Guantánamo Diary (5 page)

Stuart Couch withdrew from Mohamedou’s case, refusing to proceed with any effort to try him before a military commission.

No charge sheet has ever been drawn up against Mohamedou
Ould Slahi in Guantánamo, no military commission defense attorney was ever appointed to his case, and it appears there have been no further attempts to prepare a case for prosecution. The
Daily News
editorial decrying Judge Robertson’s habeas decision attributes this to “squeamishness” over using “evidence acquired under rough treatment,” but it is not at all clear that Mohamedou’s brutal Guantánamo interrogation yielded any evidence that he had a hand in any criminal or terrorist activities. At his 2005 ARB hearing, he told of manufacturing confessions under torture, but the interrogators themselves must have discounted what they knew to be induced confessions; what they passed along in their scrubbed intelligence reports consisted instead, Stuart Couch has said, of a kind of “Who’s Who of al Qaeda in Germany and all of Europe.”
²⁶

Just as his extreme treatment is often cited as an indicator of his guilt, so those intelligence reports have come to serve as a kind of after-the-fact proof that Mohamedou himself must be among the Who’s Who. And yet, Stuart Couch has suggested, Mohamedou’s knowledge seems to have been little better than his interrogators’. “I think, if my recollection is right, that most of them had already been known to the intelligence services when he was being questioned,” Couch noted in the 2012 interview, adding:

Nor, it seems, have U.S. intelligence services unearthed anything else implicating Mohamedou in other terrorist plots or
attacks. In a 2013 interview, Colonel Morris Davis, who became chief prosecutor for the Guantánamo military commissions in 2005, described a last-ditch effort, almost two years after Stuart Couch withdrew from Mohamedou’s case, to develop some kind of charge against Mohamedou. Colonel Davis’s real target at the time was not Mohamedou, who by then hardly even registered on the prosecutorial radar, but rather the prisoner the military had moved into the hut next door to Mohamedou’s to mitigate the effects of his torture and almost two years of solitary confinement. That prisoner would not accept a plea bargain, however, unless Mohamedou received a similar offer. “We had to figure some kind of similar deal for Slahi,” Colonel Davis said in that interview, “which meant we had to find
something
we could charge him with, and that was where we were having real trouble.”

When Mohamedou’s habeas corpus petition finally came before the federal court in 2009, the U.S. government did not try to argue that he was a major al-Qaeda figure or that he had
a hand in any al-Qaeda plans or attacks. As the DC Circuit Court of Appeals wrote in its subsequent review of the case:

When Judge Robertson heard Mohamedou’s petition in 2009, the DC district courts presiding over Guantánamo habeas cases were judging the question of whether a petitioner was part of al-Qaeda based on whether the government could show that the petitioner was an active member of the organization at the time he was detained. Mohamedou had joined al-Qaeda in 1991 and sworn a loyalty oath to the organization at that time, but that was a very different al-Qaeda, practically an ally of the United States; Mohamedou has always maintained that the fall of the communist government in Afghanistan marked the end of his participation in the organization. In his habeas proceedings, the government insisted that his occasional contacts and interactions with his brother-in-law and cousin Abu Hafs and a handful of other friends and acquaintances who had remained active in al-Qaeda proved that Mohamedou was still a part of the organization. While a few of those interactions involved possible gestures of support, none, Robertson suggested, rose to the level of criminal material support for terrorism, and overall, Mohamedou’s contacts with these people were so sporadic that “they tend to support Salahi’s submission that he was attempting to find the appropriate balance—avoiding close
relationships with al Qaida members, but also trying to avoid making himself an enemy.”

Judge Robertson’s decision granting Mohamedou’s habeas corpus petition and ordering his release came at a critical moment: as of April 1, 2010, the U.S. government had lost thirty-four out of forty-six habeas cases. In appeals of several of those cases, the government persuaded the DC Circuit Court of Appeals to accept a looser standard for judging whether a petitioner was “part of” al-Qaeda; now, as the appellate court explained in reversing Judge Robertson’s order and remanding the case to district court for rehearing, the government no longer needed to show that a Guantánamo prisoner was carrying out al-Qaeda orders or directions at the time he was taken into custody.

In its opinion, the appeals court was careful to delineate “the precise nature of the government’s case against Salahi.” “The government has not criminally indicted Salahi for providing material support to terrorists or the ‘foreign terrorist organization’ al-Qaida,” the court emphasized. “Nor,” it added, “does the government seek to detain Salahi under the AUMF on the grounds that he aided the September 11 attacks or ‘purposefully and materially support[ed]’ forces associated with al-Qaeda ‘in hostilities against U.S. Coalition partners.’ ” Rather, when Mohamedou’s habeas corpus case is reheard in federal court, the government will likely again be arguing that his sporadic interactions with active al-Qaeda members in the 1990s mean that he too remained a member. Under the new standard, the court wrote, “Even if Salahi’s connections to these individuals fail independently to prove that he was ‘part of’ al-Qaida, those connections make it more likely that Salahi was a member of the organization when captured and thus remain relevant to the question of whether he is detainable.”
³⁰

Ironically, when a district court rehears the case, the government will likely face questions about what it has always contended is the most damaging of those connections, Mohamedou’s relationship with his cousin and brother-in-law Abu Hafs. As a member of bin Laden’s Shura Council, Abu Hafs had a $5 million bounty on his head from the United States in the late 1990s, a figure that increased to $25 million after the September 11, 2001, terrorist attacks. For years, though, the United States has known that Abu Hafs opposed those attacks; the 9/11 Commission reported that he “even wrote Bin Laden a message basing opposition to those attacks on the Qur’an.” After the attacks, Abu Hafs left Afghanistan for Iran, where Iranian authorities placed him under a soft form of house arrest for more than a decade. In April 2012, Iran repatriated Abu Hafs to Mauritania. He was held for two months in a Mauritanian prison, during which he reportedly met with an international delegation that included Americans, condemned the 9/11 attacks, and renounced his ties to al-Qaeda. He was released in July 2012 and has been living since then as a free man.

I have not met Mohamedou Ould Slahi. Other than sending him a letter introducing myself when I was asked if I would help to bring his manuscript to print—a letter I do not know if he received—I have not communicated with him in any way.

I did request to meet with him at least once before submitting the completed work to make sure my edits met with his approval. The answer from the Pentagon was brief and absolute. “Visiting or otherwise communicating with any detainee in the detention facility in Guantanamo, unless you are legal counsel representing the detainee, is not possible,” a public affairs officer wrote.
“As you are aware, the detainees are held under the Law of War. Additionally, we do not subject detainees to public curiosity.”

The phrase “public curiosity” comes from one of the pillars of the Law of War, the 1949 Geneva Convention Relative to the Treatment of Prisoners of War. Article 13 of the convention, “Humane Treatment of Prisoners,” says:

I had proposed a confidential meeting, under strict security protocols, to make sure the edited version of Mohamedou’s work—a work he specifically wrote for a public readership—accurately represents the original content and intent. For years that work itself was withheld, under a censorship regime that has not always served Geneva’s purposes.

Censorship has been integral to the United States’ post-9/11 detention operations from the start. It has been purposeful, not once but twice: first, to open a space for the abuse of prisoners, and then to conceal that those abuses happened. In Mohamedou’s case, those abuses include enforced disappearance; arbitrary and incommunicado detention; cruel, inhuman, and degrading treatment; and torture. We know this thanks to a documentary record that was also, for years, rigorously suppressed.

I do not know to what extent personal and institutional
interests in covering up those abuses have contributed to Mohamedou’s continuing imprisonment. I do know that in the five years I have spent reading the record about his case, I have not been persuaded by my government’s vague and shifting explanations for why he is in Guantánamo, or by the assertions of those who defend his now-thirteen-year detention by saying he is almost certainly, or possibly, a this or a that. My own sense of fairness tells me the question of what this or that may be, and of why he must remain in U.S. custody, should long ago have been answered. It would have been, I believe, if his
Guantánamo Diary
had not been kept secret for so long.

When Mohamedou wrote the manuscript for this book nine years ago, in the same isolated hut where some of the book’s most nightmarish scenes had very recently happened, he set himself a task. “I have only written what I experienced, what I saw, and what I learned first-hand,” he explains near the end. “I have tried not to exaggerate, nor to understate. I have tried to be as fair as possible, to the U.S. government, to my brothers, and to myself.”

He has, from everything I have seen, done just that. The story he tells is well corroborated by the declassified record; he proves again and again to be a reliable narrator. He certainly does not exaggerate: the record contains torments and humiliations not included in the book, and he renders several of those he does include with considerable discretion. Even when the events he recounts are at their most extreme, his narration is tempered and direct. The horrors of those events speak for themselves.

That is because his real interest is always in the human dramas of these scenes. “The law of war is harsh,” Mohamedou writes early on.

In chronicling his journey through the darkest regions of the United States’ post-9/11 detention and interrogation program, his attention remains on his interrogators and guards, on his fellow detainees, and on himself. In his desire “to be fair,” as he puts it, he recognizes the larger context of fear and confusion in which all these characters interact, and the much more local institutional and social forces that shape those interactions. But he also sees the capacity of every character to shape or mitigate the action, and he tries to understand people, regardless of stations or uniforms or conditions, as protagonists in their own right. In doing so, he transforms even the most dehumanizing situations into a series of individual, and at times harrowingly intimate, human exchanges.

This is the secret world of Guantánamo—a world of startlingly premeditated brutalities and of incidental degradations, but also a world of ameliorating gestures and kindnesses, of acknowledgments and recognitions, of mutual curiosities and risky forays across deep divides. That Mohamedou managed to experience all of this despite four years of the most arbitrary treatment imaginable and in the midst of one of Guantánamo’s most horrendous interrogations says a great deal about his own character and his humanity. It says even more about his skills as a writer that he was able, so soon after the most traumatic of those experiences, to create from them a narrative that manages to be both damning and redeeming.