Such is the prevailing disregard for the fate of the remaining prisoners in Guantánamo that last week, when Col. Lawrence Wilkerson, the chief of staff to former Secretary of State Colin Powell, submitted a declaration in a case brought by a former prisoner, in which he stated that George W. Bush, Dick Cheney and Donald Rumsfeld all knew - and didn’t care - that "the vast majority of Guantánamo detainees were innocent," almost no one noticed that one of the remaining 183 men had just lost his habeas corpus petition in a US court.
Only JURIST mentioned the one-page ruling by Judge Henry H. Kennedy Jr., denying the habeas petition of Yasin Qasem Muhammad Ismail, a Yemeni prisoner, even though it brought to 13 the victories secured by the government in the habeas litigation (in contrast to the 34 victories secured by the prisoners themselves).
Judge Kennedy’s unclassified opinion is not yet available. But this seems to be a poor excuse for not attempting to present something of Ismail’s story.
Given that he was just 22 years old at the time of his capture in late 2001 (or 19, according to his lawyer, Marc Falkoff, who claimed that the government had incorrectly recorded the year of his birth as 1979 instead of 1982), it is highly unlikely that there is any truth to allegations that “An individual identified [him] as the Emir of the Bagram front in July 2001 and as being proficient with mines,” or that, as another unidentified “individual” stated, he was “a commander of a military group.”
These are the kinds of allegations that plague the government’s supposed evidence, and in the majority of the 34 habeas petitions decided in favor of the prisoners, judges have been swift to deride claims like these as unreliable, noting, after being given access to interrogation logs and other related material, that they were obtained through the torture, coercion or bribery of other prisoners or of the prisoners themselves.
This does not detract from the fact that Ismail was in Afghanistan at the time of his capture, and that he had, apparently, been there for around two years. Discerning the truth from the shifting allegations over the years – and from Ismail’s confusing appearances before a military tribunal and a military review board – is not easy.
But it also seems probable that he attended the al-Farouq training camp, traveled with others to the Tora Bora mountains, where a showdown took place between al-Qaeda and U.S. forces in November and December 2001, and where he was eventually captured, and, on three occasions while he was in Afghanistan, saw Osama bin Laden make speeches.
In his defense, however, Ismail claimed in his tribunal:
I was not in Tora Bora for more than one day. When the attacks took place, I was not in Kabul, I was in Kandahar. When I went to Kabul, my plan was to go back. I was going to go from Kabul back to Yemen in the hot season. The first day I got to Kabul, I went to the market. Some Afghani people picked me up and said they were security. They drove me to a city that I didn’t know. They took me to a house. I found out I was kidnapped and the people were not security. The house I stayed in was watched. I was told if I left they would kill me. From the first attack until the 26th day of Ramadan. They told me they would take me to a house with Arabs in it. They took me to an Afghani place in Tora Bora. I stayed there one day and they brought a wounded person and another guy called Khaled Egani. They were going to treat the wounded man and then we were all going to go back to Yemen. From there they sold me to the Americans.
This is an unlikely explanation of how Ismail came to be captured, but it is not completely implausible, as there are other documented examples of prisoners being seized by Afghans and held in houses until they were sold either to the Northern Alliance, who then sold them to the US, or to the US directly, and it was a predictable result of a bounty system that offered $5,000 a head for al-Qaeda or Taliban suspects in one of the poorest countries in the world.
In addition, there are problems of ill-treatment – and possibly torture – in Ismail’s case, even though it is probable that Judge Kennedy concluded that his own statements to his tribunal and to one of his annual review boards in Guantánamo were sufficient to find that he was connected to al-Qaeda and/or the Taliban and could continue to be held indefinitely.
At his tribunal in 2004, for example, almost his first words were, "I will talk with you as long as you guarantee me there will be no torture. If it will affect my safety I will say nothing."
He proceeded to explain how, "whenever we spoke to the interrogators we were punished." He added, "We were hit and tortured. Not only did I get hit and punched, they broke my nose. The Americans did this to me. When I arrived in Cuba I got hit in the place where we eat. I got hit on the shoulder and it was very painful. It was dislocated or something. They threatened to break it monthly even when I got to Cuba. They told me I would be here for a long time."
Ismail also told Marc Falkoff that he was subjected to sexual humiliation in Guantánamo. An article published in the Washington Post in February 2005, which discussed the Church Report, a military report into allegations of abuse at Guantánamo, including claims that female interrogators had used menstrual blood – or red ink – in interrogations, noted that:
[Ismail] said he had been interrogated more than 100 times since being "kidnapped" in a marketplace in Kabul, Afghanistan, and brought to Guantánamo Bay. He recounted to his lawyer that when he refused to talk in one interview, a female soldier entered wearing a tight T-shirt. "Why aren't you married?" she reportedly asked [I]smail. "You are a young man and have needs. What do you like?" [I]smail said "she bent down with her breasts on the table and her legs almost touching” him. "Are you going to talk," she asked, "or are we going to do this for six hours?"
Throughout his detention, Ismail has insisted that he only sought military training in Afghanistan, that he was not affiliated with either al-Qaeda or the Taliban, and that he never fought against anyone. As he asked at his tribunal, "Is this type of training forbidden internationally?" His intention may have been to fight in Chechnya, as has been suggested, but without any evidence that he fought anyone it seems, yet again, that the definition of "support" used to determine who can continue to be held indefinitely at Guantánamo is far too sweeping.
If anything, Ismail – and other prisoners who have lost their habeas petitions, like Ghaleb al-Bihani, who served as a cook for Arab forces supporting the Taliban – should have been held as prisoners of war and protected from ill-treatment according to the Geneva Conventions.
On this basis, they could be held until the end of hostilities, and we would now be arguing about whether it is conceivable that an invasion to overthrow the Taliban, which began eight and a half years ago, and which met its immediate aims, leading to the fall of the Taliban as Afghanistan’s government and the election of Hamid Karzai as the Afghan President, is legitimately part of a "war on terror" that might last forever, and that, as a result, even the most minor players in that initial conflict can be detained indefinitely.
As it stands, however, Yasin Ismail – a man who, by all accounts, never took up arms against anyone – remains imprisoned in Guantánamo on an apparently legal basis, and those of us who regard his continued detention as an overreaction, to put it mildly, must also reflect on the fact that, far from being treated humanely for the last eight years, he has been subjected to physical abuse and sexual humiliation for no justifiable reason, but that this is considered irrelevant to the case against him.
Moreover, as was explained last February in "Conditions of Confinement at Guantánamo: Still in Violation of the Law," a report by the Center for Constitutional Rights (CCR), he continues to be subjected to violence in Guantánamo, along with any other prisoner who infringes the prison’s rules to even the smallest degree. Reporting on the activities of the Immediate Reaction Force (IRF), teams of five soldiers who respond to the most minor infractions of the rules with extreme violence, CCR explained:
On the afternoon of January 7, 2009, Yasin Ismail was in one of the outdoor cages of Camp 6 for "recreation" time. The cage was entirely in the shade. Mr. Ismail asked to be moved to the adjoining empty cage because it had sunlight entering from the top. The guards, who were outside the cages, refused. One guard told Mr. Ismail that he was "not allowed to see the sun." Angered, Mr. Ismail threw a shoe against the inner mesh side of the cage, which bounced harmlessly back onto the cage floor. The guards, however, accused Mr. Ismail of attacking them and left him in the cage as punishment.
He eventually fell asleep on the floor of the cage, but hours later he was awakened by the sound of an IRF team entering the cage in the dark. The team shackled him, and he put up no resistance. They then beat him. They blocked his nose and mouth until he felt that he would suffocate, and hit him repeatedly in the ribs and head. They then took him back to his cell. As he was being taken back, a guard urinated on his head. Mr. Ismail was badly injured and his ear started to bleed, leaving a large stain on his pillow. The attack on Mr. Ismail was confirmed by at least one other detainee.
I await Judge Kennedy’s unclassified opinion with some expectation, but I sincerely doubt that he will have succeeded in justifying what happened to Yasin Ismail over the last eight years, or in presenting a valid case for his ongoing detention.
Instead, I believe it will be another depressing example of how the Bush administration’s post-9/11 detention policies continue to make a mockery of justice by tarring certain individuals, who had no connection whatsoever with terrorism, neither as prisoners of war, nor as criminal suspects, but as a unique category of human being – formerly known as "enemy combatants" – that should have been done away with when President Obama came to power 15 months ago.
Note: In Judge Kennedy’s one-page ruling, Yasin Ismail was identified as Yasein Khasem Muhammad Ismael.