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 US 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 of Mohammed 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 comprehensively 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 US 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 US 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 FBI).
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 December 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 US 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 Alliance.”
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 US 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 US 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 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 Dick 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 driving him around, has just been told, by a judge in a US 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 was founded.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed.
For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009). Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009).
You know how I admire you, but I have to say, that if you have one fault, and you do, and a serious one at that, it is that you are far too gentlemanly and polite.
Specifically, your characterization of U.S. policies that would authorize and allow a cook (because of whom he cooked for!) to be enslaved, and a former president who manifested that enslavement to walk free with lifetime financial security and protection of the state, as “absurd” does neither the situation nor the word itself (in the dictionary sense of “illogical, ridiculous and untrue”) any form of justice.
Absurd is the humor of Monty Python, or Borat, or Saturday Night Live, or the newspaper The Onion, or the BBC television show Absolutely Fabulous, or the plays of Samuel Beckett. Absurd is wholly insufficient, does not begin to approach or encompass, the damning results of the official policies, actions and inactions of the Bush administration, that could and did, in reality and actuality, lead to the deprivation of liberty for all these years under the horrific and well-documented conditions that Mr. al-Bihani has been forced to endure and yet endures.
What that is is not so much absurd as grotesque, insane, perverted, depraved, and crazy-making. It is also 100% un-American in any sense of my understanding, which I believe is a deep understanding, of what America fundamentally is and should be.
But you are correct that President Obama needs to quickly “tackle” this issue. Tackling in American football contains just the right sense of vigor, energy and physicality needed for redress. Every single sentient American with a pulse knows exactly what that looks like, what that feels like, and why it’s necessary.
So that means when bush, cheney, rumsfield ,rice, and gonzales is sent to the hague, their cooks will be too..
I hope they put them all in the same cell with one filthy mattress on the floor to fight over. Ms. Rice can practice her partitas on her thigh, that is if her hands aren’t inconveniently manacled.
After this article was published on CounterPunch, I received the following message:
I just read your CounterPunch article “Blame the Chef” and I am thrilled to see others discussing this very bizarre “justice” being served up. If I am not mistaken Hamden is the only person convicted in this “war on terror” aside from John Walker. I find this notion of “justice” — putting powerless drivers and chefs into prison and declaring them “terrorists” absurd … and if it weren’t so tragic, it would be funny. Might it be — given that few in these administrations want to address the real issues behind “terrorism” and anger at the West — that handing over a driver and a cook are merely symbols of appeasement to the masses in the west?
This was my reply:
Thanks for the comments. I’m not sure, however, that these prisoners are “symbols” in any real sense. The US administration actually managed to capture a small number of significant terrorists (and then tortured them for “actionable intelligence,” not bothering to think about what it would do with them in a legal sense). When they were moved to Guantánamo, they joined a list of dozens of other prisoners — including a handful of other alleged al-Qaeda operatives — that the administration believed it could prosecute in its legally wayward Military Commissions.
However, in order to try and ensure success, the authorities decided to start with what it regarded as uncontentious cases that would pave the way for bigger cases to follow. It is, I believe, a sign of how disconnected the administration was from any sense of proportion that those chosen to test the waters were people like David Hicks (freed after a plea bargain), Omar Khadr (a child) and Salim Hamdan (a driver for bin Laden). Hicks was a nobody, Khadr should have been held as a juvenile and rehabilitated, and, in Hamdan’s case, there was no precedent for prosecuting the drivers of “bad men.” And in the case of Hicks and Khadr, we may also question why combatants in a war against the US are all “terrorists,” whereas US forces are not.
These are not the only small fry put forward for trial by Military Commission, but it’s clear that the basis for trying them is the same as the basis for holding a cook as an “enemy combatant” – the ridiculously all-encompassing definition of an “enemy combatant.” See here for a list of Commission cases: http://www.andyworthington.co.uk/2008/11/18/20-reasons-to-shut-down-the-guantanamo-trials/
However, it’s also worth noting that, although the administration has had no success in prosecuting these men — and would surely fail to establish much of a case if Ghaleb al-Bihani were ever put forward for trial — it did secure what it regarded as a victory on the eve of the Presidential election, when Ali Hamza al-Bahlul, an al-Qaeda operative, received a life sentence after what can only be regarded as a one-sided show trial (he refused to mount a defence, which, under the Commissions’ ludicrous rules, was allowed). See here for details:
Thanks again for writing.
And this was Julian’s reply:
When I put “symbols” in quotes, I meant to convey that these men are not really significant captures in the war on terror, hence they are “symbols” to those who watch CNN and Fox and read this as a “big hit”, where the reality conveys something quite different.
The problem with Guantánamo is that there is a ridiculous combination of many innocents and even children in the mix, which is the basis for contesting that such a space be continued in this “war on terror”. (Actually so many words and terms can be put into quotes, sadly.) Likewise John Walker Lindh was in the wrong place at the wrong time and is serving a hefty sentence for “thought crime”. I find this horribly dangerous for our future legal systems for, as I have been maintaining: how can we differentiate between the UK or US soldier and the terrorist if the definitions really come down to the bad guy wears a turban and has a beard and the good guys have “proper uniforms”. I am vulgarizing a bit, but this is essentially the way that terrorism is being interpreted.
[…] provide sufficient evidence that they should ever have been held in the first place (a summary is here, and see here for the latest […]
[…] a sixth Bosnian Algerian, the Yemeni Moaz al-Alawi, Hisham Sliti (a Tunisian), and another Yemeni, Ghaleb al-Bihani, had been correctly designated as “enemy combatants” and could continue to be held. In articles […]
[…] was sufficiently different from the views of other judges — for example, Judge Richard Leon, who “has been using a detention definition that gives the government more authority than the […]
[…] to be held as an “enemy combatant,” because he had worked as a cook for the Taliban. As I explained in an article at the time, Concluding that it was “not necessary” for the government to prove that he […]
[…] in January, when Judge Leon refused the habeas appeal of Ghaleb al-Bihani, a Yemeni who had worked as a cook for Arab forces supporting the Taliban, I made a comparison with […]
[…] out that they may be held for the rest of their lives for “crimes” no more egregious than, for example, cooking for an Arab fighting force supporting the Taliban in […]
[…] be used to endorse the indefinite detention of those who may have done nothing more than cook for Arab forces supporting the Taliban, or attend a military training camp in Afghanistan for one day […]
[…] Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The […]
[…] Appeals Court ruling dealt with the case of Ghaleb al-Bihani, a Yemeni who lost his habeas corpus petition, challenging the basis of his detention, in January last year, seven months after the habeas […]
[…] Appeals Court ruling dealt with the case of Ghaleb al-Bihani, a Yemeni who lost his habeas corpus petition, challenging the basis of his detention, in January last year, seven months after the habeas […]
[…] anything, Ismail — and other prisoners who have lost their habeas petitions, like Ghaleb al-Bihani, who served as a cook for Arab forces supporting the Taliban — should have been held as prisoners […]
[…] A three-judge panel on the D.C. Circuit Court of Appeals upheld an earlier ruling denying Ghaleb Nassar al-Bihani the right to challenge his detention at Guantánamo, where he has been held since 2002. The Yemeni national was picked up in Afghanistan where he says he was serving as a cook for Taliban forces fighting the Northern Alliance. […]
[…] rather than in activities related to terrorism – is one that I have been railing against for some time now, for the simple reason that the former should be put forward for trials, whereas the latter – […]
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