On Thursday, the Department of Defense announced the transfer of an Algerian named Saiid Farhi from Guantanamo to his home country. The second line of the DoD’s press release reads: “Farhi was ordered released by the U.S. District Court for the District of Columbia on Nov. 19, 2009.” What the DoD’s release doesn’t say is that the district court’s ruling is illogical and could have been easily overturned on appeal.
Saiid Farhi is also known as Farhi Saeed Bin Mohammed in the government’s documents. I wrote about his case previously. Farhi was granted his petition for a writ of habeas corpus by Judge Gladys Kessler, whose opinion was eviscerated by the D.C. Circuit Court in another Gitmo detainee habeas matter – Al-Adahi v. Obama. Kessler’s opinion in Farhi’s case suffered from many of the same deficiencies as her opinion in Al-Adahi, as well as some new ones.
Even though the circuit court essentially paved the way for an Obama administration appeal, the government decided to simply transfer Farhi. (The DoD press release says he was also approved for transfer by President Obama’s Guantanamo Review Task Force.) It is worth highlighting some key points from this matter again.
Even Judge Kessler concluded that Farhi was recruited by al Qaeda at extremist mosques in London, traveled under the auspices of al Qaeda facilitators to Afghanistan, and stayed at al Qaeda guesthouses in Afghanistan. He arrived there in June 2001.
Farhi couldn’t offer a reasonable explanation for what he was doing in Afghanistan from June 2001 until December 2001, when he fled to Pakistan and was detained. Farhi told the court that he went to Afghanistan to find a Swedish wife, so he could obtain Swedish citizenship and stay in Europe. This, of course, is preposterous. Judge Kessler found Farhi’s story “entirely implausible.”
The government connected the dots and said that Farhi was in Afghanistan as a member of al Qaeda, which trained him in the notorious al Farouq training camp.
It was on this point that Judge Kessler launched into an entirely speculative theory that she says undermines the government’s case – even though, again, the judge conceded that Farhi was recruited by al Qaeda, traveled under the direction of al Qaeda facilitators, and stayed in al Qaeda’s guesthouses.
One of the government’s witnesses (via interview summaries prepared by the FBI) against Farhi was Binyam Mohamed, who identified Farhi as his fellow trainee at al Farouq. Mohamed was arrested in Pakistan because American officials learned that he was tasked by senior al Qaeda leadership to carry out an attack inside the U.S. alongside convicted terrorist Jose Padilla in 2002. Mohamed was placed in the CIA’s enhanced interrogation program and spent a good deal of time detained in Morocco before being transferred to Bagram and Guantanamo.
Mohamed claims his genitalia were repeatedly sliced with either a razor or scalpel during his 18-month detention in Morocco. The government decided not to rebut this allegation in court even though there is no truth to it, or other parts of his story. (The CIA doesn’t want the details of its interrogation program or other sensitive intelligence divulged in court proceedings.) At most, as far as we know, Mohamed was subjected to sleep deprivation and perhaps some other interrogation techniques while in the CIA’s custody. Guantanamo medical officials never found any evidence of scarring on Mohamed’s genitalia, which there certainly would have been had he been cut repeatedly over an 18-month period.
In any event, the government didn’t rely on anything Mohamed said during his detention by the CIA or Moroccans. Instead, the government relied on statements Mohamed made later during “cordial,” “non-abusive” interview sessions with an FBI special agent. The FBI agent also said that Mohamed demonstrated a “polite and cooperative demeanor” and was “kind, polite, and relaxed through [their] meetings at Guantanamo.” Moreover, Mohamed did not raise any torture allegations during his time with the FBI's special agent.
Regardless, Judge Kessler endorsed an unsupported and unique defense theory that Mohamed had been “program[med]” through torture to repeat an incriminating story about his ties to senior al Qaeda operatives. Judge Kessler also repeated verbatim Mohamed’s genitalia torture claim and added, for good measure, that Mohamed may have identified Farhi in order to “please” his FBI interlocutor.
There is no real evidence to support any of this; it is an entirely speculative legal theory defied by numerous facts and basic logic. For instance, Mohamed identified Farhi during interview sessions with the FBI between October 29 and November 5, 2004. Less than two weeks later, on November 18, 2004, Mohamed was interviewed by his personal representative at Gitmo. During that interview, Mohamed denied the most substantive allegations against him. (He did concede that he was trained at al Farouq, however.)
This is entirely inconsistent with Judge Kessler’s theory that Mohamed had been “manipulate[d]” and “program[med]” to robotically repeat a damning story about his al Qaeda career. It also undermines the basis for Judge Kessler’s dismissal of Mohamed’s identification of Farhi.
In addition to Judge Kessler’s specious theory regarding Mohamed’s testimony, there was ample ground for an appeal. In Al-Adahi, the D.C. Circuit Court repeated its finding that a detainee’s time in al Qaeda guesthouses was “powerful” and “overwhelming” evidence that he was a “part of” al Qaeda. According to Judge Kessler’s own opinion, Farhi stayed in multiple al Qaeda guesthouses – which, by the way, were used to ferry recruits to al Qaeda training camps like al Farouq.
The D.C. Circuit Court also chastised Judge Kessler in Al-Adahi for not taking into account the “well-settled principle that false exculpatory statements are evidence - often strong evidence - of guilt.” The same applies to Farhi and his ridiculous story about searching for a Swedish wife – in Afghanistan.
There were other reasons to appeal Judge Kessler’s opinion in the Farhi matter. But the truth is, the Obama administration didn’t want to appeal the ruling. The administration needs to transfer most of the remaining detainees in order to close Guantanamo and Judge Kessler’s opinion gave them a good excuse.
Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.