DOJ’s Troubled Case Against Uthman
Evidence of terrorism ties hinged to witnesses who have been tortured, deemed incompetent weaken the government’s case against Uthman.
Two men were tortured for more than a year inside the CIA's secret prisons program. One committed suicide at Guantánamo Bay. Another was driven "psychotic" from interrogations.
These are the witnesses whose contradictory, fragmentary and internally inconsistent statements provide the bulk of the evidence against Abdul Rahim Mohammed Uthman, a detainee the Obama administration has designated for indefinite detention.
Government secrecy has made it nearly impossible for the public to assess the evidence against detainees still at Guantánamo, much less those slated to be held possibly for life without charge. Former Vice President Dick Cheney often described those men as "the worst of the worst." President Obama has said they "pose a clear danger to the American people."
But a security mishap in court filings earlier this year led to the accidental release of the government's case against Uthman, one of the 48 men the Obama administration plans to keep imprisoned. That evidence, contained in a judicial opinion ordering Uthman's release, includes the government's claims against him and the witnesses whose statements were said to support those claims.
Until now, it has not been possible to assess the strength of the government's case against the detainees because the identity of the witnesses and other evidence has been redacted. But this examination, based on reviews of previous judicial opinions and court filings, as well as interviews with senior government officials, former military prosecutors, intelligence officials and other key players makes clear for the first time the extent of the weaknesses in the evidence.
The government claimed in court that Uthman was properly detained because he had been an al-Qaida fighter and Osama bin Laden's bodyguard. According to the government, he had been in Afghanistan prior to the Sept. 11, 2001, terrorist attacks and was detained in a Pakistani border town as U.S. forces mounted an air war against al-Qaida hideouts nearby.
Statements from two current and three former detainees were introduced to support those claims, the most definitive of which came from Hakim Abd Al Karim Amin Bukhari, a Saudi who spent five years in Guantánamo.
Bukhari, according to the government, identified Uthman as a member of bin Laden's "security detail." But in the opinion accidentally made public, Judge Henry Kennedy Jr. of the U.S. District Court for the District of Columbia found the claim unpersuasive. He said it was not clear that the statement was based on personal knowledge since Bukhari was only in Afghanistan for 10 days after the Sept. 11 attacks and that Bukhari could have been repeating claims he heard while in Guantánamo.
More importantly, Kennedy noted, were Bukhari's numerous mental health issues.
While in U.S. custody, Bukhari had "become psychotic," and attempted suicide as a result of his detention and interrogations. A military psychologist said Bukhari's mental state rendered his reports about other detainees "unreliable." Another psychiatrist, whose evaluation was offered by the government, described an "unstable personality style" and "malingering psychiatric symptoms" that made Bukhari more dishonest than an average member of society but no more likely to lie than other prisoners with multiple personality disorders. Bukhari was returned to Saudi Arabia in 2007.
Other witnesses claimed they knew Uthman, who hails from Yemen, by a variety of aliases and had seen him in the Afghan capital, Kabul.
A witness who saw a photograph of Uthman identified him as a fighter in Kabul who went by the name "Yasser Al-Madani." Since "Madani" would describe someone from Medina, Saudi Arabia, the government tried to persuade the judge that the detainee had probably meant to say "Yasser al-Adani," an alias that would describe someone from the Yemeni city of Aden. Kennedy cast serious doubt on the description, saying that, even if the detainee had meant Adani, instead of Madani, no one, including the government, claimed that Uthman used a first name alias of "Yasser."
Unexplained in the opinion is the reason why the government couldn't recheck the information directly with the witness. It is because that detainee, Abdul Rahman Ma'ath Thafir al Amri, committed suicide at Guantánamo three years ago after months of hunger strikes. His identity is obscured in the version of the opinion ultimately made public. In the initial version, he was described as detainee 199. His name could be found in other material the government has made public.
The Justice Department stands by its case against Uthman. "In every habeas case where we ask the court to rely upon detainee statements, we do so because we believe courts can and should consider their accounts based on the totality of the evidence," said Justice Department spokesman Matthew Miller.
Another witness against Uthman was Salim Hamdan, whose legal battle against the U.S. government resulted in a landmark U.S. Supreme Court ruling throwing out earlier military commissions. Hamdan, a former driver for bin Laden, was recharged and convicted in 2008 of material support for terrorism, then released three months later to Yemen, where he is free. At some point during his incarceration at Guantánamo he was shown a photograph of Uthman but identified him by an entirely different name, telling interrogators that Uthman resembled someone named "Hudayfah al-Adani." All mention of Hamdan, and his statements, has been excised from Kennedy's public opinion although he is the only witness whose evidence wasn't entirely disregarded by the judge.
Two current detainees, both from Yemen, also identified Uthman through a photo as a bodyguard with a similar alias. Kennedy said their statements were the government's "most important pieces of evidence," and were "quite damning on their face."
Sharqawi Abdul Ali al Hajj, an al-Qaida member known as "Riyadh the Facilitator," said that Uthman had become a bodyguard for bin Laden a few months before Sept. 11, 2001, and that he had seen Uthman with the al-Qaida leader at a meeting shortly after the attacks.
Sanad Yislam al Kazimi also said Uthman "looks like" someone named "Hadayfah al-Yemeni." Kazimi claimed to have seen him in the Afghan capital in early 2001. But, Kennedy noted, that was before Uthman was even in the country.
Hajj also identified one of Uthman's traveling companions as a person who attended an al-Qaida training camp. In the public version of Kennedy's opinion, that entire section was removed. The traveling companion, Faruq Ali Ahmed, (identified in the original opinion by his internment serial number 32) was released by the Obama administration in 2009 and returned to Yemen.
Current and former government lawyers said statements from Hajj and Kazimi are central to a number of cases against detainees.
They "were prolific talkers," said Col. Morris Davis, who was the chief military prosecutor at Guantánamo until October 2007. "There were not an insignificant number of cases where statements from Kazimi or Hajj were at the heart of the cases."
The government has turned them into the equivalent of star witnesses. But judges and internal government assessments have found them problematic.
Both Hajj and Kazimi spent nearly two years in the CIA's "black sites" program, held in Jordan and Dubai, and then in secret facilities in Afghanistan before they were transferred, together, to Guantánamo in September 2004.
Kazimi was captured in the United Arab Emirates in January 2003. He spent time in five prisons in three countries. In Dubai, he was held secretly for eight months where, he has claimed, he was beaten, shackled naked, exposed to extreme temperatures and simulated drowning, threatened with rape and sexually assaulted.
He was transferred to CIA custody in August 2003 and moved to a facility outside Kabul for nine months. There, his lawyers contend, he was subjected to physical and psychological torture, suspended with his arms above his head for long periods, beaten with electrical cables, given injections and subjected to continuous loud music. He attempted suicide three times, according to his attorneys.
Hajj was captured in a major raid in Karachi, Pakistan, in early 2002, and then transferred to Jordan, where he was held in two different facilities for 19 months. Human Rights Watch substantiated his claims of torture while in custody there. He was then transferred to the same CIA prison that housed Kazimi outside Kabul, moved later to Bagram Air Base and eventually to Guantánamo with Kazimi.
The statements by the two men used against Uthman were taken from the summaries of the two four-hour FBI interviews conducted at Bagram and Guantánamo six years ago. They were not taken during CIA interrogations and the Obama administration has said it would not rely on statements obtained through torture. But Kennedy said the statements that were submitted were "not sufficiently attenuated from torture, of which there are unrebutted allegations in the record, by other interrogators."
"In light of the abusive circumstances of the detention of these men and serious questions about the accuracy of their identifications of Uthman, the Court finds these statements to be unreliable and will not consider them in evaluating whether the detention of Uthman is lawful," Kennedy wrote in his March 16 opinion.
Joanne Mariner, the director of the counterterrorism program at Human Rights Watch, investigated Hajj's treatment while in Jordanian custody. "I agree with the judge," she said. "There is no doubt he was very seriously tortured in Jordanian custody. He was just sent there because, at that time, the CIA was still outsourcing the most brutal methods of torture. This was before the CIA had set up its own prison system and was still working out authorization for the use of abusive techniques," Mariner said.
Alerting Defense Lawyers
Much of Kennedy's findings on the treatment of Kazimi and Hajj survived the classification process and for the first time are fully disclosed in his public opinion.
Other judges have weighed evidence offered by the two witnesses, sometimes favorable and sometimes not, according to a review of the records and interviews with government officials and other participants in the habeas decisions.
A senior government official said an Obama administration task force went back and forth last year over whether Kazimi and Hajj's statements were reliable enough to be used in prosecutions of several suspects in the October 2000 bombing of the USS Cole. It remains unclear whether the government will ultimately use their statements to prosecute Abd al-Rahim al-Nashiri, who is accused of plotting the attack on the Cole. The Obama administration announced in November that it would charge Nashiri in a military commission for that attack, which killed 17 U.S. sailors.
John Chandler, a partner at King & Spalding in Atlanta, is part of the legal team representing Hajj in his habeas petition. He said Kennedy's determination that Hajj's statements are unreliable should apply to self-incriminating statements as well and could impact other pending cases.
"I have talked to a half-dozen lawyers whose clients are facing [Hajj's] interviews in ongoing cases and I have given them the information they need to refute it," Chandler said. "Kennedy's decision makes it easier for them now."
Chandler, like other defense attorneys, is barred from describing much of the proceedings. But he said he has been surprised by the government's strategy. "After a couple other witnesses were found incredible, the government continued offering their statements anyway," he said.
The government remains uncertain what to do with its prisoners at Guantanamo Bay.