Salim Hamdan

Salim Hamdan was born in Yemen. He became a driver for Osama bin Laden. He was captured in Afghanistan in 2001 and arrived at Guantanamo in May 2002. His military commission was the first for a Guantanamo prisoner that did not end in a plea deal. During his trial before a military commission Hamdan faced charges of conspiracy and material support for terrorism. In August 2008 the commission acquitted Hamdan of the conspiracy charge but found him guilty of material support for terrorism. He was sentenced to time served plus five and a half months.

On Democracy Now, Jess Bravin, the Supreme Court reporter for the Wall Street Journal, said that the sentence demonstrated that, “the military jury, as had been suggested by defenders of the military at the beginning, was quite independent and not simply there to rubber-stamp any kind of conviction.”

Hamdan was released in January 2009.

The DC Court of Appeals overturned Hamdan’s conviction in October 2012. In its opinion, the court said that the Military Commissions Act of 2006 granted military commissions the ability to rule on charges of material support for terrorism. The appeals court ruled that because Hamdan committed the actions that were the basis for his conviction before the law was passed, his military commission did not have the ability to try him for the crime.

The chief prosecutor for the military commissions at Guantanamo told Reuters that Hamdan’s appeals court ruling dissuaded prosecutors from pursuing cases against other prisoners they had considered charging with providing material support to al-Qaeda.

The Guantanamo Uighurs

The Uighur people are a Turkic ethnic group that predominantly lives in the Xinjiang region of China. Most Uighurs are Muslim. Many Uighurs want independence from China, a country that persecutes them. Twenty two Uighur men left China and traveled to Afghanistan where they were trained at a militant Uighur separatist training camp. The village that housed the training camp was bombed by the US military as part of the Afghan War in 2001. The men fled to Pakistan where Pakistani villagers took them in. The villagers then turned them over to the US in exchange for bounties offered for Al Qaeda and Taliban members.

By June 2002 the 22 Uighurs arrived at the US prison at Guantanamo Bay. None of them ever lifted a finger against the United States, the US government, or US forces. China demanded that they be repatriated to China. The US government did not extradite them out of concerns that they would be tortured or executed if they were returned. The question then became, where do we send them?

China pressured countries against taking the Guantanamo Uighurs. Five were sent to Albania in 2006. The Obama Administration planned to release two of the Uighurs in northern Virginia, where there is a Uighur community. Senate minority leader Mitch McConnell opposed the plan, saying, “By releasing trained terrorists into civilian communities in the United States, the administration will, by definition, endanger the American people.” In May 2009 Obama abandoned the plan. That decision made it much more unlikely that third countries would agree to take Guantanamo prisoners due to the US’s own unwillingness to do so. The decision made it significantly more difficult for Obama to close the prison as he had promised to do.

Four Uighurs were sent to Bermuda in June 2009, six were sent to Palau in October 2009, two were sent to Switzerland in March 2010, and two were sent to El Salvador in April 2012. Three Uighurs who declined to go to El Salvador remain at Guantanamo.

The Uighurs who went to Palau are running out of money but at least one Uighur in Albania seems to be doing fairly well.

 

Omar Khadr

Omar Khadr was born in Toronto, Canada. His father moved his family to Afghanistan when Omar was 11. Omar’s father Ahmed Khadr had connections with Al Qaeda. Ahmed sent his sons to an Al Qaeda training camp.

On July 27, 2002, Omar was one of a group of Al Qaeda fighters who got into a firefight with American forces in Afghanistan. Bombs were dropped on the compound Omar and his fellow Al Qaeda fighters were in. The two sides exchanged bullets. Omar was shot in the back and the bullet exited out his front. During the firefight a grenade mortally wounded the US soldier Christopher Speer. Omar Khadr survived the firefight and was sent to the prison at the Bagram Air Base in Afghanistan. He was 15 years old. 

While he was imprisoned at Bagram his first interrogator, Joshua Claus, told Omar a false story about an Afghan boy who lied and was sent to a US prison and gang raped.  At some point after this threat, Khadr told an interrogator that he had thrown the grenade. A medic once found Omar chained by his arms to the door of his cage-like cell, hooded and in tears. Omar Khadr was transferred to Guantanamo in October 2002.

In December 2002 the United States ratified the “UN Optional Protocol on the Rights of the Child on the involvement of children in armed conflict” which says that signatories must ensure, “the physical and psychological reintegration” of child soldiers. Instead of rehabilitating Omar Khadr, the US prosecuted him as a war criminal. 

In October 2010 Khadr accepted a plea deal where he was given an 8 year sentence in exchange for pleading guilty to murder in violation of the laws of war, attempted murder, spying, conspiracy, and providing material support for terrorism. Under the agreement Khadr said he through the grenade in the firefight even though he had previously denied doing so.  One year of the sentence was to be served at Guantanamo and 7 were to be served in Canada. Khadr was not given credit for time served.

Nevertheless, the military commission that heard Khadr’s case announced the sentence Khadr would have gotten had he not accepted the plea deal; Omar Khadr, a child soldier, would have been sentenced to 40 years in prison. Khadr made a very wise decision in taking his plea deal. Omar Khadr was moved to a Canadian prison in September 2012.

Omar Khadr is now 26 years old.

Guantanamo: The Question of Habeas Corpus

The Bush Administration chose Guantanamo Bay as the place to imprison prisoners captured in the War on Terror because it believed that the prison was outside the jurisdiction of US courts. On January 11, 2002 the first prisoners arrived at Guantanamo Bay. Some of the prisoners who were sent to Guantanamo were captured by Afghans and Pakistanis in exchange for a 5,000 dollar reward offered by the US government for al-Qaeda and Taliban suspects. This meant that many completely innocent people came to be imprisoned at Guantanamo.

The US government leased the Guantanamo Bay Naval Base from the newly independent country of Cuba in 1903, after the Spanish-American War. The agreement says that Cuba maintains “ultimate sovereignty” but that the US has “jurisdiction and control” over the area. In 1934 Cuba and the United States signed a treaty saying that the lease would remain in effect as long as, “the United States of America shall not abandon the… naval station at Guantanamo.”

The Cuban government was overthrown by the communist Cuban Revolution in 1959. One party to the treaty ceased to exist. The new Cuban government asked that the land be returned to Cuba. That is an ongoing request. The bottom line is that the US has the bigger military and is keeping the base.

The Bush Administration argued that because the prisoners were held in a place that the 1903 lease says the US does not have sovereignty over, the prisoners were not entitled to habeas corpus rights. Habeas Corpus is the right of an individual to challenge the legality of their imprisonment. The Guantanamo prisoners were denied the right to a lawyer, the right to a trial, and the right to know the charges against them (if there were any charges against them at all).

In 2004 the Supreme Court ruled in Rasul v Bush that, “the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be totally innocent of wrongdoing.” The Court’s opinion was written by Justice Paul Stevens and referenced the 1215 Magna Carta. The Court ruled that the prisoners had a right to Habeas Corpus under statutory law.

In response to this ruling, Congress changed the law to remove the prisoners’ right to Habeas Corpus. In 2006 Congress passed the Military Commissions Act which said, “No court justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” President Bush signed the legislation. In 2008 the Supreme Court ruled in Boumediene v Bush that the prisoners at Guantanamo had a constitutional right to Habeas Corpus.

Since July 2010 the DC Appeals Court made a series of rulings that required federal judges hearing Guantanamo cases to grant a special presumption of accuracy to US intelligence reports being used to justify the continued detention of Guantanamo prisoners. In June 2012 the Supreme Court declined to consider several appeals by prisoners at Guantanamo who argued they were not being granted a “meaningful opportunity” to challenge the legality of their imprisonment. The Supreme Court’s decision to not hear these cases rendered its earlier rulings that the prisoners had the right to Habeas Corpus all but meaningless.

 

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Virtually Unrelated Tangent: The Magna Carta says that, “No freeman shall be…imprisoned…except by the lawful judgment of his peers or by the law of the land.” Originally “freeman” meant barons, church officials, and merchants, who were only about 25 percent of the population. However, the provision eventually came to apply to all English. The phrase “lawful judgment of his peers” did not refer to a jury trial; it instead referred to a trial by combat, a duel.