Note: See here for an Amnesty International petition calling for the release of Fayiz al-Kandari and Fawzi al-Odah.

Just a few days ago, Jenifer Fenton, who used to work for CNN, but has recently started working for Al-Jazeera, followed up on the excellent work she was doing for CNN last year, focusing on the stories on the Kuwaiti prisoners held at Guantánamo, with a new article focusing on the mothers of the two remaining Kuwaitis in the prison, Fayiz al-Kandari and Fawzi al-Odah. The publication of the article is timely, as, in just nine days, the “war on terror” prison at Guantánamo Bay will have been open for ten years.

I discussed the first of Jenifer’s articles in August, in an article entitled, “Can Kuwait Break the Guantánamo Deadlock?” and cross-posted a second, in October, under the heading, “Life After Guantánamo: Kuwaitis Discuss Their Tortured Confessions,” and this third article continues Jenifer’s important work, as it is even clearer now than it was in August that Fayiz and Fawzi will only be released through outside pressure on the Obama administration, and not through any mechanisms within the United States.

Despite the lack of evidence against Fayiz and Fawzi, both men lost their habeas corpus petitions — Fayiz in September 2010 and Fawzi in August 2009. Fawzi then had his appeal turned down by the D.C. Circuit Court, where, after victories by the prisoners from 2008 to 2010, right-wing judges have, shamefully, been rewriting detention policies so that no prisoner can expect to have his habeas petition granted, and also by the Supreme Court, which, just as shamefully, has refused to tackle the Circuit Court’s meddling on purely ideological grounds.

Sadly, Fayiz al-Kandari has also just had his appeal denied by the D.C. Circuit Court, leaving both men stranded in Guantánamo forever, unless the Kuwaiti government can secure their release through diplomatic means, or concerned citizens in the US can persuade the Obama administration to tackle the cheerleaders for Guantánamo in Congress, who have imposed almost insurmountable restrictions on the President’s ability to release prisoners, and who appear to be unconcerned that Kuwait is a loyal ally of the US, and has a state-of-the-art rehabilitation center, built especially for returning Guantánamo prisoners, which lies empty, its only possible purpose being to rehabilitate Fayiz al-Kandari and Fawzi al-Odah.

Jenifer Fenton’s article is cross-posted below.

Kuwaiti families in legal limbo at Guantánamo

By Jenifer Fenton, Al-Jazeera, December 29, 2011

Fatimah Al-Kandari has not seen her son Fayiz Al-Kandari in more than 10 years, but her thoughts are possessed by him. She sees Fayiz in every face. She thinks she hears him at times speaking to her. There is no room for anything else in Fatimah Al-Kandari’s life but her son.

Soad Abdul Jaleel feels the same way. When she last saw her son Fawzi Al-Odah he was 24; he is now 34. Not a second goes by without her thinking of him, praying for him.

Al-Kandari and Al-Odah are incarcerated in Guantánamo Bay, Cuba. Al-Kandari has been accused of providing material support for terrorism and conspiracy to materially support terrorism.

Al-Odah has been accused of being associated with al-Qaeda and the Taliban. He has admitted to carrying a weapon through the Tora Bora Mountains in Afghanistan, but his father Khalid Al-Odah has said the gun was for self-defence.

Both men have asserted their innocence. The two traveled to Afghanistan to do charity work, according to statements they, their families and lawyers have made.

Detention without charges

Though they stand accused, neither has had a trial — nor is one scheduled — to determine their guilt or innocence. They have filed habeas corpus petitions challenging the basis of their detention without charges, but their petitions have been denied.

The courts have concluded that there is a basis for the US government to continue to detain them under the Authorization for Use of Military Force Act, which allows the president to use “all necessary and appropriate force” against nations, organizations, or persons linked to the 9/11 attacks.

The US Supreme Court rejected Al-Odah’s appeal challenging his indefinite detention. On December 9, Al-Kandari’s appeal was also rejected by the Court of Appeals for the DC Circuit. The court cancelled oral arguments, meaning that the appeal was decided on the briefs.

“The judges will not even give 10 minutes to hear the appeal of a man who has now spent a decade behind bars,” said David Cynamon, the lead attorney for Kuwaiti detainees at Guantánamo Bay. Their lawyers fear that the two men will be indefinitely detained.

But the two men’s mothers will not allow themselves to think that they will not see their sons again. For them, giving up hope is not an option.

“We didn’t speak to him for years after [he was first taken to] Guantánamo,” Fatimah Al-Kandari said. They were only allowed to communicate through letters, but most of the words were crossed out. “The only words we could read were greetings and words to his mother and his signature. That’s it. Everything else was crossed out with a black marker.”

Time stands still for Fatimah Al-Kandari. She buys her son, now 36, new clothes so he will have something to wear if he is freed and embroiders them with the letter “F” so they do not get mixed up with his brothers’ clothes.

She wants to know what her son has been charged with and why has he not had a trial. She cannot believe that Americans would agree to this kind of abuse.

‘Enhanced interrogation’

Al Kandari has been tortured — or as the Bush administration called it, subject to “enhanced interrogation techniques,” his lawyer said. The abuse has included sleep deprivation, physical abuse, being placed in stress positions, sexual humiliation, the use of dogs, loud music, and the use of extreme temperatures, according to what Al-Kandari told his military defense attorney, Lt. Col. Barry Wingard.

His mother has, of course, seen photos and heard about the torture. “What do I feel? You know a mother’s heart. I cry all the time and I never sleep at night.”

In response to previous queries about alleged abuse of Kuwaiti detainees, I was referred to a Department of Defence (DoD) report on detainee conditions, which states: “It is our judgment that the conditions of confinement, in Guantánamo, are in conformity with Common Article 3 of the Geneva Conventions,” which among other things prohibits violence to life and person and humiliating and degrading treatment.

Commander Leslie Hull-Ryde of Defence Press Operations added via email that the DoD “does not tolerate the abuse of detainees. All credible allegations of abuse are thoroughly investigated, and appropriate disciplinary action is taken when those allegations are substantiated … Although there have been substantiated cases of abuse in the past, for which US service members have been held accountable, our enemies also have employed a deliberate campaign of exaggerations and fabrications.”

But is Al-Kandari an enemy of the US?

His family says no. “Where are the human rights here?” his mother asked. “They are just holding them in prison. If they have done something, let the world know what they did.”

According to Defence Department Documents from 2007, the following factors have favored Al-Kandari’s continued detention: his commitment, his training and his connections and associations. Some specifics claims levelled against him include: “an individual stated that the detainee was in charge of a group in Tora Bora” and “an individual stated that the detainee was very close to Osama bin Laden” [That individual, it should be noted, is Yasim Basardah, a Yemeni prisoner well-known as the most prolific and unreliable witness in Guantánamo].

Sixteen out of 22 of the government’s claims mentioned in a 2007 DoD report cite “an individual” who made statements against Al-Kandari. According to Cynamon, the lawyer, therein lies the difficulty with the Guantánamo cases: They rely on hearsay, which is not normally admissible in US courts.

There is no way of “testing the truthfulness of the people making the allegations,” Cynamon said. “The whole point of the prohibition against hearsay is the recognition that it is inherently inferior to live testimony, which can be tested by cross-examination, and where the trier of fact — whether the judge or jury — can actually see the witness and assess his or her credibility”, Cynamon added.

It is also not possible to assess under what circumstances Al-Kandari or other detainees may have made incriminating statements. In the 2007 DoD review, the government cites three times potentially self-incriminating statements by Al-Kandari like “the detainee suggested that he and another individual travel to Afghanistan to participate in jihad and the detainee assigned them aliases.”

Cynamon explained that “typically, the only way to really test a hearsay document like an interrogation report would be to cross-examine the interrogator who prepared the report: Did you interrogate Fayiz in English or Arabic? Did he answer in English or Arabic? If Arabic, do you speak it? If not, who was your interpreter? What were the qualifications?”

But with the Guantánamo cases cross-examination is not an option. “Bottom line, a supposedly self-incriminating statement in an uncorroborated interrogation report — which, according to the government’s own intelligence expert, is merely the first step in the information-gathering process and is not relied upon by intelligence officials without further analysis and corroboration — is worthless,” Cynamon added.

American ‘mercy’

Ten Kuwaitis have returned to Kuwait from Guantánamo; Al-Kandari and Al-Odah are now the only Kuwaiti detainees still held at Guantánamo. Of the total 171 detainees remaining, 89 have been cleared for release.

Soad Abdul Jaleel deeply feels her son’s absence, but she said she will see him again. “I know for sure he will be free,” she said. “Because my God knows he is innocent and he will not leave him like this … If I can’t come together with him in this life, I will see him after Insha’allah [God willing].”

After the attacks of September 11, 2001 Soad Abdul Jaleel feared her son was dead because she had not heard from him for three months. One day someone whom she did not know called her and told her that several Kuwaitis who had been praying in a mosque were captured, but she doubted the call. Then she saw a picture of her son in Kabul on the internet with a caption that said he would be transferred to Guantánamo.

For a decade now, Soad Abdul Jaleel has experienced extreme emotional ups and downs. After thinking her son was dead, she then found out he is not. He is in American custody, but then the reports came that Americans are abusing people.

“Of course they claim that they treat the prisoners well, but God exposed them and we all saw the newspapers and the photos,” she said.

Her latest disappointment: Upon taking office, US President Barack Obama said he would close Guantánamo in a year, but he has failed to do.

She would trade places with her son if she could. “He’s a young man. When will he get married? When will he live his life?”

After years of only being allowed to communicate with her son through letters, she can now talk to him on the phone. During her first conversation with him, she said she could not talk — she could only cry.

Now, the family is allowed a one hour video conference every two months. For the last 10 years, the Americans have not told the family why they are holding their son.

Much like the Al-Kandari family, the Al-Odah family is in limbo. Soad Abdul Jaleel said she has given up on the American and Kuwaiti governments, but not on the mercy of the American people.

Both families feel like victims of circumstance. Their sons — who were doing charity work — were in the wrong place at the wrong time, they said.

Ten years later Fayiz Al-Kandari and Fawzi Al-Odah still linger in cells far away from their loved ones. But Soad Abdul Jaleel said she knows: “One day I will wake up, and this nightmare will be over.”

Note: For further information, and to sign up to a new movement to close Guantánamo, please visit the new website, “Close Guantánamo,” which you can join here, and also please sign a new White House petition on the “We the People” website calling for the closure of Guantánamo. 25,000 signatures are needed by February 6.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.