1 The Long War Journal: Analysis: Gitmo detainee transferred to Algeria
Written by Thomas Joscelyn on January 7, 2011 7:30 AM to 1 The Long War Journal
Available online at: http://www.longwarjournal.org/archives/2011/01/analysis_gitmo_detai.php
The Department of Defense announced the transfer of a Guantanamo detainee to Algeria on Thursday. The detainee, Saiid Farhi (also known as Farhi Saeed Bin Mohammed in US government documents), had been recruited by al Qaeda in London to train and fight in Afghanistan.
Despite traveling to Afghanistan under the direction of al Qaeda facilitators, staying in al Qaeda guesthouses, almost certainly training in al Qaeda camps, and offering an absurd cover story, Farhi was freed in late 2009 by the order of a DC district court judge.
"Farhi was ordered released by the U.S. District Court for the District of Columbia on Nov. 19, 2009," the DoD's press release reads. Farhi's transfer was also approved by the Obama administration's Guantanamo Review Task Force.
Farhi's lawyers tried to block his transfer, claiming that he would be put at risk if he was sent to his home country of Algeria. The courts did not side with Farhi, however, and last July the Supreme Court refused to block his transfer.
In her opinion granting Farhi's petition for a writ of habeas corpus, District Judge Gladys Kessler conceded that Farhi had been recruited by al Qaeda. Judge Kessler wrote:
Here, the Government has demonstrated that [Farhi] stayed at a guesthouse with links to al-Qaida. It has also shown that he traveled to that location with the assistance of a network of individuals tied to al-Qaida, and that he was brought to this particular guesthouse by those men. Further, while his attendance at the two London mosques may not, in and of itself, demonstrate membership in or substantial support of al-Qaida and/or the Taliban at the time it took place, his subsequent conduct (both using the recruiters and [sic] and relying on their travel guides), when viewed along with his attendance at the mosques, does demonstrate that it is more likely than not that the time he spent at those mosques was the beginning of his journey toward affiliation with al-Qaida.
Judge Kessler decided that this evidence, however, was not enough to justify Farhi's detention. Judge Kessler focused, instead, on the government's claim that Farhi attended al Qaeda's notorious al Farouq training camp in Afghanistan, which is where many of the terrorist organization's new recruits were sent prior to the September 11 attacks.
The government relied, in part, on the testimony of Binyam Mohamed, himself an al Qaeda recruit who was trained at al Farouq. According to files prepared by US intelligence and military officials, senior al Qaeda leaders, including 9/11 mastermind Khalid Sheikh Mohammed, ordered Mohamed to attack the US. Mohamed was allegedly set to take part in a terrorist plot along with convicted terrorist Jose Padilla against high-rise apartment buildings in the US. Mohamed and Padilla were captured before they could move forward with the plot.
Padilla was detained inside the US. Mohamed was arrested in Pakistan and detained for questioning in Morocco as part of the CIA's controversial enhanced interrogation program.
Mohamed claims that during his time in Morocco authorities there sliced his gentalia repeatedly for 18 months. US authorities have strongly denied this claim, noting that Mohamed's genitalia showed no signs of torture when he was transferred to Guantanamo. Medical professionals at Guantanamo found no evidence of scarring from the supposed cuts.
This became important in Farhi's case because Mohamed implicated Farhi as one of his fellow recruits at al Farouq. Mohamed's testimony was given in "non-abusive," "cordial" sessions with an FBI special agent, not during his time in Morocco or any other CIA facility. The FBI agent also said that Mohamed demonstrated a "polite and cooperative demeanor" during the Bureau's interviews and was "kind, polite, and relaxed through [their] meetings at Guantanamo." Moreover, Mohamed did not raise any torture allegations during his time with the FBI's special agent.
Regardless, Judge Kessler dismissed Mohamed's testimony. The judge adopted a speculative theory that Mohamed had become programmed through torture to tell tall tales. Judge Kessler proposed that Mohamed added one bit of elaboration to his story -- his identification of Farhi as one of his fellow al Qaeda trainees. Judge Kessler suggested in her ruling that Binyam may have added this into his story in order to "please" the FBI's special agent. She does not explain why this would have pleased the FBI special agent, or why the FBI's man could be so easily duped.
US officials contacted by The Long War Journal have explained that the government has done a poor job of refuting claims of torture in habeas proceedings. While Mohamed was in the CIA's and Moroccan custody, he was likely subjected to sleep deprivation and other interrogation tactics. But there is no evidence that he was subjected to more bizarre and extreme measures like having his genitalia sliced.
The intelligence officials who spoke with The Long War Journal said that the government often does not refute such claims in habeas hearings because they do not want to open the CIA's books, thereby possibly exposing sensitive sources and intelligence. Still, they point out, the government could have relied on Mohamed's medical records at Guantanamo, which show no evidence of scarring from torture.
As a result, Judge Kessler adopted Mohamed's torture story in full and excluded everything he had to say about Farhi. Thus, even though Farhi was clearly brought to Afghanistan as an al Qaeda recruit, Judge Kessler determined that the government could not show that Farhi actually became "part of" al Qaeda.
Still, even putting aside Mohamed's testimony and the allegation that Farhi attended al Qaeda's al Farouq training camp, the government could have appealed Judge Kessler's ruling on other grounds.
In an earlier case, the DC Circuit Court eviscerated Judge Kessler's methodology for weighing evidence against Guantanamo detainees. In Mohammed Al-Adahi v. Obama, a three-judge circuit court panel described Judge Kessler's ruling as "incomprehensible," "perplexing," clearly "wrong," "manifestly incorrect," and "startling." The judges found that Kessler's ruling was "simply not a 'permissible view...of the evidence,'" and was reached "through a series of legal errors."
Judge Kessler's opinion in Farhi's case suffered from similar deficiencies. For instance, the DC Circuit Court ruled in Al-Adahi:
Al-Adahi's voluntary decision to move to an al-Qaida guesthouse, a staging area for recruits heading for a military training camp, makes it more likely - indeed, very likely - that Al-Adahi was himself a recruit. There is no other sensible explanation for his actions. This why we wrote in Al-Bihani that an individual's attendance at an al-Qaida guesthouse is powerful - indeed 'overwhelming' - evidence that the individual was part of al-Qaida.
Farhi was in exactly the same position. According to Judge Kessler's ruling, Farhi stayed in al Qaeda guesthouses in Afghanistan. Farhi's time there should have been considered "powerful" and "overwhelming" evidence that Farhi was a part of al Qaeda.
Then there is Farhi's cover story. Farhi claimed, according to Judge Kessler's ruling, that "he attended mosques and met people who suggested that he go to Afghanistan to find a particular Swedish woman known to Rahim (a recruiter) who would be willing to marry him so that he could obtain citizenship to stay in Europe."
Judge Kessler concluded that Farhi's story was "entirely implausible." When any amount of scrutiny is applied, Farhi's tale falls apart. But Judge Kessler failed to draw any inferences from Farhi's inability to come up with even a halfway plausible excuse for what he was doing in the Taliban's Afghanistan.
In Al-Adahi, the circuit court chastised Judge Kessler for not taking into account the fact that it is a "well-settled principle that false exculpatory statements are evidence - often strong evidence - of guilt."
Farhi's "entirely implausible" story, then, should have been viewed by the court as "strong evidence" of guilt.
As it stands, the district court could not come to any conclusions about Farhi's time in Afghanistan. For six months, from June to December 2001, Farhi was in Afghanistan before retreating to Pakistan.
US military and intelligence officials concluded that he was trained by, and fought on behalf of, al Qaeda.