Such is the hysterical disregard for the law in parts of the United States that when, on March 22, District Court Judge James Robertson ordered the release from Guantánamo of Mohamedou Ould Slahi, a 38-year-old Mauritanian who was once described as the “highest-value detainee at the facility,” Republican lawmakers were in uproar.
The Hill reported that Sen. Kit Bond (R-Missouri), the ranking member of the Intelligence Committee, stated, “While Holder’s Justice Department should appeal this outrageous decision , I’m not holding my breath. Holder seems more intent on closing Guantánamo Bay than keeping terrorists locked up where they belong.” The Hill also reported that Rep. Lamar Smith (R-Texas) sent a letter to Holder asking him to appeal the ruling, in which he wrote, “It is certainly possible, if not likely, that Mr. Slahi will re-engage in efforts to commit terrorist attacks against innocent Americans if allowed to go free. This ruling clearly puts the American people in danger and should not be allowed to stand.”
As it transpired, Attorney General Eric Holder was not happy with the ruling either and did not need to be slandered by Senator Bond to issue his own complaint. Speaking from a meeting in Phoenix, Arizona, Holder said that, although “[w]e obviously respect the decision that the judge made, [h]opefully an appeals court will look at the evidence that we presented in the habeas proceeding and come to a contrary conclusion.”
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The Torture of Mohamedou Ould Slahi
The reasoning behind Judge Robertson’s ruling is not yet clear, as his opinion has not been publicly released. Noticeably, however, Slahi was subjected to several years of torture, which began soon after he was taken in by the Mauritanian authorities on November 20, 2001, at the request of the Bush administration. “My country turned me over, shortcutting all kinds of due process of law, like a candy bar to the United States,” he said in his combatant status review tribunal at Guantánamo in 2004.
After he handed himself in, he was transferred by the US to Jordan – one of at least 15 prisoners rendered to Jordan by the CIA between 2001 and 2004 – where he was held for eight months and where, he said, what happened to him was “beyond description,” and he was tortured “maybe twice a week, a couple times, sometimes more.” He was then transferred to the US prison at Bagram in Afghanistan for two weeks and arrived in Guantánamo on August 4, 2002.
As the highest-value detainee at Guantánamo – in the days before Khalid Sheikh Mohammed and 13 other high-value detainees were flown in from secret CIA prisons in September 2006 – Slahi was again subjected to torture, which included prolonged isolation, prolonged sleep deprivation, beatings, death threats and threats that his mother would be brought to Guantánamo and gang-raped. This program, which was implemented in May 2003 and augmented with further “enhanced interrogation techniques” authorized by Defense Secretary Donald Rumsfeld, culminated in August 2003 in an incident when Slahi was taken out on a boat, wearing isolation goggles, while agents whispered, within earshot, that he was “about to be executed and made to disappear.” As Der Spiegel explained in an article in 2008, “He was so terrified that he urinated in his pants.”
After this, as Slahi himself described it (in a letter to his lawyers dated November 9, 2006), “I yes-sed every accusation my interrogators made. I even wrote the infamous confession about me was planning to hit the CN Tower in Toronto based on SSG [redacted] advise. I just wanted to get the monkeys off my back.”
However, his treatment was so severe that, in May 2004, Lt. Col. Stuart Couch of the Marine Corps, who had been assigned his case as a prosecutor the year before, resigned rather than pursue the case. In a meeting with the chief prosecutor, Army Col. Bob Swann, Lieutenant Colonel Couch “told Colonel Swann that in addition to legal reasons, he was ‘morally opposed’ to the interrogation techniques ‘and for that reason alone refused to participate in [the Slahi] prosecution in any manner.'”
By all accounts, Slahi’s torture ended as soon as he began cooperating. As Der Spiegel explained in 2008 and The Washington Post reported last week, after he “broke,” he became one of Guantánamo’s most cooperative prisoners, granted special privileges, including fast food and a small garden plot and regarded as a source of invaluable information – even though more skeptical observers might conclude that the information provided by a man broken by torture might, in fact, be less than reliable.
However, it is improbable that whatever tortured confessions were extracted from Slahi – who has persistently maintained that he had no prior knowledge of the 9/11 attacks – would have been enough for Judge Robertson to grant his habeas petition, unless it was, in addition, demonstrated to him that other sources alleging Slahi’s involvement with the 9/11 hijackers were also unreliable.
Doubts About Mohamedou Ould Slahi’s Significance
Here, the US authorities’ claims about Slahi begin to look rather dubious. Although the 9/11 Commission Report described him as “a significant al-Qaeda operative” who “recruited 9/11 hijackers in Germany,” the more detailed narrative, as revealed in the report, is less conclusive. Instead, as I explained in my book “The Guantánamo Files”:
[I]t was stated that Ramzi bin al-Shibh and three of the 9/11 hijackers – Mohammed Atta, Marwan al-Shehhi and Ziad Jeddah – were traveling on a train in Germany when they met a man named Khalid El-Masri and “struck up a conversation about jihad in Chechnya.” El-Masri told them to contact a man named Abu Musab (Slahi’s alias) in Duisburg, but when they met him, he told them it was difficult to get to Chechnya because travelers were generally detained in Georgia and advised them to go to Afghanistan for training instead.
As I also explained:
Slahi himself has disputed this story, denying an allegation that he “recruited for jihad,” but even if it were true, it proves only that he was a recruiter for a war in Chechnya that was regarded by many Muslims as a legitimate struggle, who sent would-be recruits for training in long-established training camps in Afghanistan and does not connect him in any meaningful way to 9/11.
Despite this, the US authorities have persistently presented his activities in Germany as more significant than the 9/11 Commission Report suggested, choosing to ignore the official story – that the hijackers attracted bin Laden’s attention once they were in Afghanistan – and claiming that Slahi arranged for one of them “to meet Osama bin Laden and that this individual then swore allegiance to Osama bin Laden and became an important and influential al-Qaeda member.”
The US government’s star witness is Ramzi bin al-Shibh and as Der Spiegel explained in 2008, the recruitment story originally came from him. However, bin al-Shibh was also tortured in US custody and, in addition, as Der Spiegel noted:
The German investigators familiar with the history leading up to the 9/11 attacks are more cautious in their assessment of Slahi’s position within al-Qaeda. They say that bin al-Shibh’s statements about Slahi recruiting the attackers has “legend status,” and that none of their information supports his assertions.
We will have to wait for Judge Robertson’s opinion to be released to discover whether these were his conclusions too, but it certainly seems possible, just as it also seems probable that the authorities’ attempts to implicate Slahi in all manner of other plots – in particular Ahmed Ressam’s plot to blow up Los Angeles Airport in 1999 – are also overblown. Slahi said that he falsely confessed to being part of Ressam’s plot while being tortured in Jordan and explained that, although he moved to Canada in 1998, hoping to find work as an electrical engineer, he returned to Mauritania in January 2000 because he was kept under constant surveillance by the intelligence services. “Wherever I went I had people right behind me at the market watching my butt,” he said in his tribunal at Guantánamo. “I said what the heck? This is not the life I want to live.”
Overlooked in the assertions that Slahi was a key figure in the 9/11 attacks, rather than, perhaps, a peripheral figure in jihadi circles, is a specific explanation for why the Americans asked the Mauritanian authorities to detain him in November 2001. As I also explained in “The Guantánamo Files”:
It was not as if he was an unknown quantity. As well as being questioned in Canada, he had been investigated in Germany, had been questioned in Senegal on his way to Mauritania in January 2000 and had also been questioned on two occasions by the Americans themselves: by three FBI agents and “another guy from the Department of Justice” in Mauritania in February 2000 and again in October 2001, when an American agent took part in an interrogation and, according to Slahi, threatened to bring in “black people” to torture him.
If he really had anything to hide after all this, it seems unlikely that he would have so willingly waited around for the Mauritanian authorities to pick him up at his house on November 20, 2001, when his long ordeal began.
While Slahi’s story, stripped of its core allegations, begs questions about what kind of involvement with jihadi groups is necessary for a judge to deny a Guantánamo prisoner’s habeas corpus petition and hurl him back into ongoing detention without charge or trial, a case that followed Slahi’s a few days later demonstrated that being in Afghanistan at the time of the US-led invasion in October 2001 and being in some sort of proximity to Arab forces fighting with the Taliban, was enough for a prisoner to lose their habeas petition.
A Taliban Recruit Loses His Habeas Petition
The prisoner in question, Mukhtar al-Warafi, a Yemeni who was 27 years old when he was seized in northern Afghanistan in November 2001, survived a massacre in a mud-walled fortress, Qala-i-Janghi, where hundreds of prisoners – mostly, but not all, foot soldiers for the Taliban – had been taken after surrendering to the Northern Alliance. According to a statement read out by a military officer assigned to represent him at a review board at Guantánamo, al-Warafi studied medical procedures in Yemen, “had nothing to do whatsoever with the Taliban,” and went to Afghanistan “to help provide medical assistance to the poor and the public.”
As with Slahi, the opinion of the judge in his case, Royce C. Lamberth, has not yet been released, but it is certain that Judge Lamberth will not have been convinced by al-Warafi’s story and will not have accepted his statement that, although he admitted traveling to Khawaja Ghar in Afghanistan and carrying an AK-47, he said that he had it for self-defense and that it was given to him by a doctor he worked with at a clinic, nor his statement that he provided first aid at the al-Ansar clinic in Kunduz, for all types of people, but not “to wounded soldiers.”
I am not yet in any position to say whether I think Judge Lamberth made the correct call in al-Warafi’s case, but as with other cases where peripheral figures involved with the Taliban have been consigned to indefinite detention as a result of losing their habeas petitions, I must reiterate that each of these results does nothing to justify the Bush administration’s detention policies in the war on terror.
Instead, rulings like these demonstrate only that, in defining who can legitimately continue to be held at Guantánamo, the Executive, lawmakers, the Supreme Court and the lower courts have all allowed an unjustifiable situation to prevail in which minor foot soldiers are still being equated with terrorists. This is in spite of the fact that it is patently obvious that the former should, all along, have been held as prisoners of war protected by the Geneva Conventions, rather than being flown halfway around the world to an experimental interrogation camp where large numbers of them were, in one way or another, subjected to variations of the enhanced interrogation techniques to which Slahi was subjected.
To critics of the habeas cases, like the Brookings Institute’s Benjamin Wittes and Robert Chesney, the seeming discrepancy between the ruling in the cases of Slahi and al-Warafi will only reinforce the opinions they voiced in an op-ed for The Washington Post back in February, when they claimed that judges were making wildly different rulings because, when “[t]he Supreme Court asserted jurisdiction over Guantánamo in summer 2008,” the justices “coyly refrained from giving any guidance on the myriad important questions that the cases it authorized would predictably generate.”
Wittes and Chesney want Congress to establish new rules, but, in a letter to the Post, David Cole of the Center for Constitutional Rights demolished this argument, pointing out that that “their complaints are predicated on a naive view of both the judicial process and the legislative process and their prescription is unlikely to solve the ‘problem’ they identify.”
No one should be surprised that different judges reach different results on difficult legal issues. That’s why we fight about judicial appointments and why we have an appellate process that facilitates uniform rules.
Nor is legislation likely to reduce the disagreements. First, it is wildly optimistic to think that this Congress could agree on a detention standard. Second, the inquiries involved – such as assessing whether statements are voluntary or coerced, how far the “taint” from a coerced statement extends to other evidence, or whether an individual poses a threat that warrants preventive detention – are not susceptible to bright-line rules, but require careful case-by-case application of standards. It’s a job for judges, not Congress.
Cole is undoubtedly correct. However, what these recent rulings have shown is not that anyone should have a problem with judges reaching different verdicts, but that in ordering the release of Slahi, but not the release of al-Warafi, the problems are not with the judges, who can discern whether there is any evidence or not, but with the fundamental confusion between al-Qaeda and the Taliban. This confusion is enshrined in the Authorization for Use of Military Force, passed by Congress in the wake of the 9/11 attacks, which provides the basis for detaining those associated with either al-Qaeda or the Taliban.
If no proof was found that Slahi was associated with al-Qaeda, that should be enough to secure his release. If, on the other hand, al-Warafi was associated with the Taliban, on the very fringes of al-Qaeda activity in Afghanistan during the US-led invasion, I cannot see how that justifies his ongoing detention.
There are, we are told, a number of terrorists in Guantánamo – as many as 35, according to the recommendations made by President Obama’s interagency task force, regarding those who should be put forward for trials. On last week’s evidence, however, neither Slahi nor al-Warafi qualify as terrorists and neither, I believe, should continue to be held.