Clive Stafford Smith: Why 17 years on, our job isn’t over at Guantánamo

When Guantánamo Bay was first opened in 2002, then-Secretary of Defense Donald Rumsfeld assured the world that the detainees were the “worst of the worst” terrorists in the world, captured on the post-9/11 battlefield of Afghanistan. On February 19th, 2002, along with two colleagues, I brought the case, Rasul v. Bush, that would extend the rule of law to what was a legal black hole with 780 detainees. By the time the US Supreme Court ruled that the ancient constitutional writ of habeas corpus extended to the detainees, and ordered that we should have access to our clients – June 2004 – I still thought most of the people I would meet there had indeed been on the battle field and we would all have some explaining to do. Back then, the principle that drove me was the simple fact that they deserved due process and a fair trial.

Experience proved me to be wrong. A disproportionate number were totally innocent and did not merit a trial at all. The overwhelming majority of people I met seemed to have had little or nothing to do with the war in Afghanistan – even assuming that it should be deemed a crime triable in the US for an Afghani to take up arms against the US-led invasion in October 2001.

I have a security clearance, so I see the classified evidence, and I was frankly surprised at just how dreadful the US intelligence had been. Some of the explanations for this leaked out from surprising places: former President Pervez Musharraf, for example, boasted in his book In the Line of Fire that at least half of the detainees had been “sold” for bounties to the US by Pakistan. They were sold with a story, normally bogus to induce payment. Many of our Reprieve clients corroborated this – Mohamed el Gharani, for example, was a 14 year old from Saudi Arabia who never got closer to the war than Karachi, a thousand kilometres south, where he was studying English rather than jihad. He was detained as a 26-year old Al Qaida financier for two reasons: first, the mighty US intelligence complex never bothered to get his birth certificate, which would have proved him to be 14 rather than the 26 alleged by the Pakistanis. Second, the US interrogated him about zalat using a Yemeni Arabic linguist – the word means “money” in that dialect. In Saudi, though, zalat means salad or tomatoes, and when Mohammed said he could get zalat anywhere he needed it in Karachi, he was talking about vegetable stalls.

You might laugh at this folly, if the seriousness of torturing him and locking him up for six years without trial did not make you weep.

In the end, by the time Mohammed was shipped out of the prison, every sensible person seemed to have reached the conclusion that Guantánamo had been a blot on the American human rights copybook – even its procreator, President George W. Bush, said it should close. His successor, President Barack Obama, made closure within a year his first promise in office. While President Obama released the majority of remaining detainees, he was unable to empty the prison before he left office. So many people thought the shutters had indeed come down that some Reprieve supporters were confused when we continued to appeal for funds to help release the final detainees.

That was January 2009 and here we are on January 17, 2019, a full decade on. In the White House we have a man who has promised to “load Guantánamo up with bad dudes” and prevent the release of anyone. There are, indeed, forty detainees left there. Reprieve has directly assisted in the liberation of eighty of the 740 who have left. One would think, were the system rational, that these forty – six percent distilled from the original “worst of the worst” – would now be the “worst of the worst of the worst” terrorists in the world.

Far from it. There are 17 “High Value Detainees” (HVDs) and even of these almost half (8) are not slated for what passes as a fair trial in Guantánamo (a military commission). Then there are 23 who are not HVDs – I like to think of them as NVDs (No Value Detainees) – of whom Reprieve represents eight, roughly a quarter. Five of the 23 were cleared for release by all of the main US intelligence agencies, some many years ago, and they remain in their prison cell courtesy of President Trump’s refusal to countenance any releases.

It is telling, if depressingly ironic, that the US Constitution includes a specific prohibition against a “Bill of Attainder” – where a prisoner is held based not on a trial but on legislative or executive fiat. What was deemed a pernicious sin in 1776, provoking the Declaration of Independence, is apparently acceptable to the Trump Administration.

This leaves 18 NVDs who have not been cleared. Again, these are hardly the maniacs one might assume. One of my favourite clients is Ahmed Rabbani. In 2002, he was sold by the Pakistani authorities for $5,000, along with the assurance that he was a man called Hassan Ghul, a notorious terrorist. He insisted – honestly – that he was only a Karachi taxi driver. Yet he was hauled off to the “Dark Prison” in Kabul, where he began his 544 days of CIA-sponsored torture. In the US Senate Report, he is one of a minority of prisoners whose “enhanced interrogation” was not authorized. I have often pondered which is worse – rogue agents torturing Ahmed without permission, or Gina Haspel (the current CIA director) directly telling her underlings to torture someone else? It is a question that we should not be debating in the 21st Century.

Of all the facts in Ahmed’s case, the one that stands out for me is this: One day, perhaps while he was suffering strappado (the Inquisition technique where he was hung from his wrists so that his shoulders slowly dislocated), the Senate report tells us that Hassan Ghul was brought to the same prison for just two days. Ghul was “cooperative” – so one might suppose someone could have asked him whether Ahmed was him, or whether he was him. Apparently this did not happen. Then Ghul was released to the Pakistan intelligence service and released. He went back to his wicked ways, and in 2012 he was killed in a US drone strike in Waziristan.

Meanwhile, Ahmed went to a Guantánamo cell, where he must wonder how his son is getting on. The boy who he had not seen since 2002 is almost 18 now. I sometimes think I travel too much to enjoy my own son’s astounding metamorphosis from mewling infant into vivacious ten year old. To be condemned as Ahmed has been condemned, without trial, is itself a crime.

I am proud of what we have achieved in opening up this legal black hole, but when people ask me why Reprieve bothers to continue the battle of Guantánamo Bay, my answer is simple: Until every Ahmed Rabbani is safely back with his child, and until those responsible find it in their hearts to utter that simple word “sorry”, our job will not be complete.