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Disconnecting the Dots, Part 2

The Obama administration should appeal a district judge’s habeas ruling.

7:40 PM, Jul 20, 2010 • By THOMAS JOSCELYN
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She dismissed the testimony of Binyam Mohamed, a former Gitmo detainee who identified Farhi Saeed Bin Mohammed as one of his fellow trainees at al Farouq. Even though Binyam Mohamed’s testimony was given in “non-abusive,” “cordial” sessions with an FBI Special Agent, Judge Kessler threw out his testimony because Binyam claims he was tortured in the months beforehand.  

There are a lot of problems with Judge Kessler’s justifications for excluding Binyam Mohamed’s testimony, not the least of which is that she took his torture claims at face value even though no evidence has surfaced to support his most sensational allegations. For instance, Binyam claims that his penis was repeatedly cut with a scalpel over the 18-month period he was in Moroccan custody. No evidence has been offered to support Binyam’s allegation in this regard. And the only publicly available evidence suggests that Binyam was subjected to treatment that was far less severe, such as sleep deprivation.

Nonetheless, Judge Kessler accepts Binyam’s allegation and repeats it verbatim.

All of Binyam’s alleged mistreatment occurred prior to his transfer to Bagram and then Guantanamo. It was at those sites that an FBI special agent created numerous reports based on his interviews of Binyam, who the FBI agent said demonstrated a “polite and cooperative demeanor” and was “kind, polite, and relaxed through [their] meetings at Guantanamo.” Binyam did not raise any torture allegations during his time with the FBI’s special agent.

The FBI’s special agent did not think that Binyam’s testimony was coerced. But Judge Kessler proposed an elaborate theory in which Binyam was programmed (through torture) to recount a damning tale involving his ties to senior al Qaeda leaders, and then elaborated upon that tale in order to please the FBI’s man. Judge Kessler proposed that one bit of elaboration was Binyam’s identification of Farhi Saeed Bin Mohammed as one of his fellow al Qaeda trainees. Judge Kessler suggests that Binyam may have added this into his story in order to “please” the FBI’s special agent. She does not explain why this would have pleased the FBI special agent, or why the FBI’s man could be so easily duped.

Judge Kessler’s argument is entirely speculative. Moreover, it is contradicted by a piece of evidence that the judge obviously missed. Binyam identified Farhi Saeed Bin Mohammed as a fellow trainee during interview sessions with the FBI on October 29, 2004 and November 5, 2004. Binyam was interviewed by his personal representative at Gitmo less than two weeks later, on November 18, 2004. If Binyam was really under the spell of torture, as Judge Kessler speculated, then he surely would have repeated the same programmed story to his personal representative. Binyam did not. Instead, Binyam denied the most serious allegations against him, denied any wrongdoing, and admitted only that he received training at an al Qaeda camp.

Binyam’s interview with his personal representative is entirely inconsistent with Judge Kessler’s theory of his testimony. In addition, it is worth noting that Binyam provided specific details about Farhi Saeed Bin Mohammed, including his kunya, age range, and the fact that he had come from Italy (where Farhi Saeed Bin Mohammed had in fact lived). There is no convincing explanation for how Binyam could have known these details other than through firsthand knowledge.   

What is truly remarkable about Judge Kessler’s analysis of Binyam Mohamed’s testimony is that she notes that Binyam has admitted training at an al Qaeda camp even after he was released from U.S. custody. In other words, that part of Binyam’s dossier is not even in dispute. Is it that much of a stretch to believe that he accurately identified some of his fellow trainees during friendly interview sessions with the FBI at Guantanamo? Hardly.

In any event, Judge Kessler’s discussion of Binyam Mohamed’s story is almost entirely beside the point. Regardless of whether or not Binyam Mohamed’s testimony is included in the evidence, there are ample reasons to detain Farhi Saeed Bin Mohammed.  

The Obama administration should appeal Judge Kessler’s ruling in Farhi Saeed Bin Mohammed v. Obama.  


Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies. 

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