[Ppnews] Guantanamo - Judge Rules Yemeni's Detention Based Solely on Torture

Political Prisoner News ppnews at freedomarchives.org
Fri Apr 23 13:02:00 EDT 2010


April 23 - 25, 2010

Judge Rules Yemeni's Detention Based Solely on Torture

Guantanamo and Habeas Corpus


On February 24, as I reported in an article 
Black Hole of Guantánamo,” Judge Henry H. Kennedy 
Jr. granted the habeas corpus petition of Uthman 
Abdul Rahim Mohammed Uthman, a Yemeni who was 
seized crossing the border from Afghanistan to 
Pakistan in December 2001. In the absence of the 
judge’s unclassified opinion explaining why he 
had ordered his release, I provided only a brief 
explanation of what was publicly known of his story, stating:

As I explained in my book 
Guantánamo Files, Uthman, who was 22 years old at 
the time of his capture, “said that he had 
traveled between Kabul and Khost teaching the 
Koran from March to December 2001.” Although he 
“admitted that he had stayed at a Taliban house 
in Quetta, Pakistan, which was the normal entry 
point for volunteers who had come to fight with 
the Taliban,” he stated that this was “only 
because he had been told that it was the only way 
for him to enter Afghanistan.”

Judge Kennedy’s opinion was released a month ago 
but was then abruptly withdrawn, and, perhaps 
with unnecessary delicacy, I held off from 
analyzing it, waiting for it to be reissued, as I 
was uncertain how much would be redacted. When 
the revised opinion was finally released on April 
I realized that the name of a criminal 
investigator with the Naval Criminal 
Investigative Service had been removed, as had 
other named operatives, but that other key 
elements had not; specifically, the names of two 
other prisoners who alleged that Uthman “acted as 
a bodyguard for Osama bin Laden.” These two men 
are Sharqwi Abdu Ali al-Hajj and Sanad Yislam Ali 
al-Kazimi, and in the most important part of the opinion, Judge Kennedy stated:

The Court will not rely on the statements of Hajj 
or Kazimi because there is unrebutted evidence in 
the record that, at the time of the 
interrogations at which they made the statements, 
both men had recently been tortured.

The torture of Sharqwi Abdu Ali al-Hajj

This, alarmingly, was something of an 
understatement. Al-Hajj (also identified as Abdu 
Ali Sharqawi, but more commonly known as Riyadh 
the Facilitator) was seized in a house raid in 
Pakistan in February 2002 and was then rendered 
to Jordan, one of 
least 15 prisoners whose torture was outsourced 
to the Jordanian authorities between 2001 and 
2004, where he was held for nearly two years 
before being transferred to the CIA’s “Dark 
Prison” near Kabul, and then, via Bagram, to Guantánamo.

As Judge Kennedy explained, he told his lawyer, 
Kristin B. Wilhelm, that, “while held in Jordan, 
he ‘was regularly beaten and threatened with 
electrocution and molestation,’ and he eventually 
‘manufactured facts’ and confessed to his 
interrogators’ allegation ‘in order to make the 
torture stop.’” In the “Dark Prison,” he added, 
he was “kept in complete darkness and was subject to continuous loud music.”

Al-Hajj’s descriptions of the “Dark Prison” 
correspond with those of numerous other 
prisoners, including the British resident 
Mohamed, whose descriptions were included in my 
Me Baby One More Time: A History of Music Torture 
in the War on Terror.” However, what is missing 
from the analysis of his time in Jordan is a more 
sustained narrative of torture, false confessions 
and his torturers’ regular contact with the CIA, 
which emerged in 
letter given to Joanne Mariner of Human Rights 
Watch during a visit to Jordan in 2008, which had 
been written by al-Hajj during his detention, 
around October 2002. In this note, which was 
smuggled out of the prison, he explained that he 
“was held as a secret prisoner by the Jordanian 
intelligence service: unregistered, cut off from 
all communication and hidden during visits by 
representatives of the International Committee of 
the Red Cross,” and gave the following “short 
summary of my sufferings,” as reported by Mariner:

“They beat me up in a way that does not know 
mercy,” Sharqawi wrote, referring to his 
Jordanian captors, “and they're still beating me. 
They threatened me with electricity, with snakes 
and dogs ... [They said] we'll make you see death.”

Sharqawi described his interrogations, explaining 
that the Jordanians were feeding his responses back to the CIA.

“Every time that the interrogator asks me about a 
certain piece of information, and I talk,” 
Sharqawi said, “he asks me if I told this to the 
Americans. And if I say no he jumps for joy, and 
he leaves me and goes to report it to his superiors, and they rejoice.”

In Human Rights Watch’s final report, 
Jeopardy,” the extent to which he was 
interrogated about other men -- using photos 
that, in Afghanistan and Guantánamo, were 
apparently described as “the family album” -- was 
revealed in the following passage, which not only 
explains the pressures that led to him providing 
a false allegation against Uthman Abdul Rahim 
Mohammed Uthman in Bagram, but also indicates how 
hundreds -- or thousands -- of other false allegations may have been extracted:

I was being interrogated all the time, in the 
evening and in the day. I was shown thousands of 
photos, and I really mean thousands, I am not 
exaggerating ... And in between all this you have 
the torture, the abuse, the cursing, humiliation. 
They had threatened me with being sexually abused 
and electrocuted. I was told that if I wanted to 
leave with permanent disability both mental and 
physical, that that could be arranged. They said 
they had all the facilities of Jordan to achieve 
that. I was told that I had to talk, I had to tell them everything.

The torture of Sanad al-Kazimi

The story of Sanad al-Kazimi’s false confession 
is just as distressing. Seized in the United Arab 
Emirates in January 2003, he was subsequently 
handed over to U.S. forces, who rendered him to 
an unidentified secret CIA prison, and then to 
the “Dark Prison” and Bagram, and, as Judge 
Kennedy explained, he told his lawyer, Martha 
Rayner, that, “while [he] was detained outside 
the United States, his interrogators beat him; 
held him naked and shackled in a cold dark cell; 
dropped him into cold water while his hands and 
legs were bound; and sexually abused him. Kazimi 
told Rayner that eventually “[h]e made up his 
mind to say ‘Yes’ to anything the interrogators said to avoid further torture.”

After this he was relocated to the “Dark Prison,” 
where, he said, “he was always in darkness and 
was hooded, given injections, beaten, hit with 
electric cables, suspended from above, made to be 
naked, and subjected to continuous loud music. 
Kazimi reportedly tried to kill himself on three 
occasions. He told Rayner that he realized ‘he 
could mitigate the torture by telling the 
interrogators what they wanted to hear.’”

At Bagram, he continued, “he was isolated, 
shackled, ‘psychologically tortured and 
traumatized by guards’ desecration of the Koran’ 
and interrogated ‘day and night, and very 
frequently.’ [He] told Rayner that he ‘tried very 
hard’ to tell his interrogators in Bagram the 
same information he had told his previous 
interrogators ‘so they would not hurt him.’”

This is damning enough, but back in August 2007, 
Jane Mayer of the 
Yorker spoke to Ramzi Kassem, another of 
al-Kazimi’s lawyers, who, as I explained in 
article at the time, added further details, telling her that:

[Al-Kazimi] was “suspended by his arms for long 
periods, causing his legs to swell painfully 
It’s so traumatic, he can barely speak of it. He 
breaks down in tears.” He also said that 
al-Kazimi “claimed that, while hanging, he was 
beaten with electric cables,” and explained that 
he also told him that, while in the “Dark 
Prison,” he “attempted suicide three times, by 
ramming his head into the walls”: “He did it 
until he lost consciousness. Then they stitched 
him back up. So he did it again. The next time he 
woke up, he was chained, and they’d given him 
tranquillizers. He asked to go to the bathroom, 
and then he did it again.” On this last occasion, 
Kassem added, he “was given more tranquillizers, 
and chained in a more confining manner.”

The story of Uthman Abdul Rahim Mohammed Uthman

These accounts, sadly, fit a pattern of torture 
and false confessions that only becomes clearer 
as time passes and more evidence is revealed, and 
they also confirm that the two men described 
above were 
the 94 prisoners -- many still unaccounted for -- 
who were held in secret CIA prisons and subjected 
to particularly brutal treatment 
Compared to them, Uthman’s own story is easily overshadowed.

This is perhaps understandable, as nothing in the 
government’s supposed evidence thoroughly refutes 
his own assertions that he was in Afghanistan as 
a missionary, because the entire case against him 
is based on allegations made by other prisoners 
(in addition to al-Hajj and al-Kazimi), or 
attempts to infer guilt by association on the 
part of the government that make him something of a cipher in his own case.

Throughout the rest of the judge’s opinion, 
further attempts by the government to prove that 
Uthman was a bodyguard for bin Laden, that he 
trained in an al-Qaeda camp and was present at 
the battle of Tora Bora (where al-Qaeda and the 
Taliban fought the U.S. military and its Afghan 
proxies in November and December 2001) are 
bedeviled with identifications based on a 
photograph and a variety of kunyas (nicknames) 
that Judge Kennedy found unconvincing. The only 
allegations given any substantial weight are 
claims that an individual who “supported jihad” 
financed his trip, that he followed a route that 
was typically used by al-Qaeda recruits, and that 
he was seen in two guesthouses in Afghanistan 
that were reportedly associated with al-Qaeda.

Other prisoners drift in and out of this 
narrative -- Abdul Hakim Bukhari, a Saudi 
from Guantánamo in September 2007) who arrived in 
Afghanistan after the 9/11 attacks for jihad but 
was imprisoned as a spy, who unconvincingly 
alleged that Uthman “was a member of the Osama 
bin Laden 
 security detail” before 9/11, when 
Bukhari wasn’t in the country and could have had 
no such knowledge; and Richard Belmar, a British 
citizen (released in January 2005), who was 
seized in Pakistan in February 2002, and who, 
“when shown a picture of Uthman,” stated that he 
“’may have been a lower amir,’ or leader, ‘in the 
Kandahar guest house,’” even though, as seems 
apparent, Belmar was not in Kandahar at the same time as Uthman.

The judge refused to disregard this statement 
entirely, but, to be honest, it is difficult to 
see why not, as its basis in reality appears to 
be as flimsy as everything else thrown at Uthman 
by the government in the hope that some of it 
would stick, and, moreover, 
stated on his release that, on one occasion in 
Bagram, “a handgun was forced into his mouth,” 
and he explained, “It tasted cold, bitter. I 
thought, ‘Yeah, this is getting serious, there’s 
a good chance they will pull the trigger.’”

Elsewhere, the government resorted to trying out 
guilt by association, claiming that, because 
Uthman was seized in the vicinity of Tora Bora 
with approximately 30 other men, “a few of whom 
he knew from Yemen,” who “were admitted -- or at 
least, alleged, al-Qaeda members, some of whom 
were likely coming from Tora Bora,” the Court 
should draw an inference that Uthman’s missionary story was a lie.

The truth, to be honest, is difficult to 
establish, as Judge Kennedy recognized. The group 
of approximately 30 men with whom Uthman was 
seized have long been referred to by the 
government as the 
Thirty,” and portrayed, as in Uthman’s case, as 
bodyguards for bin Laden. Until this case came to 
court, it had been presumed that the bodyguard 
allegations came solely from Mohamed al-Qahtani, 
the supposed 20th hijacker for the 9/11 attacks, 
whose torture at Guantánamo is well-known (and 
by Pentagon official Susan Crawford in January 
2009), but al-Qahtani is mysteriously absent from 
Uthman’s case, as are alleged al-Qaeda member 
Ibrahim al-Qosi (currently facing 
trial by Military Commission) and convicted 
al-Qaeda member 
Hamza al-Bahlul, who were also captured at this time.

It may dismay the government to have to concede 
that it is all but impossible to establish that 
everyone seized at this time was part of 
al-Qaeda, and that some of the men may have been 
missionaries or humanitarian aid workers, 
attempting to flee the chaos of post-invasion 
Afghanistan as part of general Arab exodus, but 
it is not beyond the bounds of reason that this 
is the case, as Judge Kennedy accepted in his conclusion, when he stated:

In sum, the Court gives credence to evidence that 
Uthman (1) studied at a school at which other men 
were recruited to fight for al-Qaeda; (2) 
received money for his trip to Afghanistan from 
an individual who supported jihad; (3) traveled 
to Afghanistan along a route also taken by 
al-Qaeda recruits; (4) was seen at two al-Qaeda 
guesthouses in Afghanistan; and (5) was with 
al-Qaeda members in the vicinity of Tora Bora 
after the battle that occurred there.

Even taken together, these facts do not convince 
the Court by a preponderance of the evidence that 
Uthman received and executed orders from 
al-Qaeda. Although this information is consistent 
with the proposition that Uthman was a part of 
al-Qaeda, it is not proof of that allegation. As 
explained, the record does not contain reliable 
evidence that Uthman was a bodyguard for Osama 
bin Laden or fought for al-Qaeda. Certainly, none 
of the facts respondents have demonstrated are 
true are direct evidence of fighting or otherwise 
“receiv[ing] and execut[ing] orders” 
 and they 
do not, even together, paint an incriminating 
enough picture to demonstrate that the inferences 
respondents ask the Court to make are more likely 
accurate than not. Associations with al-Qaeda 
members, or institutions to which al-Qaeda 
members have connections, are not alone enough to 
demonstrate that, more likely than not, Uthman was part of al-Qaeda.

In granting Uthman’ habeas petition, Judge 
Kennedy added that, “at first blush,” some of the 
government’s evidence was “quite incriminating of 
Uthman and supportive of the position that he is 
lawfully detained,” but that, on close 
examination, there was “reason not credit some of 
it at all and reason to conclude that what 
remains is not nearly as probative of respondent’s position as they assert.”

An alarming conclusion

This is indeed the case, but what is missing from 
Judge Kennedy’s conclusion, but is glaringly 
obvious from his opinion as a whole, is that the 
shadows which never quite coalesce around the 
barely fleshed-out figure of Uthman Abdul Rahim 
Mohammed Uthman are populated not by reliable 
witnesses, but by a procession of torture victims 
or other prisoners worn out by endless 
interrogation, who, when shown photographs, 
invented stories to get the torture to stop, or 
to get the interrogators off their back.

As a demonstration of how to produce false 
confessions to incriminate insignificant 
prisoners at Guantánamo, it would be harder to 
find a document that more perfectly expresses the 
brutal pointlessness of the “War on Terror” than 
this opinion, and when the bigger picture is 
examined -- Sharqwi Abdu Ali al-Hajj ‘s statement 
that, in Jordan, “I was shown thousands of 
photos, and I really mean thousands” -- the scale 
of this shocking witch-hunt is explicitly revealed.

Beyond Guantánamo, where habeas judges are not 
empowered to tread, who knows 
many other men were seized because of false 
confessions made through the use of torture?

Note: For more on Guantánamo and habeas corpus, 
see my project, 
Habeas Week.”

Andy Worthington is a British journalist, the 
author of 
Guantánamo Files: The Stories of the 774 
Detainees in America's Illegal Prison' (published 
by Pluto Press), and the co-director (with Polly 
Nash) of the new Guantánamo documentary, 
the Law: Stories from Guantánamo.’ Visit his 
website at: <http://www.andyworthington.co.uk/>www.andyworthington.co.uk

He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk

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