[Ppnews] Judge Condemns Guantánamo Evidence

Political Prisoner News ppnews at freedomarchives.org
Thu May 14 10:51:51 EDT 2009


May 14, 2009

The Poisoned Mosaic

Judge Condemns Guantánamo Evidence


David Remes, an attorney for 16 Yemeni prisoners 
in Guantánamo, claimed today that the 
government’s detention policy was “in tatters,” 
after District Court Judge Gladys Kessler 
comprehensively demolished the Justice 
Department’s case against a Yemeni prisoner held 
in Guantánamo without charge or trial for seven 
years (<file://localhost/cgi-bin/show_public_doc>PDF).

Judge Kessler ruled last Monday that the 
government had failed to establish, “by a 
preponderance of the evidence,” that Alla Ali Bin 
Ali Ahmed was “part of, or substantially 
supported, Taliban or al-Qaeda forces that are 
engaged in hostilities against the United States 
or its coalition partners,” and stated that the 
government “should take all necessary diplomatic 
steps to facilitate“ his release.

This was not the first time that a judge had 
ordered a prisoner freed from Guantánamo because 
of the weakness of the government’s evidence. 
Since the Supreme Court 
the prisoners’ habeas corpus rights last June, 
judges have ordered the release of 25 prisoners 
in the 29 cases that have so far been heard.

However, although Judge Richard Leon dismissed 
the testimony of two witnesses in Guantánamo four 
months ago in the case of the Saudi resident and 
Chadian national 
El-Gharani, stating that “the credibility and 
reliability of the detainees being relied upon by 
the government has either been directly called 
into question by government personnel or has been 
characterized by government personnel as 
undermined,” last week’s 45-page ruling reveals 
(despite extensive redactions) that Judge Kessler 
expressed even more comprehensive doubts about 
both the reliability of witnesses in Guantánamo, 
and the overall quality of the government’s 
supposed evidence. This will, I believe, have a 
knock-on effect on other cases, and may well be 
causing tremors of fear in those parts of the 
Justice Department and the Pentagon where, 
bizarrely, all indications suggest that, despite 
the change of administration, career officials 
who worked under George W. Bush are behaving as 
though it is still business as usual.

The case against Alla Ali Bin Ali Ahmed

Ali Ahmed, who was seized, with at least 15 other 
prisoners, in a raid on a house in Faisalabad, 
Pakistan, on March 28, 2002 (on the same night 
that the alleged senior al-Qaeda operative 
Zubaydah was captured in another house raid), has 
always stated that he traveled to Afghanistan “in 
order to find a religious school at which to 
study the Koran,” as Judge Kessler described it, 
and “denies ever going to Afghanistan, training 
at an al-Qaeda camp, fighting against anyone, or 
being a member of a terrorist group.”

In a military review board at Guantánamo in 2007, 
he explained that he traveled to Pakistan, on a 
one-month visa, “to learn the Koran so he could 
be a teacher,” but ended up stuck in the guest 
house “because the situation at that time was 
they were arresting any Arab that was found there 
in Pakistan so we were just sitting and waiting in that house.”

In its case against him, the government drew on 
allegations made by four prisoners in Guantánamo, 
and also attempted to rely on a “mosaic theory” 
of intelligence. As Judge Kessler described it, 
drawing on documents submitted by the government,

[the] theory is that each of these allegations -- 
and even the individual pieces of evidence 
supporting these allegations -- should not be 
examined in isolation. Rather, “[t]he probity of 
any single piece of evidence should  be evaluated 
based on the evidence as a whole,” to determine 
whether, when considered “as a whole,” the 
evidence supporting these allegations comes 
together to create a “mosaic” that shows the 
Petitioner to be justifiably detained.

Judge Kessler then noted that, although it “may 
well be true” that “use of the mosaic approach is 
a common and well-established mode of analysis in 
the intelligence community 
 at this point in 
this long, drawn-out litigation the Court’s 
obligation is to make findings of fact and 
conclusions of law” to consider the government’s 
case. After pointing out that the mosaic theory 
“is only as persuasive as the tiles which compose 
it and the glue which binds them together,” she 
then proceeded to highlight a catalog of 
deficiencies in the tiles and the glue.

Judge Kessler dismisses the testimony of four witnesses

Dealing first with the witnesses, she excluded 
the testimony of the first, “whose credibility 
has been cast into serious doubt -- and rejected” 
by Judge Leon in the case of Mohammed El-Gharani. 
Noting that he “has made accusations against a 
number of detainees” at Guantánamo, and that 
“Many of those accusations have been called into 
question by the government,” Judge Kessler 
dismissed his claim that he “overheard” 
conversations at Guantánamo about Ali Ahmed’s 
travels in Afghanistan, stating that, “In 
addition to coming from an unreliable witness,” 
it was “based upon multiple levels of hearsay.”

Judge Kessler then dismissed the testimony of a 
second witness, whose allegation was redacted, 
because he had made several contradictory 
statements to interrogators, and, moreover, 
because his allegation was “riddled 
equivocation and speculation,” and also dismissed 
the account of a third witness, who claimed to 
have seen Ali Ahmed while he was allegedly being 
smuggled from Afghanistan to Pakistan, because, 
as Ali Ahmed stated, he “has been diagnosed by 
military medical staff as having a ‘psychosis.’”

Judge Kessler was particularly troubled that Ali 
Ahmed “learned of the witness’ medical condition 
only through the diligent work of his counsel, 
and not as a result of the government’s 
obligation to provide him exculpatory 
information.” She was also unimpressed that the 
witness provided “inconsistent identifications,” 
and was concerned by “evidence that [he] 
underwent torture,” at Bagram and in the CIA’s 
“Dark Prison” near Kabul, “which may well have 
affected the accuracy of the information he supplied to interrogators.”

According to the government, the last witness, 
identified as al-Qahtani (probably 
al-Qahtani, an alleged al-Qaeda operative who was 
captured with Abu Zubaydah), identified Ali 
Ahmed, from a photograph shown to him in Bagram, 
as someone who had received military training 
near Kabul. However, Judge Kessler dismissed this 
statement when it became apparent that, in 
Bagram, where Ali Ahmed had been given the 
prisoner number 191, the government admitted that 
two detainees were given this same number,” and 
she therefore concluded that it was “completely 
unclear” to whom the allegation referred.

Judge Kessler dismisses the “mosaic” theory of intelligence

While the dismissal of all four witnesses’ 
statements fatally undermined the government’s 
case, Judge Kessler also took apart the “mosaic 
theory” conjured up from the prisoners’ 
statements, which purported to show that Ali 
Ahmed trained and fought in Afghanistan, and was 
associated with al-Qaeda because of his presence 
in the guest house in Faisalabad.

Dismissing the claim that he fought in 
Afghanistan, Judge Kessler noted that, bizarrely, 
the government asked that his “participation in 
battle be inferred from a web of statements made 
by witnesses who were commenting on [his] 
non-military activity,” by suggesting that 
military activity could be inferred because the 
witnesses claimed that Ali Ahmed undertook 
military training in Afghanistan and “stayed in 
the company of al-Qaeda fighters,” and “because 
Ali Ahmed’s denial of such behavior is not credible.”

Noting that “The government’s position on this 
charge rests on its mosaic theory,” Judge Kessler 
added decisively, “The theory cannot support the 
charge,” and proceeded to explain that it was 
“extremely significant” that there was 
“absolutely no ‘direct’ evidence, at whatever 
hearsay level, of Ali Ahmed’s participation in 
battle.” She also made the following withering 
dismissal of the government’s claims:

Even if the evidence is to be believed that 
Petitioner’s story is false and that he was in 
Afghanistan, there simply is no affirmative proof 
that he took up arms. The Court will not make the 
leap that the government does.

After dismissing other pieces of the mosaic that 
dealt with Ali Ahmed’s purported military 
training in Afghanistan, and his supposed use of 
a particular kunya (nickname), for reasons 
connected to the unreliable witnesses discussed 
above, Judge Kessler also refused to accept that, 
because Ali Ahmed stated at a guest house in 
Faisalabad, which, according to the government, 
housed at least a few individuals who “were 
involved with terrorist groups,” it was logical 
to infer, as “one more piece of the mosaic,” that 
he was “a substantial supporter of al-Qaeda 
and/or the Taliban, as well as a trainee and 
fighter for one or both of these groups.”

Reiterating her profound doubts about the 
witnesses, she stated that the government’s 
allegation was “not the material of which a 
reliable hearsay identification is made. Once 
those pieces of the mosaic have been removed 
because of their unreliability, the government is 
left with what is essentially a charge of guilt by association.”

She added,

The problem with this charge is that there is no 
solid evidence that Ali Ahmed engaged in, or 
planned, any future wrongdoing while [redacted]. 
There is no evidence that he was arrested with 
any weapons or other terrorist paraphernalia; 
nothing of this kind was found in his locker. 
Though others at the house admitted their 
affiliation with al-Qaeda, they did not implicate 
Ali Ahmed in any terrorist activity.

She also noted that there was “ample evidence in 
the record to indicate that guest houses are 
common features of the region, serving as way 
stations for impoverished young men spending time 
away from home,” and -- in a comment that is 
worth noting in the cases of the other men seized 
in the house, whom I discussed in my book 
Guantánamo Files, and in 
article last December -- stated, “It is likely, 
based on evidence in the record, that at least a 
majority of the [redacted] guests were indeed 
students, living at a guest house that was 
located close to a university,” and added that 
she thought it significant that, “even though the 
police arrested all of the [redacted] men staying 
at the house, they appeared to have ignored 
[redacted], the man who operated the house.”

This was a valid point, as the house owner, Issa, 
was a Pakistani, and, as many Guantánamo 
prisoners seized in Pakistan have attested (see, 
for example, 
story of two Sudanese prisoners released in 
2007), the Pakistani police often made a point of 
apologizing to foreign Muslims as they were 
captured, stating that they had to seize foreign 
Arabs -- but not, by inference, Pakistanis -- to 
please the Bush administration.

In conclusion, Judge Kessler provided a succinct 
recap of her response to the government’s 
evidence, which should leave no one in any doubt 
about the extent of the administration’s failure 
to create a convincing case out of selection of 
profoundly dubious witnesses, and a “mosaic” with more holes than tiles:

As to the claim of participating in fighting, the 
government produced virtually no credible 
evidence; as to the claim of receiving military 
training, the conclusory nine-word hearsay 
statement by [redacted] does not show that it is 
more likely than not that he received such 
training; as to the claim that he traveled around 
Afghanistan in 2001 and 2002 in the company of 
terrorist fighters fleeing the battlefield, even 
if the government had proven this charge, which 
it did not, such a fact would not constitute 
substantial support; as to the evidence that he 
stayed at [redacted], the government has 
certainly proven that he stayed there, but has 
utterly failed to present evidence that he was a 
substantial supporter of al-Qaeda and/or the 
Taliban while he did stay there; as to the 
government’s position about the significance of 
locating Petitioner’s alleged kunya on a list, 
the Court finds this argument without any merit whatsoever.

The long reach of Judge Kessler’s ruling

As a result, Judge Kessler’s ruling casts serious 
doubts on the wisdom of pursuing the cases of the 
other men seized in the house, except, perhaps, 
for those few who, as the government described 
it, “admitted to fighting with enemy forces” -- 
although even these bold statements may prove, 
under scrutiny, to be rather less clear-cut.

Moreover, her unwavering condemnation of four 
separate witnesses, including one who was 
responsible for making unreliable allegations 
against dozens of prisoners (which still seem to 
be included as part of the government’s 
“evidence” against these men), and her equally 
unwavering condemnation of a “mosaic” of 
intelligence composed of second- or third-hand 
hearsay, guilt by association and unsupportable 
suppositions, have repercussions that extend far 
beyond the case of Alla Ali Bin Ali Ahmed and the 
other Faisalabad guest house prisoners.

As David Remes explained to me, “Judge Kessler’s 
opinion exposes the flimsiness of the 
government's evidence and blows a hole in many of 
the government's cases. Specifically, the court 
rejected the government's reliance on 
guilt-by-association and accusers of dubious 
reliability. These are two of the pillars of the 
government's cases against many if not most of 
the prisoners. The opinion also shows that the 
courts will not give the government the 
unquestioning deference it has been counting on 
to win its cases. If the other judges of the 
court should apply the opinion in their cases, 
the government's claims of detention authority will lie in tatters.”

If justice is indeed to be delivered to the 
Guantánamo prisoners, through a legal process 
that has taken many long years to establish, and 
is not to be hijacked instead by 
Obama administration’s Executive review (which, 
noticeably, sidelines Congress and the judiciary 
in a manner that recalls the Bush years), I 
foresee that the release of many other prisoners 
will be ordered by judges in the coming months.

The government’s failure to comprehend the scale 
of the Bush administration’s cruelty and ineptitude

As a result, the administration might want to 
reflect on its reasons for claiming, as defense 
Gates stated two weeks ago, that there are 50 to 
100 of the remaining 241 prisoners “who we cannot 
release and cannot try,” and who, it was 
suggested, might be held under some new kind of 
legislation authorizing preventive detention. If 
many of these cases are looked at closely enough, 
I suspect that it will be become apparent that 
the reasons that the government does not want to 
put them forward for trial is because the 
evidence against them is unreliable (in other 
words, that it was obtained through the use of 
torture, coercion or bribery), and that, 
moreover, much of it is composed of exactly the 
sort of “mosaic” of intelligence that, under 
close scrutiny, is revealed to be full of holes.

In addition, Attorney General Eric Holder would 
do well to focus significant attention on the 
pending habeas cases, and, preferably, to drop 
those which are infected by the testimony of 
liars (whether coerced or bribed) and are 
composed of broken “mosaics” of intelligence that 
will not convince judges seeking “findings of fact and conclusions of law.”

No one in the Obama administration should be 
surprised that so many of the Guantánamo cases 
will not stand up in a court of law, but I find 
myself surprised that senior officials seem to 
have been content to let a Bush-era approach to 
prosecution survive unchanged in the offices of 
the Justice Department and the Pentagon. Perhaps 
they haven’t been informed that the reason that 
there is no case against most of these men is 
because torture, coercion and bribery were used 
to fill in the blanks when the majority of these 
men were sold to the U.S. military by their 
Afghan and Pakistani allies, who handed them over 
with a smile, and a simple phrase, “This man is 
an al-Qaeda/Taliban fighter. You owe me $5,000.”

Andy Worthington is a British historian, and the 
author of 
Guantánamo Files: The Stories of the 774 
Detainees in America's Illegal Prison' (published 
by Pluto Press). Visit his website at: 
He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk

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