Guantánamo and Habeas Corpus: Consigning Soldiers to Oblivion

In the habeas corpus petitions submitted by prisoners at Guantánamo, district court judges have, to date, ruled in 34 out of 47 cases that the government has failed to demonstrate that the men in question had any meaningful connection to either al-Qaeda or the Taliban.

In contrast to the Bush administration’s claims that the prison held “the worst of the worst,” the truth is that only a few dozen of the 779 men held had any involvement with terrorism, and these figures are reflected in the appraisal of the Obama administration’s interagency Task Force, which reviewed the cases of all the men still held last year, and advised that only 35 should face a trial of any kind.

However, despite these impressive results, a little-noticed aspect of the rulings is that, in the majority of the habeas petitions denied by the courts, the men in question do not appear to be terrorists either. Over eight years after Guantánamo opened, something is deeply wrong when prisoners can continue to be held indefinitely at Guantánamo not because they were terrorists, but because the judges who are making these rulings are obliged to endorse their imprisonment if the government manages to demonstrate that they were somehow connected to the Taliban – or to al-Qaeda forces supporting the Taliban – at the time of the US-led invasion of Afghanistan in October 2001.

With a few exceptions (see, for example, the cases of Belkacem Bensayah and Hisham Sliti, and the case of Sufyian Barhoumi), the prisoners who have lost their habeas petitions did so because the judges concluded that, before the 9/11 attacks took place, they attended a military training camp in Afghanistan (primarily al-Farouq, which is regularly described as an “al-Qaeda training camp”), and that they then fought with the Taliban or with Arab forces supporting the Taliban (in what could be described as al-Qaeda’s military wing) in the Taliban’s long-running conflict with the Northern Alliance.

In the rules established by the courts to justify detention, prisoners lose their habeas petitions even if they only played a supporting role as a cook or a medic, and even if their support took place before the 9/11 attacks, and only essentially morphed into opposition to the US because they failed to teleport themselves out of Afghanistan when the US-led invasion began.

Even in cases where the prisoners followed up their basic training by traveling with the camp’s leaders or trainers to Afghanistan’s Tora Bora mountains (the site of a showdown between al-Qaeda and Taliban forces and the US military and its Afghan allies that took place in November and December 2001), it makes no sense that they should continue to be held indefinitely in a prison defined by its supposed association with terrorism, when they were clearly nothing more than foot soldiers in a specific armed conflict, who should have been held as prisoners of war, and protected from the abuse they endured by the Geneva Conventions.

Misconception at the Heart of the “War on Terror”

In their arrogance and haste to declare a new kind of war, President Bush’s advisers equated al-Qaeda with the Taliban, failing to distinguish between a government (however reviled) and a small, if influential terrorist group, and deliberately choosing to regard a criminal enterprise (the 9/11 attacks) as an act of war. The confusion and lawlessness engendered by this “new paradigm” has polluted the last eight and a half years of US history, and much of this can be traced to the administration’s dismissal of the Geneva Conventions.

Anyone seized in wartime is automatically protected by Common Article 3 of the Geneva Conventions, which prohibits “cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” However, when senior officials and lawyers in the Bush administration decided that the Geneva Conventions did not apply to either al-Qaeda or the Taliban, they not only paved the way for the torture regime that followed, but also reinforced the confusion that prevails to this day and continues to infect the habeas cases.

Logically, those engaged in the military conflict in Afghanistan (the Taliban, and al-Qaeda forces supporting the Taliban) were soldiers, whereas those in al-Qaeda who were responsible for terrorist attacks were criminals. However, by equating al-Qaeda with the Taliban, the terrorists and the soldiers came to be regarded as one and the same. This confusion began with the Authorization for Use of Military Force, passed by Congress in the wake of the 9/11 attacks, which authorized the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons,” and the detention policies that followed were approved by the Supreme Court in Hamdi v. Rumsfeld in June 2004, when the court ruled that “Congress has clearly and unmistakably authorized detention” of individuals covered by the AUMF.

The Obama administration retains the AUMF as its basis for the detention of prisoners at Guantánamo, and as a result the Taliban government, which “harbored” al-Qaeda, remains on a par with al-Qaeda, maintaining the illusion that international terrorist plots and the war in Afghanistan were or are fundamentally identical.

Redefining Soldiers as Soldiers

The solution to the problem posed by those who have lost their habeas petitions, but were never involved in any kind of terrorist activity, ought to be straightforward: redefine the soldiers who have lost their petitions as prisoners of war, rather than relying on the Authorization for Use of Military Force to justify their detention as “enemy combatants” (or, as they are now called, “alien unprivileged enemy belligerents”). If this happened, lawyers could then begin arguing if it is appropriate to continue holding, as prisoners of war, men whose conflict with the US related not to a terrorist ideology with no fixed end date, or to an ongoing insurgency, but to a specific armed conflict, which, at the latest, came to an end in November 2004, when Hamid Karzai was officially elected as the post-Taliban president of Afghanistan.

Unfortunately, such a move seems unlikely, given that the Obama administration has chosen confusion over clarity, and has decided that, instead of trying terrorists in federal court trials and holding soldiers as prisoners of war, it prefers a two-tier system of justice (both federal court trials and a revival of the widely reviled Military Commissions), and also asserts its right to continue holding men indefinitely whether they lose their habeas petitions or not.

The Cases of Suleiman al-Nahdi and Fahmi al-Assani

A demonstration of these problems can be found in the cases of two Yemenis, Suleiman al-Nahdi and Fahmi al-Assani. Judge Gladys Kessler denied the habeas petitions of both men in February, but although her findings of fact are acceptable – she concluded that both men attended the al-Farouq training camp in Afghanistan and then traveled with others to Tora Bora, where they were, to some degree, involved in the conflict with the US and its Afghan allies – my concerns about the justification for their continued detention in Guantánamo mirror those already expressed in the cases of the other soldiers (or those providing support to soldiers) who have already lost their habeas petitions: Muaz al-Alawi, Ghaleb al-Bihani (a cook), Hedi Hammamy, Adham Ali Awad and Fawzi al-Odah, Musa’ab al-Madhwani, Mukhtar al-Warafi (a medic) and Yasin Ismail.

In the unclassified opinions, Judge Kessler established that both men had been influenced by a fatwa to visit Afghanistan for training, and that their travel had been facilitated by a man described by the government as “an al-Qaeda recruiter, travel facilitator, and commander in Osama bin Laden’s 55th Arab Brigade.” Judge Kessler accepted that al-Assani, who had been rejected for military training in Yemen, may well have undertaken his visit “to receive military training, and not to fight,” as something that was “important in coming of age,” but turned down a similar claim by al-Nahdi, noting that he had trained for a month in Yemen, and that he had made “somewhat contradictory statements” when explaining his motives.

Both men, however, were judged to have entered into the “command structure” of al-Qaeda during their subsequent journey to Afghanistan, which involved staying in a guesthouse in Karachi (reportedly run by Sharqwi Abdu Ali al-Hajj, also known as Riyadh the Facilitator, whose torture in US custody was referred to in a recent unclassified opinion), being escorted by bus to another house in Quetta, and crossing the Afghan border on motorbikes, as well as in Afghanistan – at another guesthouse, and, finally, at al-Farouq.

Judge Kessler was understandably wary of claims made by both men that they did not know that the camp was associated with al-Qaeda, but I find her assertion that al-Qaeda leaders permitted al-Nahdi “to be in the close presence of Osama bin Laden” and al-Assani to be “in close proximity to Osama bin Laden” while he visited the camp to deliver a speech to be rather overblown, as there does not appear to be any suggestion that new recruits had anything resembling contact with bin Laden during these visits.

Nevertheless, there is a clear logic to Judge Kessler’s ruling that what happened after al-Farouq demonstrated “membership and substantial support” of al-Qaeda – or, more accurately, of al-Qaeda’s military activities in support of the Taliban – on the part of al-Nahdi, who apparently “executed orders to guard a rear-echelon position at Tora Bora.” In a review board at Guantánamo, he explained that the leaders of al-Farouq “ordered us to move from one place to another. They told us to go to Tora Bora so that is where we went.” Judge Kessler also noted that al-Nahdi had stated that “[a]t the time, you could not ask them why and where you were going. You cannot refute them. You had to do what they told you to do.”

In al-Assani’s case, these elements of membership and support were demonstrated through his statements that “he and a group of fifty men, led by [redacted], the commander of al-Farouq,” left the camp together (after 9/11), and received additional training, including “long-distance walking,” in a location outside Kabul for ten to 15 days. He added that they then traveled to “a forested area around Jalalabad,” where they stayed for two days before moving into the Tora Bora mountains, where they “were split into groups of eight to ten people.”

On leaving Tora Bora, al-Nahdi traveled with a group, which, “after walking for five hours, was bombed by Coalition forces,” which led to him being “injured by shrapnel and shortly thereafter captured by Coalition forces.” Al-Assani also traveled as part of a group, and, as Judge Kessler explained, “was injured after his group was bombed … was escorted and turned over to Afghan forces, and eventually – after over a month of recuperation in a hospital – was turned over to US custody.” Judge Kessler concluded that both men had followed commands until their capture, and noted that neither man had made any serious attempt to flee, even while acknowledging that this “might have been dangerous and difficult.”

All of the above may well demonstrate, as Judge Kessler, concluded, that both men were sufficiently involved with al-Qaeda to justify their ongoing detention according to the rules established in previous cases, but there is something rather pathetic about al-Nahdi’s claim that many of the men at Tora Bora, “including himself, were scared, and only wanted to go home after the fighting began,” and the report of his attempt to leave (which, Judge Kessler noted, demonstrated only that he “acted in proper ‘command mode'”), when he “asked his commander … if he could leave, and after being rebuked did not attempt to do so.”

In most respects, however, these were straightforward opinions, lacking the false confessions that have crippled the government’s arguments in other cases. The only example of a false confession cropped up in al-Assani’s case, through an allegation made by one of his fellow prisoners, who, as Judge Kessler noted, “identified [him] as one of fifty individuals who served as Osama bin Laden’s bodyguards.” She was withering in her dismissal of this allegation, noting that “there is some question as to [his] credibility,” taking exception to his claim that al-Assani and these other 49 men received “specialized training” (as this “do[es] not appear to fit what is known about al-Assani”), and, in particular, pouring scorn on the notion that a “brand-new recruit” like al-Assani would have been chosen for the job:

It seems exceedingly unlikely that Osama bin Laden would, in the wake of the September 11, 2001, attacks, when he was probably the most hunted man in the world, call on an unknown, brand-new recruit with two weeks of rifle training to serve as his bodyguard.

Despite this, there is a great and unjustifiable gulf between Judge Kessler’s description of al-Assani as “an unknown, brand-new recruit with two weeks of rifle training” when it came to allegations that he was a bodyguard for bin Laden, and the complete irrelevance of this description when it came to ruling on whether he could legitimately be slung back into the black hole of Guantánamo, reserved for those who have lost their habeas petitions.

Nevertheless, as Judge Kessler explained, in identical passages in both unclassified opinions:

[I]t bears emphasis that the Government is not required to prove that Petitioner had reason to know specifically that Coalition forces would enter the conflict in Afghanistan, or that Petitioner had the specific intent to fight against the United States and its allies. Instead, the knowledge or intent that must be shown relates to Petitioner’s decision to become part of or to substantially support al-Qaeda and/or the Taliban. Thus, even a recently recruited, low-ranking Taliban and/or al-Qaeda member who had no reason to suspect the United States’ entrance into the conflict is detainable, so long as the decision to “function or participate within or under the command structure of the organization” was made with some knowledge or intent, and so long as the individual was functioning or participating within the command structure at the time of capture.

These passages leapt out at me as I read the opinions, to the extent that I almost wondered whether Judge Kessler was trying to make a subtle point about the real – as opposed to the legal – insignificance of “recently recruited, low-ranking Taliban and/or al-Qaeda member[s].” In the end, however, I can only accept her unclassified opinions at face value, and repeat what I proposed at the start of this article: that “unknown, brand-new recruit[s] with two weeks of rifle training” and “recently recruited, low-ranking Taliban and/or al-Qaeda member[s]” should not be used as part of the rationale for Guantánamo’s continued existence as a prison for terrorists. In equating al-Qaeda with the Taliban, the Bush administration endorsed a misguided policy (accepted by the Obama administration), which asserts, incorrectly, that the Taliban were working for al-Qaeda, when the reality is that outside of a small circle of men involved in international terrorism, the majority of the men associated with al-Qaeda in Afghanistan were working with the Taliban in the specific context of an armed conflict that mutated from a civil war to a war against the US when the US-led invasion began on October 7, 2001.

Instead of being detained indefinitely at Guantánamo as “unprivileged enemy belligerents,” al-Nahdi and al-Assani should be prisoners of war, entitled to the protections of the Geneva Conventions, and not held, for the most part, like convicted criminals in maximum-security isolation cells, with no family visits allowed, and few, if any, of the comforts and distractions that even the most vilified convicted criminals on the US mainland receive as a matter of course. They are not terrorists, and should not continue to be treated as though they are.