Judge Orders Release of Guantánamo’s Forgotten Child

By Andy Worthington, AlterNet. Posted January 16, 2009.

A case without evidence

This is distressing enough, in and of itself, but as Judge Leon revealed yesterday, this sustained mistreatment took place even though the authorities had no case against El-Gharani. Although he insisted, for over seven years, that he "traveled to Pakistan from Saudi Arabia at the age of 14 to escape discrimination against Chadians in that country, acquire computer and English skills, and make a better life for himself," and that he "remained there until his arrest," the government claimed that he "arrived in Afghanistan at some unspecified time in 2001," and was "part of or supporting Taliban or al-Qaeda forces," because he

(1) stayed at an al-Qaeda-affiliated guesthouse in Afghanistan;

(2) received military training at an al-Qaeda-affiliated military training camp;

(3) served as a courier for several high-ranking al-Qaeda members;

(4) fought against US and allied forces at the battle of Tora Bora; and

(5) was a member of an al-Qaeda cell based in London.

In his ruling, Judge Leon demolished the government's claims with the same dispassionate rigor with which he demolished the claims -- from a single, unverifiable source -- against five of the six Bosnian Algerians whose release he ordered in November.

"Unlike most of the other cases reviewed to date by this Court," Leon wrote, the government's supposed evidence against El-Gharani consisted "principally" of statements made by two other prisoners at Guantánamo. "Indeed," he added, these statements are either exclusively, or jointly, the only evidence offered by the Government to substantiate the majority of their allegations," and, in addition, "the credibility and reliability of the detainees being relied upon by the Government has either been directly called into question by Government personnel or has been characterized by Government personnel as undermined."

Dismissing the allegations, one by one

Dismissing the allegation that El-Gharani stayed at an al-Qaeda-affiliated guesthouse, Leon explained that the government "relies "exclusively on the statements of a particular Guantánamo detainee whose reliability had been characterized by the Government's own interrogators as undermined," and added that the account was "plagued with internal inconsistencies."

Dismissing the allegation that El-Gharani took part in the battle of Tora Bora, Leon explained that the government "relies exclusively on a different detainee, to establish this fact," but that this prisoner's credibility has also been "seriously called into question by Government personnel who have specifically cautioned against relying on his statements without independent corroboration." He added that the government "did not produce any such corroboration."

Dismissing the allegation that El-Gharani attended an al-Qaeda-affiliated training camp, Leon explained that the government "pointed to statements of both of the detainees described above." However, after noting that he suspected that the government believed that this constituted corroborating evidence, he dismissed both accounts, because, "when viewed together, [they] are not factually compatible, each placing the petitioner at the camp at different points in time, multiple months apart, during the year 2001."

Dismissing the allegation that El-Gharani was an al-Qaeda courier, Leon explained that, although this claim relied on classified evidence -- "which did not include statements of any other detainees" - the information was "woefully deficient to establish this point by a preponderance of the evidence." He added, "besides having internal inconsistencies, the Government's evidence raises serious questions about whether certain alleged al-Qaeda correspondence was even on the person of the petitioner as opposed to one of eight other individuals who were turned over to U.S. authorities at Kandahar at the same time as petitioner."

And finally, dismissing the allegation that El-Gharani was a member of an al-Qaeda cell in London in 1998, Leon explained that the government was "relying exclusively on the statements of the detainee whose reliability is described above as being undermined." This was, indeed, the most extraordinary allegation, as El-Gharani was just 11 years old at the time, and, as his lawyer, Clive Stafford Smith, explained in his book, The Eight O'Clock Ferry to the Windward Side: Seeking Justice In Guantánamo Bay, "he must have been beamed over to the al-Qaeda meetings by the Starship Enterprise, since he never left Saudi Arabia by conventional means."

Leon's verdict was marginally less colorful, but no less devastating. "Putting aside the obvious and unanswered questions as to how a Saudi minor from a very poor family could have even become a member of a London-based cell," he wrote, "the Government simply advances no corroborating evidence for these statements it believes to be reliable from a fellow detainee, the basis of whose knowledge is -- at best -- unknown."

See more stories tagged with: supreme court, barack obama, al-qaeda, clive stafford smith, guantánamo, judge richard leon, muaz al-alawi, hisham sliti, mohammed el-gharani

Andy Worthington is a writer and historian, and author of The Guantánamo Files.

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