Gitmo: Too dangerous to release? Not so fast.

By Daphne Eviatar
May 15, 2014

File photo of detainees sitting in a holding area at Naval Base Guantanamo Bay

When the National September 11 Memorial & Museum opens Thursday, we will finally have a national institution dedicated to exploring the effects of the tragic events of the 9/11 terrorist attacks.

The impact of that day on U.S. legal institutions, however, remains a work in progress. The federal court system has proven remarkably adept at handling the hundreds of criminal terrorism cases filed since Sept. 11, 2001. But the polarized politics of terrorism has left Washington paralyzed when it comes to handling the cases of dozens of indefinite detainees still imprisoned at Guantanamo Bay, Cuba.

In New York last week, the U.S. government rested its case against the one-eyed, hook-limbed Sheikh Abu Hamza al Masri, on trial in federal court on terrorism charges. For weeks spectators were treated to a string of government informants, including confessed terrorism supporters, who seemed to have no qualms about taking the witness stand and incriminating the fiery preacher the government says inspired and directed lethal acts against Americans. In April, another extremist cleric, Suleiman Abu Ghaith, was convicted based on similar evidence.

In Washington, however, with the National Defense Authorization Act now pending in Congress, lawmakers and policy experts are again debating what to do about the men the United States has indefinitely detained for alleged terrorist activity at Guantanamo Bay. The question is growing more urgent as Washington prepares to withdraw its combat troops from Afghanistan by the end of this year — officially ending the war there.  That arguably ends the president’s authority to detain prisoners under the laws of war as well.

FILE PHOTO OF A PRISONER BEING TRANSPORTED.President Barack Obama reiterated in January his desire to close the notorious Guantanamo prison by the end of this year. Even among those who agree it should close, a surprising number of lawmakers and policy analysts seem to believe that may require creating a new indefinite detention scheme for suspected terrorists here in the United States.

Supporters of these proposals highlight the allegedly intractable problem of some 45 detainees at Guantanamo, and potentially more, whom the Obama administration has insisted since 2009 cannot be convicted on criminal charges, yet are nonetheless too dangerous to release.

The effect is to create a group of people secretly deemed by the government to be detainable beyond the reach of the law. So should Congress create a new law to allow that?

For anyone who’s watched terrorism trials unfold in New York, the underlying premise — that these men have committed crimes yet cannot be prosecuted — seems hard to believe. The government has managed to draw a broad range of suspected or convicted terrorists out of the shadows when needed  to testify on everything from military-style training in Afghanistan to the testing of poison gas on small animals. At least one witness even testified for the government by videotape from another country — to avoid a U.S. indictment.

A boy holds a picture of his uncle, who is detained in Guantanamo Bay, during a protest demanding the release of Guantanamo detainees, in SanaaIt’s therefore hard to believe the government couldn’t find people to provide enough evidence to prosecute these 45 alleged al Qaeda or Taliban fighters. If, indeed, they’ve done anything wrong.

Under federal law, when it comes to terrorism, “wrong” is broad concept. Take the case of Suleiman Abu Ghaith, the extremist Muslim cleric convicted last month of conspiring with al Qaeda to kill Americans and providing material support for terrorism. A prominent religious figure in Kuwait who moved his family to Afghanistan after he lost his job at home, he’ll likely face life in prison when he’s sentenced in September for delivering a handful of speeches praising al Qaeda activities in the name of Allah.

Or consider Syed Hashmi, the former Brooklyn College student who pled guilty to material support for terrorism, after he loaned $300 to a friend staying with him and let his friend store ponchos and socks in his London apartment. The friend planned on delivering the items to al Qaeda in Afghanistan.

Both men were convicted based on evidence provided by government informants previously convicted on terror-related charges. Such informants have a huge incentive to provide evidence against others charged with terror-related crimes in the hopes of winning leniency in their sentencing, or in some cases avoiding prosecution altogether.

The Justice Department has prosecuted hundreds of terrorism cases since the September  11 attacks. It’s hard to imagine the government hasn’t gathered enough evidence in those investigations to be able to link any actually guilty men at Guantanamo to terrorism.

Consider what the men at Guantanamo are accused of. Ghaleb Nassar al-Bihani is typical. At a recent periodic review board hearing at Guantanamo, the government claimed Bihani attended al Qaeda and Taliban-affiliated training camps “where he received in-depth instruction on the use of small arms and probably anti-aircraft weapons, lEDs, mortars, and landmines.” He then supposedly “operated on the frontlines against the [U.S.-supported] Northern Alliance in various capacities.”

An artist sketch shows Abu Ghaith at a hearing in a Manhattan federal court in New YorkIf the government continues to detain Bihani under the laws of war — then it has to continue to be in that war. When the war in Afghanistan is over, that will likely be a hard case to make.

To prosecute Bihani under the federal terrorism laws, on the other hand, should be easy. If the government can demonstrate he attended the al Farouq training camp to train al Qaeda adherents to kill Americans, as it claims, that’s enough to convict him for material support of terrorism. If he “operated on the frontlines” with al Qaeda, as the government also claims, he’s guilty of conspiracy to kill Americans as well. Never mind that the United States was fighting and killing Afghans at the time — the U.S. position has always been that al Qaeda fighters were “unlawful enemy combatants” and  aren’t entitled to combat immunity from criminal prosecution.

Bihani, for his part, denies fighting with al Qaeda or the Taliban. He does admit, however, to being “an assistant cook” in one group fighting the United States. That in itself is likely enough to convict him for material support.

Though Congress extended the reach of the material support law in 2004 to include anyone who supported any terrorism anywhere, the earlier 1996 law banning material support for terrorists would still seem to cover the conduct of someone like Bihani, who supported terrorist groups aiming to kill Americans. He also doesn’t deny receiving training. He does deny, though, that he poses any threat to the United States. Yet, the U.S. government still says it’s concerned about sending him back to his home country of Yemen because he has family members allied with Al Qaeda in the Arabian Peninsula. He himself doesn’t want to return to Yemen, or to fighting, he says.

Such cases offer two choices. First, the government could prosecute Bihani in the United States, calling up some of its army of convicted terrorists who could testify having seen him at the Afghanistan training camp and assisting al Qaeda operatives in their campaign to kill Americans. Or, second, the government could decide prosecution is unnecessary and send Bihani to a third country where he could participate in some sort of parole or surveillance program — so he won’t pose a terrorist threat.

No photography signs are posted on the fence surrounding Camp Delta at the U.S. Naval Base at Guantanamo BayThe claim that there are dozens of men at Guantanamo who cannot be tried and are also too dangerous to release is a premise we wouldn’t accept from any other country.  Before Washington policymakers buy into that idea, the government should be required to demonstrate publicly what evidence it has against these men, and whether and why that evidence is inadmissible in a court of law.

Federal judges have typically bent over backward to allow these prosecutions to go forward. Federal District Court Judge Lewis Kaplan, for example, ruled in 2010 that the delay in bringing former Guantanamo detainee Ahmed Ghailani to trial for the 1998 U.S. embassy bombings in East Africa was not a violation of his constitutional right to a speedy trial. He decided that the laws of war allowed the government  to detain Ghailani and interrogate him — first in secret CIA custody and then at Guantanamo Bay — for five years until he was brought to a U.S. court in 2009. An appeals court last year affirmed that ruling.

If the only evidence against these men was derived from torture, then that evidence should be inadmissible — in part because it’s not reliable. But then, it’s not a reliable basis upon which to detain them indefinitely either.

The objection to trying alleged terrorists in federal courts is often a visceral one. But it’s not sustainable. As Kaplan wrote in his 2010 decision permitting the prosecution of Ghailani:

The court understands that there are those who object to alleged terrorists, especially non-citizens, being afforded rights that are enjoyed by U.S. citizens.  Their anger at wanton terrorist attacks is understandable. Their conclusion, however, is unacceptable in a country that adheres to the rule of law.

Similarly, to continue to detain indefinitely alleged “combatants” after the United States withdraws its combat troops from the war they fought in is to flout the rule of law.  Even if Congress creates a new (and constitutionally questionable) law allowing it, it may well violate the international laws of war.

If these men are guilty of supporting or conspiring in terrorism, the government may prosecute them for that.  If they’re not, then the clock is ticking: It will soon have to let them go.

 

PHOTO (TOP): Detainees in orange jumpsuits sit in a holding area under the watchful eyes of military police during in-processing to the temporary detention facility at Camp X-Ray of Naval Base Guantanamo Bay, January 11, 2002. REUTERS/Stringer/Files

PHOTO (INSERT 1): A detainee is carried by military police after being interrogated by officials at Camp X-Ray at the U.S. Naval Base at Guantanamo Bay, Cuba, February 6, 2002. REUTERS Marc Serota

PHOTO (INSERT 2) A boy holds a picture of his uncle, who is detained in Guantanamo Bay, as riot policemen (background) stand guard during a protest demanding the release of Guantanamo detainees, outside the U.S. embassy in Sanaa, January 11, 2014.  REUTERS/Mohamed al-Sayaghi

PHOTO (INSERT 3): An artist sketch shows Suleiman Abu Ghaith, a son-in-law of Osama bin Laden and one of the highest-ranking al Qaeda figures to be brought to the United States to face a civilian trial, at a hearing in a Manhattan federal court in New York April 8, 2013. REUTERS/Jane Rosenberg

PHOTO (INSERT 4): No photography signs are posted on the fence surrounding Camp Delta at the U.S. Naval Base at Guantanamo Bay, March 6, 2013. REUTERS/Bob Strong

9 comments

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“It’s therefore hard to believe the government couldn’t find people to provide enough evidence to prosecute these 45 alleged al Qaeda or Taliban fighters. If, indeed, they’ve done anything wrong.”

———

You mean… Provide enough evidence, like they did with OJ?

We ARE talking about America, right?

Posted by dd606 | Report as abusive

Follow the money. Why did the U.S. House Armed Services Committee earmark $69 million in its proposed budget last week for 2015 Defense Department spending to build a new prison at GITMO as Carol Rosenberg of the Miami Herald described in detail on May 12 – also linked by several sites – TomDispatch, McClatchy. Pork for their favorite construction/engineering firms like the big spending/military construction in Africa for US AFRICOM?

Posted by hedgewitch | Report as abusive

.
so,
if the USA – at some future date –
CHOOSES TO SUBMIT HERSELF TO THE RULE OF LAW,
then this article lays out a course of action.

But what indication do you have that either the US President, the US Congress or the vast majority of the American people even understand the concept of the Rule of Law,
let alone support it ?
.?

Posted by BrianatReuters | Report as abusive

I think the trials against war criminals of WW II, which ended in 1945, are harder and more complicated. However the Nuremberg Trials and the Tokyo Trials completed in 1946 and 1948 respectively.

Posted by Kailim | Report as abusive

If my daughter whined as much as the author of this article, I would send her to her room until she got her thoughts in order.

The author fails to acknowledge that those in Gitmo are enemy combatants–not part of any organized, government sponsored, or uniformed army as defined under the Geneva conventions. Therefore, the rules are different–and they should be treated differently. Does the author really believe that should we call the war in Afghanistan ended that these guys will not continue to pursue Americans in any corner of the globe? Let alone kill civilians within their own country–as if the Taliban are part of some social welfare organization. Obviously, she does.

This article reads like a bleeding-heart screed, to the point where it is laughable. Yes, the U.S. is so mean to these guys–with 3 hots, color TV and health care. Those released from Gitmo in the past leave 20 pounds heavier, with their teeth fixed.

Perhaps the author should invest the same emotion for the 3,000 innocents killed on 9/11, the 4,000 military killed serving their country, or the thousands of those injured, and their families. Or her cohort in journalism, Daniel Pearl. Then perhaps what little empathy I have for the guys in Gitmo and their supporters might see the light of day.

Posted by COindependent | Report as abusive

Gitmo has little to do with the detainees. They are just a front for MIC budgetary justification and left overs of the cold war. They could have picked a more stable land mass, but I guess that isn’t even a consideration by people who don’t even believe that man can make a difference to the planet. L.

Posted by 2Borknot2B | Report as abusive

There are numerous actions taken by our leaders that indicate to people who can think that they are liars and don’t believe in any form of justice. Their repetition of words like freedom and justice are simply tools they use to manipulate the simple minded. The actions taken at Gitmo are one prime example. Here stands proof of our leaders lying and disingenuous nature. They, without a doubt, do not believe in what they say they do at election time. They really can’t expect anyone to respect laws of any type if they cannot be just in their actions. Neither democrats or republicans have any right to claim that they are anything more than scam artists trying to get themselves rich. We know this for a fact because of Gitmo and numerous other lies and injustices that they perpetrate.

Posted by brotherkenny4 | Report as abusive

It is sad that the most showy example of democracy in the world has failed so miserably and so publicly. Guantanamo actually belongs to a Banana republic disguised as a democracy. It has been clear for a long time that the people held at Guantanamo are surrogate whipping boys. Our government botched everything about 9 11 from beginning to this present state of huffing and puffing and going nowhere. The only people who seem to think Guantanamo serves any purpose are the paranoids in office who think deep denial is some sort of substitute for a deep investigation that should have been taking place all these years. Guantanamo is just part of a grand implausible story only simpletons can believe.

Posted by tpvero | Report as abusive

Coindependent understands. The rest of commentors through tpvero are either pursuing a hidden agenda, or typify the product a failed American educational system dominated by unions produces and how it thinks (or can’t think).

Posted by OneOfTheSheep | Report as abusive

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