Uthman Abdul Rahim Mohammed Uthman crossed from Afghanistan to Pakistan following the fall of the Taliban, on December 15, 2001. Pakistan authorities turned him over to Americans. He has been imprisoned at Guantanamo ever since Guantanamo opened.
On February 24, 2010, Judge Henry Kennedy granted Uthman's habeas petition. Carefulness of language is necessary, because Uthman is on the list of 48 held under indefinite detention.
Uthman can be thought of as judicially freed of one level of imprisonment, but still ensnared in a higher-level and as yet unchallenged one. Or, he can be thought of as judicially freed of imprisonment, a decision the administration is simply ignoring or obstructing.
Taking Back the Opinion
Judge Kennedy submitted his legal opinion to the government censors. It was cleared for release and published on March 16. Then, the censors took the published legal opinion back. Judge Kennedy's and the administration's accounts of the censorship wrangling differ, but a newly redacted version of the opinion was published on April 21.
Dafna Linzer at ProPublica got the first version of the opinion, and wrote about the differences last Friday. Bush-era OLC lawyer Jack Goldsmith sums it up as well as anyone:
Dafna Linzer has an amazing story about Uthman Abdul Rahim Mohammed Uthman, an alleged al Qaeda member detained since 2001. Judge Kennedy granted Uthman’s habeas petition in this opinion, filed in April of this year. But Linzer reports that there was actually an earlier opinion that was filed on the court’s electronic docket a few weeks earlier and then almost immediately removed because it was cleared for release before classified information was removed.
Lawfareblog
The Nature of the Redactions
Some of the rewriting of Judge Kennedy's opinion obscures the identity of an NCIS investigative agent. Some redactions delete titles and descriptions of intelligence reporting forms.
One redaction keeps secret the fact that "HUMINT" means "information derived from a person". The judge's signature is omitted on the revised opinion.
One redaction can be called the diplomatic suppression of an awkward government assertion:
Respondents assert based on statements of other detainees that "Saudi Embassy House" refers to an Al Qaeda guesthouse.
Habeas opinion, p. 20
A statement of basic facts agreed to by both parties is deleted:
The parties agree about some basic facts. Petitioner Uthman, who has been designated ISN 27, is from Aden, Yemen. He attended the Furqan Institute, a religious high school, in Taiz, Yemen from approximately 1996 to 1999. He was approximately twenty years old in December 2001 when he was seized by Pakistani authorities in or near Parachinar, Pakistan. He has been held in U.S. custody in Guantanamo Bay, Cuba since January 2002.
Habeas opinion, p. 5
This deletion is a part of the large censorship of a central issue in the legal case, "Whether Uthman's Seizure Near the Site of the Battle of Tora Bora is Incriminatory".
Uthman and Tora Bora
The government has used an insinuation about Tora Bora in its justifications for imprisoning Uthman:
The detainee was caught and detained in the Tora Bora region.
Combatant Status Review Tribunal
Uthman came to Pakistan from Khost. The government does not contest this. South versus north is an issue of deep embarrassment to the government. Discussion of evidence backing up the claim, in a legal opinion, has been suppressed by government.
Tortured Evidence Against Uthman
Ali al-Hajj al-Sharqawi was rendered from Pakistan to Amman Jordan:
One evening around midnight, all of a sudden, they took me out of my cell. They covered both my eyes and ears, and hooded me. I was also cuffed and shackled tightly, and I didn't know where they were going to take me. I was put in a car, and they played loud music. The car moved and we arrived at the airport. I was taken out of the car near an airplane. The noise of the engines was very loud. I was taken to the airplane through the back door. It was like a dark room. I was held tightly my neck forced down, and put on a chair, with guards on my left and right. The plane took off. A person came close and spoke with me very loudly in Arabic. He started questioning me. I asked him where we are going. He said God willing you'll go to your country. God save you from the Americans.
Human Rights Watch
Al-Sharqawi was held in Jordan for 19 months.
The declaration states that while held in Jordan, Hajj "was regularly beaten and threatened with electrocution and molestation," and he eventually "manufactured facts" and confessed to his interrogators' allegations "in order to make the torture stop."
Habeas opinion, p. 7
In 2002, Joanne Mariner of Human Rights Watch was given two thin strips of paper, covered with Arabic writing and marked with a thumbprint. The papers had been smuggled out of the Jordanian prison, and were from al-Sharqwi:
"They beat me up in a way that does not know mercy," Sharqawi wrote, referring to his Jordanian captors, "and they're still beating me. They threatened me with electricity, with snakes and dogs ... [They said] we'll make you see death."
Human Rights Watch
From Jordan, al-Sharqwi was transported to the nightmarish Dark Prison in Kabul:
After transfer to a secret CIA-run prison in Kabul, Afghanistan, Hajj was reportedly "kept in complete darkness and was subject to continuous loud music."
Habeas opinion, p. 7
Under torture, al-Sharqwi identified Uthman as a bodyguard for Osama bin Laden. This was identification by photograph.
I was being interrogated all the time, in the evening and in the day. I was shown thousands of photos, and I really mean thousands, I am not exaggerating.
Human Rights Watch
Sanad al-Kazimi was captured in the United Arab Emirates and turned over to Americans, who rendered him to an unidentified secret CIA prison
Rayner reports that while Kazimi was held in the United Arab Emirates, his interrogators beat him; held him naked and shackled in a dark, cold cell; dropped him into cold water while his hands and legs were bound; and sexualty abused him. Kazimi told Rayner that eventually "[h]e made up his mind to say 'Yes' to anything the interrogators said to avoid further torture.
Habeas opinion, p. 7
Next, he was sent to the Dark Prison in Kabul:
According to Rayner's declaration. Kazimi was relocated to a prison run by the CIA where he was always in darkness and where he was hooded, given injections, beaten, hit with electric cables, suspended from above, made to be naked, and subjected to continuous loud music.
Habeas opinion, p. 7
Then he was sent to Bagram:
Next, Kazirni was moved to a U.S. detention facility in Bagram, Afghanistan, where, he told Rayner, he was isolated, shackled, "psychologically tortured and traumatized by guards' desecration of the Koran" and interrogated "day and night, and very frequently." Id. ¶ 37. Kazimi told Rayner "[h]e tried very hard to tell the interrogators at Bagram what he had been forced to tell the interrogators in the [United Arab Emirates] and the Dark Prison [run by the CIA}, so they would not hurt him."
Habeas opinion, p. 7
Under torture, Kazirni, like al-Sharqwi, identified Uthman as a bodyguard for Osama bin Laden. This too was identification by photograph.
Summary
They will be ready to show the world that we are not a country that ships prisoners in the dead of night to be tortured in far off countries. That we are not a country that runs prisons which lock people away without ever telling them why they are there or what they are charged with.
Senator Barack Obama, April 3, 2007
The United States has held Uthman Abdul Rahim Mohammed Uthman without charge for nearly 10 years. There was never any evidence against him.
A judge has granted his habeas petition. He continues nonetheless to be held without charge. Indefinite detention has been admitted United States policy since May 21, 2009.
Nationally embarrassing details of a legal opinion have been suppressed, or attempted suppressed, by government censors. Even Bush-era lawyers are amazed by this. We are not ready to show the world what we are.
Sanad al-Kazimi was shipped to be tortured in a far off countries. His words "Dark Prison," a place he was held, were part of the government suppression.
Ali al-Hajj al-Sharqawi was shipped in the dead of night, at midnight, to be tortured in a far off country. We have smuggled out notes of his treatment, marked with his thumbprint, to know what happened.