4 Cases Illustrate Guantanamo Quandaries

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By Peter Finn
Washington Post
Monday, February 16, 2009

In their summary of evidence against Mohammed Sulaymon Barre, a Somali detained at Guantanamo Bay, military investigators allege that he spent several years at Osama bin Laden's compound in Sudan. But other military documents place him in Pakistan during the same period.
One hearing at Guantanamo cited his employment for a money-transfer company with links to terrorism financing. Another file drops any mention of such links.
Barre is one of approximately 245 detainees at the military prison in Cuba whose fate the Obama administration must decide in coming months. Teams of government lawyers are sorting through complex, and often flawed, case histories as they work toward President Obama's commitment to close the facility within a year.
Much of the government's evidence remains classified, but documents in Barre's case, and a handful of others, underscore the daunting legal, diplomatic, security and political challenges.
As officials try to decide who can be released and who can be charged, they face a series of murky questions: what to do when the evidence is contradictory or tainted by allegations of torture; whether to press charges in military or federal court; what to do if prisoners are deemed dangerous but there is little or no evidence against them that would stand up in court; and where to send prisoners who might be killed or tortured if they are returned home.
Answering those questions, said current and former officials, is a massive undertaking that has been hampered by a lack of cooperation among agencies and by records that are physically scattered and lacking key details.
It is "a tough, unenviable task with imperfect solutions," said Sarah E. Mendelson, director of the human rights and security initiative at the Center for Strategic and International Studies and the author of a report on closing Guantanamo Bay. "But they need to get fully underway now," she said, reviewing files, marshaling evidence and finding countries willing to take those detainees who can be released.
Approximately 60 detainees who have been cleared for release by the Bush administration remain at the camp. An additional 21 detainees are facing charges before military commissions and are almost certain to face trial in federal court, courts-martial or some new version of the current system of military commissions.
Nearly 60 others could be prosecuted, the Pentagon has said, although many legal experts say that is unrealistic because of a lack of evidence and other problems.
That leaves the fate of roughly 100 prisoners unclear. A Pentagon spokesman said the department would not discuss the cases of individual detainees.
Bush administration officials have insisted that among the detainees are any number of al-Qaeda leaders, their financiers and facilitators, and high-level members of the Taliban.
"If you release the hard-core al-Qaeda terrorists that are held at Guantanamo, I think they go back into the business of trying to kill more Americans and mount further mass-casualty attacks," former vice president Richard B. Cheney said in a recent interview with Politico. "If you turn them loose and they go kill more Americans, who's responsible for that?"
Obama administration officials acknowledge that closing the prison is not risk-free and that some detainees may return to terrorism. But the president has concluded that Guantanamo has sapped America's moral stature abroad and mired the country in endless litigation, forestalling justice for the alleged terrorists. Of the 779 people taken to Guantanamo, only three have been convicted, and two of those have since been released.
"That can of worms," as Defense Secretary Robert M. Gates recently described the Guantanamo issue, can no longer be kicked "down the road."
Mohammed Sulaymon Barre, who fled Somalia's civil strife for Pakistan in the early 1990s, has been held at Guantanamo since 2002, after being picked up in a raid in Pakistan, where he had been recognized as a refugee by the United Nations.
In Karachi, he worked for Dahabshiil, an international money-transfer company that has offices in dozens of countries, including the United States. That job, and his flight from Somalia to Pakistan, led to accusations that Barre was "engaged in hostilities against the U.S.," according to military documents.
"I am convinced that your branch of the Dahabshiil company was used to transfer money for terrorism," the presiding officer told him at a hearing in Guantanamo in 2005. "What I am trying to find out is if you think maybe there were some people that were using your company and using your branch to transfer money, or whether you were just totally not paying attention."
Barre said that if any suspect money was transferred from his home office, it was done so unwittingly, and that Dahabshiil is a reputable company operating legally worldwide.
Barre, who is in his early 40s, is being held at Guantanamo's supermax Camp 6, where the military considers him a major discipline problem, at least in part because he has gone on several hunger strikes.
Less clear from military hearings and documents is what crime he may be charged with, if any, because the allegations against him, according to a filing by his lawyers in U.S. District Court, have "varied dramatically." That, his lawyers said, explains his refusal to bend to prison rules.
"If you were detained for seven years without charge and any fair process, you might be engaged in activities that would be considered disciplinary violations that are really protests for your detention," said Emi MacLean, a lawyer at the Center for Constitutional Rights, which is representing Barre.
In 2005, officials cited Barre's employer's ties to a Somali company believed to help finance terrorism. But that link was not mentioned in a summary of evidence against him the following year.
In that 2006 summary, the military alleged for the first time that Barre was not in Pakistan in 1994 and 1995 but was working in bin Laden's compound in Khartoum, Sudan. That conflicts with U.N. papers documenting his meetings in Pakistan in those years, according to court filings.
In a federal court filing, Barre's lawyers described the bin Laden accusations as "implausible and unsubstantiated."
In a small room at Guantanamo Bay, plain white except for an American flag hung on the wall, Abdul al Rahman al Zahri sat shackled in front of three military officers at a hearing to determine whether he continued to pose a threat to the United States and its allies.
Zahri, a Yemeni captured in Afghanistan in 2001, was clear on that point.
"I do pose a threat to the United States and its allies," he said, according to a transcript of the 2006 hearing. "I admit to you it's my honor to be an enemy of the United States. I am a Muslim jihadist, and I'm defending my family and my honor."
Zahri may have been unambiguous about his state of mind, but the question of whether he can be charged with any crime is murkier. Complicating matters for the administration is the fact that he has made sometimes flatly contradictory statements about his loyalties, at one point condemning bin Laden as a "heretic."
Zahri said he heard the call to jihad outside a mosque in Yemen in early 2001, and he decided to go to Afghanistan as a trainee to eventually fight Russian forces in Chechnya, according to military documents. Within a week, he met bin Laden at an al-Qaeda guesthouse, one of 10 meetings that military officials allege he had with terrorist leaders.
"The detainee stated he attended a meeting prior to 11 September 2001 in which an upcoming operation was discussed," according to military documents.
Zahri went to the front lines in Afghanistan to fight the U.S.-backed Northern Alliance; he was wounded, captured and eventually sent to Guantanamo. But despite his statements and some potential evidence -- he was captured with a bag of various currencies and passports from several countries -- some legal experts say it may be difficult for the United States to bring charges against him under the law as it stood in 2001.
"His statement that he is a jihadist and wants to stand against America -- exactly what law does that violate?" asked Benjamin Wittes, a fellow at the Brookings Institution and author of "Law and the Long War." "I cannot be confident that these facts -- even if proven -- would amount to a prosecutable case."
Wittes and others have suggested that some system of detention may be needed for prisoners who cannot be prosecuted but are too dangerous to release. Human rights advocates, however, disagree.
"Contrary to many of the naysayers, the U.S. has adequate tools at its disposal to prosecute those who provided material support to terrorism in late 2001 and beyond," said Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch.
Zahri has refused to meet with his attorneys, who said they were unable to discuss his case in any detail because much of the material about him remains classified. But they raised the possibility that his statements may have been coerced and cautioned that his sometimes contradictory remarks -- condemning bin Laden at one hearing and pledging fealty to him at another, threatening the United States and then saying he has "no issue" with America -- make anything he has said at Guantanamo Bay unreliable.
"We are concerned that some of the statements may have been given under questionable circumstances, either physical or mental," said Vicki Werneke, an assistant federal public defender in Ohio who is representing Zahri in habeas corpus proceedings in U.S. District Court in Washington.
Zahri, too, has said that his statements cannot be proven, and, military officials said in documents, he sees it as his mission "to waste our resources investigating his lies."
Dozens of detainees have been cleared for release, but even these cases are fraught with challenges when prisoners would be in danger if they were sent home.
These prisoners include Oybek Jabbarov, a 30-year-old Uzbek whose home country's security services have a history of torture. Jabbarov was approved for release two years ago, and his Irish American lawyer has been trying to convince the Irish government that Jabbarov was never a combatant and can be resettled in Europe.
At 21, Jabbarov left his home country for neighboring Tajikistan, where he and about 200 other Uzbeks were rounded up and then sent to northern Afghanistan, according to Jabbarov's account.
For the next 19 months, Jabbarov said, he eked out an existence raising chickens and buying and selling sheep in ethnic Uzbek villages. But in late 2001, he says, he was picked up by local fighters who turned him over to U.S. forces at Bagram air base. He insisted in numerous interrogations that he was not a fighter, but he was shipped to Guantanamo in June 2002.
"It is a big mistake that I am here," wrote Jabbarov, who learned English in Guantanamo, in an open letter last October. "But I do not blame the American people for their government's mistake."
Jabbarov, however, has not been a model prisoner, according to military documents. He went on hunger strikes more than once, and in 2005, his weight dropped from 167 pounds to 100 pounds. "Immediate Reaction Force" teams, which enforce discipline at the camps, have dealt with him 35 times, according to his attorney, Michael Mone.
"My sense is that he has a lot of pride," said Mone, who describes his client as looking like "George Harrison, circa the 'White Album.' " "I don't think he likes to put up with a lot of crap. He's frustrated as hell."
Mone met twice last year with Irish government officials, who were noncommittal, he said. Ireland and some other European countries have recently said they want to help the Obama administration close the military prison, but they want full assessments, including classified information, on the risk the detainees may pose, European officials said.
Building a Case
For some "high value" prisoners, the discussion is not about whether they will be prosecuted, but in what court, and whether some of the evidence against them may be tainted. That is true of Ahmed Khalfan Ghailani, a Tanzanian accused of helping plan the 1998 bombing of the U.S. Embassy in Tanzania.
He was indicted in New York before the Sept. 11, 2001, attacks, and four of his named co-conspirators are already serving life sentences in a supermax prison in Colorado.
In the months leading up to the attack in Tanzania, Ghailani obtained and stored bomb materials, scouted the embassy and escorted the Egyptian suicide bomber from Kenya to Dar es Salaam, the Tanzanian capital, according to a federal indictment and a charging document at Guantanamo Bay.
The diminutive Ghailani was known to some of his confederates as "Fupi," Swahili for "small," and he bicycled around Dar es Salaam to obtain bomb components because he couldn't drive, according to U.S. investigators. The bombing killed 11 people, all Africans, and a simultaneous blast in Nairobi, Kenya, killed 213 people, including 12 Americans.
The former Islamic cleric now presents himself as a contrite and exploited victim of al-Qaeda conspirators.
"I would like to apologize to the United States government for what I did before," said Ghailani at a hearing at Guantanamo Bay. "It was without my knowledge what they were doing, but I helped them."
Ghailani, however, had obtained a passport under a false name before the bombing and admitted that he vanished into al-Qaeda training camps in Afghanistan after the attack, according to military documents.
Ghailani was captured after a 10-hour shootout in the small Pakistani city of Gujrat in July 2004. He was taken to a CIA secret prison, and within months, intelligence officials reported that he was cooperating and linked his interrogation to the breakup of a plot to strike financial targets in the New York area and London.
In 2006, Ghailani and 13 other "high value" detainees, including Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11 attacks, were transferred to Guantanamo, where they are being held at the top-secret Camp 7. Ghailani, who speaks excellent English, has spent time reading the entire Harry Potter series, according to his military attorney.
Little is known about Ghailani's treatment at the hands of the CIA, or about which specific interrogation techniques he may have undergone. The CIA has acknowledged that at least three detainees, including Mohammed, were waterboarded, and prisoners also were subjected to stress positions, sleep deprivation and extreme temperatures.
Defense lawyers and human rights groups say that while allegations of torture may complicate future prosecutions, the government can build cases that do not rely on coerced statements.
Marine Lt. Col. Jeffrey Colwell, Ghailani's military attorney, said his client is eager to get into court.
"I know that he wants closure, resolution of whatever is going to happen to him," Colwell said. "Will there be complications with everything that has happened since his capture? Probably. But I think those need to be vetted out."