Interrogation versus De-Briefing

I found an interesting article by Marc Thiessen here about a meeting Thiessen had with CIA interrogators in 2006 in which the CIA interrogators described the difference between interrogation and de-briefing. As the files on Guantanamo detainees reveal in great detail, the intelligence gathered in Guantanamo over the years has been extremely valuable, not simply information on pending attacks, but also information on the building blocks of the terror network - travel routes, guesthouses, recruiters, training, and more. Many on the left argue that such information is worthless because it is based on "torture" when in fact it is based on piecing together information from interrogations and cross-checking with differents kinds of information such as computer databases from safehouse raids or information gained from foreign intelligence agencies. But Thiessen's article also points out that enhanced interrogation techniques, or "torture" as the left says, was not used to gain information, but to break down resistance and gain cooperation. Only in subsequent de-briefings did interrogators seek to find out what a detainee knew.

It might be objected that de-briefing still entailed a measure of coercion, because the memory of enhanced interrogation presumably makes a detainee believe that de-briefing will resort back to enhanced interrogation if he resists and stops talking. Thus, the threat of enhanced interrogation means that de-briefing still amounts to interrogation under duress.

However, the article contains an interesting nugget about the interrogations of Abu Zubaydah:

Indeed, the first terrorist to be subjected to enhanced techniques, Zubaydah, told his interrogators something stunning. According to the Justice Department memos released by the Obama administration, Zubaydah explained that “brothers who are captured and interrogated are permitted by Allah to provide information when they believe they have reached the limit of their ability to withhold it in the face of psychological and physical hardship.” In other words, the terrorists are called by their religious ideology to resist as far as they can — and once they have done so, they are free to tell everything they know.

Several senior officials told me that, after undergoing waterboarding, Zubaydah actually thanked his interrogators and said, “You must do this for all the brothers.” The enhanced interrogation techniques were a relief for Zubaydah, they said, because they lifted a moral burden from his shoulders — the responsibility to continue resisting.

The importance of this revelation cannot be overstated: Zubaydah had given the CIA the secret code for breaking al-Qaeda detainees. CIA officials now understood that the job of the interrogator was to give the captured terrorist something to resist, so he could do his duty to Allah and then feel liberated to speak. So they developed techniques that would allow terrorists to resist safely, without any lasting harm. Indeed, they specifically designed techniques to give the terrorists the false perception that what they were enduring was far worse than what was actually taking place.

The article then proceeds to delineate a number of plots that were disrupted. But the point is that Zubaydah himself described the effect of enhanced interrogation as releasing him from a duty to resist, thus providing a kind of validation of the accuracy of any statements made under de-briefing.

The Case of Fouad Mahmoud al Rabiah

Two weeks ago, a friend emailed me two links to Andrew Sullivan's Daily Dish blog (see here and here) about the case of Fouad Mahmoud al Rabiah, who was recently released from Guantanamo Bay. In his post, Sullivan claims "they tortured a man they knew to be innocent." As someone who has spent over a year studying the government files on Guantanamo detainees, I started to look into this case, reviewing the government files and the Court's decision, as well as Sullivan's posts and other writings by commentators such as Andy Worthington. The following is the first installment of a long post addressing this case (i.e. it is a work in progress), focusing primarily on flawed reasoning in the Court's decision, but also highlighting the conspiracy-minded hyperbole of Sullivan and his fellow anti-Gitmo activists.

The Case of Fouad Mahmoud al Rabiah

On December 9, 2009, the U.S. Department of Justice issued a press release informing us that “Fouad Mahmoud al-Rabiah, a Kuwaiti national, has been transferred from the detention facility at Guantanamo Bay to the control of the government of Kuwait.”[1] The transfer followed on the heels of a decision by DC Circuit Court Judge Colleen Kottar-Kotelly on September 17, 2009, which “ruled that al-Rabiah may no longer be detained under the Authorization for the Use of Military Force and ordered the government to release him from detention at Guantanamo Bay.”[2]

Judge Kottar-Kotelly has already issued one specious ruling in the case of Khaled al Mutairi, as shown in detail by Thomas Joscelyn here. In the case of Fouad Mahmound al-Rabiah, she disappoints once again. In her decision, she demonstrates a disturbing amount of willful ignorance and an inability or unwillingness to assess the meaning of the very facts she cites. Her conclusions are primarily based on a rejection of confessions and third-party witness testimony either because they are based on “abuse” and “coercion” (i.e. threats of rendition and sleep deprivation) or because they are full of inconsistencies and “implausibilities” (much of which we cannot evaluate because of redactions). But even if we grant her assessment of confessions and third-party witness testimony, we are still left with a set of unexplained facts that simply do not add up to the conclusions drawn by the decision.

Here is what we know from the decision, the government files on al-Rabiah, and open-source reporting that is basically indisputable. Al-Rabiah volunteered as a “charity worker” in Bosnia in 1994 and 1995 in association with the Revival of Islamic Heritage Society. The Court notes RIHS was designated as a terrorist organization by the U.S. in January 2002, but says there is no evidence in the record that RIHS supported terrorist activities while al-Rabiah was associated with RIHS. Actually, there is plenty of evidence, whether it made it into the record or not. First, the designation of RIHS as a terrorist entity in January 2002 was based on research into activity that occurred prior to that date, so almost by definition the Court contradicts itself because such a designation must be based on activity prior to that date. That is, the date of designation is almost irrelevant. But more importantly, there is a mountain of evidence showing that RIHS was integrally involved in the support of jihadist activities as far back as 1992, in places such as Bosnia, around the same time al-Rabiah served in Bosnia.

But this only establishes guilt by association. The Court then assesses the allegations that al-Rabiah traveled to Afghanistan in July 2001, where he met or saw Osama bin Laden, and October 2001, when he allegedly fought for and served as a logistics and supply coordinator for Taliban and al Qaeda forces at Tora Bora in the run-up to his capture on December 25, 2001. First, the Court does not seem to dispute that he met or saw Bin Laden in July 2001, but minimizes its significance and rejects allegations that (1) he went to Afghanistan as a jihadist, (2) that he met with senior officials of the al Wafa “charity” organization, and (3) that he gave a suitcase full of money to Bin Laden – all because of inconsistencies in testimony and confessions mentioned above. The Court does not highlight that al-Rabiah's “alias was on a list of individuals obtained from an alleged al Qaida residence in Pakistan” and that the “list showed individuals with safety deposit boxes in Afghanistan and the amount of money taken from each to be added to the budget.”[3]

More disturbing, however, is that the Court generally attaches little weight to meeting Bin Laden, as if any charity worker could get close to Bin Laden. This constitutes a fundamental failure to understand the intense screening process through which one must pass before anyone ever gets close to Bin Laden. As Peter Bergen, who interviewed Bin Laden in 1997, wrote in his book Holy War, Inc.: “When you go looking for Osama bin Laden, you don't find him: he finds you.”[4]

This fundamental failure is all the more egregious when the Court acknowledges testimony in which al-Rabiah says he was not searched upon entering a home in Kandahar where he allegedly met Bin Laden, but then cites the same testimony in which al-Rabiah “explained how another person arrived at the home and was searched because guards ‘checked everything before [a person] get[s] close to Bin Laden.’”[5] The Court believes it has found an “inconsistency” - i.e. al-Rabiah, in the same testimony (his CSRT testimony), says he was not searched but in reference to another person says guards checked everything before you get close to Bin Laden.

This "inconsistency" is supposed to show that “far from raising the inference that the details in Al Rabiah's confessions were too specific to be imagined, the specific details are often inconsistent and lead to the opposite inference which is that the confessions lack credibility.” But al-Rabiah never said “guards” checked everything; he said “they” checked everything. There is a difference between armed guards outside the door of a home and professional screeners who oversee access to Bin Laden long before anyone gets to the door of his home. Lost in its attempt to mock the government’s case, the Court exhibits a fundamental ignorance about the nature of terrorist organizations, not to mention a disturbing laziness in equating “guards” with “they”.

Thus, it is perfectly plausible that al-Rabiah may have already been connected to the jihadist network through contact with individuals who were connected to Bin Laden and al Qaeda. This is consistent with his travel to Afghanistan through Dubai, Tehran, and Mashaad, a known jihadist travel route used by several men who were also eventually shipped to Guantanamo. The Court also discusses his work at an office job for Kuwaiti Airlines, and also his work as owner of Summit Health Club and manager of Isla Health Club in Kuwait, where he was allegedly recruited by jihadists to go to Afghanistan. It does not give any consideration to the fact that Isla was located in a building owned by the Muslim Brotherhood, a fact which coincides with allegations that the health club in which al-Rabiah worked was frequented by recruiters for the jihadist network.

Ultimately, the Court concludes that al-Rabiah returned to Afghanistan in October 2001 to fulfill a fact-finding mission associated with charity obligations. Because of its assessment that al-Rabiah went as a charity worker, the Court dismisses the government’s case that his travels through Tora Bora were in support of Taliban and al Qaeda forces. The government explains that al-Rabiah’s “travel to Jalalabad and then to the Tora Bora mountains matched the movements of Taliban and al Qaeda fighters prior to the Battle of Tora Bora,” in which “Usama bin Laden began to marshal his forces in the vicinity of Jalalabad in mid-November 2001.”

The Battle of Tora Bora took place between December 6-18, 2001, and al-Rabiah was captured on December 25, 2001. According to the Court, while “[t]he Government argued that the route and timing of Al Rabiah’s travel through Afghanistan raise the inference that he decided to become part of the forces of al Qaeda….The Court does not credit this argument…” because it “has already found that it is more likely than not that Al Rabiah traveled to Afghanistan in October 2001 for charitable purposes” and because “[h]is route and timing of travel are consistent with his stated intentions” as described in a letter to his family.”[6]

Al-Rabiah says he tried to leave Afghanistan through Iran but the border was closed, so he then wrote a letter to his family informing them he would travel across Afghanistan in four trucks with his companions to reach Peshawar and thus return to Kuwait via Pakistan. This was on October 18, 2001. He was captured on December 25, 2001. The Court would have us believe that his October 18 letter establishes that he was a mere charity worker en route to Peshawar, and the government is wrong to make any inferences about connections to al Qaeda or the Taliban simply because he was captured in the same area where Bin Laden and his cohorts consolidated and retreated in the wake of American bombings.

The problem with the Court's reasoning is that it does not explain why it took him more than two months to travel across Afghanistan before reaching Jalalabad, where he was captured, en route to Peshawar, his supposed destination. Even granting that his October 18 letter asked his brother to inform his boss at Kuwaiti Airlines that he could not cross into Iran, wouldn’t he try to expedite the trip to Peshawar in order to get back as quickly as possible? Or did he request permission to be on leave for an additional two months? These questions are not asked. The best the Court does is to acknowledge that al-Rabiah has provided “sparse” support for his case, but the Government, and not al-Rabiah, bears the burden of proof (true enough).

In short, the Court dismisses the allegations against al-Rabiah by delineating flaws and inconsistencies in testimony and confessions, much of which we cannot assess but seem to indicate, in part, frustrations on the part of interrogators trying to make sense of inconsistencies in testimony and conflicting pieces of information that are all too natural in an intelligence-gathering effort. It also takes shots at some of the arguments put forward by the government because they supposedly do not make sense when in fact they do, but I will address these points below. Naturally, the anti-Gitmo activists have eaten it up (see here, here, and here), but essentially they accept the decision blindly, failing to ask basic questions about the facts and reasoning of the Court. Perhaps the most unfortunate aspect of the decision is that it serves to reinforce the baseless preconceptions of anti-Gitmo activists that Gitmo has been no more than a systematic attempt to manufacture evidence via torture against innocent men. This sheer fabrication reflects only ignorance and a failure to challenge the flawed reasoning of the men who preach to the choir, such as Andy Worthington, and as we see below, Andrew Sullivan.

Hyperbole at the Daily Dish

Following the decision, Andrew Sullivan posted his reaction at the Daily Dish. He also published an email from a trial attorney at the Department of Justice professing horror at a passage cited in the Decision that supposedly indicates that agents of the U.S. government sought a confession from al-Rabiah in spite of their ostensible conviction that al-Rabiah was innocent of the charges against him. The two posts can be found here and here. Sullivan also linked to an article published at Huffington Post by Andy Worthington, titled “A Truly Shocking Guantanamo Story: Judge Confirms That an Innocent Man Was Tortured to Make False Confessions.”[7]

I usually ignore the polemics of activist-minded critics such as Sullivan and Worthington, but I could not help but express dismay at the poor reasoning and distortion of facts scattered throughout their discussions of the case, to say nothing of the Court’s decision. In a sense, I should not be surprised. Worthington’s book The Guantanamo Files is replete with factual errors and errors of omission. In his other writings, he merely rehashes an almost ideological narrative that Gitmo represents a systematic attempt by Bush and Cheney to manufacture evidence via torture used to detain innocent men. As is often the case for such sweeping and quasi-ideological claims, an examination of the details reveals a far more complex set of circumstances.

But my purpose here is not to engage in ad hominem attacks or even to make a definitive case for the innocence or guilt of al-Rabiah. Nor is my purpose to be a flag bearer for the Bush administration, which surely made plenty of mistakes in its time. Rather, it is to show how egregiously Sullivan and Worthington distort the truth about the case, and warp how we think about Guantanamo and the nature of the terrorist threat.

The Sullivan Posts

The first post by Sullivan is titled “They Tortured a Man They Knew to Be Innocent.” Sullivan begins by writing: “The permanent danger of torture through human history is that it can be used by the torturers to manufacture or ‘create’ evidence through confession.”[8] He continues:

When neoconservatives, at the peak of their hubris, bragged that they could create reality, they weren't kidding. Torture is the most effective means of creating reality because of this dynamic. What better evidence is there that someone was an al Qaeda member than that he confessed to it? And torture can get victims to confess to anything if they are tormented enough.

And so when Rumsfeld and Cheney and Bush repeated that all the inmates at Guantanamo Bay were “the worst of the worst”, they were merely telling us what they were intent on proving. There was no way independently to confirm this lie - because no one else could see inside their circle of torture and abuse. No one else could subject their claims to independent scrutiny at the time. And if it were not for the Supreme Court, we might never have been able to do anything but take Bush's word for it.[9]

Notice how Sullivan waves around words and phrases like “neoconservatives,” “bragged that they could create reality,” and “they were merely telling us what they were intent on proving.” This all sounds childishly conspiratorial, and takes for granted that we all agree what a “neoconservative” is. It even seems an amazing feat of telepathy, even hubris, to claim to know that when “neoconservative” Bush administration officials described the inmates at Guantanamo as the “worst of the worst,” they were “telling us what they were intent on proving.”

Never mind that Douglas Feith, Under Secretary of Defense for Policy in the Pentagon during the Bush administration, has claimed that Rumsfeld “hated the very idea of being a jailer” and “looked at the entire idea of running a detention center with revulsion.”[10] Even more to the point is that, in the first months after the war in Afghanistan began, the U.S. military captured as many as 70,000 Taliban and al Qaeda fighters, screened more than 10,000, and sent 779 people to Guantanamo, according to a Pentagon fact sheet cited by Gordon Cucullu in his book Inside Gitmo.[11] Cucullu writes: “Most Americans are completely unaware of the sheer magnitude of the number of enemy combatants screened and tactically interrogated. Of that rather vast number, a tiny one-tenth of 1 percent…were deemed of such high intelligence value or posed such severe threat potential that they needed to be securely confined and thoroughly interrogated.”[12]

In other words, the men who landed in Guantanamo were not arbitrarily or randomly rounded up in the chaos of war in Afghanistan and simply shipped to Guantanamo. Unlike Sullivan, I cannot say myself what was in the minds of senior Bush administration officials at the moment when they described the inmates as the “worst of the worst,” except to point to a Pentagon fact sheet that indicates a screening process was in place that resulted in the release of the overwhelming majority of people captured in the initial rounds of war in Afghanistan.

Sullivan and Worthington will naturally challenge this screening process as not being subject to the auspices of international law or the U.S. Constitution, though they nevertheless must concede that the screening process resulted in the release of the overwhelming majority of those captured. Even so, one cannot help but wonder how international law and the U.S. Constitution were to apply in the “chaos of war” in which normal standards of discovery and due process can be impossible to conduct. The Court Decision granting Rabiah’s petition for a writ habeas corpus seems to acknowledge this point when it says that hearsay evidence may be permissible:

The Court finds that allowing the use of hearsay by both parties balances the need to prevent the substantial diversion of military and intelligence resources during a time of hostilities, while at the same time providing Al Rabiah with a meaningful opportunity to contest the basis of his detention.[13]

The capture and continued detention of suspects was in support of an overall military and intelligence effort – not a criminal justice investigation – and intelligence collection aimed at supporting the war effort has a vested interest in obtaining useful and accurate intelligence. (This is to say nothing of the vested interest in keeping terrorists from continuing to support operations against the U.S., as well as the ever-present concern to avoid – if only for the practical purpose of keeping positive public relations – the detention of innocent, and thus useless, men.) As described by the Pentagon fact sheet:

The U.S. follows an extensive, multi-step process for determining who is detained as an enemy combatant and which enemy combatants should be transferred to Guantanamo.
Assessments in the Field. First in a hostile environment, soldiers detain those who are posing a threat to U.S. and coalition forces based on available information or direct combat. After a period of initial detention, they are sent to a centralized holding area.

Centralized Assessments in Area of Operations. A military screening team at the central holding area reviews all available information, including interviews with detainees. With assistance from other U.S. government officials on the ground (including military lawyers, intelligence officers, and Federal law enforcement officials) and considering all relevant information (including the facts from capture and detention, threat posed by the individual, intelligence value, and law enforcement interest) the military screening team assesses whether the detainee should continue to be detained and whether transfer to Guantanamo is warranted.

General Officer Review. A general officer designated by the combatant commander makes a third assessment of those enemy combatants who are recommended for transfer to Guantanamo. The general officer reviews the central holding area screening teams’ recommendations. When determining whether a detainee should be transferred, the combatant commander considers the threat posed by the detainee, his seniority within hostile forces, possible intelligence that may be gained from the detainee through questioning, and any other relevant factors.

DOD Review. DOD officials in Washington also review those proposed for transfer to Guantanamo prior to transfer. An internal DOD review panel, including legal advisors, reviews the recommendations of the combatant commander and advises the Secretary of Defense on proposed detainee movements to Guantanamo. All available information is considered, including information submitted by other governments or obtained from the detainees themselves.

The Case of Fouad Mahmoud al Rabiah

In spite of all this, Sullivan believes he has found an actual case in which evidence was manufactured via torture to dovetail with the preconceptions of senior Bush administration officials, resulting in the detention of an innocent man. He writes:

Last week we discovered, thanks to the judiciary, a clear example of this tyrannical impulse occurring under Bush and Cheney. We now know that torturing a human being to get proof that he deserved to be tortured was not just a theoretical fear of mine. It happened. If it happened once, it almost certainly happened more often. The temptations are just too great; and when you have clear evidence that Bush and Cheney knew some inmates to be innocent but tortured them anyway to manufacture evidence of their guilt, we know that there was nothing in the character of those two men to restrain the true nightmare scenario.[14]

This is a bold and sweeping claim, implying that Bush and Cheney specifically and deliberately took time out of their schedules to examine the evidence pertaining to “some individuals,” consciously determined that they were “innocent,” and, though fully aware of such innocence, decided to have them “tortured” in order to “manufacture evidence of their guilt.” But the decision addresses only the interrogation of Rabiah by his interrogators, and examines only the existing record produced in the case. No evidence is presented that Bush or Cheney specifically reviewed the evidence against Rabiah, specifically participated in the interrogations, or had any specific say in how to proceed against Rabiah.

The obvious retort is that Bush and Cheney initiated the process by which the U.S. decided to disregard certain sections of the Geneva Conventions, ordered the preparation of facilities at Guantanamo for the detention of innocent men, and implemented a policy of “torture.” But if so, we must go further and consider all the complexities that arise within the framework of a chain of command and the decisions made over time by all the individuals who operate within that chain of command.

The development of policy for use of enhanced interrogation techniques (EIT) was not handed down in a linear, top-down fashion on a particular date with a known set of ex ante conclusions to be drawn from interrogations. These policies evolved over time, and if there is a criticism to be made of the Bush administration, it was that administration officials were often not clear about what exactly they intended to be done at Guantanamo, other than allowing for the detention of enemy combatants and pursuing actionable intelligence about pending threats. The decision itself provides information on this account when it writes:

Although sleep deprivation became authorized at Guantanamo by the Secretary of Defense on April 16, 2003, the guidance issued by the Commander of USSOUTHCOM on June 2, 2003, prohibited the use of sleep deprivation for more than “four days in succession.”[15]

Although allowed by the Army Field Manual, the report issued by the Senate Armed Services Committee explains that the …(redacted)…did not become authorized by the Secretary of Defense for use at Guantanamo until April 16, 2003. Once it became authorized, it could not be used on a detainee until “the SOUTHCOM Commander ma[de] a determination of ‘military necessity’ and notif[ied] the Secretary in advance” of its use. In this case, the Government was unable to produce any evidence that…(redacted)… obtained authorization to use the…(redacted)…technique with Al Rabiah despite requests by the Court at the Merits Hearing for such evidence.[16]

This is a natural outcome in a policymaking environment consumed by fears about pending attacks, as well as the normal delays and interagency bickering associated with the development of policy and its implementation. But lest he make such a flagrant characterization without foundation, Sullivan further implores us:

Go here and read Andy Worthington's vital account of what the case of Fouad al-Rabiah tells us about the abyss the last administration threw us into. Here is the actual judgment, which provides a meticulous and unanswerable account of the extent to which the torture power corrupted the American government in ways usually found in totalitarian regimes.

So I read the account by Worthington, which concludes that the ruling “revealed that the U.S. government tortured an innocent man to extract false confessions and then threatened him until he obligingly repeated those lies as though they were the truth.”[17] I also read the actual judgment granting Rabiah’s petition for a writ of habeas corpus, which Sullivan says “provides a meticulous and unanswerable account of the extent to which the torture power corrupted the American government in ways usually found in totalitarian regimes.”[18]

So, are they right?

Hardly.

As I have already summarized, the decision is not exactly “meticulous,” is far from “unanswerable,” and says nothing about a so-called “torture power” corrupting the American government.

Email from Trial Attorney at Justice Department

I address below the Decision and Worthington’s account of the Decision, but first I offer a brief note about Sullivan’s publication of an email from a reader who claims to be a trial attorney with the Justice Department. This reader is surprised that Sullivan “did not highlight what me and my colleagues agreed was the single most horrifying passage from the Court’s decision. It was the Court’s quotation of something an interrogator said to al-Rabiah during his interrogation. The interrogator told al-Rabiah:

There is nothing against you. But there is no innocent person here. So, you should confess to something so you can be charged and sentenced and serve your sentence and then go back to your family and country, because you will not leave this place innocent.”[19]

Two minor observations: one is the grammatical mistake in which the reader, a trial attorney at the Justice Department no less, uses an object as a subject (the clause should read “…what my colleagues and I agreed…”), and two is that the reader acknowledges he did not work on the case.

That said, it is true enough that the phrase to which the reader cites serves as “evidence” cited by the Judge to bolster her determination of Rabiah’s innocence. The argument is that Rabiah admitted to allegations against him during his CSRT hearing (a formal session in which a detainee has an opportunity to discuss the allegations against him in the presence of military representatives) because he was told his guilt was presumed and he should be cooperative by confessing, so as to commence the process by which he would ultimately be freed.

This would indeed be an unfortunate example of manipulation (note I do not use the word “torture”) by Rabiah’s interrogators, if it were true. I am not saying it is not true, but only wish to observe that Sullivan, his reader from the Justice Department, and Worthington all take for granted that it is true. The Justice Department attorney says “the interrogator told al-Rabiah…”, as if these were the very words that came from the mouth of the interrogator, without acknowledging that Rabiah claims in his declaration that the interrogator told him so, and that the quotation may simply reflect Rabiah’s paraphrase of a statement that he alleges his interrogator made.[20]

This is yet another example of the minimal effort by critics of Guantanamo to question whether detainees are in fact lying. Perhaps the most egregious case involves former Guantanamo detainee Moazzam Begg, who has become a cause célèbre of anti-Gitmo activists in his work with Cageprisoners even though his claim of innocence and his story of abuse are complete fabrications, as described in great detail by Thomas Joscelyn here.[21]

Nonetheless, the decision invokes evidence from the record to support its conclusion that Rabiah’s claims are credible, though the discussion is heavily redacted and it is not possible to fully evaluate the reasoning. However, un-redacted portions indicate that the Court finds Rabiah’s claims are supported by evidence that interrogators abused Rabiah, in violation of the 1949 Geneva Conventions dealing with prisoners of war, as well as the Army Field Manual, because they grew frustrated with his recalcitrance, or with inconsistencies and “implausibilities” in his confessions.

This abuse consisted of threats of rendition and sleep deprivation resulting from placement of Rabiah in the so-called “frequent flier program.”[22] The decision states that the “record is replete with examples of Al Rabiah’s interrogators emphasizing a stark dichotomy – if he confessed to the allegations against him, his case would be turned back over to…(redacted)…so that he could return to Kuwait; if he did not confess, he would not return to Kuwait, and his life would become increasingly miserable.”[23] The Court proceeds to describe, in heavily redacted paragraphs, examples of this abuse, and then delineates the specific instances of rendition threats, also heavily redacted, followed finally by the assertion that rendition threats were “reinforced” by sleep deprivation after interrogators grew frustrated with inconsistencies in his confessions.[24]

The Decision rejects the confessions, quoting the Army Field Manual: “As explained in the Army Field Manual, these ‘prohibited techniques [are] not necessary to gain the cooperation of interrogation sources. In fact, the use of these methods is likely to ‘yield [] unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the interrogator wants to hear.”[25] Lest the Court reject Rabiah’s confessions simply because the Army Field Manual says sleep deprivation does not work, the decision cites the conclusion from subsequent, rapport-based interrogations in which interrogators came to believe that Rabiah’s confessions were not credible.[26]

Embedded in this discussion, the Court writes: “Underscoring the impropriety of these techniques is the fact that…Al Rabiah’s lead interrogator was disciplined for making similar threats during the same period toward a Guantanamo detainee who was also one of the alleged eyewitnesses against Al Rabiah.”[27] That is, an “interrogator was disciplined for making similar threats,” making us wonder exactly how systematic and permissible “torture” was under the policy of enhanced interrogation implemented by the Bush administration. But I digress.

The upshot is that the Court decision rejects the confessions made by Rabiah as unreliable because they are full of inconsistencies, or were induced by “abuse” and “coercion”.

The Decision

The decision observes that, according to Judge Reggie Walton, “the state of the law regarding the scope of the President’s authority to detain petitioners remains unsettled.”[28] Moreover, the Supreme Court was not specific about the “permissible bounds” of the government’s detention authority, and the “D.C. Circuit has not had occasion to address the issue.”[29] Nonetheless, “several judges in this District have considered the scope of the Government’s detention authority and have issued well-reasoned opinions on the subject,”[30] and the Court will take “advantage of these prior decisions” and “adopt the reasoning set forth in Judge John D. Bates’s decision in Hamlily v. Obama, and shall partially adopt the Government’s proposed definition of its detention authority.”[31] Judge Kollar-Kotelly continues:

The Court agrees that the President has the authority to detain individuals who are “part of” the Taliban, al Qaeda, or associated enemy forces, but rejects the Government’s definition insofar as it asserts the authority to detain individuals who only “substantially supported” enemy forces or who have “directly supported hostilities” in aid of enemy forces. While evidence of such support is undoubtedly probative of whether an individual is part of an enemy force, it may not by itself provide the grounds for detention. Accordingly, the Court shall consider whether Al Rabiah is lawfully detained in the context of the following standard:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act in aid of such enemy manned forces.[32]

Thus, according to the Court, “…the ‘key inquiry’ for determining whether an individual has become ‘part of’ one or more of these organizations is ‘whether the individual functions or participates within or under the command structure of the organization - i.e., whether he receives and executes orders or directions.’”[33]

Thus, the Court has decided to evaluate detention authority under a narrow standard for determining the threat status of an individual detainee. As we will see, her decision demonstrates a naïve understanding of the many ways in which individuals may be active in the terrorist network. It also excludes consideration of the elements of the network that make it operational, such as charity organizations that serve as fronts for terrorist organizations or otherwise fund and support terrorist organizations and operations.

The terror networks that threaten the security of the U.S. are enabled by individuals who assume roles such as recruiters, travel facilitators, trainers, financiers, cell leaders, logistics coordinators, guest house operators, screeners, and many other roles that make a terrorist network effective and operational. The Court has decided to focus only on a conventional “soldier” or similar kind of operative who takes orders within the framework of a top-down command structure focused on direct hostilities. This demonstrates glaring naïvete about the sophistication of terrorist networks and operations, and helps to explain why Rabiah’s work with charitable organizations, as discussed below, was determined by the Judge to be innocuous and without ties to terrorist activity.

Rabiah’s Background

According to the Decision, Al-Rabiah is “a fifty year old father of four from Kuwait” who “graduated from AST University in Perth, Scotland, with an aviation maintenance degree in 1981” and went to work for Kuwait Airways as an aviation engineer until he was detained in Afghanistan in 2001. Al-Rabiah took leave from Kuwait Airways in 1986-88 “to obtain a bachelor's degree in professional aeronautics and a master's degree in aviation management from Embry-Riddle Aeronautical University in Daytona Beach, Florida.”[34]

Al-Rabiah also helped create the Summit Health Club in Kuwait, of which he became part owner, and he was hired “to assist with the management of a second health club located on the premises of a charitable organization called the Isla Society.”[35] The Decision neglects to mention that the Muslim Brotherhood owned the building in which the Isla Health Institute/Club was located.[36] But al-Rabiah admits as much in his statement issued at his ARB Round 1 hearing:

I am a business partner in Summits Health Institute and a manager of the Islah Health Club from 2000 to 2001. The Muslim Brotherhood owns the building and we pay monthly rent just like the restaurant next door.[37]

The presence of the Muslim Brotherhood comports with government allegations that al-Rabiah “identified three men who trained at the health club he managed,” one of whom “was a recruiter of the jihadist movement,” another who “left his job during the summer to fight in Afghanistan,” and a third who “safeguarded possessions of mujahid at his house in Kandahar, Afghanistan.”[38]

The decision proceeds to observe that “he has no military training except for two weeks of compulsory basic training with the Kuwait Army, after which he was medically discharged due to a knee injury,” and that at the time of his detention, Al Rabiah was overweight (240 pounds) and suffered from various medical ailments such as high blood pressure and chronic pain in his neck and lower back.”[39]

The decision then discusses al-Rabiah’s history working for charitable organizations, in particular for the Revival of Islamic Heritage Society (RIHS). The Decision writes that “Al Rabiah has a history of traveling to impoverished and/or war-torn countries for charitable purposes,” such as in the years 1994 and 1995, when “Rabiah traveled to Bosnia as a volunteer for the Revival of Islamic Heritage Society.”[40] In addition, Rabiah traveled to Kosovo in 1998 to work as a volunteer for the Kuwait Red Crescent,[41] and traveled to Bangladesh “on behalf of the Patients Helping Fund in April 2000 to deliver kidney dialysis fluid to a facility in Dakka.”[42]

This all seems harmless enough. Indeed, according to the decision, “Rabiah formally requested leave from Kuwait Airlines when he undertook his charitable activities.”[43] Rabiah’s supervisor at Kuwait Airlines says Rabiah had a “spotless attendance record” and “was never absent without leave.”[44] The decision invokes letters associated with Rabiah’s mission to Bosnia and observes that “Rabiah sought and received leave” for his trip to Bosnia, and that “one of the letters even sought an additional week of leave for Al Rabiah when he was unable to timely depart Bosnia ‘due to the siege imposed on it.’”[45] The decision observes that “there is also no dispute that Al Rabiah traveled to Afghanistan for approximately 10 days in July 2001.”[46]

But:

…the parties dispute the reasons for Al Rabiah's decision to travel to Afghanistan in October 2001 (Al Rabiah was on this trip when he was detained and subsequently transferred to Guantanamo Bay). According to Al Rabiah, he traveled to Afghanistan to complete a fact-finding mission related to Afghanistan's refugee problems and the country's non-existent medical infrastructure. According to the Government, Al Rabiah was “not an aspiring aide worker caught up in the front lines of the United States war against al-Qaeda” but instead was someone who traveled to Afghanistan in October 2001 as a “devotee of Osama bin Laden who ran to bin Laden's side after September 11th.”[47]

The decision states that the “evidence strongly supports Al Rabiah’s explanation.”[48] The evidence shows that on September 29, 2001, Rabiah “completed a leave form requesting leave from Kuwait Airlines between October 6, 2001, to October 17, 2001,” and received approval from his supervisor. Rabiah “traveled to Afghanistan knowing that it was likely to become a dangerous place,” but “he had traveled previously to other dangerous places – including Bosnia – for his charitable work.”[49]

According to the government, al-Rabiah “flew from Kuwait to Tehran, Iran via Dubayy” and “then flew to Meshaad, Iran and took a car to Herat,” then “traveled to Kandahar and Kabul, Afghanistan.”[50] The decision does not observe that the route to Afghanistan used by several men who ended up in Guantanamo was paved through Dubai, Tehran, and Mashaad – the same route used by al-Rabiah.[51] In other words, this was a common travel route that brought jihadists to Afghanistan.

Al-Rabiah ended up going to Afghanistan, but was “unable to leave as he had planned.”[52] According to the decision, al-Rabiah wrote a letter to his family on October 18, 2001, “explaining that for ten days he assisted with the delivery of supplies to refugees” but “he was unable to leave Afghanistan through Iran…because the borders had been closed.”[53] He apparently was “told that Iran would not receive him” after he submitted “his passport to Iranian officials at the border” and waited two days for a response.[54] As a result, al-Rabiah informed his family that “he and an unspecified number of other persons decided ‘to drive four trucks to Pakistan’ en route to Peshawar.”[55] He also requested that his brother, who worked at Kuwait Airlines, inform his Personnel Affairs Manager of his circumstances.[56]

Rabiah managed to “travel across Afghanistan toward Peshawar” but was “captured (unarmed) by villagers outside of Jalalabad, Afghanistan…on approximately December 25, 2001,” after which he was “transferred to American custody in Afghanistan.”[57] So, after accounting for Rabiah’s activity between September 29, 2001 and October 18, 2001, explaining how Rabiah obtained leave from his employer for a nearly two-week trip to conduct charity work in Afghanistan, the decision does not explain the two-month gap between his decision to depart for Peshawar and his capture in Jalalabad on December 25, 2001.

It does, however, include an intriguing footnote explaining that “information printed at the top of the (October 18, 2001) letter indicates that it was faxed on November 15, 2001, from a phone number associated with Peshawar, Pakistan,” but concludes that “it is unclear what if anything that the information demonstrates.”[58] According to the Decision:

The Government has never maintained that Al Rabiah made it to Peshawar and then re-entered Afghanistan, and it is unclear what probative value it would have if Al Rabiah gave his letter to someone who faxed it from Peshawar. Moreover, Al Rabiah’s counsel emphasized that the Government’s exhibit listing city and country codes contains an advertisement for phone numbers that can be forwarded through Pakistan….Ultimately, the Court is able to find little relevance associated with this evidence and gives no weight to the parties’ speculation based on the same.[59]

Based on the information in this footnote, the Court is right that we can only speculate on the specific meaning of this November 15 fax date. However, it does occur within the two-month window in which al-Rabiah was traveling “across Afghanistan toward Peshawar” in the wake of American bombings that would culminate in the battle of Tora Bora, as well as the consolidation of forces by al Qaeda and the Taliban that resulted in the retreat from Tora Bora in December 2001. It also seems to be the only information considered in the decision that pertains to anything about what al-Rabiah may or may not have been doing during this two-month window, other than traveling across Afghanistan. The absence of any discussion of this point is an alarming omission in the Court Decision. If he was indeed part of a group traveling in four trucks, why did it take two months to travel from the Iranian border to Jalalabad where he was captured? Wouldn’t he have wanted to expedite his trip since he only had permission to be on leave from Kuwaiti Airlines for the period between October 6 and October 18?

This is a glaring omission. Al-Rabiah insists he was a person of high stature, and an implication from the description of his activity from September 29 to October 18 in 2001 is that it took him at most the seven days from September 29 to October 6 to travel from Kuwait to Afghanistan; at the very least, it certainly did not take him two months to travel from Kuwait to Afghanistan after he completed a leave form on September 29, 2001. Given his claimed high stature, the fact he was traveling with colleagues when stopped at the Iranian border, his ability to send a letter to his family (faxed from Peshawar), and information that he was going to travel to Peshawar in a truck, it would appear that he was not abandoned at the border and forced to walk cross-country to Peshawar. But the decision is content to believe he was merely on his way to Peshawar:

The Government argued that the route and timing of Al Rabiah’s travel through Afghanistan raise the inference that he decided to become part of the forces of al Qaeda. The Court does not credit this argument given the evidence in this case. The Court has already found that it is more likely than not that Al Rabiah traveled to Afghanistan in October 2001 for charitable purposes. Al Rabiah then sent a letter to his family dated October 18, 2001, explaining that he attempted to leave Afghanistan through Iran, but could not do so. He then stated his intention to leave through the Pakistan border and attempt to reach Peshawar, Pakistan. His route and timing of travel are consistent with his stated intentions. On this record, the Court does not find by a preponderance of the evidence that it is more likely than not that Al Rabiah was traveling toward the Tora Bora mountains as part of al Qaeda rather than as a person attempting to cross the border into Peshawar.[60]

So the Court simply proceeds with the details of his capture. Once in custody, al-Rabiah “wrote a second letter to his family” to explain “that he was in ‘good health and condition’ and that ‘[t]he situation in the country turned upside down between one day and night and every Arab citizen has become a suspect,’” but that “he was ‘detained by the American troops and thanks to God they are good example [sic] of humanitarian behavior.”[61] He explained that he would be detained until his “identity and personality” could be verified, and that the process “may last for a long period due to the great number of the detained Arabs and other persons.”[62] Al-Rabiah would eventually be shipped to Guantanamo.

Allegations

The decision notes that the Government’s case rests on three allegations concerning Rabiah’s activities in Afghanistan:

First, the Government asserts that Al Rabiah traveled to Afghanistan for approximately two weeks in July 2001 where he met Usama Bin Laden on four occasions and then returned to Kuwait until his trip in October 2001.

Second, the Government asserts that Al Rabiah fought at Tora Bora and took a leadership position by distributing supplies and managing resource disputes.
Third, the Government asserts that Al Rabiah is part of al Qaeda because he traveled through Afghanistan with members of al Qaeda, stayed at al Qaeda guesthouses, and surrendered his passport to al Qaeda members pursuant to its standard operating procedures.

The Government relies on the first allegation – that Al Rabiah met with Usama bin Laden – only to the extent that it supports the Government’s other allegations in this case, and not as itself a basis for Al Rabiah’s detention.[63]

In pursuing the first allegation, the government cited al-Rabiah’s “association with bin Laden and his history of volunteering for organizations that have now been designated as supporters of terrorism” in order “to show Al Rabiah’s ‘propensities’ and that he acted in conformity with those propensities when he traveled to Afghanistan in October 2001.”

The Court indicates it will evaluate these allegations as such:

First, the Court shall address the alleged eyewitnesses, as to whom the Government has withdrawn substantially all reliance in this case, and explain why none of these witnesses have provided reliable or credible allegations against Al Rabiah.

Second, the Court shall address Al Rabiah’s alleged confessions, on which the Government relies almost exclusively to support his detention, and explain why they too are neither reliable nor credible.

Third, the Court shall briefly address the Government’s few remaining arguments based on the evidence in the record and explain why these arguments do not provide a basis for Al Rabiah’s indefinite detention.[64]

Thus, the Court focuses almost exclusively on confessions and third-party witness testimony. After review of such evidence, “the Court concludes that the Government has not proffered sufficiently credible and reliable evidence to support allegations concerning Al Rabiah’s activities in Afghanistan, and although Al Rabiah has not provided a full explanation for his activities either, the Government and not Al Rabiah bears the burden in this case.”[65] Thus, the Court rejects the allegations against Rabiah because witnesses, confessions made by al-Rabiah, and a “few remaining arguments,” have been discredited and deemed unreliable. The Court observes that “Rabiah has not provided a full explanation for his activities,” but rightly says the Government bears the burden of proving his guilt.

Court’s Reasoning

According to the decision, the “Government did not dispute that Al Rabiah sought two weeks of leave from Kuwait Airlines prior to leaving for Afghanistan or that he wrote these two letters, and did not argue that his request for leave and these letters were part of an elaborate plan to mask his true intentions in Afghanistan.”[66] Instead, it “sought to demonstrate that Al Rabiah made previous trips to impoverished and war-torn countries for terrorism-related purposes and not charity.”[67] The government supported its assertion by presenting evidence “that the Kuwaiti Joint Relief Committee and the Revival of Islamic Heritage Society (two organizations for which Al Rabiah volunteered), have been designated by the United States as organizations that provide financial or other support to terrorist organizations.”[68] The government was attempting to argue “that this evidence supports the inference that Al Rabiah had a history of supporting terrorism, and that he ‘acted in conformity’ with this history when he traveled to Afghanistan in October 2001.”[69]

Indeed, the government alleged, citing witness testimony, that al-Rabiah “worked for a Kuwaiti relief agency in Bosnia in 1995 distributing clothes and food to refuges,” and that he “also gave money out of his own pocket to Arab Mujahedin fighters.”[70] The decision, however, “finds no basis for the Government’s suggested inference because, as the Government conceded at the Merits Hearing, neither of these organizations was designated as a supporter of terrorism at the time Al Rabiah volunteered with them.”[71] The Court further writes that “there is no evidence in the record that these organizations supported terrorism at the time Al Rabiah volunteered for them (regardless of their designations by the United States), or evidence that Al Rabiah had any role involving terrorism or knowledge that these organizations had links to terrorism.”[72] The Decision also mentions that it gives no weight to “one sentence, from one interrogation report” by a particular individual (name redacted) which is used by the Government to support its allegation that al-Rabiah “…has a history of supporting terrorism…,” because of lack of supporting evidence or information that deems the individual witness credible.[73] The decision concludes that “there is no evidence in the record supporting the inference that Al Rabiah was involved with terrorist activities when he previously traveled to impoverished and war-torn locations.”[74]

And there we have it. The government argued that Rabiah “made previous trips to impoverished and war-torn countries for terrorism-related purposes and not charity,” and based its argument on U.S. designation of the Kuwaiti Joint Relief Committee and Revival of Islamic Heritage Society as organizations that provide financial or other support for terrorism. The decision concludes that (1) the Kuwaiti Joint Relief Committee and the Revival of Islamic Heritage Society were not designated as supporters of terrorism at the time when Rabiah served as a volunteer for them, (2) that “there is no evidence in the record that these organizations supported terrorism at the time Al Rabiah volunteered for them,” and (3) that there is no evidence that Rabiah “had any role involving terrorism or knowledge that these organizations had links to terrorism.”[75]

So, “the Government has argued that Al Rabiah traveled to Afghanistan in October 2001 in conformity with his previous connections with terrorist activity, but has failed to proffer reliable and credible evidence in support of that argument,” and hence “the Court concludes by a preponderance of the evidence that Al Rabiah more likely than not traveled to Afghanistan in October 2001 for charitable purposes.”[76] Thus, we are to believe that al-Rabiah traveled to war-torn regions such as Bosnia and Afghanistan to partake in charitable activities as a volunteer for two organizations that had no links to terrorist activity.

Let’s grant (3) for now. How about (1) and (2)? What is to be made of the fact that the Kuwaiti Joint Relief Committee and the Revival of Islamic Heritage Society were not designated as supporters of terrorism at the time when Rabiah served as a volunteer for them? Does this necessarily indicate they were not supporting terrorist activity?

The answer, in short, is no.

The Society for the Revival of Islamic Heritage

On January 9, 2002, the U.S. Treasury Department “designated and blocked the assets of the Afghan Support Committee (ASC), the Afghanistan and Pakistan offices of the Revival of Islamic Heritage Society (RIHS) and two individuals associated with those groups as financiers of terrorism, under the authority of Executive Order 13224.”[77] This is approximately 15 days after al-Rabiah was captured on December 25, 2001, and almost four months after he decided to travel to Afghanistan for a second time to participate in charitable activities and thus requested leave from Kuwaiti Airlines on September 29, 2001. Technically, then, the Court is right that “the Revival of Islamic Heritage Society were not designated as supporters of terrorism at the time when Rabiah served as a volunteer for them.”[78]

According to the Treasury Department, “the ASC and RIHS have financed and facilitated terrorism.”[79] In particular, Abu Bakr Al-Jaziri, ASC finance chief, and Abd al-Muhsin Al-Libi, the Peshawar, Pakistan office director of the RIHS and ASC manager in Peshawar, are among ASC and RIHS personnel who “defrauded well-meaning contributors by diverting money donated for widows and orphans to al-Qaida terrorists.”[80] Moreover, ASC “is a non-governmental organization (NGO) established by Usama bin Laden,” and Abu Bakr Al-Jaziri “served as the head of organized fundraising for Usama bin Laden.”[81] Al-Jaziri also collected funds for al-Qaida in Jalalabad through the ASC,” as well as funds “from local Arab NGOs by claiming the funds were for orphans and widows.”[82] Al-Jaziri “then turned the funds over to al-Qaida operatives.”[83] He moved from Jalalabad to Pakistan in 2000 and “continued to raise and transfer funds for al-Qaida.”[84]

The Revival of Islamic Heritage Society (RIHS) “is a Kuwaiti-based non-governmental organization” affiliated with ASC in Pakistan and Afghanistan.”[85] The Treasury department further notes that the Peshawar, Pakistan office director for RIHS is Abd al-Muhsin Al-Libi, “who also serves as the ASC manager in Peshawar” and “has provided Usama bin Laden and his associates with facilities in Peshawar, and has carried money and messages on behalf of Usama bin Laden.”[86] The Treasury department describes the activities of the RIHS:

The Pakistan office defrauded RIHS donors to fund terrorism. In order to obtain additional funds from the Kuwait RIHS headquarters, the RIHS office in Pakistan padded the number of orphans it claimed to care for by providing names of orphans that did not exist or who had died. Funds then sent for the purpose of caring for the non-existent or dead orphans were instead diverted to al-Qaida terrorists. There is no evidence at this point that this financing was done with the knowledge of RIHS in Kuwait.[87]

This press release was published on January 9, 2002, which means that it is based on research conducted prior to this date. We certainly cannot say when this research took place and how long it took, and how far back in history it goes, but we can certainly say that it had come to its conclusions about RIHS based on research prior to this date. Thus, it is a reasonable inference to draw that the Treasury department was referring to activity that had occurred before the official designation of these organizations. Thus, it may be true that “there is no evidence in the record that these organizations supported terrorism at the time Al Rabiah volunteered for them,” but simply because RIHS was not designated as a terrorist entity until January 9, 2002 does not imply that it was not involved in terrorist activity before this date.

TheTreasury Department writes that “[t]here is no evidence at this point that this financing was done with the knowledge of RIHS in Kuwait.”[91] However, it would later be revealed that RIHS headquarters in Kuwait had, in fact, been involved in the funding and support of terrorist activities. In 2008, the Treasury Department “designated the Kuwait-based Revival of Islamic Heritage Society (RIHS) for providing financial and material support to al-Qa'ida and al-Qa'ida affiliates, including Lashkar e-Tayyiba, Jemaah Islamiyah, and Al-Itihaad al-Islamiya,” and for providing financial support for acts of terrorism.”[92] The Treasury Department elaborated:

The RIHS offices in Afghanistan (RIHS-Afghanistan) and Pakistan (RIHS-Pakistan) were designated by the U.S. Government and the United Nations 1267 Committee in January 2002 based on evidence of their support for al Qaida. At that time, there was no evidence that the Kuwait-based RIHS headquarters (RIHS-HQ) knew that RIHS-Afghanistan and RIHS-Pakistan were financing al Qaida.

Since that time, however, evidence has mounted implicating RIHS-HQ in terrorism support activity. The U.S. Government has learned that RIHS senior leadership, who have actively managed all aspects of the organization's day-to-day operations, have been aware of both legitimate and illegitimate uses of RIHS funds.[93]

The Treasury Department continues:

Suspected of providing support to terrorism, RIHS offices have been closed or raided by the governments of Albania, Azerbaijan, Bangladesh, Bosnia-Herzegovina, Cambodia, and Russia.
In countries where RIHS activities are banned or scrutinized by local governments, RIHS-HQ has developed multiple methods to continue its operations. After the Government of Bangladesh closed RIHS offices, RIHS-HQ funneled money into Bangladesh through another organization to continue RIHS activities and to help shield it from scrutiny there. RIHS-HQ has used RIHS officials and other individuals to courier funds out of the country in order to evade the scrutiny of the international financial system. In some countries, including Albania and Kosovo in particular, RIHS senior officials have assisted RIHS branch offices with name changes, and then continued to provide financial support to the new organizations.[94]

The Treasury Department goes on to describe RIHS support for terrorism in South Asia, Southeast Asia, and in the Horn of Africa. One example relates to support for notorious Jemaah Islamiyah operative Nurjaman Riduan Isamuddin (a.k.a. “Hambali”), a terrorist operative with ties to the 9-11 hijackers:

RIHS has provided financial and logistical support to the Southeast Asia based terrorist group Jemaah Islamiyah (JI). Specifically, an RIHS employee provided logistical support to JI's fugitive leader Nurjaman Riduan Isamuddin (a.k.a. “Hambali”) prior to his capture in 2003. Due to the high security conditions during the 2002 Asian Summit, the RIHS employee escorted Hambali from Phnom Penh, Cambodia, to an alternate location, where he then provided him with accommodations. The employee was later captured and sentenced to life imprisonment on terrorism charges. An RIHS representative in Indonesia provided funding to a JI member collecting money for JI activities. The JI member funneled the funds he received from RIHS and other sources to JI associates for the procurement of weapons to support their operations.[95]

Finally, the Treasury Department describes how “Al Qaida supporters in Somalia reportedly have historically received significant funds through RIHS,” and that “RIHS provided hundreds of thousands of dollars to a university controlled by Al-Itihaad al-Islamiya.”[96] For those who may not know, Al-Itihaad al-Islamiya refers to a jihadi organization formed in the 1990s in Somali which served as a precursor to the Islamic Courts Union that was throttled by Ethiopia when it invaded Somalia in 2007. If this is true, RIHS support for terrorism clearly goes back to the 1990s.[97]

But that is not all. According to Christopher Deliso at http://www.antiwar.com/:

…the RIHS is a founding member of an infamous and now largely disrupted Islamic charity network that includes the banned al-Haramain, Global Relief, and the Holy Land Foundation for Relief and Development, all of which shared the same strategic goals. As a May 2005 report from the Naval Postgraduate School states, “since 1992, in addition to the local orders, the main supporters of Salafi ideas [in Bosnia] were the following relief agencies – High Saudi Committee, al-Haramain Foundation, and the Society for the Revival of Islamic Heritage (Jam'iyyat Ihya’ al-Turah al-Islami).”[98]

So let’s see. According to a May 2005 report by the Naval Postgraduate School, RIHS was one of the main supporters of Salafi ideas in Bosnia, and is a “founding member of an infamous and now largely disrupted Islamic charity network that includes the banned al-Haramain, Global Relief, and the Holy Land Foundation for Relief and Development.”[100] Al-Rabiah traveled to Bosnia in 1994 and 1995 supposedly as a volunteer charity worker on behalf of RIHS. Could his charitable activities in Bosnia been “part of an elaborate plan to mask his true intentions” as the Government failed to argue with respect to his travels to Afghanistan?[101] Deliso asks a similar question:

When it comes to charities suspected of terrorist involvement, at what point can a series of independent actions be said to indicate coordinated and malevolent intent? And if they do in fact indicate such intent, what should be done about it?

According to Deliso, citing former OSCE security officer Thomas Gambill:

According to Gambill, whose whistleblower testimony first came out on Antiwar.com in August, the verdict is not good: in more than one case, UN bosses of the occupied Serbian province “have turned a blind eye” to dangerous charities – including a local branch of an Islamic fundamentalist group that has been linked to terrorist attacks and/or extremism in countries ranging from Bangladesh, Pakistan, and Afghanistan to Azerbaijan, Albania, and Bosnia – a group that has, in fact, been partially blacklisted by both the Bush administration and the UN since January 2002.[102]

This organization is RIHS.[103] According to Deliso in 2005, RIHS “has become more prominent for trying to spread ultraconservative Saudi Wahhabism and for directly sponsoring terrorist attacks,” and “should the RIHS cement the Balkan foothold it established over a decade ago in Albania, it could steer long-term social trends away from the region’s so-called path of ‘Western integration.’”[104]

In the article, Deliso quotes Gambill as saying he “had this info [about the charities] all the way back in 2001,”[105] which is before the Treasury Department officially designated RIHS as a sponsor of terrorist activity. Mr. Deliso then writes:

One might ask, “So what? There are millions of these allegedly ‘dangerous’ Islamic charities out there.” That was my initial reaction when I first heard of this case. However, after some research, it became clear that far from being just another one of the myriad Islamic NGOs operating in the Balkans, the RIHS was in fact a major player with a distinguished track record and truly global aspirations. If the UN has really allowed it to flourish in Kosovo, this policy would seem to be very foolish, as the following should indicate.

You can read the rest of the account of RIHS ties to terrorist activity here, but Deliso recounts one interesting episode on June 28, 1998 (note: three and a half years before RIHS was designated by the Treasury Department) when “two Egyptians were arrested for running a terrorist training camp in the central Albanian town of Elbasan.” Deliso continues:

They had been quietly recruiting young men from the north of the country for the campaign against the Serbs. Citing the Albanian ShIK intelligence service, the linked report claimed that the pair (Maget Mustafa and Muhamed Houda) were seeking “to give a powerful religious character” to the nascent Kosovo war that would end with NATO bombing the following spring.

According to the article, the Egyptians had been active at Elbasan’s el-Hagri Theological Institute. Suspicions of Salafi fundamentalists in the midst had arisen locally "following the arrival of Sudani and Pakistani people" four years earlier.
Indeed, while “rumors” had already been circulating locally regarding the real interests of the detained Egyptians, “their declared activity was of the humanitarian character to help poor families … [they] held posts in [the] ‘Revival of Islamic Heritage’ association operating in Albania

There is more. Evan Kohlmann in his book Al Qaida’s Jihad in Europe: The Afghan-Bosnian Network cites a Times of London article by Anthony Loyd describing Islamic charitable workers in Bosnia that were associated with radical organizations:

Some of the Islamic charitable workers showed remarkably little pity for the indigent people they had been sent to help. It seemed that those missionaries were much more imbued with missionary, rather than humanitarian ideals. A Palestinian representative of the Revival of Islamic Heritage Society in Zenica explained: “The Muslims here have turned their back on their faith…God and the Koran tell Muslims ‘who abandons my orders resists me this one will be punished.’ So these people are being punished by the war until they return to the real way.” The Kuwaiti fundamentalist group financed the establishment of the Balkan Islamic Center in Zenica in the summer of 1993. The center became an important local institute for the teaching of holy war, and a recruitment center for the mujahideen brigade. One “student” of the center, 15-year-old Elzedin Berbic, offered an insightful description of the center’s activities: “We learn, we talk, we pray together, we are shown films about the Islamic jihad…The films are different, some in Bosnian, some in Arabic, but they are all about jihad. The war was started to destroy the Muslim people, so now it must be jihad.”[107]

Kohlmann also relates some interesting circumstances surrounding a prisoner swap that occurred on May 17, 1993, in which “a negotiated compromise was finally reached between the senior Arab mujahideen leadership in Bosnia, the Croats, and UN representatives for a major prisoner swap in Zenica.”[108] Among the Arab mujahideen who participated in negotiations was Abu al Ma’ali, a major mujahideen operator. Once the swap agreement was completed:

[v]arious jihadis leapt forward to embrace their newly released comrades, crying Allahu Akhbar! and cheering wildly. One mujahid, closely resembling Abu Ali al-Kuwaiti, dropped to his knees and kissed the ground immediately following his liberation. The UN arbitrator on hand was pleased to reach a successful resolution to the tense standoff and, subsequently, asked Wahiudeen al-Masri, present at the scene, to shake his hand as a demonstration of good faith. But, Wahiudeen sternly and insultingly refused the request, quipping, ‘I do not shake hands with the infidels…’

Two days later, the Kuwaiti Society for the Revival of Islamic Heritage reported that Shaykh Kulaib al-Mutairi, a Kuwaiti Muslim cleric and official emissary of their organization, had been discharged from Croatian custody at the same time as the UN-supervised mujadiheen prisoner release. According to Tareq al-Issa, a representative of the Society, al-Mutairi, who had arrived in Bosnia in December 1992, was ‘not in a good condition’ after his ordeal. Allegedly, both his Croat jailers and fellow prisoners who were ethnic-Serbs brutally tortured him while in custody. Many Kuwaitis had first become aware of al-Mutairi’s plight after viewing a news agency photograph released to the public of foreign detainees (including him) held by Croats. In a subsequent report issued by the Society for the Revival of Islamic Heritage offering news of recently ‘martyred’ mujahideen in Bosnia, an ‘official source’ noted that, despite his de jure release from confinement, Shaykh al-Mutairi was subsequently nevertheless ‘trapped’ by heavy fighting in Zenica with three other Kuwaitis and a Saudi citizen. There was no explanation offered as to why al-Mutairi had been arrested and held by the Croats amongst a group of foreign guerrillas, rather than fellow humanitarian workers.[109]

Finally, we have this fascinating account of Hassan Mustafa Osama Nasr, a.k.a. Abu Omar, who was recruited by Albanian intelligence working in conjunction with the CIA in August 1995. According to the account from historycommons.org:

The CIA and ShIK (special unit of Albanian intelligence) are worried about a possible assassination attempt against the Egyptian foreign minister, who is to visit Albania soon, so about twelve radical Egyptians, members of Al-Gama’a al-Islamiyya and Islamic Jihad, are detained beforehand. Nasr is not on the list, but is detained because of a link to a suspect charity, the Human Relief and Construction Agency (HRCA). He is held for about 10 days and, although he initially refuses to talk, ShIK has a “full file” on him after a week. He provides information about around ten fellow Al-Gama’a al-Islamiyya members working for HRCA and two other charities, the Al-Haramain Islamic Foundation and the Revival of Islamic Heritage Society…[110]

If you want to read more information on RIHS ties to terrorism, see here, here, and, finally, here. In spite of all this information, the decision states that “there is no evidence in the record” that RIHS “supported terrorism at the time Al Rabiah volunteered for (the organization).”[111] This fact, in addition to al-Rabiah’s stated intentions about what he was doing in Afghanistan, “gives rise to a strong inference that Al Rabiah traveled to Afghanistan in October 2001 for charitable purposes.”[112] As described in the decision:

…the Court finds that Al-Rabiah has proffered the following credible evidence: that he has a history of traveling to impoverished and war-torn locations for charitable purposes; that he has a history of requesting leave from Kuwait Airlines, his employer, prior to undertaking these trips; that he requested and received two weeks of leave in October 2001 to travel to Afghanistan; that he wrote a letter to his family at the end of his planned two week trip explaining that he was unable to exit the country as he had planned, but that he would attempt to leave Afghanistan through the Pakistani border to get to Peshawar; and that he requested that his brother notify personnel at Kuwait Airlines because his leave had expired. The Court finds that this evidence gives rise to a strong inference that Al Rabiah traveled to Afghanistan in October 2001 for charitable purposes.

In contrast, the Government has argued that Al Rabiah traveled to Afghanistan in October 2001 in conformity with his previous connections with terrorist activity, but has failed to proffer reliable and credible evidence in support of that argument. Accordingly, the Court concludes by a preponderance of the evidence that Al Rabiah more likely than not traveled to Afghanistan in October 2001 for charitable purposes.[113]

This is apparently enough for Worthington and Sullivan, as well as the rest of the anti-Gitmo cottage industry all too keen to believe that men shipped to Guantanamo were innocent bystanders who had come to Afghanistan to do no more than engage in charitable endeavors. Unfortunately, there is much more to charity work than mere charity in these jihadist hot spots around the globe, and in the case of al-Rabiah, there is enough information to go around to make us think twice about whether he was such an innocent bystander.

Note: a final version of this rebuttal will be posted soon. This installment is a first draft.

[1] http://www.justice.gov/opa/pr/2009/December/09-ag-1323.html
[2] http://www.justice.gov/opa/pr/2009/December/09-ag-1323.html
[3] Administrative Review Board Hearing for Fouad Mahmoud al Rabiah, Round 2 (632), available at: http://projects.nytimes.com/guantanamo/detainees/551-fouad-mahoud-hasan-al-rabia
[4] Peter Bergen, Holy War, Inc.: Inside the Secret World of Osama bin Laden, p. 1.
[5] Classified Memorandum Decision in the matter of Fouad Mahmoud Al Rabiah, et al. Petitioners, v. United States, et al., Respondents, United States District Court for the District of Columbia, Civil Action No. 02-828 (CKK) (“Decision”), p. 49.
[6] Decision, pp. 62-63.
[7] http://www.huffingtonpost.com/andy-worthington/a-truly-shocking-guantana_b_305227.html
[8] http://andrewsullivan.theatlantic.com/the_daily_dish/2010/01/posts-of-the-year-they-tortured-a-man-they-knew-to-be-innocent-october-1-2009.html
[9] http://andrewsullivan.theatlantic.com/the_daily_dish/2010/01/posts-of-the-year-they-tortured-a-man-they-knew-to-be-innocent-october-1-2009.html
[10] Gordon Cucullu, Inside Gitmo, pp. 6-7.
[11] Department of Defense “Guantanamo Detainees” fact sheet, February 13, 2004 (http://www.defense.gov/news/Apr2004/d20040406gua.pdf ); Gordon Cucullu, Inside Gitmo, p. 5.
[12] Gordon Cucullu, Inside Gitmo, p. 5.
[13] Decision, p. 5.
[14] http://andrewsullivan.theatlantic.com/the_daily_dish/2010/01/posts-of-the-year-they-tortured-a-man-they-knew-to-be-innocent-october-1-2009.html
[15] Decision, p. 26
[16] Decision, pp. 32-33.
[17] http://www.huffingtonpost.com/andy-worthington/a-truly-shocking-guantana_b_305227.html
[18] http://andrewsullivan.theatlantic.com/the_daily_dish/2010/01/posts-of-the-year-they-tortured-a-man-they-knew-to-be-innocent-october-1-2009.html
[19] http://andrewsullivan.theatlantic.com/the_daily_dish/2010/01/email-of-the-year-october-2-2009.html
[20] Decision, p. 41; http://andrewsullivan.theatlantic.com/the_daily_dish/2010/01/email-of-the-year-october-2-2009.html
[21] http://news.yahoo.com/s/weeklystandard/20100104/cm_weeklystandard/alqaedastrojanhorse
[22] Decision, pp. 43-45
[23] Decision, p. 41
[24] Decision, pp. 43-45
[25] Decision, p. 45
[26] Decision, p. 46
[27] Decision, p. 45
[28] Decision, p. 8
[29] Decision, p. 8
[30] Decision, p. 8
[31] Decision, p. 9
[32] Decision, p. 9.
[33] Decision, p. 10.
[34] Decision, pp. 10-11.
[35] Decision, p. 11
[36] ARB 1 (1199)
[37] ARB 1 statement (753)
[38] ARB 1 (1199), ARB 2 (632)
[39] Decision, p. 11.
[40] Decision, p. 11.
[41] Decision, p. 11.
[42] Decision, p. 11.
[43] Decision, p. 12
[44] Decision, p. 12
[45] Decision, p. 12
[46] Decision, pp. 11-12.
[47] Decision, p. 12
[48] Decision, p. 12
[49] Decision, p. 13
[50] ARB 1 (1198).
[51] CSRT testimony (859).
[52] Decision, p. 13
[53] Decision, p. 13
[54] Decision, p. 13
[55] Decision, p. 13
[56] Decision, p. 13
[57] Decision, p. 14
[58] Decision, pp. 13-14, footnote 10
[59] Decision, pp. 13-14, footnote 10
[60] Decision, pp. 62-63
[61] Decision, p. 14
[62] Decision, p. 14
[63] Decision, pp. 17-18.
[64] Decision, pp. 18-19.
[65] Decision, pp. 18-19.
[66] Decision, p. 14
[67] Decision, pp. 14-15
[68] Decision, p. 15
[69] Decision, p. 15
[70] ARB 2 (630), ARB 3 (364)
[71] Decision, p. 15
[72] Decision, p. 15
[73] Decision, p. 15
[74] Decision, p. 15
[75] Decision, p. 15
[76] Decision, p. 17
[77] http://www.ustreas.gov/press/releases/po909.htm
[78] Decision, p. 15
[79] http://www.ustreas.gov/press/releases/po909.htm
[80] http://www.ustreas.gov/press/releases/po909.htm
[81] http://www.ustreas.gov/press/releases/po909.htm
[82] http://www.ustreas.gov/press/releases/po909.htm
[83] http://www.ustreas.gov/press/releases/po909.htm
[84] http://www.ustreas.gov/press/releases/po909.htm
[85] http://www.ustreas.gov/press/releases/po909.htm
[86] http://www.ustreas.gov/press/releases/po909.htm
[87] http://www.ustreas.gov/press/releases/po909.htm
[88] ARB 1 (1200)
[89] ARB 1 (1200)
[90] http://www.ustreas.gov/press/releases/po909.htm
[91] http://www.ustreas.gov/press/releases/po909.htm
[92] http://www.zimbio.com/War+on+Terrorism/articles/772/Kuwait+Revival+Islamic+Heritage+Society+Supports
[93] http://www.zimbio.com/War+on+Terrorism/articles/772/Kuwait+Revival+Islamic+Heritage+Society+Supports
[94] http://www.zimbio.com/War+on+Terrorism/articles/772/Kuwait+Revival+Islamic+Heritage+Society+Supports
[95] http://www.zimbio.com/War+on+Terrorism/articles/772/Kuwait+Revival+Islamic+Heritage+Society+Supports
[96] http://www.zimbio.com/War+on+Terrorism/articles/772/Kuwait+Revival+Islamic+Heritage+Society+Supports
[97] Evan F. Kohlmann, Shabaab al-Mujahideen: Migration and Jihad in the Horn of Africa, The NEFA Foundation, May 2009; see also: http://www.novelguide.com/a/discover/exgi_0001_0001_0/exgi_0001_0001_0_00017.html, and http://wardheernews.com/articles/November/13__Alittihad_Sii
[98] http://www.antiwar.com/deliso/?articleid=7269
[99] http://www.southasiaanalysis.org/%5Cpapers16%5Cpaper1531.html
[100] http://www.antiwar.com/deliso/?articleid=7269
[101] Decision, p. ___
[102] http://www.antiwar.com/deliso/?articleid=7269
[103] http://www.antiwar.com/deliso/?articleid=7269
[104] http://www.antiwar.com/deliso/?articleid=7269
[105] http://www.antiwar.com/deliso/?articleid=7269
[106] http://www.antiwar.com/deliso/?articleid=7269
[107] Kohlmann, pp. 118-119
[108] Kohlmann, p. 82
[109] Kohlmann, pp. 82-83
[110]http://www.historycommons.org/timeline.jsp?timeline=complete_911_timeline&complete_911_timeline_al_qaeda_by_region=complete_911_timeline_al_qaeda_in_italy
[111] Decision, p. 15.
[112] Decision, p. 17.
[113] Decision, p. 17.