Interview with Lt Col Barry Wingard, Counsel for Fayiz al-Kandari

After more than seven years, Kuwaiti Fayiz Mohammed Ahmed Al-Kandari remains in Guantanamo. Al-Kandari, a man with a long history of charity work, was simply in the wrong place at the wrong time- an Arab caught up in the midst of Coalition bombing after 9/11, and subsequently abused in Afghanistan and GTMO. However, he remains incarcerated- harbouring no ill-will again the United States, but imprisoned in an increasingly hostile environment. Cageprisoners spoke to Fayiz's lawyer, Lieutenant Colonel Barry Wingard about his client's struggle for justice.

CAGEPRISONERS: Could you please introduce yourself to our readers?

LT. COL. BARRY WINGARD: My name is Lieutenant Colonel Barry Wingard. I represent Fayiz al-Kandari – a Kuwaiti in whatever process the United States Government decides will be used to prosecute Fayiz. I am an Air Force Judge Advocate General (JAG) with 25 years experience in the military. I have served in Germany, Bosnia, Hungary, Iraq, and now as part of the OMC defense team for those being imprisoned in Guantanamo Bay (GTMO) Cuba. 

CP: Representing Guantanamo detainees might be deemed as controversial by some, especially for military lawyers. Why did you choose to represent men detained there?

BW: The United States is a country that strictly subscribes to the “rule of law” and specifically the “Geneva Conventions.” In all my former assignments in the military, I have been to represent the government as a prosecutor or criminal investigator during conflicts. When I was asked to represent “the worst of the worst,” I figured I would do it out of a sense of duty.

When I first started to review the cases, it became clear to me that the process and cases had serious problems. Most notably, the allowance for hearsay to be presumed reliable could only be explained by the complete lack of evidence in many of the cases I was reviewing. In that sense, I can relate what the new Administration must have been thinking when they began their review.

CP: What are your general impressions of Guantanamo Bay?

BW: GTMO at first glance seems like the all American town you would find in the heartland of the country. GTMO has shopping, dining, a golf course, and brand new athletic fields that give you a sense of home. But hidden behind this all American town is a checkpoint that requires proper ID to gain access. 

Beyond the checkpoint, the first thing that grabs your attention is the large word “Honor Bound” directly ahead on cement cylinders that comprise the exterior of one of the camps. Indeed, you are now at “Camp Justice,” currently home to 229 detainees still waiting for a day to be heard – many have been waiting for as long as seven and a half years.

One of the most frustrating things is how evidence in these cases is classified; much of it is deemed to be essential to “national security” and thus not open for release. However, a closer examination reveals that a large portion of the evidence classified is exculpatory (helpful) evidence for the detainee.

Case in point: someone claims Fayiz was in training at a camp. The government also claims many others in GTMO were there as well. After many interviews only the “usual detainee” who claimed my client was in camp can be ascertained. Everyone else who was asked is classified; for your protection of course.

CP: Are there any specific things you can tell us about in relation to the way some of the detainees are treated that you find particularly horrific?

BW: The last twenty five years of my life I have been taught the Geneva Convention and am still convinced that the majority of the U.S. government steadfastly follows it. There are many heroes in the story of GTMO such as the FBI who refused to get involved in torture, the military lawyers who were cut out of decision making and process, and many other individuals in the three branches of the US government. 

Unfortunately, there are also those who buckled to pressure from the top levels of the administration and who designed the system of “enhanced interrogation.” 

CP: Could you please tell us a little about the background of your client, Fayiz al-Kandari?

BW: Fayiz comes from a large Kuwati family and lived in Kuwait city. He has travelled around the world as a child and continued to do so as an adult. In 2001, Fayiz travelled to Afghanistan to perform charity work in one of the world’s poorest nations. While there, he was captured and sold into U.S. captivity. Initially Fayiz felt relieved that he was being turned over to the U.S. who has processes to quickly and efficiently determine a person’s status.  That was seven and half years ago. 

CP: What was he doing in Afghanistan when he was captured?

BW: Fayiz travelled to Afghanistan to perform his religious obligation of charity. While in Afghanistan, Fayiz helped construct two wells and repair a Mosque that still has not been completed due to US bombing. Later on, leaflets were being dropped that had an Afghani holding a bag with a dollar sign and saying “turn in Arabs,” or words to that effect.

In the midst of the U.S. bombing effort, Fayiz began the trek to Pakistan before being captured.

CP: The U.S. alleges that Fayiz was an advisor to Osama bin Laden between August 2001 and December 2001, could you please clarify the extent to which these allegations are true? 

BW: Another detainee who is well known to have made similar claims against others was at it again. So this detainee told a translator, who then told an interrogator what it is he wanted to hear. Fayiz reports he has been interrogated over four hundred times and that “this poor soul” must have experienced similar treatment to get him to implicate others.

There is no tangible evidence of a relationship of course, just good old fashioned hearsay, which is the basis for the vast majority of GTMO cases.

CP: How was your client treated on his capture? 

BW: In Afghanistan Fayiz reports that during the "broken ribs session" as he calls it, he remembers being blinded and choking on his blood from the beating and laceration on his head as well as the broken ribs. Techniques in Afghanistan included a lot of threats, pointing loaded weapons, striking with chains and plastic hoses, extreme sleep deprivation, use of females to humiliate by prodding and touching, physical assaults, and shackling in a squatting position so that you could not rest your weight on your ankles due to the restraint's preventing sleep.

CP: What methods of punishment or abuse has he been subjected to in Guantanamo Bay?

BW: On the trip to GTMO: Actual object placed in his body, a cork like thing in his anus, and then a diaper was placed on him. Interestingly, during the 24 hour flight to GTMO a head harness was placed on his head, between his scalp and the harness a small woodscrew (with a point) was inserted to make the trip more memorable. Before departing for GTMO, a woman lifted his harness (ear muffs) and said "we are sending you to GTMO to die."

At GTMO: In the room where Fayiz was shackled for up to 36 hours there was a clock on the wall. The scene: Fayiz is brought into a room, stripped naked, shackled either squatting or in the fetal position. The air conditioner is set to full temperature in a tiny room, and water is thrown on the detainee every hour or so. Variations of this technique included all the before plus, extremely loud music being played combined with strobe lights. Throughout the process people and dogs appear in the room to either throw water on the detainee or allow the dog close enough to feel the moisture from the barking mouth. And then, the interrogator would appear and the questioning would begin.

Early GTMO techniques included nudity, shackling, temperature and sleep modifications, physical assaults of varying severity, dogs to where you could feel the moisture as they barked, and sexual humiliation.

The few years the United States has included Immediate Reaction Force teams primarily as physical means of attack. Guards are fond of yelling “stop resisting” as they drive you to the ground; of course heads get twisted and fingers get snapped. Lately, someone has begun reading attorney/client mail and opening letters from detainees to clients. From personal experience, my most recent letter from Fayiz was opened and resealed; this never happened under the Bush Administration.

Immediate Reaction Force: Is a small group of guards that appear when called by block guards to extract a detainee for a specific reason. Currently it is the primary way in which guards impose their will on the detainees. The process of extraction involves several men rushing the cell and ripping the detainee out with force. Of course hands get stomped, heads get twisted and the guards triumph over the detainee as the detainee is dragged out of cell. Fayiz reports the extractions have increased and violations have become more minor, i.e. small towel being hung in the wrong location, talking back, etc.

CP: Can you tell us anything about Fayiz’s personality? What are his dreams and aspirations?

BW: Fayiz is a strong and independent person which scares the staff. The allegations are all based on multiple levels of hearsay and sometimes verge on absurd. For example, Fayiz once complained to another that the chicken was to dry to eat. At his CSRT review it was found that he had issued a “fatwa” against the consumption of chicken? Additional allegations include that he works out to stay in shape and has attempted to teach others to read.  

When released, Fayiz wants to return home and both start a business and family. He holds no ill will against the United States and wants to see his ill mother. 

CP: What is the latest situation in his case? Has he been cleared for release?

BW: No.

CP: Has the government of Kuwait done anything?

BW: Fayiz is one of four Kuwaiti’s still imprisoned in GTMO. Before leaving office the Bush Administration promised the Kuwait government that a rehabilitation center was all that stood between the releases of the four detainees. Two weeks ago, I visited the newly created rehabilitation center located in Kuwait City. The center itself is state of the art and can accommodate up to forty people and is based on the Saudi curriculum. I also spoke with the medical staff already in place who informed me they are ready to receive the detainees as soon as the end of June.

Of interest the US government is now hedging on releasing at least two of the four Kuwati detainees; Fayiz being one.

CP: As a military lawyer, how did you manage to overcome trust issues with your client?

BW: I wear the uniform of those who have beaten Fayiz over the years. Initially, it was cold and business like, now we share a very normal attorney/client relationship. I gained his trust by showing him with words, and more importantly actions, that I will get him justice irrespective of what it takes.

CP: How do you feel about President Obama stating that he will continue with the Military Commissions program? Do you feel that his desire to close the base will actually result in the release of these men?

BW: The Department of Justice (DOJ) is primarily behind the development of both old and new military commission processes. Remember the DOJ are the ones who guided the U.S. to the stances we had under the Bush Administration relating to both the Geneva Conventions and International Law. Additionally, they staff the Chief Prosecutor’s office with attorneys and advisors in the Commission process they are creating. We really have our doubts about the fairness of this process.

CP: As a military lawyer, do you feel that the regular military justice system might be an answer to the use of military commissions? US military justice has all the safeguards of due process and could take place outside of the US mainland courts – could this be a possible solution to the situation? 

BW: Who knows? There are many ways to game a court system. In Fayiz’s case, there is nothing other than the same old hearsay claims made against many others and nothing of substance that is classified. So we are left to ask why the Prosecutors at DOJ are designing a new system. Who allocates funds for witnesses and decides classification issues? Recall that all the photo’s taken of Fayiz in various stages of being beaten are classified; for your protection of course.

The way forward is Federal Court; if they have evidence, present it in a system that is tried and tested. If they do not have evidence then don’t try to a build some system to accommodate what you have.

CP: Just to finish up I was wondering if you had any words you’d like to give our readers regarding this whole issue of Guantanamo and maybe some advice to them?

BW: I talk to so many people who say, “thank God GTMO is a thing of the past.” Well, let me tell you that Fayiz is still in jail now every bit as much as he was during the Bush Administration. In fact, now that the world has looked away, things on the ground have actually deteriorated. Two quick examples: Fayiz’s most recent correspondence labelled attorney/client was opened and read. This never happened under the former administration. Finally, the use of bruising cell extractions are on the rise as Fayiz reports he himself had three extractions in a ten day period.

CP: Lt Col Barry Wingard, Thank you for taking the time to speak with us.