The first meeting between Marc Falkoff and Mohamed Mohamed Hassan Odaini occurred in a retrofitted storage container, with Odaini's legs shackled and chained to a bolt in the floor. It was November 2004. Falkoff, who now teaches law at Northern Illinois University, says he was immediately struck by how young the 21-year-old prisoner from Taiz, Yemen, looked--skinny with elfin features and scraggly facial hair--and by how open he seemed: after almost two and a half years at Guantanamo and countless interrogations, he seemed neither wary nor mistrustful of yet another American asking him questions. "He had been waiting for a lawyer," Falkoff says.
Like the other 550 or so prisoners there at the time, Odaini was considered an enemy combatant. Like most of them, he was being held without charge and had never seen, let alone been given the opportunity to refute, evidence the Bush administration claimed was the justification for his detention.
Falkoff told Odaini that was about to change. The previous June the Supreme Court had ruled that Guantanamo prisoners could challenge their detention in federal court. He showed Odaini the "next friend" authorization his brother Bashir had signed, setting in motion the legal proceedings on his behalf, and the petitions that Falkoff and his colleagues at Covington & Burling had filed in Washington, D.C., seeking habeas corpus hearings--hearings to test the legality of their restraint--for him and 12 other Yemeni detainees. "He's a bright kid," Falkoff recalls. "He understood the legal concepts."
The U.S. government claimed Odaini was linked to Al Qaeda, but Odaini told Falkoff that wasn't true. In early 2002, he said, he was studying Islamic law at Salafi University in Faisalabad, Pakistan. One night in March he had dinner at a house where other Yemeni students lived. Odaini said he didn't know the others well and had never been there before that night. But he accepted an invitation to stay over, and early in the morning Pakistani police raided the house. They turned over Odaini and 14 others to U.S. authorities.
On subsequent visits to Guantanamo, Falkoff gave Odaini updates on the habeas petitions. The Bush administration was fighting to get them dismissed, and prisoners weren't likely to get their day in court anytime soon.
But in June 2005 he was able to bring Odaini a rare bit of good news: after three years of being held virtually incommunicado by the U.S. military, Odaini finally had been deemed suitable for release. Falkoff told him it was possible that he'd be home with his family in a matter of months.
More than two years later, Odaini remains in U.S. custody, and according to Falkoff he hasn't been interrogated since early 2006. Now 24, Odaini has spent more than five years--more than a fifth of his life--locked up at Guantanamo.
"For all he knows," says Falkoff, "he could be there for the rest of his life."
In January 2002, as the first images of bound men in orange jumpsuits were transmitted around the world, U.S. officials characterized the Guantanamo detainees as people to fear. Labeled enemy combatants and denied the basic protections of the Geneva Conventions, they were, secretary of defense Donald Rumsfeld famously declared, the "worst of the worst." General Richard Myers, chairman of the Joint Chiefs of Staff, explained why they'd been chained to their seats and made to wear blackout goggles and earmuffs during the 20-or-so-hour flight from Afghanistan: "These are people that would gnaw through hydraulic lines in the back of a C-17 to bring it down."
But U.S. officials had reason early on to question such claims. The New Yorker recently reported that in the summer of 2002 (when Odaini arrived), a CIA analyst who visited the naval prison estimated that more than half of the prisoners didn't belong there. In October 2004 the deputy commander of Guantanamo told the Financial Times, "Most of these guys weren't fighting. They were running."
A government spokesman at Guantanamo still claims the detainees "were captured while fighting for Al Qaeda or the Taliban," but when the Seton Hall University Law School compiled a report last year on 517 Guantanamo detainees, using the Department of Defense's own data, it discovered that the U.S. government considered only 8 percent of them Al Qaeda fighters. The report found that 55 percent of the detainees were "not determined to have committed any hostile acts against the United States or its coalition allies" and that 86 percent had been turned over to the U.S. by Pakistanis or members of the Northern Alliance at a time the U.S. was advertising large financial rewards for turning in Taliban and Al Qaeda fighters. ("Get wealth and power beyond your dreams," a leaflet circulated in Afghanistan read.)
To date, the U.S. has held more than 700 prisoners at Guantanamo. They've ranged in age from 13 to 98. Only ten have been charged with crimes; none has been tried. An Australian man pleaded guilty before trial this year to providing material support for terrorism in exchange for an eight-month sentence in a prison back home.
Nearly six years after Guantanamo opened, a chorus of voices at home and abroad is calling on the Bush administration to shut it down. The voices include the United Nations Commission on Human Rights, which issued a report last year condemning the U.S. for the "arbitrary deprivation of the right to personal liberty," among myriad other violations of international law.
In April 2004, Amnesty International held a two-day conference in Sanaa, Yemen, that brought together human rights activists, lawyers, and the families of Guantanamo prisoners, whose identities the Bush administration had refused to reveal.
Lawyers left the conference with the names of 24 prisoners who'd written to their families for help through the International Committee of the Red Cross. Falkoff and his colleagues at Covington & Burling wound up representing 13 of those men and they now represent 17 prisoners in all. (In 2006 a federal judge forced the Department of Defense to reveal the names of its prisoners.)
Over the last three years, the Covington lawyers have traveled to Yemen several times to talk with the mothers, fathers, wives, children, brothers, and cousins of their clients. The families always ask the same two questions. First they want to know whether their relatives are healthy and mentally fit. "We reassure them to the extent we can, but sometimes they're in bad shape," says Falkoff. "Then they want to know when their family members will be released. It's the same question our clients ask us, and we don't have an easy answer for it."
Although the habeas statute entitles prisoners to be freed if they can prove that their detention violates the Constitution, federal law, or U.S. treaties, the way out of Guantanamo so far hasn't been through the courts. In spite of the best efforts of Falkoff and his colleagues, the Bush administration has managed to keep detainees away from federal judges who might order their release.
Shortly after the Supreme Court ruling giving Guantanamo prisoners the green light to challenge their detentions in U.S. courts, the military implemented its own status review process, and government lawyers began taking steps to get the detainees' habeas corpus petitions tossed, arguing that the new system provided "all the process the petitioners are due (and then some) in these circumstances."
The Republican-controlled Congress did what it could to help the Bush administration stave off judicial oversight. After the Supreme Court ruled, it passed the Detainee Treatment Act of 2005, stripping Guantanamo prisoners of their access to U.S. courts. When the Supreme Court ruled that the law had no effect on already pending cases, Congress dotted that i by passing the Military Commissions Act of 2006.
The U.S. Constitution prohibits Congress from suspending the writ of habeas corpus except "in cases of rebellion or invasion," but the Supreme Court has previously ruled that acceptable alternatives may exist. Whether the military has such an alternative in place at Guantanamo and whether Congress unlawfully revoked the detainees' habeas rights will be sorted out by the Supreme Court this fall.
In the meantime, the habeas corpus petitions Falkoff and his colleagues have filed on behalf of Yemeni detainees are in limbo--and the only way out of Guantanamo is at the discretion of the U.S. government.
"We don't hold detainees for any longer than necessary," says Captain Lana Hampton, public affairs officer for the Office of Administrative Review of the Detention of Enemy Combatants (OARDEC). Hampton says the detainees "are screened at various points from capture to detention" and "their individual cases are reviewed periodically thereafter."
But the military's system for reviewing detainees' cases looks nothing like an American system of justice. In the fall of 2004, the military began holding combat status review tribunals. The stated purpose of the hearings was to determine whether the prisoners had been properly classified as enemy combatants, a term so broad it includes anyone who has indirectly or unwittingly supported forces hostile to the U.S. (A government lawyer conceded to a federal judge during a hearing to dismiss the habeas petitions that "a little old lady in Switzerland" could be detained as an enemy combatant at Guantanamo for writing checks "to what she thinks is a charity that helps orphans in Afghanistan, but really is a front to finance Al Qaeda activities.")
Odaini's hearing took place on October 6, more than two years into his detention. Prior to it, the military had notified him of two vague accusations against him: he'd been "captured at the 'Cresent Mill' guesthouse in Faisalabad, Pakistan and was identified by a senior al Qaida lieutenant," and "A senior al Qaida Lieutenant identified [him] in a photo as having possibly seen him in Afghanistan." Odaini was not told the identity of the lieutenant (or lieutenants). Nor was he told when, where, or under what circumstances the identifications had been made. In essence, says Falkoff, the government's position was, "'A person is saying incriminating things about you. What's your response?' There's no way to respond to that."
Odaini took the Muslim oath and did his best. Addressing his three-member tribunal, which consisted of an army colonel and two navy commanders, he said, "You indicated that I was associated with Al Qaeda. How do you know this? . . . The fact that I went to Pakistan to study during the fight does not make me an Al Qaeda member or associated with Al Qaeda. . . . I was living on campus at the university I was attending. You spoke about the fact that someone saw me and thought I could possibly be a member of or associated with Al Qaeda. I don't even know anybody. This is the first time I have heard of Al Qaeda, in this prison."
The military had appointed a "personal representative" to assist Odaini, but according to a government transcript of the hearing that person--a member of the military who by regulation cannot be a lawyer--said little. Under questioning from the tribunal members, Odaini said that he'd been studying the Koran for four months prior to his arrest, that he had no military training, that he saw no weapons in the house he was arrested in, and that he didn't know whether anyone arrested with him was a member of the Taliban or Al Qaeda. He said he'd spent only a few hours at the house and while there had mingled with other Yemenis. "They were asking me about what was going on in Yemen," he said.
In his defense, he also brought up the possibility that the government's source had made a mistake. "Maybe that person looked at me and confused me with someone else."
A member of the tribunal asked him if he'd ever been to Afghanistan. "I had never gone there until I was taken to the prison by the Americans," he said.
The military allowed detainees to call witnesses to support their story if they were "reasonably available," and Odaini requested the testimony of everyone who was arrested with him. The tribunal said 14 witnesses would be "cumulative" and made Odaini pick two. Of them, only one was brought in to testify--the other had refused, Odaini was told.
Odaini was given an opportunity to ask his witness questions. He asked only one: "Do you know if I am a member of Al Qaeda or if I am associated with Al Qaeda?"
The witness responded, "All I know is all the people in the house were students."
The tribunal members then questioned the witness. Although they later said they found his testimony "consistent" with Odaini's, they'd found aspects of his own story inconsistent and therefore concluded he wasn't credible.
Falkoff wonders why, if the witness wasn't deemed credible, the tribunal didn't call any of the others Odaini had requested. "That the military could not take the time to talk to a dozen men--all of whom were in cells in Gitmo--to determine whether they had wrongly imprisoned someone is frankly shameful," he says.
The second part of the hearing happened behind closed doors. According to an unclassified document summarizing the proceedings, the tribunal members reviewed the secret evidence against Odaini. His personal representative declined to say anything in his defense regarding the evidence--and Odaini wasn't able to do so himself: he wasn't privy to it.
In the end, the tribunal concluded that Odaini was properly classified as an enemy combatant and was "a part of or supporting Al Qaeda forces"--a decision, it acknowledged, that was based on the evidence Odaini wasn't allowed to contest.
Falkoff has seen the secret evidence in Odaini's file. Laws against revealing classified information prohibit him from sharing it with his client, or anyone else, without risking criminal prosecution, but he says he's certain it wouldn't hold up in court as legitimate cause to deprive Odaini of his freedom. "I was dumbfounded by how lousy it was," he says.
Although the military claims its review procedures "are designed to ensure we only hold those who are unlawful enemy combatants and who pose a continuing threat to the United States and its allies," Falkoff says the combat status review tribunal (CSRT) process seems more intended to justify a determination the military has already made: that the prisoners are enemy combatants.
Of the 572 Guantanamo prisoners who've had tribunals, the military concluded that only 38 were not enemy combatants. Army reserve lieutenant colonel Stephen Abraham gave an affidavit in the habeas corpus case that suggests tribunal members feel pressure to rubber-stamp the process. Abraham served on a CSRT panel that found "no factual basis" for concluding a detainee was an enemy combatant. "We were then ordered to reopen the hearing to allow . . . further argument as to why the detainee should be classified as an enemy combatant," he said. When further argument didn't sway the tribunal, their higher-ups launched an inquiry into "what went wrong"--a response that Abraham said was "consistent with the few other instances in which a finding of 'Not an Enemy Combatant' (NEC) had been reached by CSRT boards."
The truth can't readily be teased out at the tribunals, Falkoff says, as they're stacked against the detainees, who can't have lawyers present, can't confront their accusers, and aren't given a chance to defend themselves against the government's secret evidence, which is presumed to be accurate. Only when a prisoner has an opportunity to respond to all of the allegations that are leveled against him, he says, can one "begin to make a reasoned evaluation about what really happened and where the truth lies. And this is what a court hearing is supposed to do."
The U.S. claims that intelligence gathered at Guantanamo has broken up a Southeast Asian terrorist cell being groomed for attacks inside the U.S., thwarted a car and motorcycle bombing at the U.S. consulate in Karachi, and disrupted a plot to fly hijacked planes into Heathrow Airport or the Canary Wharf in London. It says that of the approximately 445 prisoners who've been sent home from Guantanamo, at least 30 have "returned to the fight." But because the military doesn't "intend to be the world's jailer," says Captain Hampton, it evaluates each enemy combatant's case on an annual basis to see whether anything can be gained from his continued detention. If it's determined that he is of no intelligence value and poses a low risk to the nation's security, an administrative review board (ARB) may recommend that he be released or transferred home with conditions, such as restrictions on future travel. Mostly, though, the boards have recommended continued detention--in 71 percent of the 463 cases reviewed the first year and in 83 percent of the 328 cases reviewed the second.
Odaini's first ARB hearing was held in April 2005. "They started throwing more accusations at him," says Falkoff, "a flurry of brand-new accusations he'd never heard before." Odaini did his best to answer them, and then the board members asked what he would do if he were released. "What I learned from studying the Koran," he said, "I can teach kids."
A board member asked if he had any skills. "I know how to play soccer," he said.
Falkoff, who's read the classified documents in Odaini's file, says that before the hearing "Mohamed already had been deemed truthful, low risk, and suitable for release on multiple occasions." He wrote a letter to the board members considering Odaini's case, pointing out that Odaini had been "repeatedly recommended for release from Guantanamo." The identity of the person or people who did the recommending isn't something Falkoff is now at liberty to divulge: that part of his letter has been blacked out by government censors.
Falkoff says neither he nor Odaini was notified of the board's decision to recommend continued detention.
The following year, Odaini declined to attend his review hearing. According to Falkoff, he'd decided the process was a sham. Other prisoners likely did too--only 66 of the 328 detainees whose cases were reviewed bothered to participate in the second round of ARBs; the first year more than half participated.
Despite Odaini's absence, his ARB decided last spring to recommend his transfer to Yemen. ARB recommendations aren't binding, however. They're free to be ignored by the deputy secretary of defense, Gordon England, who makes the final decision. England signed off on Odaini's transfer on June 26, 2006.
When England signs off on a recommendation for release or transfer, the prisoner is put on a list of those deemed eligible to leave Guantanamo. But Falkoff says the list is meaningless because a prisoner "doesn't have a right to be released simply because he's on that list" and prisoners who aren't on the list sometimes get released.
In early September, after the U.S. sent a group of 16 Saudi prisoners home, Falkoff contacted attorneys representing eight of them to find out whether any had been cleared for release or transfer by the ARB process. Only one had.
Although some 70 Guantanamo prisoners are currently eligible for release or transfer, about 20 of them are citizens of countries that "won't take them back," says a military officer at Guantanamo. "A lot of folks here are kind of in limbo, and the State Department is figuring out what do with them."
The State Department won't comment on Odaini's specific situation, but a department official who requested anonymity says that, in general, the U.S. doesn't release any detainee unless his citizenship is established and the U.S. is confident that his home country will treat him humanely but has "the capacity and the will to manage the threat posed by his release."
Mohammed Albasha, spokesperson for the Yemen embassy, says he doesn't know what the delay is in Odaini's case. "It was established a long time ago that he was a Yemeni citizen."
Early negotiations for the release of Yemeni prisoners hit a standstill when the U.S. requested that Yemen sign a document saying the men wouldn't be tortured upon their return. Yemen officials refused, Albasha says, because of the implication that Yemen would otherwise torture them. (According to the State Department's 2006 report on Yemen's human rights practices, the Yemeni government acknowledged that torture and abuse occurred in its prisons but claimed it wasn't a result of official policy.)
But Albasha says the torture question is an old one. A dozen Yemeni prisoners have since been returned (one albeit in a body bag). Under the agreement Yemen has with the U.S., returning prisoners get screened by Yemen's judicial system "to make sure they have a clear bill." Albasha says four of the repatriated prisoners were convicted in a Yemen court of forging documents and all were sentenced to time served at Guantanamo and released to their families. "If someone has no blood on his hands or terrorist affiliations, he's free to go."
As for Odaini, "We are ready to take him back. We're just waiting for them [U.S. officials] to hand him over."
There are still about 95 Yemeni citizens at Guantanamo--more than from any other country--and Falkoff thinks their government could be doing more to repatriate them. "I don't know what the holdup is," he says, "whether the U.S. is making unreasonable demands or Yemen is refusing any kind of demand." But, he continues, "Yemen is the only country without a significant number of citizens being repatriated." All of the Europeans and Bahrainis have gone home, he says, as have more than half of the Saudis and Pakistanis.
Falkoff says other countries seem to be able to negotiate successfully with the U.S. for the return of their citizens, but for some reason Yemen hasn't. "You have to do more than state in public that you demand your men back," he says. "You have to actually engage in negotiations." The State Department won't discuss the details of its dealings with Yemen, but it likely has some concerns about the country's ability to mitigate the threat of terrorism--or even to keep its convicted terrorists behind bars. Last year 23 prisoners, including some who were involved in the USS Cole bombing and linked to Al Qaeda, were able to break out of a high-security prison.
Falkoff has written editorials for newspapers in Yemen urging readers to put pressure on their leaders to demand the return of their fellow citizens.
Falkoff says most of his clients live in virtual isolation, permitted to leave their cells for only two hours a day. Sometimes they don't bother to rouse themselves. "Half of the time their rec time is offered after midnight," Falkoff says. They aren't allowed to read newspapers, watch TV, or make phone calls. Incoming and outgoing mail is censored; family photos don't get through.
Falkoff tried to send his clients Arabic-English dictionaries and Dr. Seuss's ABC--to no avail. About a year after his arrest, Odaini sent a letter to his family through the International Committee of the Red Cross promising not to forget them, no matter how long he might be in Guantanamo. Falkoff says that Odaini no longer writes to his family. "He thinks it's better for them. He thinks they won't worry about him."
Despite the government-issued Korans and the painted arrows on their cell floors pointing toward Mecca, Odaini and other prisoners often complain to Falkoff about religious humiliations. They say guards have mocked them while they're praying, routinely mistreated the Koran, and taken away their prayer mats, prayer oils, and prayer beads as punishment.
While religion is clearly important to Odaini, Falkoff says it doesn't seem all-consuming to him. Odaini's brother Bashir wrote an affidavit for his habeas corpus case saying that when Odaini lived in Yemen he shaved and went to parties on the beach. "He was anything but an extremist when it came to religion," he wrote.
Odaini likes sports and has asked Falkoff to send him soccer and boxing magazines. Falkoff says he tried but "they were never allowed through."
Sometimes Falkoff wonders if lawyers such as himself have only brought confusion and disappointment. The habeas corpuscase is moving at a glacial pace. Court victories have given way to court setbacks. The prisoners remind them that in the three years the attorneys have been trying to help nothing has changed. "Basically everything we've told them turns out to be wrong," says Falkoff. The Supreme Court said they could have a hearing in 2004--but they're still waiting for one. The military was forbidden to look at the prisoners' privileged correspondence with their attorneys--but then a court ruled it could. "The basic thing we tell them is that the president can't just do what he wants, the courts are ultimately in charge," Falkoff says. "Our clients lean over and tell us, 'You have to understand it's a big game, there's nothing you can do about it.'"
Many prisoners seem unwell to him. Falkoff worries that one client who used to be animated is being forcibly drugged. Four or five have gone on hunger strikes. Several refuse to meet with Falkoff anymore. One called him a "mirage in the desert" and said that his hope for relief through the American courts had been extinguished. "He has a six-year-old daughter he's never seen," says Falkoff.
Some prisoners have started writing poetry to maintain their sanity and memorialize their suffering, says Falkoff. He recently edited a collection of their work, Poems From Guantanamo: The Detainees Speak.
Odaini is doing better than most prisoners, says Falkoff. The government seems to have lost interest in interrogating him, and he lives in Camp Four, a communal setting with ten detainees to a cell that's reserved for those the military considers compliant. Camp Four detainees have "freedom of movement from indoors to outdoors throughout the day," according to Lieutenant Colonel Edward Bush III, of the public affairs office at Guantanamo, and Falkoff says Odaini uses his rec time to kick around a soccer ball and visit a garden, though he's told Falkoff that detainees are made to use the garden one at a time and only allowed to water the plants, not to sit and enjoy them.
"He's our one client we don't have to keep justifying the value of having a lawyer to," says Falkoff. "He looks around for old men or people who don't understand what the legal system is all about and he explains to them why they need to have a lawyer, and he'll write out affidavits, saying there's this other detainee here and he wants me to enlist a lawyer for him, I'm acting in his best interest as his next friend." Falkoff says he can easily imagine a different life for Odaini. "He should be living in someone's home in Connecticut as an exchange student at Yale."
The last time Falkoff visited Odaini, in May, he brought him another piece of good news: The Pentagon had sent an e-mail to Covington & Burling saying that Odaini had been added to a list of prisoners who were "approved to leave Guantanamo." Although he'd been cleared for release nearly a year earlier, it was the first official word from the top that Odaini had made it onto the transfer list. Odaini knew better than to get too excited, says Falkoff. "He smiled and shrugged."