For Fayiz al-Kandari, one of the last two Kuwaitis in
Guanta'namo, American justice has always been an oxymoron. Although he
has maintained - for nearly nine years - that he is an innocent man, and
although the U.S. government has no evidence against him, he was put
forward for a trial by Military Commission under President Bush, and,
last Friday, lost his habeas corpus petition in the District Court in
Washington D.C., consigning him, on an apparently legal basis, to
indefinite detention in Guanta'namo.
(Illustration: Jared Rodriguez / t r u t h o u t)
Nevertheless, throughout his long detention, al-Kandari has refused to let his disappointment with the U.S. justice system drag him down, and has found the strength to joke about it whenever he is visited by his lawyers. As his military defense attorney, Lt. Col. Barry Wingard, explained in an op-ed in the Washington Post in June 2009:
Each time I travel to Guanta'namo Bay to visit Fayiz, his first question is, "Have you found justice for me today?" This leads to an awkward hesitation.
"Unfortunately, Fayiz," I tell him, "I have no justice today."
Judge Colleen Kollar-Kotelly's unclassified opinion has not yet been published, so the details of her reasoning are as yet unknown, but enough of al-Kandari's story has been reported to understand the weakness of the government's case, and it beggars belief that a sound reason for denying his petition could have been conjured up at the last minute.
Al-Kandari, who is from a wealthy family in Kuwait, and has a history of providing humanitarian aid in countries where Muslims were suffering (in Bosnia in 1994, and in Afghanistan in 1997), has persistently stated that he arrived in Afghanistan at the end of August 2001 on a humanitarian aid mission that involved building two wells and repairing a mosque for a small rural community. He has also repeatedly stated that, sometime after the U.S.-led invasion in October 2001, he set off for Pakistan, after being shown a leaflet that had a picture of an Afghan holding a bag with a dollar sign on it, accompanied by some text, which, in essence, said, "Turn in Arabs and this will be you," but was then seized by Northern Alliance soldiers who subsequently sold him to U.S. forces.
The U.S. authorities do not dispute the date of his
arrival, but they claim that, in the three to four months before his
capture in December 2001, he visited the al-Farouq training camp (the
main training camp for Arabs in the years before 9/11) and "provided
instruction to al-Qaeda members and trainees," served as an adviser to
Osama bin Laden, and "produced recruitment audio and video tapes which
encouraged membership in al-Qaeda and participation in jihad."
However, as I explained in a major profile of al-Kandari for Truthout in October 2009:
[T]he government has never attempted to explain how he "provided instruction to al-Qaeda members and trainees" at al-Farouq, when the camp closed less than a month after his arrival in Afghanistan, and, more importantly, how he was supposed to have undertaken all this training, provided all this instruction and advice, and produced videos and audiotapes during the small amount of time that he actually spent in Afghanistan.
At a military review board in Guanta'namo in 2005, al-Kandari attempted to expose the implausibility of these allegations, when he asked:
At the end of this exciting story and after all these various accusations, when I spent most of my time alongside bin Laden as his advisor and his religious leader ... All this happened in a period of three months, which is the period of time I stayed in Afghanistan? I ask, are these accusations against Fayiz or against Superman?
Despite this, the authorities have refused to accept al-Kandari's account of his activities, even though a cursory glance at the allegations against him demonstrates that, of the 20 allegations against him, 16 are attributed to an unidentified "individual," and only one - a claim that he "suggested that he and another individual travel to Afghanistan to participate in jihad and ... provided them with aliases" - came from al-Kandari himself (and has been refuted by him).
The paucity of evidence is so extreme that, after his Combatant Status Review Tribunal in 2004 (a deliberately one-sided process designed to rubber-stamp the men's prior designation as "enemy combatants"), the tribunals' legal advisor made a point of dissenting from the tribunal's conclusion that he was an "enemy combatant," stating:
Indeed, the evidence considered persuasive by the Tribunal is made up almost entirely of hearsay evidence recorded by unidentified individuals with no first hand knowledge of the events they describe.
As researchers at the Seton Hall Law School noted, in a major analysis of the CSRT documentation, entitled, "No-Hearing Hearings" (p. 34), "Outside of the CSRT process, this type of evidence is more commonly referred to as 'rumor.'"
Although these "rumors" were sufficient for the Pentagon to regard him as a prisoner of such significance that he was put forward for a trial by Military Commission in October 2008 (which has not been revived under President Obama), it is difficult to escape the conclusion that, inside the prison, he is regarded as a threat not because of what he is supposed to have done prior to his capture, but because of his attitude in detention.