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Can Kuwait Break the Guantánamo Deadlock?

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As the tenth anniversary of the 9/11 attacks approaches, those hoping for the closure of the “War on Terror” prison at Guantánamo, which was and remains the most notorious emblem of the Bush administration’s excessive and misguided response to the attacks, are wondering how the prison will ever close.

Because of a combination of cowardice on the part of Barack Obama and ferocious opposition in Congress to his plans to close Guantánamo, 171 men remain at the prison, even though the president initially promised to close it within a year of taking office, and even though a task force he convened to review the prisoners’ cases — a task force comprising career officials and lawyers in government departments and the intelligence agencies — recommended that only 36 of those men should be tried and 89 others released.

With a Congress-imposed ban on bringing prisoners to the U.S. mainland for any reason, and lawmakers insisting that they have the right to intervene in any plans to release prisoners, those campaigning to close Guantánamo have been obliged to seek out new angles in the effort to reawaken awareness about the ongoing injustice of Guantánamo.

To that end, a recent feature on CNN, dealing with the two remaining Kuwaiti prisoners in Guantánamo, highlighted some of the problems outlined above, as well as casting a baleful eye on the failure of the U.S. judiciary to secure the release of prisoners. Important, however, is that it also provided a possible route out of the current paralysis regarding the closure of the prison, if the Obama administration can locate any political backbone.

The two remaining Kuwaitis in Guantánamo, Fayiz al‑Kandari and Fawzi al‑Odah, lost their habeas corpus petitions in September 2010 and August 2009, despite there being no actual evidence that they were involved in any activities against U.S. or coalition forces. I covered the judges’ rulings on their petitions at the time, and also covered al‑Kandari’s story in depth in October 2009, and I was pleased to note that CNN’s coverage dealt thoroughly with the supposed evidence and the problems with it and that they ought to provide an impetus for the closure of Guantánamo to be back on the agenda as the tenth anniversary of the prison’s opening approaches.

As CNN described al‑Kandari’s story, the young man, who was “the eldest son of a large family,” traveled to Pakistan in June 2001 and on to Afghanistan in August 2001. His “stated purpose” was “to do charitable work, assisting with the reconstruction of two wells and the repair of a mosque.” He had undertaken charitable work before — in Bosnia in 1994 and in Afghanistan in 1997. Moreover, a member of his family stated that his visit was “for the sake of his mother who had cancer” so that there would be “more blessings from God on her behalf.”

In Afghanistan, after the 9/11 attacks, as was noted by Lt. Col. Barry Wingard, a military attorney assigned to defend al‑Kandari in the trial by military commission for which he was put forward in the dying days of the Bush administration, al‑Kandari “remembers leaflets falling all around him” on which “there was a picture of an Afghan man who was holding a bag of money.” The leaflets, prepared by a U.S. PsyOps team and dropped from planes, stated, “You turn in your Arabs and we will give you money.” Colonel Wingard explained that, as a result, Afghan officials advised al‑Kandari to leave, but, instead, he was seized by Northern Alliance soldiers and sold to the U.S.

To prosecutors, al‑Kandari’s story is unconvincing, but their own version of events is thoroughly outlandish. As was claimed in September 2004, during his Combatant Status Review Tribunal (a military review board convened to assess whether he had been correctly designated on capture as an “enemy combatant”), al‑Kandari was supposed to have “recruited personnel to participate in jihad in Afghanistan” and to have “received weapons training at the Khaldan training camp,” where “Osama bin Laden personally provided religious instruction and trainee [sic].” The tribunal concluded that he was a member of al‑Qaeda, who, in their opinion, had been present in Afghanistan’s Tora Bora mountains during a showdown between al‑Qaeda forces and the U.S. military (and its proxy Afghan army) between mid November and mid December 2001.

In response, al‑Kandari, who has “always denied the accusations” and has avoided incriminating himself (or others), like so many other prisoners subjected to unbearable pressure, is on record as stating, “I looked at all the unclassified accusations; I was laughing so hard.”

Despite only arriving in Afghanistan in August 2001, not only was he accused of visiting the al‑Farouq training camp (the main training camp for Arabs in the years before 9/11), but it was also stated that he “provided instruction to al‑Qaeda members and trainees” that he “served as an adviser to Osama bin Laden,” and that he “produced recruitment audio and video tapes which encouraged membership in al‑Qaeda and participation in jihad.”

Over the years, he has faced other claims — that he attended two training camps, fought on the Taliban frontlines against the Northern Alliance, was with Osama bin Laden in Tora Bora, and was a religious leader for al‑Qaeda and the Taliban — even though the government was unable to explain how he “provided instruction to al‑Qaeda members and trainees” at al‑Farouq, when the camp closed less than a month after his arrival in Afghanistan, and, more important, how he was supposed to have undertaken all this training, provided all this instruction and advice, and produced videos and audiotapes during the small amount of time that he actually spent in Afghanistan. As he stated during a military review in 2005,

At the end of this exciting story and after all these various accusations, when I spent most of my time alongside bin Laden as his advisor and his religious leader … All this happened in a period of three months, which is the period of time I stayed in Afghanistan? I ask, are these accusations against Fayiz or against Superman? It seems to me that whoever wrote these accusations he must [have] been drinking and he must have been drunk when he wrote it.

Adding new information to what was already known, Moazzam Begg, a former Guantánamo prisoner and British citizen, told CNN he remembered al‑Kandari from his own brief detention in Kandahar, Afghanistan, before his transfer to Bagram and then Guantánamo, “because the Americans would bring him from cell to cell to collect trash.” He recalled that other prisoners “told him al‑Kandari was knowledgeable about Islamic issues,” but never heard any of his fellow prisoners mention that he was “associated with known terrorists or terrorist activities.”

Colonel Wingard pointed out that al‑Kandari had “maintained his innocence” throughout nearly ten years in detention, and friends and relatives also insisted that he “never had any affiliation with terrorist organisations.” His mother, Fatima Yusuf, explained in a letter supporting her son’s habeas petition, “I have lost my son for years and I am longing for him.” She added that his piety was apparent from when he was a child, because he “used to divide his daily pocket expenses into two halves, one for him and he used to distribute the other half to the poor. Sometimes, he spent his whole pocket expenses to the needy, without withholding anything for him.”

Although al‑Kandari has recently been allowed to make phone calls to his family every few months, he is not currently doing so, because, as Colonel Wingard explained, “he has been locked in solitary confinement for going on a hunger strike after his personal belongings, including his mail, was [sic] taken.”

The case against the other Kuwaiti, Fawzi al‑Odah, is hardly any more convincing. As I explained in an article for the BBC in 2007, he was a primary-school teacher who “took a short holiday from work and traveled to Afghanistan in August 2001 to teach the Koran and provide humanitarian aid. This was something he had done before, in other countries, and his family had a history of providing humanitarian aid, establishing libraries and wells in various countries in Africa.”

Furthermore, as I explained when he lost his habeas petition,

Judge [Colleen] Kollar-Kotelly’s ruling was based on a dubious assemblage of information that relied more on inconsistencies in al‑Odah’s account of his activities than it did on anything resembling concrete evidence, as she herself admitted, when she wrote that there were “significant reasons why the Government’s proffered evidence may not be accurate or authentic.”

This supposed evidence, which even the judge had reason to doubt, consisted primarily of claims that al‑Obdah had undertaken military training for one day and had “admit[ted] carrying an AK‑47 through the Tora Bora mountains for 10 to 11 days during the U.S. air campaign in that region.”

Like al‑Kandari, al‑Odah has “maintained his innocence throughout his detention” and his father, Khalid, a former pilot who worked with U.S. forces during the war against Saddam Hussein in 1991 and now works with the Kuwait Family Committee, which lobbies on behalf of the Kuwaiti prisoners, told CNN that, although his son was carrying a weapon when he was detained, it was only for self-defense.

Even if the U.S. case is true, it is hardly appropriate, nearly ten years after the 9/11 attacks, that, as I explained when al‑Odah lost his habeas petition,

the United States is still asserting that it has the right to hold a young man who spent just one day at a training camp, who did not flee Afghanistan after the 9/11 attacks (perhaps because he feared reprisals if he was found escaping), who traveled with other men to Kabul, and then to Logar and then to Tora Bora and his eventual capture, with no evidence that he ever used the weapon he was given, and no evidence that his training involved anything more than firing a few rounds from an AK‑47 in a practice session.

The problems facing al‑Kandari and al‑Odah strike at the heart of the problems confronting those calling for the closure of Guantánamo and relate to the failures of their habeas corpus petitions to guarantee that their cases are judged fairly and to Obama’s failure to recognize that prisoners should either be tried or released.

In March this year, confirming the recommendations of his task force, the president issued an executive order approving the indefinite detention of 46 of the remaining prisoners, with periodic reviews of their status, on the basis that they are too dangerous to release but that not enough evidence exists to put them on trial.

That executive order has, understandably, been widely criticized by human-rights groups and concerned lawyers, and although the Obama administration has not announced which of the remaining prisoners have been designated for indefinite detention, al‑Kandari’s lawyers believe he “is likely to be indefinitely detained” as CNN described it. It also seems likely that al‑Odah, along with other prisoners who have lost their habeas petitions, is also in that category.

Speaking of those designated for indefinite detention, Colonel Wingard told CNN that they were “unfortunate souls” who “will never get a trial, will be presumed guilty, and will die in Guantánamo without ever having stepped into a courtroom.”

An appeal by al‑Kandari has been submitted to the Court of Appeals in Washington D.C. (the D.C. Circuit Court), but as I have explained in several articles this year (see here, here, and here, for example), that court, which includes several judges whose worldview matches that of the Bush administration officials and lawyers who dreamt up the abomination that is Guantánamo in the first place, has effectively gutted habeas corpus of all meaning for the Guantánamo prisoners, vacating or reversing every successful habeas petition that has come before it.

It is therefore almost certain that al‑Kandari’s appeal will fail, as, indeed, did al‑Odah’s appeal, which was rejected by the Circuit Court in June 2010. As a result, David Cynamon, the lead attorney for the Kuwaitis in Guantánamo, was speaking accurately when he told CNN that the court was a “black hole” for the detainees. Cynamon proceeded to explain that, as CNN put it, “[the] difficulty with the Guantánamo cases is the government relies on hearsay.” Elaborating, he explained that there was no way of “testing the truthfulness of the people making the allegations.”

In addition, the Supreme Court has also refused to reexamine the cases. Eight appeals had been submitted by the start of this year, but all were dismissed, including al‑Odah’s, which was one of three rejected on April 4 this year.

With the legal avenues cut off as effectively as they were under George W. Bush and no sign that the American public is interested, the fate of Fayiz al‑Kandari and Fawzi al‑Odah — and, by extension, of other prisoners trapped in Guantánamo — may, therefore, be in the hands of the Kuwaiti government. As CNN noted, Kuwait “is an important U.S. ally in the Gulf” rescued after Saddam Hussein invaded in 1991, and an important base for the U.S.-led invasion of Iraq in March 2003.

That ought to count for something, and it clearly did in 2005 and 2006, when eight of the twelve Kuwaitis held in Guantánamo were released, and in 2009, when two others were released after winning their habeas petitions. Khalid al‑Odah told CNN that nine of the men had “reintegrated well.” He said, “They are productive. Some have children; they are working and we are in contact with them all the time.”

However, as was revealed in diplomatic cables from the U.S. embassy in 2009, which were released by WikiLeaks last November, the U.S. ambassador in Kuwait alleged that Kuwait’s record had been tarnished by the example of the tenth ex-prisoner, Abdullah al‑Ajmi, released in November 2005, who had blown himself up as a suicide bomber in Mosul, Iraq, following his release.

The ambassador dismissed all the Kuwaiti prisoners as “nasty, unrepentant individuals” and secured support from Kuwait’s Minister of Interior Sheikh Jaber al‑Khalid al‑Sabah, who said of the prisoners, “If they are rotten, they are rotten and the best thing to do is get rid of them. You picked them up in Afghanistan; you should drop them off in Afghanistan, in the middle of the war zone.”

This was deeply shocking to Adel Abdul Hadi, one of al‑Kandari’s lawyers in Kuwait, who said, in response to Sheikh al‑Sabah’s comments, “Those charged with having Fayiz and Fawzi returned were actually suggesting they be murdered instead of being returned to Kuwait.”

Specifically, the problems with al‑Ajmi ought to have been overcome following the return of the two other Kuwaitis who won their habeas petitions and were subsequently freed in 2009. One, Khalid al‑Mutairi, was found to be a charity worker, as he had claimed all along, and the other, Fouad al‑Rabiah, won his petition after a judge concluded that his confessions about working for Osama bin Laden and working with al‑Qaeda during the showdown in Tora Bora, were false confessions, learned and repeated as result of torture and the threat of torture.

Judge Kollar-Kotelly ruled that his confessions were “not credible or reliable, and that the Government has failed to provide the Court with sufficiently credible and reliable evidence to meet its burden of persuasion. If there exists a basis for al‑Rabiah’s indefinite detention, it most certainly has not been presented to this Court.”

On his repatriation, according to David Cynamon, al‑Rabiah was briefly held in a rehabilitation center in Kuwait’s central prison, which was built at great expense by the Kuwaiti government. However, the government almost immediately realized that there was no case against him and released him.

Khalid al‑Odah told CNN that if the U.S. government has more significant doubts about Fayiz al‑Kandari and Fawzi al‑Odah, then they should be assuaged by the plans for their return. Both men, he said, would be sent to the rehabilitation center. Moreover, “They would not be allowed to leave the country and they would be under surveillance.”

He added that, although his son “may have lost his legal battle,” he was secure that “Kuwait has other cards to play with.” Those cards involve notions of justice that run deep in the Gulf nation, even if they are also capable of inspiring internal conflict.

On May 18 this year, a fight broke out while parliament was debating the fate of the two Kuwaitis still in Guantánamo, as a Shi’ite MP and a Muslim Brotherhood MP exchanged blows. However, most Kuwaiti MPs, and more than 16,000 other people, have signed a petition urging the U.S. government to “release Fayiz al‑Kandari immediately and ensure his return home to Kuwait since the Kuwait government has fulfilled all conditions stipulated by the U.S. administration for the release of detainees from Guantánamo Bay. Kuwait has enhanced the monitoring system of returned citizens and built a multi-million dollar rehabilitation center to facilitate their return.”

Crucially, Kuwaiti MP Rola al‑Dashti told CNN that it was “impossible”; to know whether al‑Kandari was guilty or innocent. “I don’t see a fair trial,” she said. Referring to both al‑Kandari and Fawzi al‑Odah, she added, “Nobody knows why the U.S. is keeping them. It is very important to the people of Kuwait and to the families of the detainees that the U.S. abide by democratic principles. It doesn’t look good to look into the U.S. and see this kind of practice.”

Lawmakers who have tried to tie Obama’s hands when it comes to closing Guantánamo have interfered to prevent prisoners from being returned to countries they regard as a threat — Yemen, for example, and Afghanistan. The example of Abdullah al‑Ajmi still hovers darkly over the releases of the Kuwaiti prisoners, but otherwise the Kuwaiti government, as a staunch ally of America and a beacon of stability in the Middle East, is ideally placed to push for the release of its final two citizens in Guantánamo.

That, moreover, would break the deadlock that has paralyzed Obama and that leaves Guantánamo still beaming out its bleak message to the rest of the world that, when it comes to foreign Muslims, the U.S. government remains content to imprison them without charge or trial in an experimental prison that ought to be a source of shame and disgust.

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    Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press) and serves as policy advisor to the Future of Freedom Foundation. Visit his website at: www.andyworthington.co.uk.