Brother of US 'Enemy Combatant' Released from Guantánamo

On Monday July 28, the U.S. Department of Defense announced that it had transferred three prisoners – a Qatari, an Afghan and a prisoner from the United Arab Emirates – to their home countries from the prison at Guantánamo Bay. Adding that they "were determined to be eligible for transfer following a comprehensive series of review processes," the DoD also claimed that the men's release from Guantánamo is "a demonstration of the United States' desire not to hold detainees any longer than necessary," which "underscores the processes put in place to assess each individual and make a determination about their detention while hostilities are ongoing – an unprecedented step in the history of warfare."

While critics might point out that holding prisoners without an effective screening process, labeling them all as "enemy combatants," to be held without charge or trial, transporting them halfway round the world to an illegal offshore interrogation center, and depriving them of the protections of the Geneva Conventions might also be regarded as "an unprecedented step in the history of warfare," what is distressing about this latest batch of releases (which brings the total number of prisoners released to 506) is that two of the men – those from Afghanistan and the UAE – have left Guantánamo as unknown as they arrived: ghost-like and anonymous, and not even identified by the Internment Serial Numbers which replaced their names for the last five or six years of their life.

As some sort of compensation, however, the third prisoner – Jarallah al-Marri, Guantánamo's sole Qatari prisoner – has been identified, and his story is fascinating for various reasons. Married with children, al-Marri was 28 years old when he was seized by Pakistani forces crossing from Afghanistan to Pakistan in December 2001 at a time when around a third of Guantánamo's total population (at least 250 prisoners) were captured. As I explain in my book, The Guantánamo Files, many of these men were missionaries, humanitarian aid workers, economic migrants or drifters enticed by rumors that the Taliban were crafting a "pure Islamic state in Afghanistan." Others – al-Marri included – had been encouraged to travel to Afghanistan "to participate in the jihad," as described in al-Marri's tribunal at Guantánamo in 2004 or 2005. However, not all of these men were aware of the reality of the jihad, and al-Marri was one of many who stated that he had been tricked.

Arriving in Afghanistan just days before the 9/11 attacks, al-Marri admitted that he had met people in Saudi Arabia who had arranged his trip to Afghanistan, and also admitted attending the al-Farouq training camp (a camp for Arabs, established by the Afghan warlord Abdul Rasul Sayyaf in the early 1990s, but associated with Osama bin Laden in the years before 9/11). However, he only arrived at the camp on September 10, and left the following day, without receiving any training, when the camp was shut down. After hiding out at various locations in Afghanistan – including a stint in the mountains near Kabul – he said that "an individual in Afghanistan arranged for [him] to be smuggled across the border into Pakistan," and that he "crossed the border on a motorcycle, using a gate at which the smuggler seemed to know the guard." He was then seized "while taking a bus from one town to another in Pakistan … after a guard boarded the bus and questioned [him] on his nationality." At no point was he accused of raising arms against U.S. forces, and in his tribunal, at which he authorized his Personal Representative to speak on his behalf, after requesting the services of a lawyer, he explained, "I never fought anyone. I did not want to continue because it was wrong."

In statements made to interrogators, al-Marri elaborated on his misgivings about the situation in Afghanistan. He said that he "was misled" about the jihad and explained that he did not realize, until he was in Afghanistan, that it "was a battle of Muslim against Muslim." He also stated that he "learned after his arrival in Afghanistan that the Taliban were not as good as he was told," and made a point of adding that "he had second thoughts and wanted to return to Qatar after learning that the al-Farouq camp was owned by Osama bin Laden." In addition, when questioned about al-Qaeda, he made a point rarely mentioned by other prisoners: that he did not hear the name "al-Qaeda" until after his capture, because "al-Qaeda, along with all the fighters and trainees, were called Mujahideen."

Despite the fact that he did not undertake military training in Afghanistan, and never raised arms against U.S. forces, al-Marri was treated abysmally in Guantánamo. In 2005, his lawyer, Jonathan Hafetz, reported that "Mr. al-Marri has been in solitary confinement for over 16 months and often goes as long as 3 weeks without being allowed outside his cell for recreation. The lights in Mr. al-Marri's cell remain on 24 hours a day, 7 days a week, and he has been denied adequate bedding and clothing. Mr. al-Marri is able to sleep only 2 hours a night, and his physical and mental health have deteriorated significantly."

In summer 2005, he was one of at least 200 prisoners who undertook a mass hunger strike to protest about their daily living conditions and the injustice of their seemingly endless imprisonment without charge or trial. As a result, although he only weighed 122 pounds (8 stone 10 pounds) on arrival at Guantánamo, his weight dropped to 105 pounds (7 stone 7 pounds) and he was hospitalized and placed on an IV, his situation complicated by a deteriorating heart condition. He explained to Jonathan Hafetz that "the government had a nurse make sexual advances towards him while he was lying in his hospital bed in a vain attempt to convince him to give up his hunger strike."

What has not been made clear about Jarallah al-Marri's case is his relationship with his brother Ali, a legal U.S. resident who was seized by the FBI in Peoria, Illinois in December 2001 and has been held in complete isolation as an "enemy combatant" on the US mainland since June 2003, without charge or trial. Although the government alleges that Ali al-Marri was part of a U.S.-based al-Qaeda sleeper cell, references to him are scant in the documentation relating to Jarallah, and relate primarily to the grand jury indictment of May 2003, in which he was accused of "making false statements to the FBI" in relation to the 9/11 attacks. What is curious is that Jarallah was released from Guantánamo just two weeks after the Fourth Circuit Court of Appeals ruled that, although Ali has some vague right to appeal his untested designation as an "enemy combatant," the President's dictatorial powers, granted in the wake of the 9/11 attacks, remain intact, and he has the right to imprison any American, either citizens or residents, and hold them forever without charge or trial if he believes them to be "enemy combatants."

The timing of Jarallah's release may be coincidental, particularly as Jonathan Hafetz explained to me that he was cleared for release after an administrative review in April, and it may be that, in an attempt to reduce the population of Guantánamo in the wake of the Supreme Court's recent ruling that the prisoners have constitutional habeas corpus rights, his repatriation – and those of his unknown fellow prisoners – was a straightforward process, which enabled a quietly desperate administration to prevent a few more prisoners from challenging the basis of their detention in the District Courts in the coming months.

Certainly, the case against him would, I am sure, appear dismally weak when scrutinized by a proper court rather than the mockery of justice served up at Guantánamo, where, as noted by former insider Lt. Col. Stephen Abraham, the tribunal system was designed merely to rubber-stamp the prisoners' designation as "enemy combatants," without any meaningful way for them to challenge the "evidence" against them. Jonathan Hafetz also wondered if his release was timed to avoid a court showdown over a motion regarding the destruction of evidence relating to Jarallah, which, he stated, "was presumably about to go forward."

I can't help wondering, however, if Jarallah's release was not also timed to remove a potential witness from his brother's case, one who might have exculpatory evidence proving that Ali was a legitimate student in the United States, and that the case against him, which is based solely on information provided by Khalid Sheikh Mohammed during the first few months of his torture in secret CIA custody in spring 2003, is nothing more than a web of lies spun by a prisoner who, as torture victims do, told his captors whatever they wanted to hear to get the torture to stop.