Eli Lake

BloombergView, Wednesday 10 December 2014 17.18 EST

For more than a dozen years, Redha al-Najar has been something of a ghost. The Tunisian citizen was initially arrested in 2002 by Pakistani authorities. He was then sent to two different CIA secret prisons, and then finally to the U.S. military’s infamous detention center at Bagram air base in Afghanistan. But all the while, he has barely been allowed any contact with the outside world. His American lawyers have never met him.

And then on Tuesday, the U.S. military finally released him to Afghan custody. While the U.S. has planned for some time to send detainees at Bagram into Afghan custody by the end of 2014, the timing is still suspicious, in that it happened to coincide with the release of a scathing report from Senate Intelligence Committee Democrats that detailed for the first time the horrific treatment he underwent while at the mercy of CIA interrogators.

Tina Foster, one of al-Najar’s lawyers, said she was informed of his transfer by U.S. authorities yesterday. “It’s a desperate attempt to have to avoid defending obviously the allegations in our petition that he was tortured by the CIA, that has all been confirmed by the government itself,” she said. “The timing of this is horrendous.”

Foster and her team at the International Justice Network had a petition pending before the U.S. Supreme Court to hear al-Najar’s case. Until now, no detainees at the Bagram prison have been granted a right to a hearing in U.S. court or even a right to a lawyer. The deadline for the U.S. government to file its response to that petition was Dec. 15. Now that al-Najar is in Afghan custody, Foster said it was highly unlikely the Supreme Court will hear his case.

The court proceedings over al-Najar would make for interesting reading. According to the Senate investigation of the CIA program, al-Najar was the first detainee to undergo the enhanced interrogation techniques at secret prison the report refers to as "Cobalt."  The CIA identified al-Najar as a bodyguard of Osama bin Laden. While he was being interrogated by a third country’s security service (almost definitely Pakistan's, as al-Najar was arrested in Karachi), he was the first detainee to provide intelligence about Abu-Ahmed al-Kuwaiti, the courier who ultimately led the CIA to the bin Laden’s location in Abbottabad, Pakistan. A footnote in the report says al-Najar, “who was detained in May 2002, first provided intelligence on al-Kuwaiti on June 4/5 2002, and was subsequently transferred to CIA custody on June (redacted) 2002.”

After talking about the courier to the Pakistanis, al-Najar underwent a brutal regimen of torture in the summer of 2002, according to the committee report. He was subject to hours on end of total darkness, he was given poor-quality food, he was often hooded and subjected to sleep deprivation. By Sept. 21, 2002, a CIA evaluation concluded that he was “broken” and would do whatever his interrogator asked of him.

Even so, the torture did not stop. In October 2002, al-Najar was placed in a stress position with his arms cuffed over his head and he hung from a metal bar for 22 hours a day. He was given a diaper and no access to a toilet, loud music playing in his cell. His condition was so wretched that a military adviser who visited the facility said any U.S. military involvement in his detention would place the military itself at risk if his treatment were ever disclosed. And yet, the CIA inspector general concluded in a later report that the interrogation of al-Najar became a model for dealing with other detainees at the Cobalt facility.

Foster said she did not expect to get access to her client for some time, as the Afghanistan government will now evaluate his case. Afghanistan’s president, Ashraf Ghani, today condemned the practices disclosed in the Senate report. “This is a vicious cycle,” he said. “When a person is tortured in an inhumane way, the reaction will be inhumane. And thus a vicious cycle of action and reaction is created.”

“This is a shell game played with detainees to keep them out of U.S. court jurisdiction,” Foster said. “This torture is the reason Redha has never been allowed to speak with his attorneys.” Ghani’s government now has the power to change that, and the world may soon hear al-Najar’s side of the story about his ordeal as a prisoner of the CIA.