Enemy combatants — maybe

They are what’s left of a far larger number swept up by U.S. forces in the days following Sept. 11, 2001. Some were captured on the battlefield or in raids on suspected Taliban or al Qaeda locations, while others were grabbed because they happened to be in the wrong place at the worst of all possible times.

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Bush administration officials dismissed questions about the legitimacy of holding the prisoners indefinitely without real proof of their guilt. They were “the worst of the worst,” enemy combatants captured trying to kill Americans who deserved little sympathy. To release them would be folly, because as dedicated “jihadists,” they would simply return to the battlefield. Anyone suggesting that some prisoners might not deserve their fate was dismissed as muddle-headed at best, an al Qaeda sympathizer at worst.

Many Gitmo detainees lived up to this billing. Dedicated Taliban or al Qaeda fighters, they hated us and dreamed of the day when they might once again get a shot at killing an American. Indeed, some who managed to win their release for one reason or another went right back to war with us or became suicide bombers.

It turns out, however, that not all Gitmo prisoners were “enemy combatants.” Some were turned in to us by their enemies or “sold” to us by rival tribes, and a few seem to have done virtually nothing against us or our allies. Their stories have come out only because the courts ruled a few years ago that Guantánamo detainees had to be granted habeas corpus rights, which allow a judge to examine the evidence to see if their detention could be deemed reasonable.

In most cases, prisoners seeking release have been returned to their cells by judges who’ve concluded that they are just where they belong. In others, the hearings have uncovered horrible mistakes, leading to orders that wrongly held prisoners be released.

At virtually every such hearing, government lawyers characterize the detainee as a dangerous “enemy combatant” who must be kept under lock and key, but then back off as it is discovered that there are few if any facts to back up this characterization.

Most Americans are by now familiar with the case of the 17 Chinese Uighurs whom we held at Guantánamo not because they hated us or had taken up arms against us but because, having once captured them, we could neither turn them back to the tender mercies of the Chinese communists they do hate nor get any country to take them, lest that nation displease Beijing.

Then there’s Alla Ali Ahmed. Arrested seven years ago at the age of 18, he was simply in the wrong place at the wrong time. He has been ordered released, but administration lawyers are objecting on the grounds that while he was innocent when apprehended, his years at Gitmo may have turned him into an enemy who might seek revenge against us if we let him go now.

Or consider the plight of Abdulrahim Abdul Razak, who mercifully calls himself “Janko.” The Taliban initially tried to recruit him, but concluded that he was a U.S. spy, so they threw him into a prison that makes Gitmo look like a country club, tortured him for months and forced him to “confess.” The U.S. closed the prison and freed Janko, who no doubt breathed a sigh of relief until we grabbed him and shipped off to Gitmo as an “enemy combatant” for “associating” with the Taliban. The judge hearing his case concluded the government position “defies common sense” and ordered his release.

And finally there’s the case of the Afghan who swore he was framed by a rival within that country’s Interior Ministry who got rid of him by informing us that he was working with the Taliban. The U.S. hauled him off to Gitmo and held him for years. His Marine prosecutor swore there was no reasonable way to find the witness he claimed could vouch for him. A reporter found the witness with a few phone calls, and he’s finally been ordered freed.

Justice, ethics and these cases demonstrate the need for reasonable procedural safeguards that will allow U.S. forces in the future to determine with a greater degree of certainty that the people we imprison as “enemy combatants” have, in fact, earned the label.

Keene is chairman of the American Conservative Union and a managing associate with the Carmen Group, a Washington-based governmental consulting firm.