Here is Adnan’s story, as he related it to Falkoff
and (many times) to his interrogators:

After sustaining a serious head injury in a 1994 automobile accident, he had spent years trying to find affordable medical treatment. Somebody told him about the health-care office of a Pakistani aid worker in Afghanistan who would treat him, and there he went, sometime in 2001. He was still there on September 11 of that year, and when the Americans began bombing the Taliban the following month, Adnan fled, arriving at the border town of Khost and making his way into Pakistan.

There Pakistani forces arrested him, along with about 30 other men who looked Arabic, most of them Yemenis. Adnan later learned that each of them had been turned over to the U.S. military for a bounty of $5,000.

A British historian named Andy Worthington later told Falkoff how the Pakistanis likely came to pick up those 30 men. It seems that there were two routes out of Tora Bora, where hundreds of Al Qaeda fighters had been holed up. One was to Khost; the other was across the White Mountains. The Al Qaeda operatives took the latter route. The Americans, “oblivious to the actual escape route of the fighters,” had focused on the Khost road, reports Falkoff. “When the Pakistanis seized the 30 Arab civilians passing through Khost, therefore, the Americans touted the capture as a successful roundup of Al Qaeda soldiers.” Unfortunately, those soldiers had already escaped through the mountains.

It was an understandable mistake, but one with profound consequences. The Pakistanis treated the Yemenis harshly, according to Falkoff, then turned them over to the Americans. At that point, the Yemenis thought they would be treated fairly.

 

Here is the summary of evidence against Adnan by the Combatant Status Review Tribunal:

a) The detainee is an al Qaida fighter:

In the year 2000 the detainee reportedly traveled from Yemen to Afghanistan.

The detainee reportedly received training at the al-Farouq training camp.

b) The detainee engaged in hostilities:

1) In April 2001 the detainee reportedly returned to Afghanistan.

2) The detainee reportedly went to the front lines in Kabul.

“I tell [Adnan] that when I first saw the accusations, I thought they looked serious,” Falkoff writes. “But that when I looked at the government’s evidence, I was amazed. There was nothing there. Nothing at all trustworthy. Nothing that could be admitted into evidence in a court of law. Nothing that was remotely persuasive, even leaving legal niceties aside.”

At most, he adds, “there was incredibly unreliable hearsay, often taken from other detainees who were—in the words of a military representative—‘known liars,’ or else whom we now know to have been tortured.”

According to a study by Seton Hall Law School that Falkoff cites, only 8 percent of the detainees at Guantánamo are even accused of being Al Qaeda fighters. Only 5 percent of the detainees were picked up on the battlefield by U.S. troops.

Though he could only speak about unclassified information, Falkoff notes that “it is now public knowledge that ‘Detainee 063’—who is Mohammed al-Qahtani—is personally responsible for ‘identifying’ about 30 of the detainees at Guantánamo as being associated with Al Qaeda. It is also now public, and undisputed, that al-Qahtani was tortured while in custody at Guantánamo.” (A leaked classified log of al-Qahtani’s 60-day interrogation, excerpted by Time magazine, can be viewed at http://www.ifa.hawaii.edu/faculty/jewitt/interrogation.pdf.)

During the Combatant Status Review Tribunal (CSRT) hearing, Falkoff reports, Adnan was never allowed to see the evidence against him. At first glance, this charge appeared to be contradicted by “The Guantánamo I Know,” an op-ed piece in The New York Times by Colonel Morris Davis. “Each accused receives a copy of the charges in his native language,” he wrote. An accused “may represent himself or have assistance of counsel; he is presumed innocent until guilt is established beyond a reasonable doubt; he is entitled to assistance to secure evidence on his behalf …”

But, notes Falkoff, Davis was referring to the “military commissions” system that detainees would face if they were charged with a crime. So far, only 10 out of the hundreds of detainees at Guantánamo have been charged with crimes to be tried before a military commission; each was thrown out by Supreme Court action. Some of the 10 were charged again, says Falkoff, “but with one exception those charges were all thrown out again by the military commissions’ judges themselves.” (That one exception was David Hicks, the “Australian Taliban,” who pleaded guilty to a charge of providing material support for terrorism, and served his nine-month sentence in Australia.)

The Pentagon has said it would prosecute “at most 60 to 80 of the prisoners,” says Falkoff. As a result, none of the others are likely to have a real trial—only the CSRT, which he calls “a kangaroo court if ever there was one.”

The military refused to investigate Adnan’s claim that he had been seeking medical help for his head injury in Afghanistan, on the grounds that “the request was untimely and the evidence was not readily available”—and that even if the evidence did exist it was “not relevant to the issue of whether the detainee was properly classified as an enemy combatant.” (Falkoff was able to obtain three medical documents supporting the injury claims from Adnan’s brother.)

Falkoff says he was also prohibited from bringing any news from the outside unless it “directly related” to the detainees’ cases. In the military’s interpretation of that phrase, Supreme Court cases dealing with the rights of Guantánamo detainees did not “directly relate” to any particular detainee’s case.

Even after the high court ruled that the detainees had the right to file habeas corpus petitions in 2004, the government argued that the petitions should be dismissed because the detainees had no rights that could be vindicated by habeas corpus. A federal judge dismissed that argument.


And when you pass by life’s familiar objects—
The Bedouin rugs, the bound branches,
The flight of pigeons—
Remember me.

—From “I Write My Hidden Longing,” by Abdulla Majid Al Noaimi.

 Falkoff was already representing Adnan when the CSRT hearing took place in October 2004—nearly three years after Adnan was taken prisoner—but he was not allowed to attend. In his place was a “Personal Representative,” a military officer expressly prohibited from having legal training, and whose interests were not exactly those of the detainee. After their one brief meeting, the Personal Representative wrote that Adnan “rambles for long periods,” adding: “He clearly has been trained to ramble as a resistance technique and considered the initial [interview] as an interrogation. This detainee is likely to be disruptive during the Tribunal.”

Needless to say, Adnan’s status as an Enemy Combatant was not changed.

For Falkoff, there is plenty of blame to go around. He has criticized the Yemeni government for failing to reach an agreement with the U.S. to repatriate its own citizens. But most of his ire is reserved for American politicians.

“The chief failing is on the part of the Bush Administration, of course,” he says. “In the name of national security, they have made a power grab seeking to marginalize the role of the other branches of government—the legislative and the judicial.

“Of course, the other branches of government are also complicit in the Guantánamo travesty,” he adds. “While in Republican control, Congress twice passed legislation seeking to strip the Guantánamo detainees of their right to a day in court.” Even the courts have, in Falkoff’s opinion, been “far too accommodating of the Administration” and too slow in issuing decisions affecting the detainees (taking more than two years, in one case).

“The whole point of our litigation, of course, has been to force the president to justify the legality of the detention of these folks,” he says. “We need an independent arbiter. The Administration refuses to admit it could have made any mistakes, though note that it has released about 400 men from Gitmo already!”


My heart was wounded by the strangeness.
Now poetry has rolled up his sleeves, showing a long arm.

Time passes. The hands of the clock deceive us.
Time is precious and the minutes are limited.
Do not blame the poet who comes to your land,
Inspired, arranging rhymes.

—From “My Heart Was Wounded by the Strangeness,”

by Abdulla Majid Al Noaimi.

On a literary level, the “crystallizing moment” for Falkoff came as he was reading a book of poetry titled Here, Bullet, by Brian Turner, an American soldier and poet who led an infantry team in Iraq during the early stages of the war.

“His poems allowed me to feel, to some degree, what life was like as a soldier on the ground,” says Falkoff. “I realized as I read his book that one of the chief purposes of literature is to allow the reader to empathize with another person, and it occurred to me that our clients’ poems could serve the same purpose. My clients and the other poets in the volume have had their voices silenced so far, and have not been allowed to plead their innocence in our courts of law.”

The first poem he saw was one sent to him by Abdulsalam Ali Abdulrahman Al-Hela, a Yemeni businessman from Sana’a; Falkoff describes it (in an article for Amnesty International magazine) as a “cry against the injustice of arbitrary detention and at the same time a hymn to the comforts of religious faith.” Shortly after that he learned of a poem by Adnan titled “The Shout of Death,” and after querying other lawyers, Falkoff realized that Guantánamo was “filled with amateur poets.” (Both of those poems, incidentally, remain classified, as do hundreds of others.)

The detainees’ poems, Falkoff explains, “were composed with little expectation of ever reaching an audience beyond a small circle of their fellow prisoners.” Whatever one thinks of the poems in this book—some of which struck this reader as quite lyrical and moving, others as artlessly polemical—they do give the detainees a voice.

Asked which of the 22 poems he particularly admires, Falkoff singles out two. One is Ibrahim Al Rubaish’s “Ode to the Sea.” In it, Falkoff says, “the poet accuses the sea of witnessing the abuse and maltreatment of the detainees in the prison, but instead of helping, it stands idly by. I think it’s pretty clear that this is an indictment of the world and, more particularly, of the American public, who for years now have been witness to the abusive conditions at Guantánamo and the plight of innocents there, and yet do nothing to end the injustice.”

The other is Emad Abdullah Hassan’s “The Truth,” a long and “very elusive” poem about a “Manichean struggle between good and evil.” It includes the following lines:

Inscribe your letters in the heart of a laurel tree,
All the way to the city of the chosen.

It was here that Destiny stood wondering.
Oh Night, are these lights that I see real? …

Oh Night, I am a bright light
That you will not obscure.

Oh Night, my song will restore the sweetness of Life:
The birds will again chirp in the trees,

The well of sadness will empty,
The spring of happiness will overflow,

And Islam will prevail in all corners of the Earth.
“Allahu Akbar, allahu Akbar.” Allah is our Lord.

They do not comprehend
That all we need is Allah, our comfort.

Expressions of faith can cause discomfort in those who don’t profess the same faith. When the faith is Islam, some of whose followers have used their religion as a reason to kill nonbelievers, the post-9/11 discomfort can become acute.

Does any of the detainees’ poetry, I ask Falkoff, make him uneasy? I single out the line And Islam will prevail in all corners of the Earth, even though I know I’m taking it out of context.

“This particular line does not make me uneasy,” Falkoff responds. “I imagine that dozens of the major Christian sects would express the same sentiments about Christianity.”

He makes it clear that he did not take out any lines—or entire poems—simply because somebody could take a line out of context and use it to “prove” that the poet in question hates America. While some lines “seem impolitic, especially when taken out of context,” he adds, they are not hate-filled, anti-American screeds.

“There is certainly a good deal of disillusionment in the poems,” Falkoff acknowledges: “disillusionment that America, the ‘protectors of peace’ in the words of one of the poets, would abuse the men, disrespect their religion, and hold innocent men without any charge or trial. There is occasional disdain for President Bush, though I can tell you that all of my clients are sufficiently sophisticated that they understand the difference between the Bush Administration and the American public.”

Falkoff acknowledges that the collection “inevitably suffers from some flaws,” explaining: “It is not a complete portrait of the poetry composed at Guantánamo, largely because many of the detainees’ poems were destroyed or confiscated before they could be shared with the authors’ lawyers.”

Each of those that did make it out of Guantánamo required a multi-layered translation; lyricism was not the top priority.

“Everything that our clients write to us is considered a national security threat,” says Falkoff. “We therefore have to get the Pentagon censors to approve any letter, statement, or poem from our clients that we want to make public. To get Arabic or Pashtu poems translated, we have to do it with security-cleared translators working at the secure facility in Arlington, Virginia. The plain fact is that there are very few such translators available, and none who specializes in literary or poetic translations.”

Furthermore, the military has often cleared “only the English translations of the Arabic poems, making it impossible to get ‘professional’ translations outside of the secure facility. The result is that some of the ‘poetry’—the tone or cadence of the original—will inevitably be lost in translation.”

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