Guantánamo and the Supreme Court: who are Fawzi al-Odah and Lakhdar Boumediene?

This article, following on from yesterday’s article Guantánamo and the Supreme Court: the most important habeas corpus case in modern history, which analyzed the legal history of the detainees’ demands for habeas corpus rights, looks at the stories of the lead Petitioners in the cases that will be considered by the Supreme Court today. It’s a version of an article that I wrote for the BBC, which was published on the BBC News website.

Andy Worthington, author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, unearths details about the two men challenging the US’s right to detain them, in a case at the Supreme Court.

The cases were filed by US lawyers on behalf of Kuwaiti Fawzi al-Odah and 11 other Kuwaiti detainees, and Algerian-born Bosnian Lakhdar Boumediene and five other Bosnian detainees. At issue is the 2006 Military Commissions Act, passed by Congress and signed by President George W. Bush. It stripped the Guantánamo detainees of the right to challenge in federal courts the basis of their indefinite detention as “enemy combatants,” stating that heir cases could only be heard in military commissions, not civilian courts. Lawyers for the detainees say this violates their constitutional right to habeas corpus –- the 800-year old “Great Writ,” which guarantees prisoners the right to challenge the basis of their detention in court. The administration disagrees, arguing that habeas corpus does not apply to non-US sovereign territory, even though the Supreme Court ruled in 2004 that this was a lawless argument, and that the men were “imprisoned in territory over which the United States exercises exclusive jurisdiction and control.”

Fawzi al-Odah

30-year old Fawzi al-Odah, the lead Petitioner in Al Odah v. United States, is a Kuwaiti primary school teacher whose father, a retired air force pilot, fought with US forces during the Gulf War in 1991. According to his own account, which he gave to a military tribunal at Guantánamo, he took a short holiday from work and travelled to Afghanistan in August 2001 to teach the Koran and provide humanitarian aid. This was something he had done before, in other countries, and his family had a history of providing humanitarian aid, establishing libraries and wells in various countries in Africa.

After establishing contact with the Taliban, which he said “was necessary because that was the government in Afghanistan at that time,” al-Odah said that he had been “touring the schools and visiting families,” teaching the Koran and handing out money, until his activities were curtailed following 9/11.

He said that in Kandahar the Taliban representative “told me that was a dangerous place because it was the capital for the Taliban,” and advised him to go to Logar, in the east of the country, where he stayed with a family for a month, and left his passport and belongings for safekeeping. He explained that, “If the Afghans saw I had a passport indicating I was an Arab, and they saw the money and the camera I had, I would have been killed.”

After this, he said that he moved to Jalalabad, where he stayed with another family, who gave him an AK-47 assault rifle to protect himself, and then joined other people crossing the mountains to Pakistan, where he handed himself in to the border guards. He added that he expected to be escorted to the Kuwaiti embassy, but was instead handed over to US forces.

In Guantánamo, where al-Odah’s despair at his predicament has been such that he joined a widespread hunger strike in August 2005, the authorities have struggled to make a case against him.

In his latest military review, he was not accused of participating in hostilities against US forces, but of “firing a Kalashnikov rifle at some targets” at a small camp where he was taken by a Taliban official, of staying in a house in Jalalabad “with three Arabs who appear to be fighters who carried Kalashnikovs,” and of fleeing Afghanistan with a group of men “who may have had some al-Qaeda or Taliban members.”

While eight of al-Odah’s compatriots have been released from Guantánamo, his lawyers have stated that John Bellinger, the State Department’s senior legal adviser, explained that the reason that al-Odah and the other three Kuwaiti detainees are still in Guantánamo is because the Kuwaiti government has not followed the rules that the US administration attempted to impose on them when the other eight men were released. The Americans attempted to insist that the men be tried and imprisoned on their return, but although the Kuwaiti government put them on trial, the court found that there was no case to answer and duly released them.

Lakhdar Boumediene

The other case, Boumediene v. Bush, concerns six Bosnian citizens of Algerian origin, who were among the earliest victims of “extraordinary rendition” by US forces. All of the men, including the lead petitioner, 41-year old Lakhdar Boumediene, travelled to Bosnia during the civil war in the 1990s. Later granted citizenship, five of the six married Bosnian women and took jobs working for various Muslim charities.

In October 2001, the US embassy in Sarajevo asked the Bosnian government to arrest them because of a suspicion that they were involved in a plot to bomb the US embassy in Sarajevo. The Americans offered no proof, but threatened to withdraw peace-keeping forces unless the government complied with their request.

The six men were duly arrested, but after a three-month investigation, in which the Bosnian police searched their apartments, their computers and their documents, they found no evidence to justify the arrests. The Supreme Court ordered their release, and the Bosnian Human Rights Chamber ruled that they had the right to remain in the country and were not be deported. However, on the night of 17 January 2002, when they were freed from Bosnian custody, they were seized by US soldiers, hooded, handcuffed and rendered to Guantánamo.

Since arriving in Guantánamo, the men have faced repeated allegations of links to al-Qaeda, but the embassy plot has never been mentioned. It was alleged in a tribunal hearing that an unidentified source had said that Boumediene “was known to be one of the closest associates of an al-Qaeda member in Europe.”

The men have persistently denied the allegations, and their lawyers say that the source of the bomb plot allegations was the embittered ex-brother-in-law of one of the men, who ran a smear campaign against him. According to Manfred Novak, the UN Special Rapporteur on Torture, who has investigated their story in depth, “It’s implausible to say that they are enemy combatants. They were fighters during the Bosnian war, but that ended in 1995. They may be radical Islamists, but they have definitely not committed any crime.” According to a Washington Post article in August 2006, they were formally exonerated by Bosnian prosecutors in 2004.

Despite this, all six men have reported that they have been treated brutally in Guantánamo, subjected to “enhanced interrogation techniques” involving prolonged isolation, forced nudity and sleep deprivation. In the case of one of the six, 37-year old Mustafa Ait Idir, his lawyers have backed up claims that he suffered a stroke after a brutal assault by guards in Guantánamo, which left one side of his face paralyzed.

The reason that Boumediene and his compatriots are still in Guantánamo is apparently because of their supposed intelligence value. In March 2005, US Secretary of State Condoleezza Rice responded to a request for their release from the Bosnian prime minister by stating that it was not possible because “they still possess important intelligence data,” and in 2004 Ait Idir told a military tribunal at Guantánamo, “The interrogator told me I was there to give up information. The story on the outside was I was captured because of terrorism, and now here you are telling me you want me to give up information about rescue organizations and Arabs and how the Arabs are living.”

Note: For more on the stories of the Kuwaitis and the Bosnian Algerians, see my book 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 another, current take on the Bosnians, see this article in Mother Jones by Marc Perelman.