of it during the interrogation of a Moroccan prisoner, and that “There is no eye-witness account of [him] engaging in battle.”
As for the claim that bin Mohammed attended a training camp, this came from the interrogations of Binyam Mohamed, and what Judge Kessler discovered clearly shocked her so much that she not only devoted 30 pages of her 80-page opinion to his case, but also laid out the information in a forum and a format that was to prove invaluable to the British courts -- and so damaging to David Miliband and the British government -- in February this year.
In some ways, this is rather surprising, as an account of Binyam’s torture, which he delivered to his attorney, Clive Stafford Smith, over three long days in Guantánamo in the summer of 2005, was first published in the Guardian on August 2, 2005, having miraculously passed the Pentagon’s censors. However, the importance of the respectability accorded to information cited by a judge in a US court should be borne in mind, as, indeed, should the additional details about Binyam Mohamed’s interrogations that Judge Kessler made available through her access to materials that have never before been publicly disclosed.
The torture of Binyam Mohamed
Judge Kessler’s extraordinary tour through Binyam Mohamed’s long ordeal began because she was asked to accept an allegation put forward by the government, relating to a statement he had made after arriving at Guantánamo in September 2004, after two and a half years’ imprisonment -- first in Pakistan (for three months), then in Morocco (for eighteen months), then in the CIA’s “Dark Prison” in Afghanistan (for four months) and then in the US prison at Bagram airbase in Afghanistan (for another four months).
Drawing on the long statement he made to Clive Stafford Smith, and other material including the account he gave to the Mail on Sunday after his release, Judge Kessler related how, after he was seized as he attempted to fly out of Karachi on April 10, 2002, he was held in Pakistani custody, but FBI agents were given access to him. In a passage that reflected the contents of the documents that the British government tried to suppress for 18 months in the UK, Judge Kessler noted that, between April 20 and April 27, 2002, “[j]ust weeks after his capture, his torture began.” As she explained:
The FBI questioned him about his activities, and, unsatisfied with his answers, threatened to transfer him to other countries where he would experience harsh treatment. Then, the FBI agents would leave the room and Pakistanis entered. They beat him with a leather strap, and staged a mock execution where a guard pointed a semi-automatic weapon at Binyam Mohamed’s chest for several minutes, and stood over him motionless. The guard relented, left the room, and FBI personnel re-entered the room for further questioning.
She then proceeded to relate the story of his rendition to Morocco and his torture there, running through the familiar details of the Moroccan interrogators’ particular brutality, including regular and savage beatings, during which he was “fed information about himself and told to verify it,” the regular sessions in which his penis was cut with a scalpel, and the sustained sleep deprivation and the use of drugs that led to him experiencing “emotional breakdowns.”
Judge Kessler also made a point of stating that he was “told that the British government knew of his situation and sanctioned his detention,” and that he “was told that the United States wanted a story from him, and that he had been linked to important figures in al-Qaeda, including Khalid Sheikh Mohammed, Abu Zubaydah, Ibn Sheikh al-Libi [aka Ibn al-Shaykh al-Libi], and Jose Padilla.”
Although these purported connections were, for the most part, absurd, it is no coincidence that these men were mentioned to him, as they tie in with the torture of Abu Zubaydah, seized just two weeks before him, on March 28, 2002, who was the first subject of an experimental torture program that only gained official approval on August 1, 2002, when John Yoo and Jay S. Bybee of the Justice Department’s Office of Legal Counsel, which is responsible for interpreting the law as it applies to the executive branch, issued two memos that purported to redefine torture and to approve its use by the CIA.
In Judge Kessler’s account, Binyam “was told to say, among other things, that he met [Osama] bin Laden five or six times, that he advised him on places to attack, and that he conferred with bin Laden’s deputies.” She also noted, “He was given names of people he allegedly knew, and told to confess to being “an al-Qaeda operations man.’”
She proceeded to describe how, on January 21 or 22, 2004, he was flown to Afghanistan, and repeated the story about how, after he was stripped, “one female soldier was assigned to take pictures of him,” who “expressed horror at the scars on his penis.” She then described his time in the “Dark Prison” near Kabul, where guards “bombarded his cell with loud music,” and where he was hung from the walls, starved, and beaten. As she also explained, “While undergoing this treatment, it appeared that Binyam Mohamed attempted to be forthright with CIA interrogators and renounce the story he had been coached to adopt.” However, “This resulted in his ‘being chained to the rails for a fortnight.’ He stated that he tried to tell the truth because ‘the CIA interrogators looked understanding.’”
Judge Kessler also noted that Binyam “maintains that he was fed information about individuals in pictures.” This has been a familiar ploy in the “War on Terror,” as I noted most recently with reference to the December 2009 habeas ruling in the case of Saeed Hatim, a Yemeni, which contained false allegations made by Sharqwi Abdu Ali al-Hajj, better known as Riyadh the Facilitator, an allegedly significant prisoner who, like Binyam Mohamed, was subjected to rendition and torture, and who has stated that he made false allegations based on photographs.
In Binyam’s case, when presented with these photographs, Judge Kessler noted, “When he tried to be compliant and provide made-up information about the pictured men, his interrogator was initially happy, but then ‘did [his] homework’ and threatened to torture him further if he lied again. They simply wanted him to repeat what they told him to say. This included an admission of his involvement in a dirty bomb plot [a spectral plot, as admitted by deputy defense secretary Paul Wolfowitz in June 2002, which, nonetheless, haunted Binyam until his release from Guantánamo in February 2009].”
For the reasons outlined above, Judge Kessler refused to accept the government’s contention that, when moved to Bagram in May 2004, Binyam “implicated [Farhi Saeed bin Mohamed] in training activities.” All of the above was specifically cited to prove why this statement could not be trusted, with Judge Kessler repeatedly noting that Binyam was “tortured and forced to admit to a host of allegations, most of which he has since denied,” and that he was “’fed a large amount of information’ while in detention, and that he resorted to making up some stories.”
With reference to bin Mohammed, Judge Kessler noted that, “after being released from Guantánamo Bay, he [Binyam] signed a sworn declaration claiming that he never met [bin Mohammed] until they were both detained at Guantánamo Bay, thereby disavowing the statements he made at Guantánamo Bay about training with [him]” -- a reference, it transpired, to the claim aired in the allegations against bin Mohammed in 2005, in which it was Binyam who had stated that “Another detainee identified [him] as an individual who trained at the Algerian camp and they eventually traveled to Kandahar.”
Even without this disavowal, Judge Kessler was in no mood to accept the government’s claims that Binyam’s statements regarding bin Mohammed, made at Bagram in July 2004 and at Guantánamo in October and November 2004, were reliable because the Special Agent who interviewed him “built a rapport that allowed the detainee to voluntarily provide accurate information.” As she explained, in an understated manner, before launching into the excerpts from his diary, “The Government’s claims of reliability are undermined by the sworn declaration of Binyam Mohamed that he was brutalized for years while in United States custody overseas at foreign facilities.”
In a section of the opinion entitled, Legal Analysis,” Judge Kessler not only spent some time analyzing scientific research into the effects of prolonged torture, concluding that “Binyam Mohamed’s will was overborne by his lengthy prior torture, and therefore his confessions … do not represent reliable evidence,” but also reminded the government that the UN Convention Against Torture (to which the US is a signatory) “requires that governments which are party to it ‘ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.’”
She added, in a passage that ought to have significance if Binyam’s story is ever subjected to scrutiny in a US court examining the crimes committed by those who authorized his torture, “The government does not challenge or deny the accuracy of Binyam Mohamed’s story of brutal treatment.” It is, of course, to be hoped that this will one day be the case, because, as I explained in an article in March, following the whitewash of a scathing internal report into the conduct of the lawyers who wrote the “torture memos”:
As the UN Convention Against Torture stipulates (Article 2.2), “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
The UN Convention also stipulates (Article 4. 1) that signatories to the Convention “shall ensure that all acts of torture are offences under its criminal law” and requires each State, when torture has been exposed, to “submit the case to its competent authorities for the purpose of prosecution” (Article 7.1). As with Article 2.2, there are no excuses for not taking action, and that includes political expediency, or, as Barack Obama described it, “a belief that we need to look forward as opposed to looking backwards.”
Will Farhi Saeed bin Mohammed be released?
Compared to the significance of Binyam Mohamed’s story, as exposed in a US court opinion by Judge Kessler, Farhi Saeed bin Mohammed’s story tends to pale into relative insignificance. This should not be the case, however. Although Judge Kessler was, to some extent, cautious in granting his habeas petition, noting that the government had proved its case in relation to his use of a false name and a false passport, his attendance at mosques which were “well-known to have radical, fundamentalist clerics advocating jihad,” his recruitment and travel to Afghanistan “along routes well-traveled by those wishing to fight with al-Qaeda and/or the Taliban against the United States and its allies,” and his stay in a guesthouse “with direct ties to al-Qaeda and its training camps,” she was unable to conclude that he had “function[ed] or participat[ed] within or under the command structure” of al-Qaeda, which would have been required to authorize his ongoing detention. Bin Mohammed, she wrote, “had simply not yet reached that point in his journey to become a part of al-Qaeda,” however much the government wished that he had. “The Government,” she added, “ha[d] failed to provide reliable evidence that [he] received any training in weaponry or fighting, or that he engaged in actual fighting of any kind on behalf of al-Qaeda and/or the Taliban.” In her concluding comments, she stressed:
Whether or not one believes that [bin Mohammed] was a potential danger to the security of this country, or whether or not one speculates that [he] would have attended a training camp and then fought with al-Qaeda and/or the Taliban if the opportunity presented itself, is not relevant.
On that basis, while the bigger questions regarding Binyam Mohamed’s torture, and accountability for those who authorized it, remain unanswered, but must be pursued, the questions in Farhi Saeed bin Mohammed’s case, over four months after he won his habeas petition, are rather more simple, even if no answers have been forthcoming either: when will he be released, will a third country be found that will accept him, or will the Obama administration try to send him back to Algeria, despite his fears for his safety?