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Why is a Yemeni Student in Guantánamo, Cleared on Three Occasions, Still Imprisoned?

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On the evening of March 28, 2002, Mohammed Hassen, an 18-year-old Yemeni student at Salafia University in Faisalabad, Pakistan, made a decision that was to change his life forever. He had been visiting fellow students in another house connected with the university, had stayed for dinner, and had decided to stay the night rather than traveling back to his own accommodation. Within hours, however, Hassen, along with 15 other people living in the house, was seized in a raid by Pakistani police, transferred to U.S. custody, and sent to Guantánamo, where he remains to this day.

In all, 15 men were seized in this house — victims of a mistaken belief on the part of Pakistani and U.S. intelligence that there was a meaningful connection between the house and the supposed “high-value detainee” Abu Zubaydah. Seized on the same night in another house in Faisalabad, Abu Zubaydah then became the first official victim of a torture program approved for use by the CIA and initiated at the highest levels of the Bush administration, even though it has been revealed in the years since that he was not even a member of al-Qaeda, and was, instead, a mentally damaged gatekeeper for a training camp that was closed down by the Taliban because its leader, Ibn al-Shaykh al-Libi (another victim of CIA-directed torture), refused to cooperate with al-Qaeda.

Publicly, neither the Bush administration nor the Obama administration has conceded that those staying at the house were seized by mistake and that Mohammed Hassen was particularly unfortunate. The lowest point was reached in June 2006, after one of the men seized in the house, Ali al-Salami, died in Guantánamo. Al-Salami was one of three men who allegedly committed suicide on June 9, 2006, and although this narrative was challenged in January this year by Scott Horton in an extraordinary article in Harper’s Magazine, in which it emerged that the men may have been killed, either deliberately, or as part of a torture session, the Pentagon’s response to his death was to wheel out unsubstantiated allegations, based on the untrustworthy interrogations of other prisoners, including Abu Zubaydah, that he was “a mid- to high-level al-Qaeda operative who had key ties to principal facilitators and senior members of the group.”

Despite these deeply disturbing incidents, the truth about the house and its inhabitants has gradually come to light in the last few years, partly as the story of Abu Zubaydah has unraveled, but primarily through statements made by the prisoners’ lawyers, through decisions to release some of the men seized in the house, made by President Obama’s Guantánamo Review Task Force, and through rulings made in the District Court in Washington, D.C., where judges have granted the habeas corpus petitions of three of the men and have concluded that the government failed to establish, by a preponderance of the evidence, that they were connected to al-Qaeda and/or the Taliban.

Objectively, the most significant development in dismissing the government’s claims came last May, when Judge Gladys Kessler granted the habeas corpus petition of Alla Ali Bin Ali Ahmed, one of the 15 prisoners seized in the house. Ali Ahmed was the first of the three prisoners to win their habeas petitions, and in a savage denunciation of the government’s supposed evidence, Judge Kessler dismissed statements made by four other prisoners, concluding that they were all unreliable, and also dismissed the government’s attempts to implicate Ali Ahmed in wrongdoing through a “mosaic” of information drawn from a variety of intelligence reports. Stating, bluntly, that the “mosaic” is “only as persuasive as the tiles which compose it and the glue which binds them together,” she then proceeded, as I explained at the time, “to highlight a catalog of deficiencies in the tiles and the glue.”

Even more significantly, Judge Kessler made a point of casting her net wider than the specific case of Ali Ahmed, noting, “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.”

Ali Ahmed was finally released last September, and in the meantime another student in the house, Abdul Aziz al-Noofayee, a Saudi, was released last June, following the deliberations of the Task Force. In addition, two other Yemeni students, Mohammed Tahir and Fayad Yahya Ahmed, were released in December.

As a result, in January this year, on the eighth anniversary of Guantánamo’s opening, ten of the 15 men seized in the house were still at Guantánamo, despite Judge Kessler’s assertions about the majority of these men, and, moreover, despite the fact that it was almost certain that the Task Force had reached the same conclusion.

With bullish insensitivity, the Task Force — comprising representatives of key government departments and the intelligence agencies — announced the results of its year-long review of the prisoners’ cases on the anniversary, dismaying those who believed that Guantánamo would close within a year (as President Obama promised) and that indefinite detention without charge or trial would be thoroughly repudiated. Announcing the results of its investigations, the Task Force declared that 35 prisoners had been designated to face trials, that 48 had been designated for ongoing indefinite detention without charge or trial, and that the rest (97 at the time of writing) had been cleared for transfer or release.

This latter category included 66 of the remaining 97 Yemenis, and it is clear from an analysis of the Task Force’s report, released by the Washington Post on Saturday (PDF), that the 31 Yemenis designated for trials or for ongoing detention without charge or trial include five men regarded as particularly significant (including Ramzi bin al-Shibh, one of the alleged 9/11 plotters), and 26 others (regarded as facilitators for al-Qaeda, bodyguards for Osama bin Laden, or “well-trained operatives who were being groomed by al-Qaeda leaders for future terrorist operations”), and do not, therefore, include the men seized in the guest house in Faisalabad.

Despite this, the remaining ten men seized in the house in Faisalabad — eight Yemenis, including Mohammed Hassen, a Palestinian and a Russian — have continued to languish in Guantánamo, awaiting an opportunity to follow the example of Alla Ali Bin Ali Ahmed and have their habeas petitions granted in the District Court.

Two weeks ago, the Russian, Ravil Mingazov, won his habeas petition, and last Wednesday, Mohammed Hassen also secured a victory. The judge in both cases was Henry H. Kennedy Jr., and although his unclassified opinions have not yet been released, it is obvious that, in both cases, he reached a similar conclusion to Judge Kessler in the case of Alla Ali Bin Ali Ahmed.

Distressingly, however, the ruling means little to either man. In Ravil Mingazov’s case, a third country must be found that is prepared to offer him a new home, as he is at risk of torture if he is repatriated, and in Mohammed Hassen’s case, he is the victim of politically inspired inertia on the part of the Obama administration.

Although seven Yemenis were released last year (including Alla Ali Bin Ali Ahmed and two others seized in the guest house), President Obama capitulated to pressure from critics in Congress in January, following the failed Christmas Day plane bombing by a Nigerian, Umar Farouk Abdulmutallab, who had apparently received training in Yemen, and declared what the Task Force referred to as a “moratorium on the transfer of detainees to Yemen.”

In the Task Force’s words, “The involvement of Al-Qaeda in the Arabian Peninsula — the branch of al-Qaeda based in Yemen — in the recent attempted bombing of an airplane headed to Detroit underscored the continued need for a deliberate approach to any further effort to repatriate Yemeni detainees.” Missing from this analysis was any mention of the fact that the Yemenis cleared for release had been cleared precisely because they had not demonstrated any commitment to terrorist activities, and that the moratorium had largely been declared because President Obama found himself unable to tell critics that a small number of former prisoners from Saudi Arabia, who were reportedly involved with al-Qaeda in the Arabian Peninsula, had been freed by President Bush, in spite of the recommendations of the intelligence services, as part of a diplomatic deal with the Saudi government.

As a result, Mohammed Hassen finds himself still held despite being cleared for release from Guantánamo on three occasions, the first of which took place nearly four years ago. As one of his lawyers, Marc Falkoff, explained in October 2007, Hassen was first recommended for release in June 2005, although his transfer was not approved by a military review board until the spring of 2006. On June 26, 2006, Gordon England, the deputy secretary of defense, signed off on his transfer, but like dozens of other prisoners approved for transfer under the Bush administration, the decision did not lead to his release.

With the near-certainty that the Task Force also proved his transfer, and with Judge Kennedy’s ruling last week, the full horror of his plight becomes clear. Almost four years after he was first approved for transfer, Mohammed Hassen appears to have no way of being released from Guantánamo.

Concerned readers may wish to use his example to reflect on the continuing injustice of Guantánamo, and to tilt against the prevailing hysteria regarding the prison — manufactured largely by opportunistic lawmakers and media pundits — to ask the administration to find its moral compass and to lift the moratorium on transferring prisoners to Yemen so that Mohammed Hassen can begin to recover from his eight lost years in Guantánamo, and so that others — the remaining men seized with him, two other Yemenis who recently won their habeas petitions, and the dozens of other Yemenis who pose no threat to the United States — can also be freed.

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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.