September 1, 2014
Last week there was some good news from Bagram, in Afghanistan, bringing one of the many long injustices of the "war on terror" to an end, when Amin al-Bakri and Fadi al-Maqaleh, two Yemenis held without charge or trial since 2002 and 2003 respectively, were repatriated.
Al-Bakri, who is 44 or 45 years old and has three children, was a shrimp merchant and gemstone dealer, and was seized in Thailand on a business trip. Al-Maqaleh, who is 30 years old, was held at Abu Ghraib prison in Iraq before being transferred to Bagram. The site of America’s main prison in Afghanistan from 2002 until its handover to the Afghan authorities in March 2013, Bagram (renamed the Parwan Detention Facility in 2009) also housed a secret CIA prison where al-Bakri and al-Maqaleh were held, and they continued to be held in a secretive US facility that was part of the Bagram/Parwan complex after the handover of Bagram to the Afghan government. According to the International Justice Network, which represents both men, they were also held in other "black sites" prior to their arrival at Bagram.
The men’s release follows years of legal wrangling. Despite official silence regarding the stories of the men held in Bagram’s "black site," lawyers managed to find out about a number of the men held, including al-Bakri and al-Maqaleh, in part drawing on research I had undertaken in 2006 for my book The Guantánamo Files. Habeas corpus petitions were then submitted, for the two Yemenis, and for a Tunisian named Redha al-Najar, seized in Karachi, Pakistan in 2002, and Haji Wazir, an Afghan businessman seized in the United Arab Emirates, also in 2002.
In April 2009, in the District Court in Washington D.C., Judge John D. Bates granted the habeas petitions of the foreigners (but not Haji Wazir), on the basis that there was, effectively, no difference between the foreigners rendered to Bagram from other countries and the men sent to Guantánamo, who had been granted constitutionally guaranteed habeas corpus rights by the Supreme Court in June 2008.
However, the Obama administration disagreed, and Judge Bates’ ruling was overturned by the appeals court in May 2010. As Josh Gerstein reported for Politico, "the legal saga continued in 2011 after Bates allowed the prisoners to amend their petitions in light of US plans to transition the Bagram prison to Afghan control. Ultimately, however, Bates found not enough had changed to allow the habeas cases to proceed. The D.C. Circuit upheld that ruling last December, prompting [a] Supreme Court petition filed earlier this month."
Speaking about the release, Tina Monshipour Foster of the International Justice Network said in an interview, "We were pleasantly surprised that they sent the two of them back to Yemen," adding, "It’s a big deal."
In a written statement, she added, "Mr. al-Maqaleh and Mr. al-Bakri have been victims of grave human rights violations at the hands of the US government, including torture and extraordinary rendition, and we are absolutely thrilled that their abusive and unlawful imprisonment at Bagram has come to an end."
Speaking to the Washington Post, Foster said she believed the US "might have wanted to free the men before the Supreme Court weighed in," and also "said she expects that petition and another raising similar issues to go forward despite [the] releases because the petitions also cover the claims of two other men still in US custody at Bagram: [Redha] Al-Najar and a Pakistani man known as Amanatullah." The Post also noted that the cases "could be mooted if the men are released or turned over to Afghan custody as the US military winds down its combat presence in Afghanistan."
The Post also noted that, "Beginning in 2010, military detainee review boards [at Bagram] had cleared both men for release on three occasions," adding that, in 2012, "Yemen agreed to accept Bakri and Maqaleh. At the time, the Yemeni foreign minister said the two men would be denied passports and prevented from traveling after being resettled."
Foster also said her clients were being held in Sana’a, the Yemeni capital, but explained that it was "unclear if they would be prosecuted or released under some kind of supervision," as the Post described it. "Nobody told us what the plan is," she said.
The Post also reported that a Yemeni official said that the two men "were being held in a secure facility while being processed," and added that al-Bakri was in "bad shape" physically. A US military official was quoted as saying that he "had been diagnosed with leukaemia, although as the Post put it, it was "not clear when the US learned that Amin al-Bakri was sick and whether that played a role in his release."
Will the Bagram transfers lead to the release of Yemenis from Guantánamo?
The biggest question prompted by news of the release of Amin al-Bakri and Fadi al-Maqaleh is whether it will lead to the release of Yemenis from Guantánamo. Josh Gerstein noted that the release of the two men "could be a precursor for releases of dozens of Yemenis held at Guantánamo Bay," and this was echoed in other media reports.
86 of the remaining 149 prisoners in from Guantánamo are Yemenis, and 58 of them have been cleared for release — 55 since 2009, when the high-level, inter-agency Guantánamo Review Task Force appointed by President Obama recommended their release, and three in recent months through the deliberations of Periodic Review Boards, a new review process for prisoners not being tried, and not cleared for release by the task force.
In January 2010, when the task force issued its report, President Obama halted the release of Yemenis after Omar Farouk Abdulmutallab, a Nigerian man recruited in Yemen, had tried and failed to blow up a plane bound for Detroit with a bomb in his underwear. The president’s ban — an unacceptable form of "guilt by nationality" — stood until last May, when, in a major speech on national security issues, the president announced that he was lifting his ban. As Josh Gerstein noted, however, "in the more than a year since the president made that announcement, no Yemeni has actually been sent home from the island prison."
Expanding on his notion that the release of the two Yemenis from Bagram "could be seen as a trial run for release of some of the Guantánamo Yemenis," Josh Gerstein noted that "[p]risoner releases in combat theaters like Afghanistan and Iraq have generally drawn less attention and criticism than releases from Guantánamo, even though many of the Yemenis at he Guantánamo are considered low-level fighters." Specifically, as Jennifer Daskal pointed out for Just Security, "whereas Congress has since 2009 passed a number of restrictions on transfers of detainees out of Guantánamo, it has left decisions regarding transfers of foreigners out of Afghanistan largely to the discretion of the administration."
Foster told Politico that "lawyers advocating for the release of Al-Maqaleh and Al-Bakri explicitly urged that the men be used to demonstrate that releases to Yemen were feasible." She said, "We had argued for a long time to officials that these two cases be a test. They can be watched and people can report back to folks in D.C. that it wasn’t the end of the world to repatriate people to Yemen."
Foster also said, as Politico described it, that "no one ever told her that Obama’s moratorium on prisoner transfers applied directly to her clients, but they made clear that the same worries about Yemen drove the reluctance to send prisoners there." In Foster’s words, "They didn’t say it was covered by that policy, but did indicate the same rationale and same problem sending people to Yemen from Bagram as it did at Guantánamo."
Who is still held at Bagram?
Noting that the Pentagon "is moving swiftly to empty the prison in Afghanistan as the US and its allies draw down combat forces in Afghanistan by the end of the year," the Washington Post explained that a US military official told them that the number of prisoners in US custody in Bagram — none of whom are Afghans — was now 27, "down from more than 50 in December."
Lt. Col. Myles B. Caggins III, a Pentagon spokesman for detainee policy, said, "As we wrap up our combat mission in Afghanistan, we are working diligently to resolve the disposition of the few remaining non-Afghan detainees in US custody at Parwan." He added, "The decision to transfer a detainee is made only after direct conversations with the receiving country about the threat a detainee may pose after transfer."
In February, the Washington Post reported that 35 of the men still held were Pakistani, but since then ten were released, at the end of May, and nine more were released two weeks ago. One of the men released in May, Yunus Rahmatullah, "is suing the Ministry of Defense and Foreign Office, accusing them of responsibility for his subjection to torture and severe abuse over 10 years," as the Guardian explained on July 29.
As the Guardian also noted, Yunus Rahmatullah "was captured by British special forces in Iraq in 2004 and handed over to US troops soon afterwards … He is believed to have been first held at Camp Nama, a secret detention facility at Baghdad airport that British troops helped to run," and "was later transferred to Iraq’s notorious Abu Ghraib jail" before being rendered to Bagram.
In July, Reuters reported that a French national and a Kuwaiti were also repatriated from Bagram at the end of May. Also in July, when 38 non-Afghan prisoners were still held, the Guardian reported that they were undertaking hunger strikes.
"Sometimes they stopped eating to protest unclean drinking water," the Guardian noted. "Other times they stopped eating because their comrades were placed in segregated housing. Still other times they stopped eating out of dissatisfaction with their access to the International Committee of the Red Cross (ICRC), their only source of connection to their families and the outside world."
The Washington Post also noted that, in addition to Redha al-Najar, another Tunisian is still being held, as well as a Jordanian and a Russian. The paper suggested that the Obama administration was "considering prosecuting a handful of these detainees in either the federal courts or military commissions," although the latter, at least, seems highly unlikely. US officials said the Russian was "at the top of the prosecution list." Someone "familiar with the detainee population" also said that a man from Kazakhstan, Farabi Ryskulov, was repatriated on August 4, "despite concerns he might be tortured."
After so many years of secrecy at Bagram, it is alarming that we still do not know exactly who is held in US custody at — or near — the site of so much of America’s horrific treatment of prisoners in its "war on terror," which is about to enter its 14th year of operations, but the release of Amin al-Bakri and Fadi al-Maqaleh is to be commended, and while I await news of further releases from Bagram, I also hope to hear positive news about the imminent release of other Yemeni prisoners from Guantánamo, which, to put it mildly, is long overdue.
Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the "Close Guantánamo" campaign, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, "Outside the Law: Stories from Guantánamo" (available on DVD here – or here for the US).
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