November 2018 marks the centenary of the end of World War I, “the war to end all wars.” Meanwhile, this month, the 17th anniversary of the US-led war in Afghanistan came and went quietly, yet it far exceeds the combined length of the 20th century’s two World Wars, and the US government still uses the invasion of the country in its launch of the “global war on terror” to justify detaining hundreds of people without charge or trial.
In the Beginning
In the early years of the war in Afghanistan, thousands of men, women and children were taken prisoner. Afghan militias allied to the US or in joint US-militia efforts killed many. Thousands of others simply “disappeared” in Afghanistan, as well as in neighboring Pakistan.
In the first three years alone, more than 50,000 people were detained by the US as terror suspects. Others were rendered to Afghanistan by the US military and the Central Intelligence Agency (CIA) from other countries to be held, interrogated and tortured in a secret network of torture prisons the US set up under its extraordinary rendition program.
The label “terror suspect” averted questions of accountability for the “disappearances,” mass killings and the torture of prisoners, who were not granted prisoner-of-war status. The fate of the thousands of “disappeared,” including small children, remains unknown.
Investigations and the hard work of activists, lawyers, non-governmental organizations (NGOs) and families has revealed the fate of some prisoners. For example, almost 800 men and boys were rendered to further US detention at Guantánamo Bay.
At the time of their transfer, these prisoners were referred to as “Taliban and al-Qaeda captives.” Years later, the truth started to emerge: Of the “worst of the worst,” only 8 percent “were characterized as al-Qaeda fighters” and 5 percent “were captured by United States forces.” Of the 86 percent captured by the Northern Alliance — a key US ally in Afghanistan at the time — or the Pakistani military, most were sold to the US for a bounty; former Pakistani President Pervez Musharraf removed a reference from his biography stating that the US had paid millions of dollars in “prize money” for the handover of more than 300 prisoners.
Guantánamo has been synonymous with arbitrary detention and torture for the past 17 years, and it appears that the “misguided experiment” is about to be expanded and repeated for a new generation.
In late August 2018, NBC reported that, according to US officials and European diplomats, the Trump administration is considering sending suspected ISIS (also known as Daesh) fighters held in Syria to a prison in Iraq, and some to Guantánamo Bay. The US-backed Syrian Democratic Forces (SDF) in northern Syria are currently detaining around 600 men they claim to be affiliated with ISIS from at least 47 countries, in addition to around 400 Syrian fighters and 2,000 women and child relatives.
The reported plan is to send most of the detainees to a prison in Iraq and render several of the “highest-value detainees” to Guantánamo Bay. Two possible candidates are Alexanda Amon Kotey and El Shafee Elsheikh — members of the notorious British ISIS quartet known as “The Beatles” — accused of involvement in the imprisonment, torture and beheading of 27 men; claims they deny. The British government admitted in July that it had revoked their British citizenship and has no duty toward them. The US is seeking their extradition to stand trial for the killings of US citizens. The two were captured by the SDF in January 2018. No other potential transferees to Guantánamo have been publicly named.
Legal and policy experts have pointed out that ISIS suspects sent to Guantánamo Bay would have the right to challenge the 2001 and 2002 Authorizations for the Use of Military Force (AUMFs), which were primarily aimed at al-Qaeda and the Taliban, used as the basis for their detention. The AUMFs continue to provide the basis for the US’s military involvement in Syria, even though they do not cover the war in Syria or ISIS, which did not exist at that time.
The Guantánamo Precedent
Only one Guantánamo prisoner has ever been transferred to the US mainland for federal trial, where he was found guilty of one charge out of 280 brought against him. The facility’s existing “high-profile” prisoners are, in fact, some of the worst-tortured victims of the extraordinary rendition program. Few have been charged, but it is at trial that the reality of this becomes apparent, when a defendant like Mustafa al-Hawsawi, accused of involvement in the 9/11 attacks, cannot sit comfortably in court because of how severely he was raped in CIA detention.
From the outset, indefinite arbitrary detention has been one of Guantánamo’s chief characteristics. Although President Trump has long promised to fill up Guantánamo with “bad dudes,” there has been almost no follow up to his January 2018 executive order and its long-expired, 90-day deadline for policy recommendations on “the disposition of individuals captured in connection with an armed conflict … include[ing] policies governing transfer of individuals to U.S. Naval Station Guantánamo Bay.”
The State Department has offered no confirmation or denial that Guantánamo may receive new prisoners, and a Defense Department spokesperson has stated that, “There is no one identified to transfer to Guantánamo at this time.”
A Better Option?
On the other hand, an Iraqi prison is no better an option, even though it relieves the US of liability. Torture, arbitrary detention and death are rampant in prisons run by the Iraqi authorities. Security forces and the local authorities in displacement camps have reportedly raped women accused of being linked to ISIS. The US has held far more prisoners in Iraq than in Afghanistan and Guantánamo. When the notorious Camp Bucca closed in 2009, more than 14,000 men had been held there without charge for months and years. This US detention facility in Iraq is allegedly where ISIS was born.
The temporary could also become permanent. Although President Obama’s preference for drone strikes meant far fewer prisoners, in spite of his oft-repeated promise to close Guantánamo, his administration saw the prisoner population at Bagram in Afghanistan bloat to more than 3,000 – mostly non-combatants – held without charge and trial in secretive conditions and with fewer rights than those held at Guantánamo. Nothing is known about most of those prisoners or what happened to them after release and after the prison closed in 2014.
Some US-backed militias and government forces in Iraq have been accused of committing atrocities similar to those carried out by ISIS. Terrorism suspects in Iraq are routinely denied legal rights and due process. Such conditions would help to eliminate intervention by local and international lawyers, NGOs and activists, and enforce invisibility, particularly for non-US citizens. It could also prevent future cases like that of “John Doe,” the unnamed alleged American ISIS fighter who surrendered himself in 2017 and is held under the 2001 AUMF, and on whose behalf the American Civil Liberties Union has filed a habeas corpus petition.
An NBC report states that countries are reluctant to take back their alleged ISIS fighters; many do not want them to return. Alleged fighters have nonetheless returned to face lawful prosecution and sentencing in their home countries.
Some of the prisoners detained by the SDF may have been tortured or subject to other forms of inhumane treatment. The conditions of capture and detention may also be questionable — conditions that the fighters’ countries may be aware of and could raise difficult political questions, should they return. In addition, there may simply be no charges and no reasons to hold the majority of these prisoners.
SDF prisoners were reported to have been released to their home countries for the first time in mid-2018, with Macedonia and Lebanon accepting around two dozen of their nationals. Human Rights Watch (HRW) raised concerns about ISIS suspects being “transferred to a country where they are at risk of torture or unfair trials,” following a report in a Lebanese newspaper that eight Lebanese detainees were held by military intelligence without communication with their families or the judicial authorities for more than a month. There has been no information about their fate since, their identities, how they were transferred, or their detention.
Justifying the Unjustifiable
For the US, holding these prisoners, just as at Guantánamo, attempts to provide justification for unjustifiable wars. The US has often exaggerated the number of ISIS fighters to rationalize its continued involvement in Syria. Holding prisoners without charge or identification fuels the one-sided narrative that underpins the whole “war on terror”: that the thoughtless cruelty of the enemy justifies our own.
Secrecy and a lack of facts are crucial to this narrative, with a prime example being Guantánamo “forever” prisoner Abu Zubaydah, the poster boy of the CIA’s extraordinary rendition program. He is still referred to as a “terror suspect” even though he has never been charged and has no proven links to al-Qaeda. He will not be released – even if Guantánamo closes – because of the physical evidence he constitutes of the CIA’s crimes against humanity.
HRW has called for transparency in how prisoners are treated and transferred: “Dealing with these cases and ISIS atrocities presents no easy solution, but without a transparent process that permits suspects to raise torture concerns and clarity about US detention policy in northern Syria, there is a risk that new crimes will just be piled on top of past ones.”
Director of HRW’s Terrorism and Counter Terrorism Program Nadim Houry has also said that, “The current policy is very shortsighted. These detainees should be prosecuted, first to separate the most dangerous criminals from those who played secondary roles.” Yet, with an official quoted in NBC report passing them off as “terrorists,” the conclusion is foregone and there is no interest in ascertaining their actual status.
The case of the two “Beatles” should not be allowed to overshadow the fate of hundreds of other people. This case demonstrates that justice is not the objective of detaining these prisoners. The families of the alleged US victims of these two men have asked for them to be tried in the US federal courts and not face the death penalty. However, the British home secretary decided not to seek the usual assurances against the death penalty, which is prohibited under British and European law, when sharing intelligence in the case with the US. Seeking to challenge this radical departure in policy, the mother of El Shafee Elsheikh has petitioned the High Court, throwing interesting revelations into the case.
The British government did not seek assurances for fear of “sparking outrage” in the Trump administration, and while the evidence shared – 600 witness statements gathered by police in a four-year investigation – is sufficient to press charges in the US, it is “insufficient evidence” to prosecute them in Britain. Essentially, the UK is allowing the US to do its “dirty work,” as it cannot enforce the death penalty, and since its own agencies deem they cannot be tried, it cannot hold them indefinitely without charge. The precedent of internment in Northern Ireland and the indefinite detention without charge of foreign terrorism suspects in the wake of 9/11 demonstrate the futility, as well as illegality, of such a course of action.
The question of what to do with ISIS prisoners is not new and was first raised under President Obama. For most of these prisoners, “temporary” detention in Iraq may offer states an opportunity to meet their nationals in safer circumstances prior to possible repatriation, but the essential issue is that these individuals must not be subject to indefinite or arbitrary detention.
If there are lawful grounds to try the prisoners that are not tainted by torture, the detainees should be prosecuted or otherwise released safely. Some of these prisoners have already been held for lengthy periods of time. In spite of 17 years of unjustifiable US practices at Guantánamo, hearsay and allegation are not enough to defend arbitrary arbitration, or convert it into perpetual or indefinite detention.