In language so harsh and denunciatory as to be nearly unprecedented, Judge Henry H. Kennedy of the DC Circuit has ordered the release “forthwith” of War on Terra prisoner Mohamed Mohamed Hassan Odaini, excoriating the Obama Justice Department for pursuing a case against a man that “respondents themselves have repeatedly concluded  is not part of Al Qaeda,” even while ”distort[ing]” and “misrepresent[ing]” evidence, advancing arguments that are “simply unreasonable,” driven by a “refus[al] to deviate from a predetermined conclusion,” and asking of the Court a resolution that would “render meaningless the principle of law that places the burden of proof on respondents.”
Respondents have kept a young man from Yemen in detention in Cuba from age eighteen to age twenty-six. They have prevented him from seeing his family and denied him the opportunity to complete his studies and embark on a career. The evidence before the Court shows that holding Odaini in custody at such great cost to him has done nothing to make the United States more secure. There is no evidence that Odaini has any connection to Al Qaeda. Consequently, his detention is not authorized by the AUMF. The Court therefore emphatically concludes that Odaini’s motion must be granted.
Pakistani police seized Mohamed Odaini, together with 15 other young men, from a Faisalabad guesthouse in the early morning hours of March 28, 2002. As Andy Worthington sets forth here, the raid was a mistake, based on false “intelligence” that the house was connected to Abu Zubaydah.
Zubaydah, a barking mad sadsack, was snatched by Pakistani police from a different house at roughly the same time. He is still lost somewhere in the War on Terra gulag, still classified as “a high-value detainee,” still sold to the public as a nefarious Al Qaeda mastermind, though it has been publicly known for more than four years that he was, in truth, and as Worthington expresses it, but “a mentally damaged gatekeeper.”
Abu Zubaydah is, to my mind, the ground zero, the original sin, of the War on Terra. I have diaried about him some here and here and here and here and here and here and here and here. Zubaydah became the first official victim of the officially sanctioned George II torture regime, despite the fact that it became clear very early on that he knew nothing, was nobody.
Abu Zubaydah, his captors discovered, turned out to be mentally ill and nothing like the pivotal figure they supposed him to be. CIA and FBI analysts, poring over a diary he kept for more than a decade, found entries “in the voice of three people: Hani 1, Hani 2, and Hani 3″—a boy, a young man and a middle-aged alter ego. All three recorded in numbing detail “what people ate, or wore, or trifling things they said.” Dan Coleman, then the FBI’s top al-Qaeda analyst, told a senior bureau official, “This guy is insane, certifiable, split personality.”
Abu Zubaydah also appeared to know nothing about terrorist operations; rather, he was al-Qaeda’s go-to guy for minor logistics—travel for wives and children and the like. That judgment was “echoed at the top of CIA and was, of course, briefed to the President and Vice President,” Suskind writes. And yet somehow, in a speech delivered two weeks later, President Bush portrayed Abu Zubaydah as “one of the top operatives plotting and planning death and destruction on the United States.”
When CIA Director George Tenet told George II that Abu Zubaydah was grievously mentally ill, with no useful intelligence embedded anywhere in his sadly disordered brain, this is what took place:
“I said he was important,” Bush reportedly told Tenet at one of their daily meetings. “You’re not going to let me lose face on this, are you?” “No sir, Mr. President,” Tenet replied.
Bush “was fixated on how to get Zubaydah to tell us the truth,” Suskind writes, and he asked one briefer, “Do some of these harsh methods really work?”
Interrogators did their best to find out, Suskind reports. They strapped Abu Zubaydah to a waterboard, which reproduces the agony of drowning. They threatened him with certain death. They withheld medication. They bombarded him with deafening noise and harsh lights, depriving him of sleep. Under that duress, he began to speak of plots of every variety—against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty. With each new tale, “thousands of uniformed men and women raced in a panic to each . . . target.” And so, Suskind writes, “the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered.”
It is possible, if not probable, that one or more arms of Darth Cheney’s “dark side” octopus snatched the lives from three Saudi princes and a Pakistani air force general, after they were falsely fingered as Al Qaeda contacts by the mad, tortured Zubaydah.
Mohamed Odaini, as Judge Kennedy’s opinion lays out, was an 18-year-old Yemeni studying Islamic law at Salafi University in Faisalabad. On March 27, 2002 he accepted an invitation to dinner at a house where other Yemenis lived. As Judge Kennedy emphasizes, these folks were students and sick people.
As it was late, Odaini accepted an invitation to stay the night. Not long after, he was rounded up with 15 other people in the same house, all ultimately bound for Guantanamo. Despite the fact, as Judge Kennedy’s opinion makes clear, that Odaini had never been associated in any way with Al Qaeda—indeed, it is probable he had never even heard the name, until it was invoked by his American interrogators.
Odaini was held in Bahore, transferred to Islamabad, shipped across the border to Bagram in Afghanistan, scooted over to Kandahar, and then flown to Guantanamo Bay. Aloft for 20 hours, chained to his seat and smothered in earmuffs and a blackout hood, Odaini was among those confidently described by Defense Secretary Donald Rumsfeld as “the worst of the worst”; the sort of person, warned Richard Myers, chairman of the Joint Chiefs of Staff, “that would gnaw through hydraulic lines in the back of a C-17 to bring it down.”
Upon arrival at Guantanamo, Odaini was told he would be released within two weeks.
More than two-and-a-half years later, Odaini was sitting in a retrofitted storage container, his legs shackled and chained to a bolt in the floor. That was how he was found by Marc Falkoff, an attorney who had managed to bull his way onto the grounds of Guantanamo with a “next friend” authorization from Odaini’s brother, permitting Falkoff to represent him.
“He had been waiting,” recalls Falkoff, “for a lawyer.”
We know now, from Judge Kennedy’s opinion, that Odaini’s captors had concluded, years before Falkoff’s arrival, that Odaini was innocent, of no intelligence use, and should be released.
In June 2002, just after Odaini’s arrival at Guantanamo Bay, based on the assessment that Odaini “appeared to be telling the truth,” an interrogator’s report indicated: “Recommend [Odaini] be utilized to identify individuals at house in Faisalabad. Pending ____, [Odaini] should be considered for repatriation.”
In April 2004, nearly two years after Odaini’s arrival at Guantanamo Bay, an employee of the Criminal Investigation Task Force (“CITF”) of the Department of Defense reviewed five interrogations of Odaini and wrote that “[t]here is no information that indicates [he] has clear ties to mid or high level Taliban or that he is a member of Al Qaida.” The employee reported that “CITF believes that further investigation is unlikely to produce new information relevant to this case” and, “in the absence of further information,” he “recommend[ed] the release of [Odaini] under a conditional release agreement.”
A memorandum of the Joint Task Force Guantanamo of the Department of Defense dated June 2004 summarizes information collected about Odaini, indicates that “[t]here is no information to confirm Taliban or Al Qaeda ties on his part,” and concludes that Odaini “may be transferred to another country or released[.]“
Nonetheless, in October 2004, a month before Falkoff’s arrival, Odaini was subjected to a Guantanamo kangaroo tribunal that seems to have been consciously modeled on the one Joseph Heller fashioned for Cadet Clevinger in Catch-22.
Odaini was informed that “a senior al Qaida Lieutenant identified [him] in a photo as having possibly seen him in Afghanistan” and he had “been captured at the ‘Cresent Mill’ guesthouse in Faisalabad, Pakistan and was identified by a senior al Qaida lieutenant.”
Odaini was not told the identity of the lieutenant (or lieutenants). Nor was he told when, where, or under what circumstances the identifications had been made. In essence, says Falkoff, the government’s position was, “‘A person is saying incriminating things about you. What’s your response?’ There’s no way to respond to that.”
Odaini told the tribunal that he had never been in Afghanistan until he was transported there by his American captors, and had never heard of Al Qaeda until the name was mentioned by his American interrogators. The kangaroo tribunal afforded Odaini a “personal representative”—who by regulation could not be a lawyer—but this person sat on his hands and did nothing. After refusing to hear from all but one of Odaini’s proposed witnesses, the tribunal members retired behind closed doors to review secret “evidence,” which Odaini could know nothing about. Odaini’s “personal representative” declined to offer a statement in his defense. The tribunal then concluded that Odaini was properly classified as an “enemy combatant,” and was “a part of or supporting Al Qaeda forces.”
Falkoff has since seen the “secret evidence” reviewed by the tribunal. He cannot by law utter a word of it, without himself being thrown in the pokey. He can, however, and has, pronounced it balderdash. “I was dumbfounded,” he says, “by how lousy it was.”
More years roll by. It is now 2007. Eighteen the last time he breathed free air, Odaini is now nearly 23. Still in the Guantanamo gulag.
In February 2007, four and a half years after Odaini’s arrival at Guantanamo Bay, a Staff Judge Advocate for the Department of Defense, Office for the Administrative Review for the Detention of Enemy Combatants, sent an email to Odaini’s counsel. The email indicated that “[t]hrough either the Administrative Review Board (ARB) process or the process DOD had in place prior to ARBs, your client has been approved to leave Guantanamo, subject to the process for making appropriate diplomatic arrangements for his departure.” Needless to say, Odaini was not released from Guantanamo Bay.
Odaini had in fact been recommended for release—again—in June of 2005, although a military review board did not sign off on it until a full year later. Deputy Secretary of Defense Gordon England, tasked with final authority, approved Odaini’s transfer on June 26, 2006.
When England signs off on a recommendation for release or transfer, the prisoner is put on a list of those deemed eligible to leave Guantanamo. But Falkoff says the list is meaningless because a prisoner “doesn’t have a right to be released simply because he’s on that list” and prisoners who aren’t on the list sometimes get released.
Too, at this time the release of Yemeni prisoners became befouled when Yemen and the United States together combined to invoke another variation on Catch-22:
Early negotiations for the release of Yemeni prisoners hit a standstill when the U.S. requested that Yemen sign a document saying the men wouldn’t be tortured upon their return. Yemen officials refused  because of the implication that Yemen would otherwise torture them.
More years passed. It is now June of 2009 . . . more than seven years after Odaini was told he would be released within two weeks.
Back in the United States, the people had gone to the polls, and done their thing, and there was a new president. The various cogs in the BushCo War on Terra machinery left behind what was literally a Kafkaesque nightmare—it was clear from the shoddy or nonexistent recordkeeping that none of them ever had any serious intention of trying any of these people, until kicked and prodded and dragged into it by the courts. It would take some time for the people of the New Boss to review these materials—what there were of them; in many cases, they had to start from scratch. But by June of 2009, the Obama people, officially known as the Guantanamo Review Task Force, had on Odaini reached a decision.
From Judge Kennedy:
In June 2009, an attorney representing respondents in this case sent an email to Odaini’s counsel indicating that “[t]he Guantanamo Review Task Force has completed its review of [Odaini]‘s case” and “[a]s a result of that review, [Odaini] has been approved for transfer from Guantanamo Bay.” The email indicates that “the United States will take appropriate diplomatic steps, consistent with the national security and foreign policy interests of the United States, to facilitate [Odaini]‘s transfer from Guantanamo Bay to an appropriate destination country.”
In expectation that the executive was at last about to Do The Right Thing, Odaini’s long-simmering habeas petition, now before Judge Kennedy, was stayed.
That petition, like similar petitions from other prisoners in the War on Terra gulag, had for years lay dormant, as first the executive and then also the legislative branch contrived to set fire to it . . . until a series of decisions by the United States Supreme Court reaffirmed that, yes, we have enjoyed the writ of habeas corpus in Anglo-American jurisprudence for 800 years now, and we’re not about to get rid of it just because Some People Are Scared.
In November of 2009, the Ambassador of the Republic of Yemen to the United States signed a declaration stating that his country was willing to accept Odaini.
Then came Umar Farouk Abdul Mutallab, the so-called “Christmas underwear bomber.” And people Got Scared again. As they have throughout the War on Terra, members of Congress publicly and repeatedly wet themselves, shrieking that because Mutallab had been to a Badness camp in Yemen, it was Inconceivable that any more Guantanamo prisoners could be returned to that country. To quiet these bedwetters, the Obama administration suspended the return of Guantanamo prisoners, like Odaini, to Yemen.
Then, for reasons that passeth understanding—or at least mine—the Obama Justice Department decided to proceed in opposition to Odaini’s now-revived habeas petition . . . though the administration had already cleared him and approved him for release.
And he would probably be home right now, back with his family in Yemen, if Mutallab had refrained from setting fire to his pants, and if the American citizenry, and American officeholders, had responded to this pathetic act by behaving as adults, rather than as frightened children.
In his last full year on the Court, and weary of the activist conservative majority determinedly scraping away words from the Constitution, Justice William O. Douglas, writing in dissent in Donnelly v. DeChristoforo (1974) 416 US 637, noted that “[t]hose who have experienced the full thrust of the power of government when leveled against them know that the only protection the citizen has is in the requirement for a fair trial.”
“The function of the prosecutor under the Federal Constitution,” he wrote, “is not to tack as many skins of victims as possible to the wall. His function is to vindicate the right of people as expressed in the laws and give those accused of crime a fair trial.”
Douglas then cited to the Court’s opinion in Berger v. US (1935) 285 US 78:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
The behavior of the Obama Justice Department in cases like Odaini’s, like the behavior of the Bush Justice Department before it, is shameful. There is just too little showing that these prosecutors have been devoted to their duty to see that “justice shall be done,” to eschew “tack[ing] as many skins of victims as possible to the wall,” in favor of “vindicat[ing] the right of people as expressed in the laws and give those accused of crime a fair trial.”
Odaini has been presumed innocent by his captors since 2002. Yet still he sits in stir.
People in the Obama Justice Department proceeded with a case against this man, a man who had already been approved for release, and in doing so they went so outside the bounds of human or even legal decency that they have been publicly upbraided by a judge for distorting and misrepresenting evidence. If a judge in this jurisdiction became so furious with an attorney for engaging in such behavior that s/he was actually moved to write about it, that judge would also refer that attorney’s ass to the state bar. Call me crazy, but somehow I expect better behavior from federal prosecutors than from some government mule in a county district-attorney’s office. Know what? In cases like Odaini’s, I ain’t seein’ it.
And neither are the judges hearing these cases. The Justice Department is not enjoying a real high success rate here. Judge Kennedy alone has recently told the Justice Department to get stuffed in attempts to thwart the habeas release of two other men swept up in the same March 28, 2002 raid that snagged Odaini. Last I checked, the decisions in those two cases are still “classified”—as was Odaini’s, until Thursday. The government “needs” to fretfully comb over these things to make sure no “secrets” emerge. Virtually the entire section involving Zubaydah has been scrubbed from the Odaini opinion, and the 15 people arrested with Odiani have been relieved of their names, referenced instead as “ISN686″ and “ISN692″ and the like. Because, as I’ve observed before, the first thing you want to do, when you seek to strip people of their humanity, is to deny them their names.
The law is an imperfect instrument, and it always will be. That error will be introduced is inevitable, so long as human beings are creatures prone to error. But the law is not supposed to countenance deliberate error. In the law, deliberate error, as Blanche DuBois said of deliberate cruelty, “is not forgivable.”
What Judge Kennedy found in the Justice Department’s case against Odaini was deliberate error—distortion, misrepresentation, arguments “simply unreasonable,” driven by a “refus[al] to deviate from a predetermined conclusion.” The mere proceeding with the case—trying to convince a court to continue to imprison a man that you have already determined is fit for freedom—that, to me, is cruelty.
It’s not a game, this shit. As Worthington points out, everybody knows now that the raid that netted Odaini was a botched Clouseau operation, but still 10 of the men caught up in it remain interned in Guantanamo.
Justice Department lawyers are at this point complicit in destroying these people. Falkoff tells of one man at Guantanamo he attempted to represent, but who waved him away: the man did not believe him to be real. Falkoff was a “mirage in the desert,” the man declared. His hope for relief through the American judicial system—that had been extinguished. He had a six-year-old daughter: this child he had never seen, and he knew that he never would.
Meanwhile Abu Zubaydah still sits out there, somewhere—wherever these days they’re keeping him—as subsumed in misery, madness, and despair as any caged animal:
“He spent all of his time masturbating like a monkey in the zoo. He went at it so much, at some point I heard he injured himself. They had to intervene. He didn’t care that they were watching him. I guess he was bored, and mad.”
“He masturbated constantly. A couple of guards were worried about it. He wasn’t brazen about it—he wasn’t facing the camera. He’d do it at night, facing the wall, but it was rigged so there was no place for him not to be seen. This was closed circuit. He complained to the interrogator that he would never have the chance to feel a woman’s touch again, and lament that he would never have children. He freaked, though, at one point, because there was blood in his ejaculate. He saved it for the doctors in a tissue, to show them in the morning. The doctor said not to worry.”
I understand that Barack Obama, for exercise, likes to play basketball. That’s fine. The man needs to unwind. Asked by a kangaroo tribunal in 2005 if he had any skills, Mohamed Odaini replied “I know how to play soccer.” Maybe Obama can switch games for a day. Play some soccer with Odaini.
I understand that Barack Obama is taking some time to appoint a new Inspector General to the CIA. Like, 14 months, and counting. That’s fine. It’s an important position. And, as former CIA man Mark Lowenthal says, “You want someone there who understands intelligence.”
Mohamed Odaini certainly understands intelligence. He’s been a victim of it for eight years now. “He’s a bright kid,” Falkoff said of his client. “He underst[ands] legal concepts.” Asked by a tribunal what he would do if released, Odaini modestly replied: “What I learned from studying the Koran. I can teach kids.”
I don’t think so. I have another job in mind. Since the Obama administration will not allow Odaini to be returned to his home in Yemen, let’s put him on the fast track to US citizenship, and then appoint him Inspector General to the CIA. And open every fucking file to him. Which he can then open to us.
* * *
In the Democratic view of things, we may superimpose the Buddha’s vision of life on all things. To live in this world is to suffer: we measure progress by how the poorest are doing, and often our constitutional liberties are defined by defending criminals.
Do not be ashamed to be a Liberal. For me, this was the hardest obstacle to overcome. Being a Liberal is hard work, intellectually, I repeat myself, our causes are most closely bound to the lowest and the least-likeable people. It is easy to hate, it is more difficult to love, especially when those we love do not love us in return. A criminal still has rights in law in the USA, and these rights are under attack. The Conservatives charge us with Loving Criminals and Being Defeatists, nothing could be farther from the truth, for those who love the law understand how easily the law may be abused.
Odaini’s isn’t even a hard case. He’s not a criminal. He’s a victim. Of deliberate cruelty. It is cruel to continue to imprison a man known to be innocent. Yet that is what has been done. This man, he suffers. Still. Still in our names. Until June 25 the Justice Department has, to decide whether to appeal.
Maybe it is outrage fatigue
I know I feel it sometimes.
But think about this. We tortured people. We tortured ‘em the way Torquemada did. The way the Viet Cong did.
There is proof. Don’t we finally want it out there? Don’t we want the darkness brought out into the light? Don’t we want the lies from the right about “splashing a bit of water” to be finally exposed once and for all?
I know sometimes I am not outraged by it anymore. But I should be. We cannot let shell shock win.
Let’s just get it done.
It’s a year later, and we’re still not getting it done. I wrote recently that Amnesty International was right when it said that “[t]he lack of public outcry at [George II's] remarks [admitting he had authorized waterboarding] demonstrates all too clearly how for most Americans torture has become an acceptable tool in America’s counter-terrorism arsenal.” That is what I believe: a majority of the American people has made it okay in their minds that their government tortures. But continuing to imprison, continuing to fight—by means fair and foul—to imprison, someone known to innocent . . . that I am not so sure a majority is yet willing to stomach.
They just don’t know about it. And nobody much seems in a real hurry to tell them.
Not that that matters. Because people overseas know about it. They’re watching cases like Odaini’s. They get it. That people working for the new boss are too often walking into court to defend injustices perpetrated by the people who worked for the old boss.
Depending upon a judge to Do The Right Thing, as too often seems the preference of the Obama Justice Department in War on Terra cases, that’s a dangerous game. It is also an abandonment of the core function of the prosecutor—to ensure that “justice shall be done.” No case need proceed unless a prosecutor proceeds with it. When, as with Odaini, it is abandoning a case that would ensure that “justice shall be done,” then that is what the prosecutor should do. If s/he does not do so, if instead s/he proceeds with the case, s/he is then perpetrating injustice. And thereby goes outside the law.
Barack Obama is a constitutional lawyer. He has to know where this is going. He has to have in his head the words of Louis Brandeis, another justice of the United States Supreme Court who, like William O. Douglas, was too often both right and in dissent. Who in Olmstead v US (1928) 277 U.S. 438 sounded a warning of what these days can be expected not only from the people of the United States, but from the people of the world:
Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means—to declare that the government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution.