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Roger Fitch Esq • June 9, 2009
Our Man in Washington
President Obama says he wants to close Guantánamo Bay … This Konzentrationslager was flawed from the start … There was no law to support the “enemy combatant” regime … Roger Fitch tracks the fate of some of the better known detainees
Now that Barack Obama is settling into the daunting task of returning the US to a constitutional democracy, perhaps it’s a good time to reflect on the fate of Guantánamo prisoners, individual victims of George Bush’s comprehensively illegal project.
Guantánamo was set up in January 2002 as a Konzentrationslager for foreign opponents of the Bush administration.
Leaving aside cases of innocence and mistaken identity (e.g. prisoners for whom a bounty was paid to the Pakistanis, no questions asked), a great many of the detainees are now known to have been merely hostile to the US or “uncooperative” – hardly grounds for imprisonment, war or no war.
These “security detainees” were labelled “enemy combatants” in a crude but ultimately futile effort to apply the law of war in a perverted form cherry-picked by the Bush administration.
That the entire project was extralegal in conception as well as execution is something that no one, including Mr Obama, has had the courage to tell the American people.
Seven-and-a-half years later the public still operates under the false premise that the prison for “terrorists” was somehow legislated by Congress, authorised by judicial precedents or justified under international law.
In fact, no such category as “enemy combatants” existed until the US government “coined” it, as the Pentagon still confesses on its Gitmo web page.
A recent law review article examined the tortured history of the “EC” expression, now abandoned by the Obama administration.
Except for the Afghans, the detainees have all been from countries with which the United States is not at war and so are not in fact “enemies” of the US in any customary reading of the law of war.
In fact, most of them have never been combatants against the US or its allies.
According to the respected Seton Hall reports, which are studies based on the Pentagon’s own sources, only five percent of the men were apprehended in Afghanistan by US forces.
Attention has been paid to the shopkeepers, shepherds and peasant farmers, but at least three of the detainees were medical doctors.
The US government has taken the position that, the Hippocratic oath notwithstanding, doctors who provide medical assistance to the enemies of the US are also enemies of the US.
There were also journalists, a UK law student, an accredited Afghan diplomat, a member of the Bahraini royal family, employees of legitimate charities, representatives of the present Afghan government and even anti-Taliban fighters – actual enemies of the Taliban regime.
So where are these prisoners today? Those, for instance, who gave their names to notorious military commissions and famous Supreme Court cases?
As we know, the Saudi Yasir Hamdi was able to bail out with a Louisiana birth certificate. Australian Mamdouh Habib got a get-out-of-jail card for having been tortured by Egyptians at American request.
David Hicks and Salem Hamdan returned to Australia and Yemen respectively after commission “trials” which would never have survived appeals.
The Sudanese Sami Al Hajj, a professional journalist held at Guantánamo, is back at work with Al Jazeera.
In Britain, the recently released Binyam Mohammed is still fighting the Obama-backed UK government in the courts and Gitmo grad Moazzam Begg is helping design computer games about his prison days.
The Tanzanian Ahmed Ghailani is headed for US District Court in New York where he has been under a perfectly valid indictment since 1998 for the East African embassy bombings.
Of course, Ghailani would have been in New York years ago but for his CIA/Guantánamo detention, a point his civilian lawyer has been trying to make without success.
Bush administration lawyers surely knew they were required to turn indicted criminal defendants over to US District Courts, not warehouse them at CIA or military prisons, mistreat them and question them by force.
The Miami Herald has more to say about this.
Finally, there is the Bosnian-Algerian Lakhdar Boumediene (pic). His case offered a partisan Republican – DC District Court Judge Richard Leon – an irresistible opportunity to subvert a Supreme Court decision uncongenial to the Bush administration.
When the Supreme Court remanded the Guantánamo habeas cases following its 2004 Rasul decision, Leon alone flouted the court’s ruling.
The result was the Supreme Court’s historic 2008 Boumediene decision.
On the second Supreme Court remand of Boumediene’s case, Leon finally relented, looked at the facts, and found no evidence to support detention.
Subsequently, the French government agreed that Boumediene could settle in France. In May, Boumediene was released, and he’s talking about his ordeal.
Remember Mohamed Jawad? He’s the Afghan teenager taken to Guantánamo for allegedly throwing a hand grenade at American soldiers occupying his country – a previously unknown “war crime”.
The eloquent argument of military defence counsel David Frakt (pic) before Jawad’s military commission has become famous.
Judge Stephen Henley, the military commission judge, threw out Jawad’s confessions as coerced, yet Jawad is still detained and it’s now claimed he was 12, not 16 or 17 when he was arrested.
The military defence lawyers in Jawad’s shocking case – his military prosecutor Darrel Vandeveld quit in protest – are presently attacking Jawad’s extralegal extradition in an appeal to the Afghan Supreme Court.
The Uighurs – an ethnic Muslim minority from China’s Xinjiang province – are still locked up, despite the fact that numerous courts have ruled they are entitled to release. Even the government has conceded they are detained illegally.
Government lawyers have filed a brief in the Supreme Court opposing the Uighurs’ petition for certiorari, but the Obama administration seems likely to admit some of the Uighurs to the US on a “grace and favour” basis.
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Meanwhile, the last of the “enemy combatants” unlawfully confined by the Bush regime in stateside military prisons will soon be legally locked away.
“Sleeper cell” member Ali Saleh Al-Marri, will join José Padilla in a US high security prison.
Perhaps surprisingly, Al Marri’s guilty plea was for a real crime.
