Judge upholds Guantánamo detention
BY CAROL ROSENBERG
crosenberg@MiamiHerald.com
Miami Herald
Fri, Oct. 15, 2010
A detainee walks through the heat at the U.S. detention center for "enemy combatants" on Sept. 16, 2010 in , in this image cleared for release by the U.S. military at the U.S. Navy base Guantanamo Bay, Cuba.
JOHN MOORE / GETTY NEWS
A detainee walks through the heat at the U.S. detention center for "enemy combatants" on Sept. 16, 2010 in , in this image cleared for release by the U.S. military at the U.S. Navy base Guantanamo Bay, Cuba.
In a third straight win for the Obama administration, a federal judge has upheld the Guantánamo detention of a Yemeni captive whose brother is also held indefinitely without charges at the Pentagon's prison camps in southeast Cuba.
U.S. District Court Reggie Walton ruled Sept. 22, in a decision made public last week that Toffiq al Bihani, 38, never truly broke with al Qaeda even though he was a terror training camp washout.
The decision, in the same month as two other federal judges upheld the detentions of Kuwaiti and Afghan detainees, left the scorecard at 18-38. That means judges have ruled for release of Guantánamo detainees two-thirds of the time since the U.S. Supreme Court in 2008 empowered Guantánamo captives to file petitions of habeas corpus, the mechanism by which a civilian judge gets to review the Pentagon's and president's reason for holding the war prisoners indefinitely.
Dozens more petitions are in the pipeline and experts disagree on whether a trend is emerging on how the judges are analyzing the cases.
Bihani's lawyer George Clarke said the judges have steadily moved toward a standard of what the captive intended -- not what he did -- to justify indefinite detention.
According to the ruling, the Yemeni went from Saudi Arabia to Afghanistan to kick a drug habit and train with al Qaeda. Although he failed basic training, another brother, now dead, persuaded him to go wage jihad against the Russians.
``Even assuming that the catalyst behind the petitioner's travel to Afghanistan was to prepare for battle in Chechnya, and not against the United States, this fact has no material effect on whether the government can detain the petitioner,'' Walton wrote.
Bihani grew up in Saudi Arabia, along with his kid brother Ghaleb al Bihani, 30, who lost his challenge on Jan. 28, 2009. In that case, U.S. District Court Judge Richard Leon ruled that Ghaleb's work as an assistant cook with Taliban fighters made him an enemy combatant of the United States nevertheless and justifies military detention.
``After all, as Napoleon himself was fond of pointing out, `An army marches on its stomach,' '' Leon wrote in a ruling that was subsequently upheld on appeal.
Ghaleb went to Afghanistan in spring 2001 after a sheik issued a fatwa to fight with the Taliban against the Afghan Northern Alliance. Pentagon documents show he was sent to Guantánamo in January 2002, a year before his brother.
After Toffiq flunked out of al Farouq camp training, he stayed in al Qaeda guesthouses around the time of the 9/11 attacks, then fled to Iran, which sent him back to Afghanistan.
Brookings Institution scholar Benjamin Wittes, a former Washington Post editorial writer, wrote recently in his ``Lawfare'' blog that judges' attitudes are evolving toward favoring the government when a Guantánamo captive can't provide a reasonable alternative explanation for his activities before capture.
``The courts have gone from avowedly refraining from holding a detainee's unbelievable statements against him,'' he said, ``to considering a detainee's lies as affirmative evidence of his detainability.''
But Robert Chesney, a national security law expert at the University of Texas, says three in a row is likely ``a quirk of the sequencing of the cases.'' At issue, he said, is whether the mosaic of claim and counter claim adds up to membership in a terror group that doesn't have rosters or card carriers.
Judges are left, he said, to conclude ``what does that mean if it's not formal membership, if people don't have an ID card?'' So in the case of Bihani, he said, it became a matter of ``the people he was traveling with and the circumstances'' in deciding if ``he had gotten out of or avoided joining al Qaeda.''
Clarke, the Yemeni's lawyer, said he'd appeal the decision in part because his client saw his enemy as Russia not the United States. ``Is this a war against jihad or a war against a defined enemy?'' he asked.
crosenberg@MiamiHerald.com
Miami Herald
Fri, Oct. 15, 2010
A detainee walks through the heat at the U.S. detention center for "enemy combatants" on Sept. 16, 2010 in , in this image cleared for release by the U.S. military at the U.S. Navy base Guantanamo Bay, Cuba.
JOHN MOORE / GETTY NEWS
A detainee walks through the heat at the U.S. detention center for "enemy combatants" on Sept. 16, 2010 in , in this image cleared for release by the U.S. military at the U.S. Navy base Guantanamo Bay, Cuba.
In a third straight win for the Obama administration, a federal judge has upheld the Guantánamo detention of a Yemeni captive whose brother is also held indefinitely without charges at the Pentagon's prison camps in southeast Cuba.
U.S. District Court Reggie Walton ruled Sept. 22, in a decision made public last week that Toffiq al Bihani, 38, never truly broke with al Qaeda even though he was a terror training camp washout.
The decision, in the same month as two other federal judges upheld the detentions of Kuwaiti and Afghan detainees, left the scorecard at 18-38. That means judges have ruled for release of Guantánamo detainees two-thirds of the time since the U.S. Supreme Court in 2008 empowered Guantánamo captives to file petitions of habeas corpus, the mechanism by which a civilian judge gets to review the Pentagon's and president's reason for holding the war prisoners indefinitely.
Dozens more petitions are in the pipeline and experts disagree on whether a trend is emerging on how the judges are analyzing the cases.
Bihani's lawyer George Clarke said the judges have steadily moved toward a standard of what the captive intended -- not what he did -- to justify indefinite detention.
According to the ruling, the Yemeni went from Saudi Arabia to Afghanistan to kick a drug habit and train with al Qaeda. Although he failed basic training, another brother, now dead, persuaded him to go wage jihad against the Russians.
``Even assuming that the catalyst behind the petitioner's travel to Afghanistan was to prepare for battle in Chechnya, and not against the United States, this fact has no material effect on whether the government can detain the petitioner,'' Walton wrote.
Bihani grew up in Saudi Arabia, along with his kid brother Ghaleb al Bihani, 30, who lost his challenge on Jan. 28, 2009. In that case, U.S. District Court Judge Richard Leon ruled that Ghaleb's work as an assistant cook with Taliban fighters made him an enemy combatant of the United States nevertheless and justifies military detention.
``After all, as Napoleon himself was fond of pointing out, `An army marches on its stomach,' '' Leon wrote in a ruling that was subsequently upheld on appeal.
Ghaleb went to Afghanistan in spring 2001 after a sheik issued a fatwa to fight with the Taliban against the Afghan Northern Alliance. Pentagon documents show he was sent to Guantánamo in January 2002, a year before his brother.
After Toffiq flunked out of al Farouq camp training, he stayed in al Qaeda guesthouses around the time of the 9/11 attacks, then fled to Iran, which sent him back to Afghanistan.
Brookings Institution scholar Benjamin Wittes, a former Washington Post editorial writer, wrote recently in his ``Lawfare'' blog that judges' attitudes are evolving toward favoring the government when a Guantánamo captive can't provide a reasonable alternative explanation for his activities before capture.
``The courts have gone from avowedly refraining from holding a detainee's unbelievable statements against him,'' he said, ``to considering a detainee's lies as affirmative evidence of his detainability.''
But Robert Chesney, a national security law expert at the University of Texas, says three in a row is likely ``a quirk of the sequencing of the cases.'' At issue, he said, is whether the mosaic of claim and counter claim adds up to membership in a terror group that doesn't have rosters or card carriers.
Judges are left, he said, to conclude ``what does that mean if it's not formal membership, if people don't have an ID card?'' So in the case of Bihani, he said, it became a matter of ``the people he was traveling with and the circumstances'' in deciding if ``he had gotten out of or avoided joining al Qaeda.''
Clarke, the Yemeni's lawyer, said he'd appeal the decision in part because his client saw his enemy as Russia not the United States. ``Is this a war against jihad or a war against a defined enemy?'' he asked.
posted by Hanan Elbadry at 3:15 PM
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