Judge finds that Kuwaiti Gitmo detainee was no charity worker


Fayiz al Kandari. Image from the Miami Herald.

On Sept. 15, DC District Judge Colleen Kollar-Kotelly denied the petition for a writ of habeas corpus filed by a Kuwaiti detainee held at Guantanamo named Fayiz al Kandari. The ruling remained classified until late September, when it was released online. Al Kandari and his attorney have repeatedly claimed that he was a mere charity worker in Afghanistan in 2001. Judge Colleen Kollar-Kotelly disagreed, finding that al Kandari’s story was “implausible” and “not credible.”

In particular, Judge Kollar-Kotelly found that al Kandari was overly evasive for a man who claimed to be innocent. Both during his interrogations at Guantanamo, and even in his declaration to the court, al Kandari refused to explain what he was up to during a “missing” two-month period in Afghanistan. This in and of itself was not enough to reject al Kandari’s petition, the judge determined, as detainees have “no burden to prove” their innocence in habeas proceedings.

Judge Kollar-Kotelly found, however, that al Kandari’s “repeated unwillingness to provide details as to his time in Afghanistan is nonetheless inconsistent with, and undermines the credibility of, his claim that he was an innocent charity worker who became inadvertently trapped in Afghanistan in the wake of September 11, 2001.”

The judge’s ruling is consistent with what interrogators at Guantanamo found – that al Kandari is “deceptive” and “most likely withholding information” about his true identity and role. Indeed, intelligence officials at Gitmo concluded that al Kandari is an especially effective al Qaeda recruiter with ties to the most senior al Qaeda leaders, including Osama bin Laden.

US intelligence officials also concluded that al Kandari played an instrumental role in indoctrinating an al Qaeda cell that killed a US Marine on the Faylaka Island in Kuwait on Oct. 8, 2002.

Al Wafa

When al Kandari entered Afghanistan in 2001, he made his way to the Al Wafa charity office in Kabul. Al Wafa has been designated by both the US and UN as a front for al Qaeda. The “charity” was frequently used as a cover by al Qaeda operatives traveling to and from Afghanistan.

Al Kandari claimed he did not know that al Wafa was affiliated with al Qaeda at the time of his visit, and that he was only looking for information on charitable projects. The judge found al Kandari’s argument “is not credible on the present record.”

Al Kandari admitted that he saw Osama bin Laden’s spokesman, Sulaiman Abu Ghaith, at the Al Wafa office. And, as the judge noted, al Kandari was aware that Abu Ghaith is a member of al Qaeda. [For more on Sulaiman Abu Ghaith, see LWJ report, Osama bin Laden’s spokesman freed by Iran.]

Al Kandari also conceded that he saw two brothers who are known al Qaeda operatives at the al Wafa office. One of them, Saad Madi Saad Moash al Azmi, was formerly a Guantanamo detainee. Saad al Azmi was given the internment serial number 571 at Gitmo and transferred to Kuwait on Nov. 2, 2005. The judge found that the government presented “uncontroverted evidence” that al Azmi and his brother “were members of, or substantially supported, al Qaeda.” The judge did not give any weight to this evidence, however, because al Kandari did not admit that he knew they were al Qaeda operatives at the time.

Al Kandari offered inconsistent testimony concerning who he met at the Al Wafa office during his interrogations. At one point, al Kandari said he met with Abdallah al Matrafi, whom al Kandari suspected was the director of Al Wafa. Indeed, al Matrafi was an Al Wafa official with ties to Osama bin Laden. Al Matrafi was also once detained at Gitmo, where he was given the internment serial number 005. Despite the fact that al Matrafi reportedly threatened retribution against the US and Saudi governments (he threatened to sever the heads of Americans, according to one declassified memo prepared at Gitmo), he was transferred to Saudi Arabia on Dec. 28, 2007.

Declassified files prepared at Gitmo reveal that al Matrafi met with Osama bin Laden during the summer of 2001. Al Matrafi also met with Taliban supreme leader Mullah Omar. Moreover, Al Wafa has provided supplies, funding, and equipment to al Qaeda fighters, including during the Battle of Tora Bora in late 2001. Al Wafa was also involved in securing supplies for al Qaeda’s pre-9/11 anthrax program. [See LWJ report, Al Qaeda’s anthrax scientist.]

Thus, al Kandari’s ties to Al Wafa are a major red flag, and not evidence that he was a legitimate charity worker.

The Battle of Tora Bora

In late 2001, al Kandari made his way to the Tora Bora Mountains. Al Kandari tried to offer a benign explanation for this, but the judge demonstrated that his story, once again, does not make sense. Tora Bora was a particularly difficult location to access, and al Kandari’s presence there was consistent with Osama bin Laden’s call for reinforcements against US and allied forces. Moreover, the judge found, al Kandari admitted he “was given a Kalishnikov rifle and taught how to use it” and also “met and associated with various members and high-level leaders of al Qaeda, the Taliban, or associated enemy forces.”

The al Qaeda and Taliban leaders that al Kandari admitted meeting included:

Ibn Sheik al Libi. A senior al Qaeda terrorist, al Libi led the Khalden terrorist training camp in pre-9/11 Afghanistan. The Khalden camp graduated many al Qaeda terrorists, including Zacarias Moussaoui. Al Libi was also reportedly involved in al Qaeda’s post-9/11 plotting against US interests around the world.

Abdul Qadous. Al Kandari admitted that “Qadous, like Al Libi, was leading a group of fighters at the time Al Kandari met him in Tora Bora.” Al Kandari “further advised that he had heard Qadous had previously been in charge of the Al Farouq training camp, al Qaeda’s primary Afghan basic training facility.” Al Kandari later tried to deny that he made these admissions, but the judge did not find his denial credible.

Abu Thabit. Al Kandari conceded during one of his interrogations that he met with Abu Thabit in Tora Bora. Al Kandari “further stated that Abu Thabit, whom he identified as a Saudi, was in Tora Bora to help the injured.” The judge noted that al Kandari never retracted this admission, even though it was “against his interest.” In a memo prepared for another case at Gitmo, US intelligence officials noted that Abu Thabit led “one of several al Qaeda groups fighting in Tora Bora,” but was killed during the fighting.

Mohammed Taha Malu Allah. Al Kandari explained that this Kuwaiti al Qaeda leader was known as Abu Sulaiman and that he met with him when they both lived in Kuwait. (This al Qaeda leader is not to be confused with Sulaiman Abu Ghaith.)

Abu Harnza al Masri. Abu Sulaiman told al Kandari during one conversation that Abu Hamza, who was injured, was an al Qaeda member.

The government presented evidence to the court that each of the five terrorists listed above was, in fact, an al Qaeda or Taliban leader. The judge credited the government’s evidence in each case. Given that al Kandari admittedly was armed at Tora Bora, shown how to use the weapon, and met with the senior al Qaeda terrorists listed above, the judge found it was unreasonable to assume al Kandari just happened to be at the wrong place at the wrong time.

Faylaka Island attack on Marines

On Oct. 8, 2002, two al Qaeda operatives opened fire on US Marines who were training on Faylaka Island in Kuwait. One Marine was killed and another was wounded. As explained by Stewart Bell in his book, The Martyr’s Oath, the gunmen were recruited and indoctrinated by Sulaiman Abu Ghaith – the al Qaeda spokesman whom al Kandari met at the Al Wafa office in Kabul.

Intelligence cited in Judge Kollar-Kotelly’s opinion indicates that Fayiz al Kandari also played a role in recruiting the cell.

One of the gunmen in the Faylaka Island assault was a Kuwaiti named Anas al Kandari, who was killed in the firefight. According to declassified documents produced at Guantanamo, Fayiz al Kandari is related to Anas al Kandari. (They are most likely cousins.) In addition, the two received training along with Sulaiman Abu Ghaith at one of Osama bin Laden’s training camps in pre-9/11 Afghanistan.

In a memo prepared at Gitmo for Fayiz al Kandari’s case, US military officials explained:

The detainee is related to one of the al Qaeda members responsible for the attack on U.S. Marines on [Faylaka] Island, Kuwait on 8 October 2002. This relative is considered by his peers as among the best al Qaeda cadre. Additionally, the detainee, Salayman Abu Ghayth, and the detainee’s relative attended an airport training camp near Qandahar.

Fayiz al Kandari was repeatedly asked about Anas al Kandari during his interrogations. The judge found that Fayiz admitted on at least five occasions that “he met Anas during his visit to the Kabul office of” Al Wafa. Fayiz explained that Anas and his associate, Jassem al Hajeri, “had recently received military training at the Libyan camp in Afghanistan.” Al Hajeri was the second gunman killed during the attack on Faylaka Island.

Fayiz’s admissions were damning. So, in preparing his declaration for his habeas proceeding, Fayiz tried to recant them.

Interestingly, at least one interrogator at Gitmo anticipated that Fayiz would attempt to recant. The judge cited a report that reads:

Interrogator speculates that detainee will realize the mistake detainee made in reference to Anas and Jassem Al Hajeri. Detainee will most likely claim interpreter error in an effort to correct any possible perception of deceptive behavior.

The judge sided with the Gitmo interrogator, finding that Fayiz’s new, unexplained denial was not credible. However, the judge determined that it was not necessary to delve into Fayiz’s ties to the Faylaka Island cell given that other evidence presented to the court was enough to justify Fayiz al Kandari’s continued detention. But it is clear that US intelligence officials believe Fayiz played a prominent role in forming the cell, which carried on with its business even after Fayiz was captured.

The government argued that Fayiz “mentored and advised Anas Al Kandari and other members of the six-person” Faylaka Island cell.

Other allegations

The government presented other allegations against Fayiz al Kandari. As with Fayiz’s ties to the Faylaka Island cell, the judge decided it was not necessary to weigh the intelligence that backed up these allegations because there was already enough evidence to justify Fayiz’s detention.

The remaining allegations are striking, however. Fayiz was allegedly “a close associate of certain high-level leaders and members of al Qaeda and/or the Taliban,” including Osama Bin Laden. Fayiz “served as a religious leader and provided religious training to al Qaeda and Taliban members” and also “engaged in the creation and dissemination of propaganda on behalf of al Qaeda and/or the Taliban.” Declassified memos prepared at Gitmo note further that Fayiz was an especially effective al Qaeda recruiter responsible for indoctrinating new recruits in jihad.

A declassified memo dated April 28, 2005, includes even more startling allegations. The US officials who authored the memo noted that a “senior al Qaeda member arranged for [Fayiz] to travel to Peshawar” and Fayiz “then traveled from Peshawar to Afghanistan with Saudi Nationals involved in the planning of the 11 September 2001 terrorist attacks.”

The same memo notes that Fayiz’s “name appeared on a list of captured mujahedin found on a hard drive which is associated with Khalid Shaykh Muhammad (KSM).”

No evidence of abuse

In his declaration submitted to the court, Fayiz al Kandari claimed he was abused while in US custody. But Judge Kollar-Kotelly found that Fayiz and his attorneys had “not directed the Court to any other evidence in the record” to support this charge. In addition, al Kandari’s “allegations of abuse” were “limited to a lone paragraph in his declaration” and “are entirely vague and conclusory in nature, lacking any detail as to when and where such abuse allegedly occurred, the nature of the alleged abuse, and/or who was responsible for the alleged abuse.” Fayiz and his attorneys also failed to “link the alleged abuse to any of his statements as a product of coercion.”

While the judge could not find any evidence that Fayiz was abused, military officials at Gitmo have repeatedly found him to be problematic.

The April 28, 2005, memo notes that Fayiz’s “overall behavior has been generally non-compliant” and he has assaulted guards by spitting and “throwing fluids” on them. “A guard found a crude shank in the detainee’s possession,” the memo reads.

Fayiz also “encouraged” his fellow detainees “to cause problems” for the guards at Gitmo and “conduct a strike.” He was also “a regular leader of prayer” and provided religious instruction. Fayiz issued a fatwa that, at one point in time, prohibited his fellow detainees from eating the chicken or meat served at Gitmo because Islamic law supposedly prohibited it.

As US intelligence officials previously explained to The Long War Journal, a detainee cannot be a “big fish” on the inside if he was not the same on the outside. In other words, that Fayiz was considered a religious authority by his fellow detainees is particularly telling.

After all, Fayiz al Kandari was no mere charity worker.

Thomas Joscelyn is a Senior Fellow at the Foundation for Defense of Democracies and the Senior Editor for FDD's Long War Journal.

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