Those of us who prefer justice to arbitrary
and unaccountable detention without charge or trial were delighted when, last
week, Barack Obama fulfilled a long-stated promise and issued a presidential
order stating that Guantánamo
will be closed "as soon as practicable, and no later than one year
from the date of this order," and establishing an immediate review of
the cases of the remaining 242 prisoners to work out whether they can be released.
A year is a long time, of course, if you're unfortunate enough to have been
imprisoned in Guantánamo for up
to seven years with no way of asking why you're being held, but some of
us were prepared to give the new president the benefit of the doubt, and to
consider that perhaps he didn't want to make a rash promise that he might find
himself unable to fulfill, such as pledging to close the wretched place in
a matter of months.
Recent events, however, have demonstrated that, although President Obama
has set in motion a policy that addresses the prisoners' future, their long
desire to have an opportunity to question the basis of their detention is currently
being addressed not in the White House but in the district courts, following
an epic, four-year struggle between the Supreme Court and Congress to grant
them their wish. Since the justices of the Supreme Court decisively
ended this struggle last June, by ruling that Congress had acted unconstitutionally
when it stripped the prisoners of the habeas corpus rights that the Supreme
Court had granted them in June 2004, a raft of previously marooned habeas cases
has been making its way through the district courts.
Justice and the Habeas Reviews
Although frequently becalmed by pleas from the
Justice Department, whose lawyers have had the nerve to claim, after seven
years, that they are having trouble rustling
up any evidence, a handful of these cases have actually made it to the
point where a judge has ruled on their merits. The results have been a vindication
for those who have struggled for years to get the prisoners a day in court,
and, of course, for the prisoners themselves, because in 23 of the 27 cases
reviewed to date, the judges have dismissed the government's evidence for being
empty and unsubstantiated – in one case comparing
it to a nonsense poem by Lewis Carroll, the author of Alice's Adventures
in Wonderland – and have ordered the prisoners to be released.
Sadly, the impact on the prisoners has so far failed, for the most part,
to match the significance of the rulings. In the case that drew comparisons
with Lewis Carroll – that of Huzaifa Parhat, a Uighur from China's oppressed
Xinjiang province – the government lodged a miserable
and unprincipled appeal to stop Parhat and his 16 compatriots from settling
in the United States, after district court Judge Ricardo Urbina ruled
in October that their continued detention in Guantánamo was unconstitutional.
In November, Judge Richard Leon, an appointee of George W. Bush, ordered
the release of five Bosnians of Algerian origin, after he concluded that
the government had failed to establish that, as alleged, they had intended
to travel to Afghanistan to fight U.S. forces, but to date only three
of the men have been repatriated, and the other two still languish in Guantánamo,
as the Bosnian government wrangles over their status. The last case is that
El-Gharani, a Chadian national and Saudi resident who was just 14 years
old when he was seized in a raid on a mosque in Pakistan. Two weeks ago, Leon
demolished the government's supposed evidence against El-Gharani, but he
too remains stranded, pending a possible appeal.
To Be or Not to Be (An Enemy Combatant)
In many ways, however, these prisoners are the
lucky ones. In four other cases, the scales of justice have tipped the other
way, into an alarming arena in which it has become apparent that the Supreme
Court failed to address whether, in cases where the government is judged to
have produced sufficient evidence to indicate that prisoners were "enemy
combatants," it is justifiable to continue holding them indefinitely.
The problem, as these other four cases have revealed, is that, according to
the definition accepted by Judge Leon, an "enemy combatant" does
not have to be someone who actually engaged in terrorism or in combat against
the United States, but rather someone who was "part of or supporting
Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities
against the U.S. or its coalition partners," which "includes any
person who has committed a belligerent act or has directly supported
hostilities in aid of enemy armed forces" (emphasis added).
What this means in reality is that Judge Leon ruled in November that Belkacem
Bensayah, the sixth Bosnian Algerian, was an "enemy combatant" not
because he had been involved in a specific al-Qaeda plot, and not because he
had raised arms against the United States in Afghanistan or anywhere else,
but because the government provided what Leon regarded as "credible and
reliable evidence," establishing that he "planned to go to Afghanistan
to both take up arms against U.S. and allied forces and to facilitate the travel
of unnamed others to Afghanistan and elsewhere," and that he was "link[ed]"
to a senior al-Qaeda operative (identified elsewhere as the mentally troubled
training camp facilitator Abu
Zubaydah, whose specific links to al-Qaeda have been questioned by the
This may be sufficient evidence to put Bensayah on trial, although it is
surely not adequate to warrant his indefinite detention in Guantánamo,
but in the cases of the other three men the noose-like nature of the "enemy
combatant" definition was even more pronounced. On Dec. 30, Judge Leon
ruled that two
more prisoners – the Tunisian Hisham Sliti and the Yemeni Muaz al-Alawi
– were also correctly detained as "enemy combatants;" in Sliti's
case because, despite being a cynical and dissolute drug addict, he was associated
with individuals connected to al-Qaeda, and, in al-Alawi's case, because, although
he had traveled to Afghanistan before the 9/11 attacks and was not alleged
to have raised arms against U.S. forces, he "stayed at guest houses associated
with the Taliban and al-Qaeda … received military training at two separate
camps closely associated with al-Qaeda and the Taliban and supported Taliban
fighting forces on two different fronts in the Taliban's war against the Northern
Cooking for the Taliban
This ruling in particular cried out for an immediate
overhaul of the "enemy combatant" definition, but yesterday the absurdity
of holding prisoners as "enemy combatants" who were associated with
the Taliban before the 9/11 attacks but never raised a finger against the United
States was highlighted even more forcefully when Judge
Leon ruled, in the case of the Yemeni Ghaleb Nasser al-Bihani, that he
too was an "enemy combatant."
Leon based his ruling on the fact that the government had established, primarily
through interrogation, that al-Bihani had worked as a cook for the Taliban.
Concluding that it was "not necessary" for the government to prove
that he "actually fire[d] a weapon against the U.S. or coalition forces
in order for him to be classified as an enemy combatant," Leon declared,
"Simply stated, faithfully serving in an al-Qaeda-affiliated fighting
unit that is directly supporting the Taliban by helping prepare the meals of
its entire fighting force is more than sufficient to meet this Court's definition
of 'support.'" He added, "After all, as Napoleon was fond of pointing
out, 'An army marches on its stomach.'"
Al-Bihani listened to Leon's ruling in a teleconference call from Guantánamo,
but was cut off before hearing Leon's line about Napoleon. His lawyers, Shereen
J. Chalick and Reuben Camper Cahn, of the federal defenders of San Diego, said
that they would take a rush transcript of the ruling to al-Bihani, adding that
he would be "disappointed" with the decision, but the reality, I
can reveal, is that al-Bihani gave up on U.S. justice many years ago.
"I Am Definitely an Enemy Combatant"
In 2004, at his combatant status review tribunal
at Guantánamo – a toothless
administrative review that was designed, essentially, to confirm that,
on capture, he had been correctly designated an "enemy combatant"
– al-Bihani was acutely aware of Guantánamo's failings, and he addressed
all the issues raised yesterday by Judge Leon. Firstly, he admitted that he
had traveled to Afghanistan in April or May 2001 "to fight the jihad with
the Taliban" against Ahmed Shah Massoud (the leader of the Northern Alliance),
and added, "There is nothing wrong with that in our religion. Is it acceptable
for Americans and not for us?"
He then disputed an allegation that he "was an associate of the Taliban
and/or al-Qaeda," pointing out that he had admitted "many times"
that he was with the Taliban, but that the statement as it stood "suggests
that you are [not] giving me a choice between Taliban and al-Qaeda," and
also denied an allegation that he participated in hostilities against the United
States, explaining, "I went to Afghanistan before the Americans. If I
wanted to fight the Americans I would have gone there after the Americans arrived."
It was, however, at the conclusion of his hearing that he demonstrated what
can now be seen as a prescient awareness of the inescapable bind in which he
found himself. With evident sarcasm, he stated, "I am definitely an enemy
combatant. There is no question about that. I am sure that you will find me
as an enemy combatant. Nobody has been found to not be an enemy combatant.
Everybody has been found to be an enemy combatant. I am certain that I will
be found to be an enemy combatant."
If you want a final demonstration of the ongoing absurdity of Guantánamo,
compare the case of Salim Hamdan to that of Ghaleb al-Bihani. Last August,
Hamdan, a driver for Osama bin Laden, was tried
at Guantánamo in the military commissions conceived by Vice President
Cheney and his advisers, sentenced
and sent home
in November to serve the last few weeks of a five-month sentence delivered
by a military jury. Hamdan is now a free man, whereas al-Bihani, a man who
never met Osama bin Laden, let alone drove him around, has just been told,
by a judge in a U.S. federal court, that the government is entitled to hold
him forever because he cooked dinner for the Taliban.
If President Obama is genuinely concerned with justice, he needs to act fast
to tackle this squalid state of affairs, which does nothing to undo the previous
administration's disdain for and mockery of the laws on which the United States