At Guantánamo, as was recently revealed in the ruling of a district court judge in the habeas corpus petition of one of the remaining 222 prisoners, the authorities' view about the prisoners, back in 2003 or 2004, was that "there is no innocent person here." The man who spoke these words was an unidentified senior interrogator, and he was not explaining the truth, but was explaining the prevailing attitude that passes for the truth in Guantánamo.
The truth is that hundreds of innocent men have been held at Guantánamo. Many have been released, and many are still held, but as far as the authorities are concerned, the situation that existed five or six years ago, when these words were spoken to a Kuwaiti prisoner, Fouad al-Rabiah, still exists today.
The Impossibility of Being Innocent in GuantÃ¡namo
Fouad al-Rabiah was a humanitarian aid worker caught up in the chaos of Afghanistan following the US-led invasion in October 2001, and his own protestations of innocence came to an end when he was subjected to some of the notorious "enhanced interrogation techniques" used in Guantánamo. These were torture techniques reverse engineered from those taught in US military schools to train US personnel to resist interrogation if captured, and were modeled on techniques used on captured US pilots during the Korean War to produce false confessions.
After being subjected to techniques including a form of prolonged sleep deprivation - known, euphemistically, as the "frequent flier program" - which involved being moved from cell to cell every few hours over a period of several weeks, al-Rabiah accepted a false narrative produced by a number of his fellow prisoners (who may themselves have been subjected to "enhanced interrogation") and confessed that he had met Osama bin Laden in Afghanistan and had been involved with al-Qaeda in the battle of Tora Bora, a showdown between al-Qaeda and US forces in December 2001.
It was all lies, but it was not until a month ago, after his case had been examined by a district court judge for his habeas corpus petition, that the truth was revealed and his innocence was finally restored. In a 65-page ruling, which was devastating for the government, and which I wrote about here, Judge Colleen Kollar-Kotelly concluded, witheringly, "If there exists a basis for al-Rabiah's indefinite detention, it most certainly has not been presented to this Court."
However, although Fouad al-Rabiah regained his innocence (if not yet his freedom, as, astonishingly, the government is considering whether to appeal Judge Kollar-Kotelly's ruling), the dark charade of Guantánamo, conceived by Dick Cheney and his close advisers, whose arrogance and disdain for the law allowed them to construct a detention policy in which it was impossible to be innocent, has not come to an end for numerous other men held in Guantánamo, and has, in fact, continued under President Obama.
Obama's motives are different, to be sure. Spooked by the inflexible opposition with which his decision to close Guantánamo and "regain America's moral stature in the world" has been received by Republican lawmakers and by members of his own party, the president and his advisers have approached Guantánamo with extreme caution.
Instead of seizing the initiative, the administration has generally been content to behave as though Bush were still in power, opposing the prisoners' habeas corpus petitions in the district courts, and letting judges expose the tortured lies, false confessions and feeble intelligence that the Bush administration passed off as evidence. It has been left to the courts to reveal how the Bush administration attempted to use this generally dismal material in an attempt to justify its contention that the prisoners in Guantánamo were all associated with al-Qaeda or the Taliban, simply because the president said they were, even though it has been demonstrated conclusively over the years that they were largely seized by the US military's Afghan and Pakistani allies, when bounty payments for "al-Qaeda suspects" were widespread, and were never adequately screened in an attempt to ascertain whether they were soldiers or terrorists.
Time moves slowly in the world of the habeas petitions, even though the outcome for the prisoners has generally been worth the wait. Despite the fact that Justice Department lawyers have been doing all in their power to obstruct the prisoners' defense teams, judges have ruled on 38 petitions, and in all but eight have found that the government failed to establish that the men in question were either al-Qaeda terrorists or soldiers for the Taliban. However, 185 prisoners have not had their cases heard, and although the government has attempted to make the habeas petitions unnecessary in 56 of these cases, by clearing the prisoners for release, it remains apparent that, amongst the remaining 129 prisoners, other difficult cases - of prisoners who insist on maintaining their innocence, in spite of the unwritten law that "there is no innocent person here" - are still waiting to be heard.
One of these men, who has maintained his innocence throughout nearly eight years in US custody, is Fayiz al-Kandari, a 30-year-old Kuwaiti, from a wealthy family, who has always maintained that he was a humanitarian aid worker who arrived in Afghanistan in August 2001, was caught up in the chaos following the 9/11 attacks and the US-led invasion of October 2001, and was seized by Afghan forces and sold to the US military in December 2001 as he tried to cross the mountains to Pakistan.
Fayiz al-Kandari's History of Charitable Deeds
Does this sound implausible? It certainly does to the US military, but it is important to note that many dozens of prisoners released from Guantánamo were humanitarian aid workers or missionaries, and that two other Kuwaiti humanitarian aid workers - Khalid al-Mutairi as well as Fouad al-Rabiah - recently had their habeas petitions granted because Judge Kollar-Kotelly accepted that they were indeed in Afghanistan to help the poor and needy. In light of conversations that Fayiz al-Kandari has had in the last year with Lt. Col. Barry Wingard, an Air Force judge advocate general, who is his military defense attorney, I believe that his story is no different.
In several email exchanges, Lieutenant Colonel Wingard explained to me that al-Kandari has always taken the charitable obligations of Islam very seriously and in their many conversations at Guantánamo has spoken about the role that charity has played in his life from an early age. He recalls his father giving him money in the market to give to the poor when he was a child, for example. As he explained, his father could have given the money to the poor himself, but he chose instead to teach his children that helping the poor is not only a religious requirement, but also that giving help personally is particularly satisfying.
He also recalls how his mother - particularly at Ramadan - cooked large amounts of food and instructed him and his siblings to deliver it to all the neighbors, especially those who were in particular need of additional help, even though he regularly delivered the food to the wrong people so that his mother had to label the plates he was to deliver to make sure that the food ended up in the right hands.
As a teenager, aged 15, al-Kandari lived through the invasion of Kuwait by Saddam Hussein, which taught him more about generosity and also about cooperation. He recalls working with other teenagers in his neighborhood to deliver food to his fellow citizens, who were afraid to leave their houses because, during the occupation, rape, robbery, kidnapping and murder were experienced on a daily basis. Every morning, before sunrise, al-Kandari and his friends would take a truck to a warehouse in the desert and, for a small sum paid to a local official, would receive flour, rice, tomato sauce and baby milk, to be delivered to those in need. He has spoken of carrying 80 lb. bags of flour and rice to central locations in his neighborhood for others to use.
After the food was delivered, he and the other teenagers would load the truck with garbage and would accompany the driver to the desert to burn it. He has explained that this same process was repeated every day throughout the long months of the occupation, and that he has never forgotten that it was the Americans who liberated his country. "The Americans and Kuwaitis have had a mutual relationship ever since," he told Lieutenant Colonel Wingard recently, "which is why this whole thing is even more strange."
When al-Kandari was 20, he recalls seeing on TV the horrific aftermath of the war in Bosnia: people without homes, suffering from hunger, and with their loved ones missing. He perceived it as being very similar to what the Kuwaiti people had gone through during the Iraqi occupation, and so, in between semesters at the Kuwait University School of Engineering, he took a ten-day trip to Sarajevo to visit the various Kuwaiti charities that had been established to help the poor, the wounded, the homeless and the orphans, taking several duffel bags of clothes with him. In Bosnia, he noted many similarities between the occupation of Kuwait and the siege of Sarajevo.
Life in Afghanistan
With this history of charitable deeds, it was unsurprising that al-Kandari's interest finally turned to Afghanistan. As he recently explained to Lieutenant Colonel Wingard, for many years prior to his visit in August 2001 he had contributed money to various charities, "but it is not the same as being there to provide muscle." After realizing that Afghanistan was one of the poorest countries in the Islamic world, and that its people might benefit from his assistance, he decided to visit, to provide assistance to the Afghan people, but was shocked to discover on the ground that "those people had less than anyone I had ever met."
In a village, he met up with local officials, and agreed to provide work for some of the local people, building two wells and repairing a mosque. Life was peaceful and productive for two months - and the dreadful events of September 11, 2001, were far away, and of little import in this remote location - but in October, after the US-led invasion began, he recalls hearing the sounds of explosions in the distance and was surprised when the village erupted in celebration, as the locals were overcome with joy that they were again at war.
The reason was not to do with fighting, but with the opportunity to make money from the war's fallout. As al-Kandari explained to Lieutenant Colonel Wingard, in the days that followed, the local people clambered onto trucks and drove towards the places where bombs had dropped the day before, hoping to gather shrapnel to sell as scrap metal before rival villages beat them to it. Because they were short of manpower, the villagers sometimes took their children and sent them out to watch for explosions across the mountains, and al-Kandari recalls the children demonstrating how they would handle metal that was still hot by bouncing it between their hands.
However, one day in particular will always stand out for Fayiz al-Kandari, a day when the locals came back with a leaflet that had a picture of an Afghan holding a bag with a dollar sign on it accompanied by some text, which, in essence, said: turn in Arabs and this will be you. Although the wells were finished, the mosque was not, but al-Kandari knew that it was time to leave. He paid the locals for their labor and set off for Pakistan. After all, he thought, even if I am seized by the Americans, they are an old ally of Kuwait, and with their courts and system of justice I will be cleared within a few weeks.
This is not what happened, of course. Al-Kandari was seized in the mountains by Afghan forces and became one of the victims of the leaflet he had seen in the village: sold for money to US forces, who had no interest in his innocence, nor in the long-standing bonds of friendship between the United States and Kuwait.
Resistance in Guantánamo
In Guantánamo, Fayiz al-Kandari's refusal to accept that "there is no innocent person here" has marked him out as a particularly resistant prisoner - and resistant prisoners are given a particularly hard time. Over the years, he has been subjected to a vast array of "enhanced interrogation techniques," which, as Lieutenant Colonel Wingard described them, "have included but are not limited to sleep deprivation, physical and verbal assaults, attempts at sexual humiliation through the use of female interrogators, the 'frequent flier program,' the prolonged use of stress positions, the use of dogs, the use of loud music and strobe lights, and the use of extreme heat and cold."
Despite all this, he has not been "broken," and has been able, unlike Fouad al-Rabiah and numerous other prisoners, to resist making false confessions about his own activities. He has also refused to make false confessions about the activities of other prisoners, despite being offered many opportunities to do so, and despite being told about others who have made false allegations against him.
As a result, the allegations against him consist almost entirely of unsubstantiated claims made by other prisoners, but to the authorities, in the absence of his own confessions, these have been sufficient not only to hold him for nearly eight years, but also, in November 2008, for the Bush administration to put him forward for a trial by Military Commission (the "terror trials" supposedly reserved for the most significant prisoners in Guantánamo), along with Fouad al-Rabiah, the Kuwaiti whose supposed significance was recently dismissed so comprehensively by Judge Kollar-Kotelly.
In this version of reality, concocted almost exclusively from the multiple levels of hearsay provided by other prisoners, the Pentagon alleged in al-Kandari's charge sheet for his military commission that, between August and December 2001, he visited the al-Farouq training camp (the main training camp for Arabs in the years before 9/11) and "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 an even lengthier list of allegations, including claims that he attended two training camps, fought on the Taliban front lines against the Northern Alliance, was with Osama bin Laden in Tora Bora, was a religious leader for al-Qaeda and the Taliban and was associated with al-Wafa, a Saudi charity that the US authorities regarded as being associated with terrorism.
These particular allegations were not included in his military commission charge sheet, but even so, the government has never attempted 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 importantly, 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 remains to be seen, when Judge Kollar-Kotelly examines the government's evidence against Fayiz al-Kandari (in a hearing scheduled for next week), whether she, too, will be unimpressed by the Superman-style allegations leveled against him. Certainly, she will have her work cut out. As al-Kandari recently explained to Lieutenant Colonel Wingard, he has been interrogated over 400 times by at least 70 different interrogators and translators in various combinations.
It is to be hoped that, throughout the many thousands of pages of interrogation logs and interrogators' reports, Judge Kollar-Kotelly will discover that the allegations against him were made by the same unreliable witnesses whose implausible confessions have undermined so many other habeas cases. Perhaps, she will also discover that, as an educated man with a decent command of the English language, he regularly caught interrogators and translators misinterpreting his answers to questions. And perhaps she will even discover information related to the following anecdote, which, although darkly amusing, captures for me the absurd lengths to which the authorities are prepared to go to prove that "there is no innocent person" in Guantánamo. As Lieutenant Colonel Wingard explained it to me:
Fayiz recalled being shown a doctored photo of himself and Osama bin Laden in Africa. As he had never met bin Laden, had never been to Africa, and had no intention of cooperating with the interrogators' treacherous games, he refused to play along, and the interrogators eventually stopped using the doctored photo as it became the focus of ridicule for everyone involved.
In July, when Lieutenant Colonel Wingard wrote an op-ed about Fayiz al-Kandari for The Washington Post, he noted:
Each time I travel to Guantanamo Bay to visit Fayiz, his first question is, "Have you found justice for me today?" This leads to an awkward hesitation.
"Unfortunately, Fayiz," I tell him, "I have no justice today."
When Judge Kollar-Kotelly announces her ruling, perhaps she will finally deliver the justice that Lieutenant Colonel Wingard and Fayiz al-Kandari's civilian attorneys have been unable to deliver for many long years, and that al-Kandari himself expected from the US government when he was first seized nearly eight years ago.
For more information about Fayiz Al-Kandari please see this report at The Political Carnival.