FOIA suit reveals Guantanamo’s ‘indefinite detainees’
By CAROL ROSENBERG | The Miami Herald | Published: June 17, 2013
GUANTANAMO BAY NAVY BASE, Cuba — The Obama administration Monday lifted a veil of secrecy surrounding the status of the detainees at Guantanamo, for the first time publicly naming the four dozen captives it defined as indefinite detainees — men too dangerous to transfer but who cannot be tried in a court of law.
The names had been a closely held secret since a multi-agency task force sifted through the files of the Guantanamo detainees in 2009 trying to achieve President Barack Obama’s executive order to close the detention center. In January 2010, the task force revealed that it classified 48 Guantanamo captives as dangerous but ineligible for trial because of a lack of evidence, or because the evidence was too tainted.
They became so-called “indefinite detainees,” a form of war prisoner held under Congress’ 2001 “Authorization for Use of Military Force.”
The Defense Department released the list to The Miami Herald, which, with the assistance of Yale Law School students, had sued for it in federal court in Washington, D.C. The Pentagon also sent the list to the House and Senate Armed Services Committees on Monday, a Defense Department official said.
According to the list, the men designated for indefinite detention are 26 Yemenis, 12 Afghans, 3 Saudis, 2 Kuwaitis, 2 Libyans, a Kenyan, a Moroccan and a Somali.
Human rights groups denounced the existence of such a list.
Amnesty International’s Zeke Johnson called “fundamentally flawed” the notion of classifying captives as indefinite detainees. “Under international human rights law,” he said, “all of the detainees should either be charged and fairly tried in federal court, or released.”
Human Rights First’s Dixon Osburn hailed release of the list through the Freedom of Information Act: “It is fundamental to democracy that the public know the identities of the people our nation is depriving of liberty and why they are being detained.”
Some of the men on the list are among the prisoners currently on hunger strike and being force-fed at the prison, for example, Kuwaitis Fawzi al Odah, 36, and Fayez al Kandari, 35, and Yemeni Abdal Malik al Wahab, about 43, who in March, according to his lawyer David Remes, vowed to fast until he got out of the prison “either dead or alive.”
Two men on the list are deceased. Both Afghans, one committed suicide with a bedsheet in a recreation yard at Guantanamo’s Camp 6 for cooperative captives and the other died of a heart attack, also in Camp 6. So now the 166 captives at Guantanamo actually include 46 indefinite detainees.
Two former CIA captives, held apart from the majority of Guantanamo’s prisoners as “high-value detainees” are also listed as indefinite detainees: Mohammed Rahim, an Afghan man, and Somali Hassan Guleed.
All the other ex-CIA captives were designated for trial. Those include accused al-Qaida kingpin Khalid Sheik Mohammed, 48, and four alleged fellow conspirators in the hijackings that killed nearly 3,000 people on Sept. 11, 2001, who were in pretrial hearings at the war court this week. Also designated for trial was Abd al-Rahim al-Nashiri, 48, accused in the 2000 USS Cole attack that killed 17 American sailors, and, like Mohammed, facing a death-penalty tribunal.
Administration officials have through the years described a variety of reasons why the men could not face trial: Evidence against some of the indefinite detainees was too tainted by CIA or other interrogation torture or abuse to be admissible in a court; insufficient evidence to prove an individual detainee had committed a crime; or military intelligence opinions that certain captives had undertaken suicide or other type of terrorist training, and had vowed to engage in an attack on release.
In all, the list identifies 34 candidates for prosecution. Army Brig. Gen. Mark Martins, the Pentagon’s chief war crimes prosecutor, said Sunday night that fewer than those 34 men will be prosecuted because of federal court rulings that disqualified “providing material support for terror” as a war crime in most if not all Guantanamo cases.
At Human Rights Watch, senior counterterrorism counsel Andrea Prasow called the list “a fascinating window into the Obama administration’s thinking circa January 2010” but both flawed and somewhat irrelevant today.
“Many of the detainees designated for prosecution can only be prosecuted in civilian court,” she said. “So unless Congress lifts the restrictions banning their transfer they are effectively ‘indefinite detainees.’’’
She also noted that, since the list was drawn up, the Obama administration was reportedly considering transferring five Afghan Taliban to custody of the Qatari government in exchange for the release of U.S. POW Bowe Bergdahl. The Wall Street Journal named the five men and all appear on the list released Monday as indefinite detainees: Mullah Mohammad Fazl, Mullah Norullah Noori, Mohammed Nabi, Khairullah Khairkhwa, and Abdul Haq Wasiq.
One man categorized in 2010 as a possible candidate for prosecution was Saudi Arabian Mohammed Qahtani, 37, once suspected of being the absent “20th hijacker” in the Sept. 11 plot. He was so brutally interrogated at Guantanamo that a senior Pentagon official excluded him from the Bush-era 9/11 war crimes charge sheet. That official, Susan Crawford, told The Washington Post’s Bob Woodward that Qahtani’s treatment amounted to torture.
The Miami Herald’s Carol Rosenberg, with the assistance of the Media Freedom and Information Access Clinic at the Yale Law School, filed suit in federal court in Washington, D.C., in March for the list under the Freedom of Information Act. The students, in collaboration with Washington attorney Jay Brown, represented Rosenberg in a lawsuit that specifically sought the names of the 46 surviving prisoners.
Monday, hours before the release of the names, U.S. District Court Judge Gladys Kessler had set a July 8 deadline for the government to update the court on its classification review. The Justice Department gave the list to Brown, who in turn gave it to Rosenberg.