Are Guantánamo prisoners really the worst of the worst?

When he was a young man, Musaab al-Madhwani was arrested in September 2002 by Pakistani authorities in Karachi. Before he was sent to Guantánamo he was “in another prison in Afghanistan, under the ground, [and] it was very dark … It was impossible that I could get out of there alive. I was really beaten and tortured,” he told a prisoner review board.

The U.S. alleges that Madhwani, a Yemeni, is an Al-Qaeda operative. However, in 2010, when U.S. District Judge Thomas F. Hogan reviewed the case, he ruled that Madhwani, “young, unemployed, undereducated,” was, “at best, a low-level al-Qaeda figure” who apparently never “even finished his weapons training,” never “fired a weapon in battle” and never “planned, participated in or even knew of any terrorist plots.”  

The U.S. District Court for the District of Columbia failed to see how he “poses any greater threat than the dozens of detainees who recently have been transferred or cleared for transfer.” Yet the judge said that he was lawfully detained.

Madhwani is one of 49 Guantánamo prisoners who are not cleared for release but who are also not charged with crimes — the forever prisoners who may well be transferred to the U.S.

While some of them could be the worst of the worst, there is insufficient public evidence that backs up that claim.

Russian prisoner Ravil Mingazov was, at one time in his life, a successful dancer. He won his habeas corpus lawsuit in May 2010. The court found that there was a lack of evidence to back up the government’s claims against him, stating that the U.S. had “not demonstrated that Mingazov was ‘part of’ the command structure of any terrorist organization.” The U.S. government appealed, and the case has not been reheard.

A federal judge ordered “Guantánamo Diary” author Mohamedou Ould Slahi freed in 2010. The government appealed that ruling as well. 

This category of prisoners who cannot be charged but cannot be freed is “the product of an overblown national security state that continues to generate new rationalizations to perpetuate itself,” said Jonathan Hafetz, one of Slahi’s lawyers. “It has no legal or factual basis. The purpose of the description is to cover up shoddy intelligence and a misguided plan to render people to Guantánamo without any end game. Obama adopted this position and, in that sense, is partly to blame for the failure to close Guantánamo.” 

In fact, as many as two dozen forever prisoners would consider pleading guilty in federal court to material support crimes or conspiracy, according to the Center for Constitutional Rights. 

Uthman Abdul Rahim Mohammed has been held for almost 14 years. The U.S. claims that he is a member of Al-Qaeda and was a bodyguard for Osama bin Laden. However, a source for that later claim is former prisoner Yasim Muhammed Basardah. Basardah has provided information on at least 60 prisoners at Guantánamo, and as The Washington Post reported, “not a single man identified by Basardah as training at [an Al-Qaeda] camp during a specific time frame was in Afghanistan during that period.”

Basardah made the same claim of “bodyguard for Osama bin Laden” — and at least two other claims — against Moath al-Alawi, whom a Guantánamo review board recently decided must continue to be held. 

Hundreds of claims in the prisoners’ Joint Task Force reports released by WikiLeaks are from the testimony of other prisoners, are poorly sourced or include caveats. For the prisoners’ testimony, some reports even state, “These statements are included without consideration of veracity, accuracy, or reliability.”

Only a handful of these forever prisoners were captured by the U.S. One was apparently captured by Georgian authorities, another by Somalia and one by Kenyan anti-terrorism police. In at least one account — that of Khaled Qasim — there is “no official reporting on the detainee’s capture.”

Most of these 49 men were taken captive by Pakistani forces, in some cases in exchange for a bounty. Former Pakistani President Pervez Musharraf, wrote in his memoir, “We have captured 689 and handed over 369 to the United States. Various Pakistani individuals have earned bounties totaling millions of dollars.”

The Pentagon did not reply to questions from Al Jazeera America in time for publication.

And then there are the forever prisoners like Zain Abidin Mohammed Husain Abu Zubaydah. The Bush White House called him “a key terrorist recruiter, an operational planner and a member of Osama bin Laden’s inner circle.”

Abu Zubaydah is mentioned 1,001 times (not including redactions) in the Senate Intelligence Committee torture report. His torture was so extreme it “had a profound effect on all staff members present,” the report said. However, as his lawyer Joseph Margulies has pointed out, “Tucked away on page 410 is the CIA’s additional frank admission ‘that Abu Zubaydah was not a member of Al-Qaeda.’”

When the CIA's so-called black sites were emptied, some of the men in them, including Abu Zubaydah, were transferred to Guantánamo. 

Some 20 prisoners in this category of forever prisoners had been held by the CIA, and for most, there are few details about their treatment. 

Without implying that Abu Zubaydah may be guilty of any wrongdoing, Margulies said, “No responsible official from either the Bush or Obama administrations has ever suggested that he could not be prosecuted.”

On the contrary, Margulies said, “Federal prosecutors were detailed to his case years ago. I realize that some people support indefinite detention because they claim that CIA torture has made a federal trial impossible. But I have never been impressed with arguments that reward misconduct. Having deliberately made a lawful trial impossible, the suggestion that the United States should now be allowed to hold people beyond the law is not a position I can endorse.”

In some cases, prisoner behavior while detained in Guantánamo has been cited in part as a reason for continued detention.

Khalid Ahmed Qasim, for example, was one of only a few men who were not cleared by a Guantánamo parole-like board. Among the reasons the U.S. said he had to be detained was the prisoner’s “high level of significant noncompliance while in detention, including persistent and serious offenses against the guard force, as well as his expression of extremist views and anti-American sentiments while in detention.”

“Compliance with the rules appears to have little relationship to whether the detainee is affiliated with terrorism,” said his lawyer, Clive Stafford Smith, who has helped in representing 85 prisoners. “Noncompliance appears to have little or no relationship to the detainee’s chances of rehabilitation.” 

These 49 men — most held for almost 14 years — have not had a meaningful chance to have their cases heard. According to many of their lawyers, they want that right.

And they want to move on. Mansoor al-Zahari is the most recent prisoner moved to the cleared-for-release category. “I do not want the Guantánamo experience to affect the rest of my life," he said. "What has been done, is done … I miss my life and my freedom. I miss the world.”