End 22 Years Of Injustice

Algerian Suffering from PTSD, and Mistakenly Identified as an Associate of Abu Zubaydah, Is Approved for Release from Guantánamo

The U.S. flag behind razor wire at Guantánamo Bay.

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By Andy Worthington, May 1, 2022

On April 21, I was alerted to the news that an Algerian prisoner at Guantánamo, Said Bakush (also known as Saeed Bakhouch or Saeed Bakhouche) had been approved for release on April 13 by a Periodic Review Board, a parole-type process initiated by President Obama. The PRB process involves "senior officials from the Departments of Defense, Homeland Security, Justice, and State; the Joint Staff; and the Office of the Director of National Intelligence," who decide "whether continued detention of particular individuals held at Guantánamo remains necessary to protect against a continuing significant threat to the security of the United States."

The news was surprising, as it was the first time that a prisoner had been approved for release by a PRB without directly taking part in the process. This was undoubtedly newsworthy, but his approval for release wasn’t reported in the mainstream media, in part, I suspect, because so little information was available on the PRB website, but also because some kind of detective work is required to establish exactly who Saeed Bakhouch is.

As I reported back in 2016, in an article entitled, The Man They Don’t Know: Saeed Bakhouche, an Algerian, Faces a Periodic Review Board at Guantánamo, the U.S. authorities apparently knew so little about Bakhouch that the photo they used on his Detainee Assessment Brief, one of the classified military files released by WikiLeaks in 2011, was of someone else entirely, as his attorney, Candace Gorman, told me at the time.

Bakhouch, a Berber, who is now 51 years old, had the great misfortune to have been seized in a house raid in Faisalabad, in Pakistan, on March 28, 2002, which led to the capture of Abu Zubaydah, a Saudi-born Palestinian who was mistakenly identified as the number three in Al-Qaeda — even though some U.S. intelligence sources knew at the time that he was, in fact, the facilitator of an independent training camp in Afghanistan that was specifically not aligned with Al-Qaeda. After his capture, he was subjected to the full, appalling brutalization of the CIA’s post-9/11 torture program, as discussed in harrowing detail in "The Forever Prisoner," the new book by Cathy Scott-Clark and Adrian Levy.

As a result of being seized in this particular house, suspicion fell on Bakhouch that he was involved in terrorism, although he always denied that this was the case, and stated that he had no involvement with Abu Zubaydah or any of the men seized with him. However, in 2010, when he had an opportunity to seek release from Guantánamo through having his habeas corpus petition granted by a U.S. federal court judge, the judge in question, Judge Richard Leon, sided instead with the government.

As I explained at the time, Judge Leon ignored the fact that, "if he was so significant, he would, in all likelihood, have been put forward for a trial by Military Commission in May or June 2008, when four other men seized in the raid — Noor Uthman Muhammed (from Sudan), Ghassan al-Sharbi and Jabran al-Qahtani (both Saudis), and Sufyian Barhoumi (another Algerian) — were charged." Only one of those four men, incidentally, was subsequently charged in the military commissions (where he negotiated a plea deal), and all but one have now been freed.

I also added that Judge Leon "might also have recognized that Labed Ahmed (also captured in the house and also not put forward for a trial by Military Commission) had spelled out how he had been staying at the house but had not been involved in any way with Abu Zubaydah. Before his release in November 2008, after being 'approved for transfer' by a military review board, Ahmed explained how he had ended up at Zubaydah’s house by accident, and how he had been allowed to stay, despite not knowing anyone in the house, for 12 days — a stay that would clearly have lasted longer had the house not been raided."

Bakhouch appealed Judge Leon’s ruling, but, when the D.C. Circuit Court came to rule on his appeal (in 2013), that ruling involved the malign influence of Judge Brett Kavanaugh (subsequently promoted to the Supreme Court under Donald Trump), and his appeal was turned down, on the basis that, as Kavanaugh described it, Bakhouch "more likely than not was part of Abu Zubaydah’s force" (the word "force" in Kavanaugh’s ruling referred to spurious claims made by the government that, having finally conceded that Abu Zubaydah wasn’t a member of Al-Qaeda, and had no foreknowledge of the 9/11 attacks, their new and unverifiable angle on his significance was that he had been the head of a militia force that was aligned with Al-Qaeda).

The ruling came despite a strenuous objection by Judge Harry T. Edwards, formerly the court’s chief judge, who stated that the court’s "guilt by association" ruling was "well beyond" the detention definition authorized by Congress in the Authorization for the Use of Military Force, passed in the days after the 9/11 attacks, which only authorized the imprisonment of those who "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons."

As I explained in my article about Bakhouch in 2016:

"It seems bizarre, to say the least," Judge Edwards said, "that someone like [Bakhouch], who has never been charged with or found guilty of a criminal act and who has never 'planned, authorized, committed or aided any terrorist attacks,' is now marked for a life sentence." He said the circuit had "stretched the meaning" of the congressional enactments "so far beyond the terms of these statutory authorizations that habeas corpus proceedings like the one afforded [Bakhouch] are functionally useless."

A "forever prisoner"

By now, Bakhouch had become a "forever prisoner," one of 48 men designated as "too dangerous to release" by the Obama administration, but who would not be charged because insufficient evidence existed to put them on trial. President Obama sought to offset the obvious lawlessness of this designation by promising that the men in question would receive periodic reviews of their cases to see if circumstances had changed sufficiently to warrant their release, but when this review process — the Periodic Review Boards — finally began, towards the end of 2014, and now including 23 men who Obama had originally designated for prosecution, Bakhouch’s hopes of being freed from Guantánamo were dashed yet again.

On July 6, 2016, the board members approved Bakhouch’s ongoing imprisonment, despite submissions by Candace Gorman, pointing out that the government had failed to demonstrate in any credible manner that he was involved with Abu Zubaydah or Al-Qaeda, and despite Bakhouch’s military representatives (assigned to represent him in Guantánamo) noting that he was "a quiet, compliant detainee," and that they were "confident" that his "desire to pursue a peaceful way of life if transferred from Guantánamo Bay is genuine and that he does not harbor negativity towards anyone/" They added that they were also "convinced" that he "does not pose a significant threat to security of the United States or any of its interests."

After this blow, Bakhouch became withdrawn. Candace Gorman told me that, in 2017, he stopped seeing her, although he continued to receive correspondence from her, and he also stopped seeing his military representatives. He had another PRB in August 2018 under Donald Trump, but he boycotted his hearing, as did the majority of those eligible for the PRBs because they correctly concluded that, under Trump, it had become a sham (only one man was approved for release by a PRB in Trump’s four years in office). His representatives, who had found him "overjoyed and eager to participate" in 2016, now noted that he had "respectfully declined to participate further in the Periodic Review Process."

Bakhouch’s ongoing imprisonment was approved on February 28, 2019, when the board members continued to believe in his "elevated threat profile as evidenced by his prior roles in Afghanistan and prior associations," despite no evidence indicating that he had ever been in Afghanistan. The board members also noted their "inability to assess the detainee's current threat level due to [his] refusal to participate in meetings with his representative, the lack of submission of any new materials by the detainee and [his] decision not to attend the hearing."

Having been disappointed every three years since 2010 in his efforts to secure release from Guantánamo, and having had his ongoing imprisonment approved by PRBs under Obama and Trump, it was unsurprising that Bakhouch had no faith in a change of heart by a PRB under President Biden when his latest review rolled round, this time, with no trace of irony on the part of the authorities, on January 11, 2022, the 20th anniversary of the opening of the prison.

However, the Biden administration, to its credit, has taken on board criticism by NGOs, and by 99 of their own Senators and Representatives, who last year sent him letters not only calling for the closure of Guantánamo, but also pointing out that it was unacceptable to continue holding men at the prison, after 20 years in some cases, who have never been charged with a crime.

In Biden’s first year in office, the PRBs approved 13 men for release. Four more (including Bakhouch, and Hassan Bin Attash, who I’ll be writing about soon) have been approved for release since, so that, taking into account three men approved for release back in 2010, who, shamefully, have not been freed, and another man, Majid Khan, who has completed the sentence he was given as a result of a plea deal in 2012, 21 of the 37 men still held have now been approved for release. When Biden took office, 22 "forever prisoners" still languished at Guantánamo, their imprisonment upheld, as with Bakhouch, by repeated PRBs; that number is now just five.

Biden’s willingness to see men approved for release through the PRBs is still, however, subject to assurances that the men in question pose no threat to the U.S. Two of those five "forever prisoners" have had their ongoing imprisonment upheld since Biden took office — Khaled Qassim, who was not regarded as being "compliant" enough in January this year, and Muhammed Rahim, an Afghan regarded as still harboring "expressions of support for extremism." (The decision in Rahim’s case was announced at the same time as Bakhouche’s, and I’ll be writing about it very soon).

To this end, although Bakhouch once more refused to take part in his hearing, submissions by Candace Gorman were pivotal to securing his approval for release. Gorman, who has represented Bakhouch since 2006, shared with me the letter she wrote to the board on January 6, in which she stated, "Both Mr. Bakhouch's constructive attitude and desire to better himself, and conditions in his own country, establish repatriation to his home country will present an absolutely minimal threat to the security of the United States, if any."

As Gorman also stated to the board, "I can tell you that he has never expressed any ill will towards the United States or the American people and to my knowledge, holds no ill will towards the United States. I can tell you that Mr. Bakhouch appreciated the opportunities to better himself that had been presented to him while in custody (including the many GTMO classes)."

Saeed Bakhouch’s story

Gorman then ran though Bakhouch’s story, noting that his "schooling was limited: he only finished the third grade," and that, in Algeria, he had "worked at various odd jobs, including as an automobile mechanic," and had "helped out in various restaurants and coffee shops." He had also "served in the Algerian military, where he learned how to drive a truck," something he would like to do again in future if released from Guantánamo.

Gorman also stated that, "Prior to the fall of 2001 he had only left Algeria on one occasion and that was to work in Libya for a short time in the 1990s at a relative’s mechanic shop." In the fall of 2001, however, he "learned of an opportunity to travel to Pakistan in order to study the Koran and learn how to proselytize Islam," from members of Taglighi Jamaat, a vast missionary organization, whose representatives met him on the streets of Algiers, and "invited him to join their organization in Pakistan."

Thinking that "this would be a great adventure and an opportunity he might not otherwise have," Bakhouch flew to Pakistan, where he "stayed for approximately five months." As Gorman explained:

During the first three months, he attended the Tablighi’s classes on the Koran in Lahore. However, in the last two months of his stay in Lahore, the security situation in Pakistan rapidly deteriorated. Foreigners, particularly from Arab countries, became the targets of kidnappings and violence. In the wake of the 9/11 events, the Pakistani authorities began arresting Arabs (persons from Arab-speaking North Africa and the Middle East) and turning them over to the United States for bounties of about $5,000 per person. Mr. Bakhouch became so afraid of the violence that he would not even go outdoors.

Mr. Bakhouch had been staying at a mosque in Lahore run by the Tablighis. However, when the kidnapping of Arabs became more profitable and widespread, the Tablighi suggested that the Arab men at the Tablighi’s center move to other guesthouses where they would be safer. For about a month Mr. Bakhouch stayed at a guesthouse that the Tablighis arranged for him near Lahore. No one at this guesthouse spoke Arabic, however, and Mr. Bakhouch's passport was either lost or stolen while he stayed there.

After approximately another month, the Tablighi Center advised Mr. Bakhouch that it could no longer help its students because the situation in Pakistan had become too unsettled. The people at the guesthouse recommended a second guesthouse for Mr. Bakhouch, where there were other Arabic-speaking people that he might be able to converse with. Without a passport or the means to get home, Mr. Bakhouch agreed, and moved to the second guesthouse, located in Faisalabad, Pakistan, around the middle of March of 2002. As far as he knew, the guesthouse in Faisalabad was owned by a Pakistani man.

Once at this supposedly more amenable guesthouse, Mr. Bakhouch continued to stay inside, as he feared being turned over for a bounty. He did not know anyone at this guesthouse. Most of the people there kept to themselves. He only spoke to a few people during the two weeks that he stayed there. The person running the guesthouse told him that someone would help him get a new passport so that he could return home, once conditions in Pakistan calmed down.

Approximately two weeks after he arrived at the guesthouse, it was raided by Pakistani and U.S. Forces. Mr. Bakhouch was arrested along with all the Arab nationals and Arabic speakers staying at the house (although all Pakistanis and all women who were found staying there were released, either immediately or within a few days). During the brief two weeks that Mr. Bakhouch was at this guesthouse, several people came to the guesthouse while a number of others left. One individual who arrived at the guesthouse two days before the raid was introduced to Mr. Bakhouch as "Daoud." Long after the raid, Mr. Bakhouch learned that "Daoud," the man he met at the guesthouse only two days before the raid, was in fact Zayn al-Abidin Muhammad Husayn, also known by the moniker "Abu Zubaydah," a man wanted by the United States as a suspected al Qaeda leader.

After his capture, Bakhouch made a mistake that was to haunt him for many years. As Gorman described it, "based on unfortunate advice he received from Pakistani officials who were detaining him," he adopted a false name and nationality, stating that he was a Libyan named Abdul Razak Ali. Despite this, as Gorman also explained, "interrogators have conceded that the story Mr. Bakhouch told of his arrest was always consistent and matches details contained in Defense Department records," as well as establishing that he "was not hiding his real name and country of origin because of any trouble that he had in his homeland or because of a problematic background." As she added, "Mr. Bakhouch left his country in good standing with a valid passport and had every intention of returning to Algeria."

Gorman proceeded to explain how the government’s case against Bakhouch — which centered on claims that he "had 45 days of 'training' in Pakistan; that he knew 'they' were trying to make chemical weapons in the guesthouse where he was staying; that he had been to Afghanistan; and that he had been in Pakistan for over two years" — fell apart when she was able to establish that the allegations were based on a summary of a meeting between Bakhouch and an Algerian delegation that visited him at Guantánamo in March 2006 in which it was stated that he had admitted to all of the above.

In fact, as Gorman proceeded to explain, "a very serious translation error had occurred," and the "properly translated transcript establishes unequivocally that not only did Mr. Bakhouch not make those admissions at all, but that he had unequivocally denied the contentions, i.e., he stated the exact opposite of the government's allegations during the meeting.”

She added, that, "When an accurate translation of the interview was obtained by the Court, the government agreed to withdraw reliance on the incorrect 'admission' and to identify all other translations by that same individual so that those translations would also not be relied upon."

In the end, as she also noted, the allegations against her client were "eventually whittled down to nothing more than [his] presence in the guesthouse" and the fact that, on capture, he had given a false name.

"The unfortunate reality of Guantánamo is that facts often do not matter"

Turning to her representation of Saeed Bakhouch, Gorman explained that she last visited him at Guantánamo in the fall of 2016, when, "unfortunately, there appeared to be no end in sight to Mr. Bakhouch's detention." As she added, "I understood his frustration with me and with the system. In a word, Mr. Bakhouch had given up."

Gorman, however, refused to give up. As she explained, "The evidence against Mr. Bakhouch would be laughable if the stakes were not so high." After telling the story of the wrong photo being used to identify him, she noted, "The statements attributed to Mr. Bakhouch were mistakes at best and lies at worst. In Mr. Bakhouch’s original habeas case I put together strong evidence to refute every single assertion by the military to justify his detention. However, the unfortunate reality of Guantánamo is that facts often do not matter."

Gorman added that she submitted a second habeas petition on Bakhouch’s behalf in 2019, but that also went nowhere, becoming tangled up in absurd arguments about whether the Due Process Clause of the U.S. Constitution applies to prisoners held at Guantánamo, as I explained here.

The psychological profile, and security assurances

Nevertheless, Gorman also secured a psychological report about her client’s mental state, produced by Spyros Orfanos, a licensed psychologist in New York State and New Jersey State, who, after reviewing "the available Guantánamo records" relating to Bakhouch, stated that he had "developed a serious mental illness because he has been wrongly detained at Guantánamo for twenty years."

Orfanos ran through the documented history of Bakhouch’s ill-treatment by both the Pakistanis and by U.S. interrogators at Bagram, and noted that, on arrival at Guantánamo, "medical records indicate [that] he had multiple cigarette burns, lacerations, a facial injury, and numerous scars on his body suggesting he had been subjected to physical abuse," adding that, "While at Guantánamo, the government admits that he was subjected to 'a potentially unauthorized interrogation technique.'" Orfanos also stated that, "As previously, he was tortured, threatened with worse abuse and even death. He was deprived of sleep and clean clothes and adequate living conditions. He was sexually taunted. He was in constant physical pain."

As a result, Orfanos concluded that Bakhouch, as a "torture survivor," is "likely suffering from Post-Traumatic Stress Disorder (PTSD) due to almost 20 years of detention and to traumas both prior to and after arriving at Guantánamo (i.e., torture, sleep deprivation)," and that "[h]is suffering from PTSD has likely been continuous." He also concluded that it is likely that he also suffers from depression and anxiety, but assessed that, with "good psychiatric care" in Algeria, there will be a significant improvement in his mental state.

The final reassurance needed by the U.S. authorities concerned the security situation in Algeria, and, on that front, as they undoubtedly know — but as Gorman also spelled out in her submission — they have no reason to worry. As she explained, returned Guantánamo prisoners "are routinely held in preventive detention" for 12 days after their return, when "they are held incommunicado and subject to interrogation," and, in addition, "all have been subject to formal judicial investigation, all but a handful have been put on trial for membership in terrorist groups outside of Algeria, and most of them have been convicted (and most, but not all, have been freed afterward under application of an amnesty statute)."

Even then, however, "Algeria continues to employ a process designed to provide maximum scrutiny and intimidation through a demonstration of the power of the state. None of the fifteen or so Algerians returned over the years from Guantánamo has ever been provided with any sort of passport/travel document or otherwise been permitted to leave the country, and there have been no reported incidents of 'recidivism' among any of them."

It is genuinely reassuring that, finally, the U.S. authorities have recognized that it is time to release Saeed Bakhouch. The review board’s final determination approved his release on the basis of his "lack of a leadership role in al Qaida, [his] compliance while in detention, and the support available to [him] on transfer," and also recommended "[a]ppropriate security assurances as negotiated by and agreed to by relevant USG departments and agencies."

Now it only remains for the Biden administration to send him back home, as they did just four weeks ago with Bakhouch’s fellow Algerian, Sufyian Barhoumi. It really shouldn’t be too difficult, but to date, despite approving 17 men for release since taking office, Biden has released just three men, and only one of those three was approved for release under his watch. This lack of urgency needs to change, but in the meantime it is at least reassuring that, after 20 years, the U.S. authorities have finally conceded that they can find no good reason to continue holding Saeed Bakhouch.