Completely Unnoticed, CIA Torture Victim Abu Faraj Al-Libi Has His Ongoing Imprisonment Without Charge or Trial Approved by a Guantánamo Review Board

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By Andy Worthington, September 18, 2022

On August 23, a Periodic Review Board at Guantánamo (an administrative, parole-type review process established by President Obama, featuring high-level U.S. government officials) approved the ongoing imprisonment without charge or trial of Abu Faraj al-Libi, one of 14 "high-value detainees" who were brought to Guantánamo from CIA "black sites" in September 2006, and the last of the 14 to be captured.

Al-Libi’s hearing took place on June 23, and was the first time he had engaged with the PRB process since it was established in 2013. This ought to be have been newsworthy, but, in fairness, no media outlet could have been expected to know that he would finally deign to appear at the hearing, after refusing to take part in any previous opportunities to engage with the U.S. authorities — or with the wider world.

However, it is a sad sign of the general lack of media interest in the shameful extrajudicial world of Guantánamo, where he has been held for 16 years without charge or trial, that only one media outlet — the New York Times — even bothered to find out what the board decided in his case after this first, momentous personal appearance, with veteran Guantánamo reporter Carol Rosenberg tweeting on August 29, "Just in: The Guantánamo review board has upheld the indefinite detention of the never charged former CIA prisoner called Abu Faraj al-Libi."

Who is Abu Faraj al-Libi?

To give al-Libi’s case some context, he was born in Tripoli, in Libya, in November 1970, and is therefore 51 years old, and his full name, rather than the pseudonym by which he is generally identified, is Mustafa Faraj Muhammad Masud al-Jadid al-Uzaybi. His Internnment Serial Number (ISN), by which he is identified at the prison, is 10017.

Al-Libi was seized in Mardan, north of Peshawar, in Pakistan, in March 2005, and, as the New York Times reported at the time, in a news article by Salman Masood, "Both Pakistani and American officials described [him] as the third most senior leader in the Al Qaeda terrorist network," although, the Times added, "questions were immediately raised by come counter-terrorism experts about his importance in the organization."

As the article described it, "One Middle Eastern intelligence official said: 'We don't have information that this man is or was the No. 3 man of Al Qaeda. This man was important for operations in Pakistan, but he is not the No. 3 man in the organization.'"

Moreover, "A senior German official suggested there may have been some confusion with Abu [Anas] al-Liby, a Libyan-born senior Qaeda commander who was indicted for an 'operational role' in the August 1998 bombings of two American embassies in east Africa." As the article proceeded to explain, "American officials have offered a $5 million reward for information leading to Mr. Liby's arrest. He is listed on the FBI's Most Wanted Terrorists List, while Mr. Libbi [Libi] is not."

The Pakistanis, however, claimed that al-Libi had "succeeded Khalid Sheikh Mohammed as head of Al Qaeda operations" in Pakistan, while George W. Bush called his capture "a critical victory in the war on terror," adding that he "was a top general for bin Laden," and "a major facilitator and chief planner for the Al Qaeda network," whose arrest has "removed a dangerous enemy who was a direct threat to America."

In circumstances in which the U.S. government retained any kind of respect for the rule of law, the claims about al-Libi’s significance would have been tested in a court of law, but instead al-Libi was held in CIA "black sites" in Afghanistan, Romania and, possibly, Lithuania, for the next 18 months until his transfer to Guantánamo.

There, the claims made about him began to evaporate, although none of that was known until December 2014, when the Executive Summary of the Senate Intelligence Committee’s report about the CIA’s torture program was released, which revealed that he had been subjected to "enhanced interrogation techniques" in May and June 2005, while held in Romania, and that, "Despite the repeated and extensive use of the CIA’s enhanced interrogation techniques ... CIA Headquarters continued to insist throughout the summer and fall of 2005 that [he] was withholding information and pressed for the renewed use of the techniques."

However, "The use of the CIA’s enhanced interrogation techniques against Abu Faraj al-Libi was eventually discontinued because CIA officers stated that they had no intelligence to demonstrate that [he] continued to withhold information, and because CIA medical officers expressed concern that additional use of the CIA’s enhanced interrogation techniques 'may come with unacceptable medical or psychological risks.'"

The Senate report also noted that the torture of al-Libi took place despite him "complain[ing] of a loss of hearing," with his interrogators "repeatedly telling him to stop pretending he could not hear well." However, it was not pretense on al-Libi’s part. "Although the interrogators indicated that they believed al-Libi’s complaint was an interrogation resistance technique," the report continued, "Abu Faraj al-Libi was fitted for a hearing aid after his transfer to US military custody at Guantánamo Bay in 2006."

Al-Libi at Guantánamo

After his transfer, al-Libi, like all the "high-value detainees," went through the Combatant Status Review Tribunal (CSRT) process, a cursory administrative review used to establish whether or not the men in question were "enemy combatants," which was required by law if they were to be put forward for military commission trials. These took place in 2007, and seven of the 14 "high-value detainees" were subsequently charged before George W. Bush left office, one more was charged under Obama, and three others were charged just before Donald Trump left office. However, the remaining three men have never been charged — al-Libi, Abu Zubaydah, for whom, ironically, the entire CIA torture program was initially developed, and a Somali, Gouled Hassan Dourad (Guleed Hassan Ahmed), who was finally approved for release by a PRB last November.

Al-Libi refused to attend his CSRT hearing, instead challenging the legality of the process through a statement he gave to his Personal Representative, a military official assigned to represent him in his hearing, in which he declared that "his freedom is too important to be decidedly an administrative process," and demanded the right to be represented by a lawyer, and to challenge the supposed evidence against him.

Although al-Libi didn’t take part in his CSRT, the unclassified summary of the government’s supposed evidence against him established how exaggerated had been the claims made against him at the time of his capture. Rather than being described as "the third most senior leader in the Al Qaeda terrorist network," as he was at the time his capture, he was now described as "the deputy to al Qaida's third in command," who "was responsible for al Qaida activities and logistics throughout Pakistan." Elsewhere, the unclassified summary claimed that "[h]is primary duty was the care of al Qaida families residing in Pakistan," and that, additionally, he "was involved in vetting and transporting al Qaida fighters to Afghanistan." The unclassified summary also identified him, prior to the U.S.-led invasion of Afghanistan, as "a supervisor at the al Qaida training camp in Khowst," and the manager of an "al Qaida guest house in Kabul."

When Barack Obama replaced George W. Bush as president, and set up the Guantánamo Review Task Force, in 2009, to review the cases of the 240 men he had inherited from his predecessor, al-Libi was one of 36 men recommended for prosecution, while 156 of the men were recommended for release, and 48 were recommended for ongoing imprisonment without charge or trial, on the basis that insufficient evidence existed to put them on trial, but they were regarded as "too dangerous to release."

Recognizing that this category of "forever prisoners" would trouble human rights activists and conscientious lawyers, Obama promised that these men would have periodic reviews of their cases, to establish whether or not they were still regarded as a threat. These reviews — the Periodic Review Boards, a parole-type process, in which the prisoners involved were required to show contrition, and to demonstrate that it would be safe to release them — wasn’t established until 2013, although by that time the "forever prisoners" had been joined by the majority of the men recommended for prosecution in 2009, including al-Libi, as the ailing military commission process was successfully challenged in a number of appeals that overturned convictions for providing material support for terrorism, on the basis that it wasn’t a war crime, and that Congress had erred when lawmakers had tried to pretend that it was.

64 prisoners were eligible for the PRBs, but it took nearly three years for all of their cases to be reviewed, with al-Libi’s — the 59th — taking place in August 2016. It was now over nine years since his brief objection had been read out at his CSRT, but although he remained, to all intents and purposes, incommunicado, he had, in the meantime, become the subject of intense media interest in May 2011, when, the week after WikiLeaks published classified military files from Guantánamo, including al-Libi’s — which, in the exaggerated manner that was typical of these files, claimed he was "the operational chief of al-Qaida," who "had long-term associations with Usama Bin Laden (UBL) and Dr. Ayman al-Zawahiri," and was involved in operations in Afghanistan, Pakistan and Iraq — U.S. Special Forces killed Osama bin Laden in a raid on his home in Abbottabad, Pakistan.

It was subsequently claimed that bin Laden’s location had been discovered by tracking a courier whose identity had been revealed though the interrogations of prisoners in CIA "black sites" — including al-Libi, Khalid Sheikh Mohammed, and a prisoner called Hassan Ghul who never ended up at Guantánamo. The exact details remain difficult to establish, but what is clear is that these claims were weaponized by Republicans, as I explained at the time of al-Libi’s first PRB, noting that, "Crucially, the clues [that led to locating bin Laden] had not involved the use of torture, and had nothing fundamentally to do with Guantánamo, as they were discovered through non-coercive interrogation, which did not need the existence of Guantánamo to be viable, but this did not stop the cheerleaders for torture and for the continued existence of Guantánamo from lying to further their aims."

Four years after the flurry of interest in al-Libi, while he still remained incommunicado at Guantánamo, he and the other "high-value detainees" were finally allowed to speak to their families, in January 2015, via what the Washington Post described as "heavily monitored" video calls.

The Post spoke to Navy Cmdr. Patrick Flor, one of the military defense attorneys assigned to al-Libi in case he ever ended up being charged in the military commissions, who "said his client had spoken with his family in Tripoli, Libya, in the past week." Flor noted that "the call was disrupted by audio problems, which may have resulted from the screening of Libi’s statements," and, when asked if it was "a good thing" that al-Libi had been allowed to call his family, said, "Do I think this is a good thing? My guy has been locked up since 200[6] at Guantánamo. He has had no direct contact with his family," and "has a daughter he has never even seen."

The Periodic Review Boards

When al-Libi’s first PRB took place, in August 2016, the government once more tried to ramp up his significance in Al-Qaeda, claiming that, after his relocation to Pakistan following the U.S.-led invasion of Afghanistan, he "saw to the financial and logistic needs of al-Qa’ida members and their families until early 2003 when he became al-Qa’ida’s general manager and third in command following the detainment of several al-Qa’ida leaders." The authorities also stated that he "almost certainly remains committed to al-Qa'ida's global jihadist ideology," claiming that he had "praised previous attacks against Western targets, to include 9/11," and had "expressed support for future attacks against Western civilian targets."

Al-Libi chose not to attend his hearing, which meant that there was no chance that he would be approved for release, although his Personal Representatives (military officials assigned to help prisoners with their PRBs) zpresented a different picture to the Board members than that put forward by the government, stating that, when they had met with him, he was "respectful and polite," and adding, "He is eager to live a life of peace. He wishes to return home to his family. He has a large loving family that is ready to support him upon his return." As they also explained, "Faraj has stated he harbors no ill will to the U.S. and does not consider himself a threat," and they noted, specifically, that "[h]is medical issues alone would present a barrier to any kind of threat," a reference to ill-health that would seem be much more severe than the deafness he ended up with after his torture in the CIA’s "black sites."

In addition, as they also stated, "He is very eager to reunite with his wife and three children. Currently his brothers support them, and he would like to resume his role as the father and caregiver."

Al-Libi’s ongoing imprisonment without charge or trial was upheld the next month, with the Board members expressing concern about his supposed Al-Qaeda connections, his alleged support for terrorist actions, and their inability "to assess [his] credibility due to his decision not to participate in the hearing."

38 men were approved for release by the PRBs under Obama, but the 26 others, including al-Libi, whose imprisonment had been upheld, soon recognized that, under Donald Trump, the ongoing PRB process had become a sham. As a result, most of them boycotted their hearings, and when al-Libi’s next PRB eventually rolled around, in May 2019, his Personal Representatives had to tell the Board that he "continues to refuse all meetings scheduled with him since his Initial Hearing," and that, as a result, "we have no new information to present to the board at this time."

His ongoing imprisonment was duly upheld, even thought it was noticeable that the government’s claims against him had now been reduced to a single sentence, alleging that he "traveled to Afghanistan to fight at a young age, joined al-Qa'ida, and rose through al-Qa'ida's hierarchy to become the group's general manager and a trusted adviser for and communications conduit to Usama Bin Ladin and deputy amir Ayman al-Zawahiri."

Since Joe Biden became president, the PRB process has been meaningfully revived, and 18 of the 22 "forever prisoners" he inherited from Donald Trump (after three others were charged, and one approved for release in Trump’s dying days) have now been approved for release. Unfortunately, as al-Libi learned on August 23, he is one of the four remaining "forever prisoners" who have not been approved for release, even though he had finally secured civilian attorneys, and had engaged with the process for the first time.

Al-Libi’s latest PRB

As his Personal Representative explained to the Board, "After years of denying meeting requests," al-Libi finally agreed to meet, and, ever since, they have "maintained contact through meetings and letters and messages from fellow detainees." It took until the third meeting for al-Libi to state that "he trusts me and that I had his best interest in mind," and, throughout, he has been "kind, courteous, and humorous and constantly takes notes and asks questions preparing for this hearing."

When he "asked about legal representation," the Personal Representative added, "we were able to assist securing him Private Counsel who I am in constant contact with to develop strategies," and who have "reached out to his family in Europe and the Middle East where they are prepared to support [his] integration into society outside of Guantánamo."

Reiterating the point made by al-Libi six years before — that he is "a simple man who wishes to be released from Guantánamo and reunite with his family" — the Representative added, "I believe that Abu Faraj’s drive, commitment and willingness to enter a rehabilitation program will assist with him living a successful and peaceful life upon his release."

In a seven-page letter to the Board, al-Libi’s attorneys, Michael Mirali and Dana Chavis, Federal Defenders, urged the Board to approve him for transfer, stating that he "does not pose a threat to the security of the United States," and "retains no ill-will towards the United States despite the severe treatment he has endured while in detention." They also pointed out that he has generally been well-behaved at Guantánamo, and discussed in detail the effects on his health of his torture in the"“black sites," although these details were redacted by the authorities.

They also noted that he has "a large and supportive network of family and friends … in Morocco, Turkey, and the United Kingdom," who pledged support for him and testified to his good character, with Chavis having "spoken with his family in Libya," and having visited other family members in the U.K. They noted how friends and family spoke "fondly" of Mustafa, as he is known, describing him as "a loving person with high ethical values, who excelled in his studies, and whose mission in life was to assist others."

They also delivered a message from his wife, who discussed "the difficulties of raising three children who were under the age of 5 at the time he was taken into U.S. custody," and who explained that his absence had affected both her and the children psychologically.

Unfortunately, the Board members were unmoved, noting that, "While the Board appreciates the detainee’s decision to attend the hearing for the first time, his refusal to answer nearly all of the Board’s questions regarding his past activities prevented the Board from assessing his claimed change of mindset."

Rather shamefully, it seems to me, the Board failed to mention why al-Libi had not been forthcoming, even though it had been explained by his attorneys in their letter, when they noted that, because he "has a pending federal habeas case challenging the legality of his detention," and "[b]ecause that case is ongoing, because after almost two decades the government has not charged him with any crime, and to protect his rights under the Constitution and international law, Mr. al-Libi will not personally answer any questions about any allegations against him or other matter related to his pending habeas petition." Instead, the attorneys stated, his "participation in this proceeding is based on his singular focus on a peaceful future as a free person surrounded by his family."

Unfortunately for al-Libi, his refusal to answer questions was not their only concern. They also focused on his "extensive and lengthy history with al-Qaeda, to include leadership roles," and also on his "lack of a pre-determined plan for employment and support, post-release," even though that was difficult, if not impossible for him to address because he has no idea where he will end up if he is ever approved for release.

Still a "forever prisoner"

What happens next is, of course, unknown. I hope al-Libi doesn’t again withdraw into Guantánamo’s shadows, although who could blame him if he did? 17 years after his capture, he remains held by people who won’t charge him with a crime, but who still maintain that he is too dangerous to release.

I hope that he will not have to wait another three years for another review, and I hope that he continues to engage with the process, and addresses the Board’s concerns — not because they are a just and appropriate way of dealing with him after 17 years without charge or trial, but because there is no other way out.

Sadly, I doubt that the courts will deal adequately with his habeas petition. Just one man has had his habeas petition granted in the last 12 years, since cynical Republican appeals court judges made it almost impossible for a Guantánamo prisoner’s habeas petition to succeed, and I can see no reason for al-Libi to be an exception.

But as he continues to languish at Guantánamo, America needs to ask itself why it doesn’t even know anything about his story, and why, after 17 years, it is somehow still regarded as acceptable that he has not been put on trial, but is still regarded as too dangerous to release. That isn’t justice; it’s something else entirely — a kind of arbitrary administrative detention — and that should trouble all Americans who believe in the difference between countries that respect the rule of law, and of due process, and those who don’t.