The fact that the majority of the allegations against him were made by other prisoners is largely a testament to his own resistance, As one of Guantà ¡namo's least compliant prisoners, he has not fought back physically, but has refused to make false confessions implicating himself or others, as so many others have done under duress (and as the judges in the District Court have been exposing in other habeas petitions).
This is in spite of the fact that, in 2003 and 2004, when Donald Rumsfeld imported a version of the CIA's torture program to Guantà ¡namo, he was subjected to a vast array of "enhanced interrogation techniques," which, as Lt. Col. Wingard described them, "have included but are not limited to sleep deprivation, physical and verbal assaults, attempts at sexual humiliation through the use of female interrogators, the 'frequent flier program,' the prolonged use of stress positions, the use of dogs, the use of loud music and strobe lights, and the use of extreme heat and cold."
Even now, he is regarded as one of a handful of prisoners whose perceived influence over his fellow prisoners is such that he, and others who could not be "broken," are separated from the general population of the prison.
As I stated at the start of this article, Judge Kollar-Kotelly's unclassified opinion has not yet been published, so it is unclear where, in the barrage of "hearsay evidence recorded by unidentified individuals with no first hand knowledge of the events they describe," she concluded that there was sufficient evidence to deny his petition.
Certainly, the habeas legislation is not without fault, although it has delivered victories for the prisoners in 38 out of 55 cases to date. A particularly startling example of these shortcomings was revealed last August when, in the case of a Yemeni, Adham Ali Awad, who was handed over to Afghan forces by al-Qaeda fighters in a hospital where he was a patient, Judge James Robertson denied his petition, even though he conceded that, "The case against Awad is gossamer thin," and added, "The evidence is of a kind fit only for these unique proceedings and has very little weight."
Tom Wilner, an attorney in Washington D.C., who represented al-Kandari and the other Kuwaiti prisoners in the early days of Guantà ¡namo, and was counsel of record in the Supreme Court cases granting the prisoners habeas corpus rights (in Rasul v. Bush in June 2004, and Boumediene v. Bush in June 2008), explained to me on Friday how it was possible for prisoners to lose their habeas petitions on the basis of "gossamer thin" evidence.
"It is important to bear in mind that the standard for habeas is quite low; it only determines whether there is probable cause for detaining someone, not that the person has done anything wrong," Wilner told me. He also added further criticism of the Bush administration's detention policy, as maintained by President Obama.
Despite Friday's result, he explained, al-Kandari "has not been convicted of any wrongdoing, yet he has been imprisoned for more than eight years. The low standard for habeas might be an appropriate standard for detaining someone initially, but it is hardly an appropriate standard for holding people for years without end."
None of this helps Fayiz al-Kandari, whose lawyers must now either appeal or attempt to arrange a repatriation program between the U.S. and Kuwaiti governments. The first looks like a doomed enterprise, given the right-wing bent of the D.C. Circuit Court, which has recently been attempting to extend the government's detention powers, rather than placing limits on them, and the second is hardly a better option.
In April, when discussions were proposed regarding the repatriation of al-Kandari and of the other Kuwaiti prisoner, Fawzi al-Odah, who lost his habeas petition last August, the Obama administration attempted to impose ludicrous security demands on the Kuwaiti government before talks could begin. These included demands that two men released last year after winning their habeas petitions - Khalid al-Mutairi and Fouad al-Rabiah (who, notoriously, was tortured into making false confessions that he was taught to repeat) - "have their passports taken away, be required to check in with local authorities regularly and be under surveillance by the Kuwaiti government for a period of time."
So is Fayiz al-Kandari some sort of threat to the United States? Nothing I have ever seen or heard about him suggests that he is. When I interviewed Tom Wilner for the documentary film, "Outside the Law: Stories from Guantà ¡namo" (which I co-directed with Polly Nash), Tom spoke about a Kuwaiti prisoner who, from childhood, had allocated half his allowance to those more needy than himself, and described him as "a wonderful guy." I had always suspected that the prisoner he was referring to was Fayiz al-Kandari, and on Friday, I asked him if this was the case.
Tom confirmed that it was indeed Fayiz he was referring to, and also told me, "He is extremely bright, with a wonderful smile and sense of humor and an almost poetic ability to express himself. He was absolutely dedicated to helping others and fighting any injustice inflicted upon them. At the same time, he was much stronger than I could ever be in withstanding personal abuse and injustice inflicted upon himself."
Tom also told me that Fayiz "repeatedly expressed the view that Osama bin Laden and al-Qaeda were seriously misguided, that their views were a perversion of Islam and that harming innocent civilians is a sin."
Given Fayiz al-Kandari's resilience, it is almost certain that he greeted Judge Kollar-Kotelly's ruling with the strength of character identified by Tom Wilner, and with the playful dismissal of American justice with which he regularly greets his attorneys on visits to Guantà ¡namo. His strength, however, should not blind us to the fact that, nearly nine years after his capture, there is nothing worth celebrating in the judge's ruling - or in his continued detention.
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