Court filings and intelligence reports, along with interviews with judges, lawyers, and former officials suggest that the embassy claim was built primarily on three pieces of evidence gathered through phone surveillance: Bensayah's 70 calls to Afghanistan after 9/11, wiretaps of his conversations with Abu Zubaydah, and Lahmar's "coded" chat about the embassy plot. Though Bosnian authorities requested transcripts of those phone intercepts days after members of the Algerian Six were detained, the U.S. government never provided them. And there is reason to believe that at least some of the evidence used to justify the continued detainment of these supposed terrorists is dubious at best.
According to sources privy to an analysis of Bensayah's phone records, he never called the number scribbled on the piece of paper bearing the name "Abu Zubeida" that was found in his home, nor did he place 70 calls to Afghanistan. Rees, the former U.N. rights commissioner, said one of her aides had examined phone records of all the men's land lines and cell phones and found no trace of such calls. Further, Nermina Pivic, Bensayah's Bosnian counsel, said she has seen a letter from the U.S. embassy dated October 19 informing the Bosnian Supreme court that a check of the phone number found in her client's home against a terror database had not yielded any result.
Interestingly, Bensayah's so-called "charge sheet," which collates the unclassified U.S. allegations against him, makes no reference to the wiretaps, merely stating that he was in possession of phone contacts of Al Qaeda members in Afghanistan and "the international extremist Sunni network."
More broadly, as they have repeatedly pointed out, the five arrested in late October did not flee after they learned of the arrest of their alleged ringleader, Bensayah, ten days earlier—hardly the attitude of a terrorist cell about to be rolled up. In addition, while Saber Lahmar was nabbed, his father-in-law who worked as a janitor at the U.S. embassy was never prosecuted—a strange fact if he was part of the alleged plot. In recent filings, Lahmar's lawyers have further called the evidence against their client into doubt. They claim that the detainee's ex-brother in law, who is currently behind bars in Bosnia for allegedly carrying out a car bombing, fed damaging information on the group to U.S. intelligence officials, in an effort to both barter his way out of jail and lash out at Lahmar over his messy divorce.
U.S. officials counter that annual military review boards upheld the men's enemy combatant status in 2005 and again in 2006. Sylvester, the ex-SFOR commander, said the evidence against the men which he had personally seen, but could not discuss in detail because of its classified nature, was "very conclusive" and showed they were plotting "a series of nefarious acts, including the embassy attack."
Those "very conclusive" claims, however, do not figure prominently—if at all—in the men's charge sheets. And in their depositions before military tribunals, each of the detainees stressed that they were never questioned about the embassy plots.
In his October 2004 testimony, Lahmar said he began asking his captors "on his first day in Cuba" to question him about the embassy plot. "They tried to avoid asking me questions regarding that matter. On occasion, they told me they knew I didn't attempt to blow up the embassy, they only brought me to Cuba for information." He said that eventually an interrogator "told me he wanted to tell me things he hadn't told me before. They didn't want to interrogate me about the night of the embassy because that information wasn't contained anywhere in my file. He went on to say he'd hope I would forget about the matter."
Instead, the charge sheets focus on the men's alleged ties to Al Qaeda and Muslim charities. They assert that the Algerian Six were members of an Al Qaeda-linked cell active in Bosnia and that the men were planning to travel to Afghanistan at the time of their arrest in the fall of 2001, presumably to fight against the U.S. military. The men have forcefully denied the allegations, stressing that they are law-abiding individuals who did not even know each other—until, that is, they found themselves en route to Guantanamo.
"The Pentagon is always looking for new claims as the old ones evaporate," said the lead defense lawyer for the Algerian Six, Stephen Oleskey, who has access to the classified allegations against them. "If you keep people locked up, you have to show the world reasons to do so
. If they have something against them, why is the ground shifting all the time?"
Some allegations on the charge sheets are indeed puzzling. For instance, the Pentagon contends the men are tied to a terrorist organization called the Armed Islamic Group of Algeria. Yet, the secular Algerian government, which has waged a campaign of brutal repression against the Islamic group since the early 1990s, would have jumped at the opportunity to nab some of its operatives. Instead, Algerian authorities have called for their release. (The Algerian embassy in Washington declined comment.)
As the Gitmo proceedings indicate, the main focus of interrogations of the Algerian Six was to gather information about Muslim charities often suspected by Western intelligence agencies of serving as fronts for terrorist networks. In his October 2004 deposition, Mustafa Ait Idir said that when he mentioned the embassy plot, "the interrogator told me to forget about this
the interrogator told me I was there to give up information about Bosnia, and information about the Arabs living in Bosnia, and the rescue organizations that are present in Bosnia."
With the exception of the alleged ringleader Bensayah, all the prisoners had worked for such organizations in Bosnia since the early to mid-1990s, after spending time at Islamic universities or charities in Pakistan, Saudi Arabia, Yemen, the Philippines, or Albania. More importantly, their employers were often suspected of doubling as terrorist fronts. For instance, at the time of their arrest three of the Algerian Six were working for Muslim NGOs that were fingered for their extremist ties in a CIA report from 1996.
During a March 2002 police raid on the Sarajevo offices of one such NGO, the Illinois-based Benevolence International Foundation (BIF), investigators unearthed a computer file titled "Ossama's history" with documents seemingly describing the founding and early days of Al Qaeda in the late 1980s in Afghanistan, including correspondence between operatives about funding, training, and weapons, some possibly authored by bin Laden himself. U.S. prosecutors used what they called this "treasure trove" as evidence in a major case brought in 2002 against BIF and its former director Enaam Arnaout in Chicago for alleged ties to Al Qaeda. The trial ended in early 2003 with a plea bargain in which Arnaout copped to a single racketeering charge.
One of the Algerian Six, Hajj Boudella, worked for BIF in Pakistan and, as of 1992, in Bosnia. He claims he was taking care of orphans, but the U.S. asserts that he was dispatched by Al Qaeda to fight in Bosnia.
Given these suspicious ties, which lawyers for the Algerian Six deride as guilt by association, Bosnia's willingness to hand the men over—and rid themselves of potential troublemakers—is no surprise. Nor is the country's lackadaisical efforts to secure their release, despite a series of court rulings and resolutions from Bosnia's parliament, the Council of Europe, and the European parliament urging Sarajevo to do so—not to mention Bosnia's acknowledgment last June to the Council of Europe that it had indeed breached the European Convention on Human Rights by participating in the extrajudicial transfer of the Algerian Six.
Bosnia's only formal attempt to free the Algerian Six is a February 2005 letter sent by then-Prime Minister Adnan Terzic to Secretary of State Condoleezza Rice, which she rejected a month later, claiming the men "still possess important intelligence data" and pose a security threat to the U.S.
Indeed, Bosnian authorities don't want them back. "We would like them to go back to Algeria," said foreign minister Sven Alkalaj. This is precisely what the Bush administration has been trying to arrange. But it faces a difficult dilemma. Given Algeria's initial protest against their transfer, the men could be set free upon their return. And if they were put behind bars on their return to Algeria, the U.S., already blamed for mistreating the Algerian detainees in Gitmo, could face additional criticism for shipping them to a country with a less-then-sterling reputation when it comes to prisoners' rights. Their lawyers, who filed a complaint with the European Court of Human Rights in April, hope increased European scrutiny, combined with a more assertive Congress and Defense Secretary Robert Gates' apparent willingness to shut Gitmo down, will hasten the men's liberation. Such an outcome, however, could lay bare an inconvenient truth for the Bush administration— that the basis for the six-year detainment of the Algerian Six may rest on dubious evidence.
At his military tribunal in October 2004, Mustafa Ait Idir described his predicament (and, potentially, the Bush administration's), recalling an occasion when he asked one of his interrogators about the accusations and evidence against him. "The interrogator said to me that they would find something, meaning I could not be released from Cuba without them finding some accusation against me," Ait Idir said. "I could not have been held in Cuba in prison ...then all of a sudden be found innocent and released. The interrogator stated there was a big problem and they could not release me and say I was innocent because the Bosnian Embassy was told there was classified evidence against me. So if I were released, the Bosnian government would ask for the classified evidence."