Congressional Hearing, Stafford-Smith Testimony, May 20, 2008

Good Afternoon, Chairman Delahunt, and members of the subcommittee. Thank you for holding this hearing and for inviting me.

I am an Anglo-American lawyer. I spent ten years working in Atlanta, a further eleven in New Orleans, and the past four based in London. When I was sworn in as a U.S. citizen several years ago, U.S. District Court Judge Helen G. Berrigan, who was conducting the ceremony, kindly remarked that I had for years been fulfilling my new oath of citizenship, performing civil rights work for indigent prisoners. This, she said, was what it meant to up-hold the U.S. Constitution and the American way of life.

I became involved in the litigation over Guantanamo Bay at the very beginning, in early 2002, because I believed that the evisceration of the Rule of Law was contrary to everything that I swore to up-hold as a U.S. citizen and as a member of the bar.

I believed then that Guantanamo Bay would make everyone a loser. Most of all I feared that the U.S. would itself suffer if the Rule of Law became an early victim of the 'War on Terror.' On September 12, 2001, as the victim of an unpardonable crime, the U.S. enjoyed a reservoir of goodwill unparalleled in our history. Sadly, that reservoir has long since drained away, sucked out in part by the images of Muslim men in their Guantanamo orange uniforms.

A reputation is often hard-won, but it is always easily lost. We have tarnished our reputation in the past six years, yet we can and must regain it. We need to understand our mistakes, redress them, and move forward to the future that is promised by the American ideal.

I have made at least 17 trips on behalf of my Guantanamo clients to countries in Europe, the Middle East and North Africa. Everywhere I go I meet the same question: What is the U.S. doing holding prisoners for year upon year in Guantanamo Bay, without any meaningful due process? There is a great deal of anger. There is sadness - that the U.S. has created a new word for inequity, and that word is Guantanamo.

Yet there is hope amid the darkness: Thankfully, when I explain how American lawyers are willing to help them pro bono, those who I meet -- such as family members of prisoners and even the former prisoners themselves -- say that they do not hate the American people; however, they are strongly opposed to what they view as the mistakes of the Bush Administration. They view Guantanamo as an aberration, an error from which the U.S. can recover.

Yet we cannot expect to recover our reputation without action. As one Guantanamo prisoner said to me: "If I receive just one act of kindness from an American I will forget the years of mistreatment." If, on the other hand, we are unwilling to admit our mistakes then the damage done to our reputation will never be repaired.

And there have been many errors. In all honestly, I never believed it possible that we would make so many. Some are explained by our policy of paying bounties - a minimum of $5,000 per prisoner in Pakistan, for example, which is an enormous amount of money there. You essentially purchase a prisoner, apply 'enhanced interrogation techniques' to make him confess to the same facts that the bounty seeker gave you, and then hold him without due process in Guantanamo.

It is not my purpose to canvass every injustice that has taken place in Guantanamo Bay. Unfortunately, however, the following three examples (selected from the clients I help to represent) are reasonably typical.

Muhammad Hussein Abdallah is a teacher, a father of eleven, and a Somali refugee. He has spent the last six years held without charge by the U.S. military. Of all the tragic and senseless tales to come out of Guantanamo Bay, Mr. Abdallah's is one of the saddest. He led his family out of Somalia years ago to protect them from escalating violence - the conflict that plagues Somalia to this day. The family settled in Pakistan in the early nineties; UNHCR granted Mr. Abdallah protected refugee status in 1993.

For the next several years, the Abdallahs lived quietly. Mr. Abdallah taught orphans at a Red Crescent school in Jalozai, a refugee camp outside Peshawar that housed thousands of displaced Afghanis. Pakistani soldiers staged a night time raid on his home, took him away from his family, and sold him to American soldiers. He has been in military custody ever since. Three months later, his house was raided again by both the ISI and U.S. forces. During that raid, a soldier reportedly stormed into the room where Mr. Abdallah's son-in-law was sleeping, unarmed. Startled, the son-in-law apparently reached for his glasses to see what was happening and the soldier shot him. He was killed.

Mr. Abdallah's innocence has been proved, and has been conceded by U.S. forces, yet he remains in Guantanamo Bay. He remains in Guantanamo because the U.S. has, as yet, failed to find him somewhere to go. Yet there is a refuge that would be suitable for Mr. Abdallah and the other two Somali prisoners in Guantanamo Bay: the small, stable, de facto independent region of northwest Somalia known as Somaliland. The government of Somaliland is closely allied with the United States. Moreover, high-ranking members of this government the Ministers of Interior and Foreign Affairs, the Speaker of the Parliament, and the leader of the chief opposition party have all been alerted by my office to the cases of Somali prisoners in Guantanamo Bay. It should, in principle, be relatively straightforward for the U.S. to transfer Mr. Abdallah, a UNHCR refugee who is patently innocent of any crime, to a friendly regime. For Mr. Abdallah the matter is urgent. He is an aging grandfather who never posed the slightest threat to the U.S. or its allies. It is no exaggeration to say he has little time left. His one wish now is to return to his family in Somaliland and live out his remaining years in peace with his loved ones.

Mohammed El Gharani is the second youngest prisoner in Guantanamo Bay today. He was 14 when he was seized in Pakistan. Today he is 21, having now spent six and a half years in United States custody without a trial. Mohammed was born in [M]edina, Saudi Arabia, in November 1986. He loved playing football and earned money for his family working after school selling bottles of water or prayer beads. His family is from Africa, and he is a national of Chad. He is a very intelligent young man. He dreamed of being a doctor, but the extreme discrimination in Saudi Arabia is reminiscent of the Deep South in the 1950s. His dark skin cut off his options, and Mohammed was forced to leave school at 14. A friend suggested he go to Pakistan to study English and computers, and he followed this advice.

Mohammed states that not long after his arrival in Karachi, he went to a mosque at prayer time. Police surrounded the building and arrested everyone inside. Mohammed told the Pakistani police that he was there to study and had arrived only recently, but this did him no good. He was hung for hours by his wrists, so high that only the tips of his toes touched the ground - a torture technique called strappado by the Spanish Inquisition. He was beaten repeatedly.

It is a sad comment on the quality of some of the intelligence in Guantanamo that when I finally obtained access to Mohammed, the U.S. military still thought he was ten years older than his real age. Confirming his true date of birth was simple, through records from Saudi Arabia.

More than six years later, Mohammed has never been formally charged with any crime. The main allegation against him remains that he was a member of an Al Qaeda cell in London in 1998. The suggestion is ludicrous, and recently his interrogator has had the decency to apologize for the fact that the allegation has still not been dismissed: Mohammed would have been just 11 years old at the time - and had never been outside Saudi Arabia.

Today, Mohammed is kept in the maximum security Camp V. He is housed in a cell that is entirely made of steel. The neon lights are on 24 hours a day. He has nothing to do all day. Mohamed has also faced totally unacceptable abuse. Perhaps most damaging, the racial abuse has continued throughout his incarceration.

He has been deeply depressed and has made several suicide attempts, including slashing his wrists, trying to hang himself and running head-first into the wall as hard as he could.

Saudi Arabia refuses to take responsibility for him, so Chad seems to be the only option for his release. However, until his volunteer legal representatives travelled to Chad, the Chad government reported that there had been no efforts by the U.S. to negotiate[ ] his release to the country of his nationality. He remains in Guantanamo Bay.

Finally, let me mention Binyam Mohamed, a British resident from London. At Karachi airport on 10 April 2002, Binyam was seized by Pakistani authorities when he was trying to take a plane home to England. He was interrogated by both American and British officials. The British confirmed to the U.S. that he was a "nobody" - a janitor from London. Nevertheless, the U.S. decided that he knew more than he was saying.

On 21 July 2002 Binyam was rendered to Morocco on a CIA plane. When I went to law school at Columbia in New York, I never thought I would sit across from a client for three days to talk about how he was tortured at the behest of my government. Some of it hardly bears repeating. For example, the Moroccans took a razor blade to his penis.

Naturally, Binyam said what his torturers wanted to hear. Sadly, the U.S. military now plans to use the bitter fruit of this abuse to prosecute him in a military commission. This is not only wrong, but it places our closest allies, particularly the British, in an intolerable position. There have been inquiries into Binyam's rendition to torture in the Council of Europe, the British parliament and now even in Portugal.

Two weeks ago Binyam's U.K lawyers sued the British government to force them to provide the proof that Binyam is (a) a "nobody", a janitor, (b) was tortured, and (c) that the UK provided evidence to the US that was used by the Moroccan torturers. We know the UK has this material, and you can imagine the political difficulties that they face when forced to disclose this in the hugely embarrassing context of a U.S. military tribunal.

The U.K. has asked that Binyam Mohamed be returned to the U.K., where he will face any legal proceedings that the U.K. chooses to initiate. The U.K. is willing to be responsible for his custody and control. The U.S. should repatriate him rather than prolong and exacerbate the damage that this case has done both to the reputation of the U.S. and to Anglo-American relations.

The opinions I express today are purely my own. Yet I hope you will join me when I say how sad it is that we have squandered so much goodwill around the world. It is important to focus on the future. However, we cannot expect to rehabilitate our own reputation unless we recognize the errors of the past, seek to make amends as best we can, and avoid similar mistakes in the future.

   Thank you.