Why Obama Must Continue Releasing Yemenis From Guantánamo

The weekend before Christmas, 12 prisoners were released from Guantánamo. In two previous articles, I told the stories of six of these men – two Somalis and four Afghans, and in this final article I look at the stories of the six Yemenis who were also released. These releases were enormously important because Yemenis make up nearly half of the remaining 198 prisoners in Guantánamo, and until these six men were repatriated, only 16 Yemenis had been freed from Guantánamo throughout the prison’s long history.

Back in October, when the Obama administration’s interagency Task Force announced that it had cleared 75 prisoners for release – and explained that this figure included 26 Yemenis – I took exception to the administration’s unwillingness to release any of the Yemenis. This was revealed in the case of Alla Ali Bin Ali Ahmed, a Yemeni whose release had been ordered in May by a district court judge, who had granted his habeas corpus petition. Judge Gladys Kessler ruled that the government had based its case on unreliable allegations made by other prisoners who were tortured, coerced, bribed or suffering from mental health issues, and a “mosaic” of intelligence, purporting to rise to the level of evidence, which actually relied, to an intolerable degree, on second- or third-hand hearsay, guilt by association and unsupportable suppositions.

However, when it came to releasing Ali Ahmed, the government balked, and administration officials told The New York Times in October that, “Even if Mr. Ahmed was not dangerous in 2002 … Guantánamo itself might have radicalized him, exposing him to militants and embittering him against the United States.”

As I explained at the time, “only at Guantánamo can fear trump justice to such an alarming degree” that, “if [the officials’] rationale for not releasing any of the Yemenis from Guantánamo was extended to the US prison system, it would mean that no prisoner would ever be released at the end of their sentence, because prison ‘might have radicalized’ them, and also, of course, that it would lead to no prisoner ever being released from Guantánamo.”

In the end, Alla Ali Bin Ali Ahmed was released – primarily, it seems, because Judge Kessler “appeared to be losing patience with the delay in complying with her May 11 release order,” and was about to criticize the government openly – and not because officials had truly considered the flawed basis of their unwillingness to release him. As a result, the release of six more Yemenis on the weekend of December 19-20 was a significant breakthrough, as it represented the first time that the Obama administration had, of its own volition, released Yemenis cleared by its own interagency Task Force.

As I hope to demonstrate below, in profiles of these six men, the administration’s reticence was unjustified, as their stories represent a cross-section of the horrendous mistakes made by the Bush administration in its search for “terrorists” to imprison without rights at Guantánamo, and also because they strongly suggest that other innocent Yemenis continue to be detained.

The importance of this should not be overlooked, especially because, in the wake of the failed bomb plot on a Northwest Airlines flight on Christmas Day, the connections allegedly established by the would-be bomber Umar Farouk Abdulmutallab with terrorists in Yemen has prompted lawmakers in the US to declare that no more Yemenis should be released from Guantánamo.

As Politico reported, Rep. Pete Hoekstra (R-Michigan), ranking member on the House Intelligence Committee, claimed that the news “highlights the fact that sending this many people back – or any people back – to Yemen right now is a really bad idea,” and Rep. Peter King (R-New York) called it “a major mistake” to repatriate any Yemeni prisoners, adding, “I don’t think Guantánamo should be closed, but if we’re going to close it I don’t believe we should be sending people to Yemen where prisoners have managed to escape in the past.” Even Bennie Thompson (D-Mississippi), the House Homeland Security Committee Chairman, expressed doubts, telling Politico, “I’d, at a minimum, say that whatever we were about to do we’d at least have to scrub it again from top to bottom.”

These claims now threaten to spiral out of control, with several media outlets reporting that two former Guantánamo prisoners from Saudi Arabia have assumed leadership positions in an al-Qaeda-inspired group, al-Qaeda in the Arabian peninsula, which has claimed responsibility for the failed attack, even though the Obama administration “remains cautious in linking” Abdulmutallab to al-Qaeda, and even though drawing connections between released Saudis and released Yemenis has no sound basis, as the Yemeni authorities stated categorically in October that none of the 16 Yemenis returned from Guantánamo between 2004 and 2008 had joined terrorist groups after their eventual release from Yemeni custody.

Jamal Mar’i: One of the first victims of “extraordinary rendition” in the “War on Terror”

The first of the six Yemenis, Jamal Mar’i, was 31 years old when he was kidnapped from his house in Karachi by US and Pakistani operatives on September 23, 2001, and subjected to what appears to be one of the first “extraordinary renditions” in the Bush administration’s “war on terror.” After a month in Pakistani custody, where he was interrogated by US agents, he was flown to Jordan by the CIA, and was held by the notorious General Intelligence Directorate (GID) for four months before being sent to Guantánamo. Several years later, he told his lawyer, Marc Falkoff, that he was not subjected to torture, but was “hidden from visiting Red Cross inspectors.”

Jamal Mar’i was an unlikely terror suspect. Married with four children, he had studied petroleum engineering in Azerbaijan from 1994-98, but had found no work in his chosen field, and had worked in his family’s store in Yemen until 2001, when he was employed by the Emirates-based financier for the Saudi charity al-Wafa to buy medicine for the organization in Karachi. He explained that this involved him traveling to Kandahar in May 2001 “to find out how the work was done and how the medicine is distributed,” and that he was then responsible for purchasing medicines from specialist stores in Pakistan.

Mar’i was seized on the day that President Bush signed Executive Order 13224, which was designed to block the assets of individuals and entities that were allegedly involved with terrorism. Al-Wafa was one of the organizations blacklisted and, in the years that followed, dozens of prisoners in Guantánamo were accused of being involved with terrorism because of their connections with the organization even though all but Mar’i and Ayman Batarfi, discussed below – were released several years ago.

In Guantánamo, little of Mar’i’s story emerged, as, after finally securing the services of a lawyer, he soon came to believe that the entire process was worthless. In June 2006, Falkoff explained, “When I first met Jamal, he said all he needed was to have his case heard and everyone would see that he was innocent. Now he won’t even meet with us. He said that we initially brought him hope but that we’re now like a mirage in the desert and he can no longer live with hope.”

Ayman Batarfi: The doctor Who Met Osama bin Laden

The second of the released Yemenis, Ayman Batarfi, was a skilled orthopedic surgeon, who had traveled to Afghanistan in 2001 to care for those less fortunate than himself. He, too, had worked for al-Wafa, and was clearly referring to Jamal Mar’i when, at his tribunal in Guantánamo, he said that al-Wafa’s representative in Karachi “was taken to Jordan ‘on a special flight.'” Unlike Mar’i, however, Batarfi was not subjected to extraordinary rendition, but he came under suspicion when he explained that, through a series of accidents, he had met Osama bin Laden and had also found himself in Afghanistan’s Tora Bora mountains in December 2001, when remnants of al-Qaeda and the Taliban were fighting the US and their Afghan allies, and the US military allowed bin Laden, Ayman al-Zawahiri and numerous other senior figures in al-Qaeda and the Taliban to escape across the unguarded Pakistani border.

The delay in releasing Batarfi is clearly unconscionable, as, earlier this year, when his habeas corpus petition finally reached a district court, Judge Emmet G. Sullivan was outraged by government lawyers’ “repeated” delays in providing unclassified exculpatory material to the defense. At a status hearing on April 1, he referred to a hearing on March 19, in which he required the Justice Department “to show cause why the government and its attorneys should not be held in contempt for violating” an order in January to produce relevant information, including exculpatory evidence.

This was typical behavior on the part of the Justice Department, but Judge Sullivan’s patience was clearly exhausted when Batarfi’s lawyers explained that they had discovered in Batarfi’s medical records (which had, after some delay, been provided by the government) “a highly exculpatory record” pertaining to one of the government’s main witnesses against their client, and added that they “believed they were entitled to all other similar records” regarding this particular prisoner. And the government responded, as Judge Sullivan described it, by taking the position that “this had been a, quote, inadvertent production, and sought to, in the government’s words, sequester the document.”

As I explained in an article in the summer, analyzing the habeas corpus cases:

Outraged by this, and clearly struggling to contain his anger, Judge Sullivan told the government lawyers, “To hide – and I don’t use that word loosely – to hide relevant and exculpatory evidence from counsel and from the Court under any circumstances, particularly here where there is no other means to discover this information and where the stakes are so very high and do indeed include indefinite detention, is fundamentally unjust, outrageous and will not be tolerated.”

He added, “Fortunately, Dr. Batarfi’s counsel have been diligent and tireless in their efforts, but no one, Dr. Batarfi and not this Court, should have to rely on luck to discover evidence critical to a just resolution … In the face of repeated failures to comply with this Court’s orders, to produce exculpatory evidence, even after orders to show cause and the requirement of no fewer than four declarations from officials at the highest levels of our government, how can this Court have any confidence whatsoever in the US government to comply with its obligation and to be truthful to the Court?”

In response to the meltdown of Batarfi’s case, the government took matters into its own hands, expediting a review by the Justice Department, and announcing that he had been cleared for release. Judge Sullivan accepted this, of course, as he would clearly have granted Batarfi’s habeas petition had the case proceeded, but he made a point of telling the government that, “While the Court on the one hand applauds the government’s belated decision to transfer Dr. Batarfi, the Court must note the disturbing pattern in this and other cases. Time and again we have seen that only once finally pressed to present evidence to justify a petitioner’s detention does the United States belatedly, quote, withdraw, end quote, charges or allegations and/or transfer the detainee.”

Judge Sullivan added that he had “some serious concerns” about whether the sudden decision to release Batarfi was “another ploy not to return Dr. Batarfi to his country of origin but to continue with his deprivation of his fair day in court” – and with good reason, as it took nearly nine months to release him, despite the judge’s devastatingly critical analysis of the government’s actions:

I’m not going to continue to tolerate indefinite delay on the part of the United States government. I mean, this Guantánamo issue is a travesty. It ranks up there with the internment of Japanese-American citizens years ago. It’s a horror story in the American system of jurisprudence, and quite frankly, I’m not going to buy into an extended indefinite delay of this man’s stay at Guantánamo, or anyone else on my calendar.

Farouq Ali Ahmed: A Victim of Guantánamo’s “Notorious Liar”

The story of the third of the Yemenis, Farouq Ali Ahmed, a young man who went to Afghanistan to teach the Koran, has been known since February 2006, when Corine Hegland wrote a series of extraordinary articles for the National Journal, examining a number of Guantánamo cases. In one of these articles, Hegland wrote about the case of Farouq Ali Ahmed, explaining how he had been judged as an “enemy combatant” because of two false allegations. The first – that he was a bodyguard of Osama bin Laden – was directed at 30 prisoners in total, and was made under duress, and later retracted, by Mohammed al-Qahtani. One of several purported “20th hijackers” for the 9/11 attacks, al-Qahtani made the allegations during a seven-week period, from November 2002 to January 2003, when he was subjected to an array of “enhanced interrogation techniques,” which “met the legal definition of torture,” according to Susan Crawford, the Convening Authority for Guantánamo’s military commissions, who explained to Bob Woodward in January 2009 that she had refused to press charges against him in the military commissions because of the torture.

The second allegation – that Farouq Ali Ahmed had been seen at Osama bin Laden’s private airport in Kandahar, where he was “wearing camouflage and carrying an AK-47” – proved so intolerable to his personal representative (a military officer assigned to the prisoners in place of a lawyer during the tribunals at Guantánamo in 2004-05) that he submitted a written protest, in which he stated that the government’s sole evidence that Ahmed had been at bin Laden’s airport was the statement of another prisoner, who, according to an FBI memo that he presented to the tribunal, was a notorious liar. According to the FBI, he “had lied, not only about Farouq, but about other Yemeni detainees as well. The other detainee claimed he had seen the Yemenis at times and in places where they simply could not have been.”

The personal representative wrote, “I do feel with some certainty that [the accuser] has lied about other detainees to receive preferable treatment and to cause them problems while in custody. Had the tribunal taken this evidence out as unreliable, then the position we have taken is that a teacher of the Koran (to the Taliban’s children) is an enemy combatant (partially because he slept under a Taliban roof).”

The “notorious liar” had actually made false allegations against 60 prisoners in total, as was revealed after the tribunal of Mohammed al-Tumani, a young Syrian economic migrant, who had traveled to Afghanistan with other family members shortly before the 9/11 attacks (and who was finally released in Portugal in August of this year). In his tribunal, he denied an allegation that he had attended the al-Farouq training camp with such vigor that his personal representative decided to investigate the matter further. When he looked at the classified evidence, however, he found that only one man – the same prisoner mentioned above, and probably the same man identified in the habeas petition of Ayman Batarfi – claimed to have seen him at al-Farouq, and had identified him as being there three months before he arrived in Afghanistan. As Corine Hegland described it, “The curious US officer pulled the classified file of the accuser, saw that he had accused 60 men, and, suddenly skeptical, pulled the files of every detainee the accuser had placed at the one training camp. None of the men had been in Afghanistan at the time the accuser said he saw them at the camp.”

Muhammed Taher and Fayad al-Rami: Seized From a University Dorm in Pakistan

The fourth and fifth Yemenis, Muhammed Taher and Fayad Yahya Ahmed al-Rami (identified by the Pentagon as Mohammed Tahir and Fayad Yahya Ahmed), were seized in a house raid in Pakistan on the same night that the “high-value detainee” Abu Zubaydah was captured, and in the same house as Alla Ali Bin Ali Ahmed, described above, and at least a dozen other men who were subsequently transferred to Guantánamo.

When Judge Kessler granted the habeas corpus petition of Alla Ali Bin Ali Ahmed, accepting that he was nothing more than a student, who had been seized because of some tangential connection that the guest house had with Abu Zubaydah, she also made a point of noting, “It is likely, based on evidence in the record, that at least a majority of the [other] guests were indeed students, living at a guest house that was located close to a university,” and this is clearly the case with both Muhammed Taher and Fayad al-Rami, who were also students. Moreover, both men explained that they had repeatedly been told – both in Pakistani custody and at Guantánamo – that they had been seized by mistake, and would be released. In his tribunal at Guantánamo, as I explained in an article in May, Taher said:

The army translator and the interrogator from the Pakistani intelligence said, “yes, all of what this man said … about his story in Pakistan is correct, and therefore that is why we are going to give him back his passport that we took” … I was really surprised that the American intelligence refused all of these proofs and they said no. “We still need him,” they said, and then they took me.

In al-Rami’s case, he explained to his tribunal in 2005 that he had recently been told in Guantánamo that he would be released. “The interrogator and the investigator about a month ago that met with me told [me] that there was nothing against me and that I am an innocent man and should [be] released,” he said.

However, while the release of these men is long overdue, it is noticeable that at least seven other Yemenis seized in the house are still held, including Mohammed Hassen, who was only visiting the house when he was seized. Hassen is one of only two of the guest house prisoners to be cleared for release by a military review board at Guantánamo under the Bush administration, and while the other, Abdul Aziz al-Noofayee, a Saudi, was released in June, Hassen’s continued presence at Guantánamo is, frankly, inexplicable.

Riyad al-Haf: A Case of Mistaken Identity

In the case of the sixth Yemeni, Riyad al-Haf (identified by the Pentagon as Riyad al-Radai or Riyad al-Haj), it was alleged in his tribunal at Guantánamo that, after traveling to Afghanistan, he was “picked up in a car by a group of Taliban members and driven to Kandahar, where he stayed in a Taliban guest house for two to three months,” and that he “admitted he agreed to serve the Taliban” and was posted on the front line for a week. It was also alleged that he admitted working at a field hospital for six months as a nurse’s aide, helping to care for wounded Taliban fighters, but in response he said that he had actually spent six months as a patient in a hospital in Kabul.

When his review board met the following year, he said that “everything in the Unclassified Summary [of Evidence] was a big lie and that America had no choice but to keep him locked up since it would look bad if they released him after holding him for three years.” He “repeatedly and strenuously” stated that he had been confused with some other prisoner, and that this mistake had started in Bagram, where, presumably, the “evidence” against him was first established.

By the time of his next review, in January 2006, this confusing story had become even less clear. Al-Haf maintained that he had “wanted to find out what the Taliban was really all about,” and one allegation – that after “seeing that the Taliban was trying to serve Islam, [he] decided to serve the Taliban in any manner except for fighting” – sounded vaguely convincing, but it was surrounded by numerous other allegations that were patently absurd, which related to his previously aired claim that he had been mistaken for another man.

In this ridiculous scenario, it was stated that he “used additional aliases of al-Sharqawi aka al-Hajj, which are identifiable with a Pakistani facilitator.” This was nonsense, because the real al-Sharqawi (a man also known as Riyadh the Facilitator) was already in Guantánamo. Nevertheless, it seems probable that a host of other groundless allegations sprang from this mistake, including wild claims that he “was identified as having a lot of experience because of the long time he spent at Camp Farouq and on the front line fighting the Northern Alliance,” that he “taught others how to train people in various advanced things such as tanks and explosives,” that he “was identified as a leader of 10 to 15 men and drove a Toyota pick-up truck that was used to haul supplies to the front lines,” that he “was identified as being in Tora Bora and was in charge of delivering food supplies to the fighters and also delivered approximately $3,000 to the Emir,” and that he “was one of the old senior guys in Afghanistan that was a commander with a lot of responsibility.”

As we have seen since Guantánamo was first established, nearly eight years ago, it is appallingly easy for its would-be defenders to resort to propaganda when describing the prisoners. When looked at in detail, however, the claims that the prison holds the “worst of the worst” fail to stand up to scrutiny, as is revealed in the stories related above. Running through most of these accounts is the important role played by the district court judges examining the prisoners’ habeas corpus petitions, who, through their exposure of unreliable witnesses and of false confessions obtained through torture, coercion or bribery, have revealed themselves to be far more capable arbiters of the truth than the lawmakers who have chosen to use these men, and others still held, as pawns in an unprincipled political game.