Throughout this year, I have followed, with despair, the Circuit Court’s rulings, which are distressing on two fronts: firstly, because judges have whittled away at the lower courts’ demands that the government establish its case “by a preponderance of the evidence,” which is a very low standard in the first place; and secondly, because the Circuit Court has reinforced the misconception at the heart of the “War on Terror,” almost delighting, it seems, in failing to acknowledge that soldiers are different from terrorists.
In fact, despite the Supreme Court’s attempt to grant rights to the prisoners, both soldiers and terrorists are still, essentially, held at Guantánamo as a category of human being with almost no rights at all — what George W. Bush notoriously referred to as “unlawful enemy combatants.”
It is to no one’s credit that, nearly ten years after the 9/11 attacks, the deliberate confusion at the heart of the “War on Terror” — designed by senior Bush administration officials to allow them to set up an illegal interrogation camp at Guantánamo, and to coercively interrogate those it held, and even to torture them — still exists, imprisoning soldiers, and even military commanders like Khairkhwa, in an experimental prison associated with terrorism, possibly for the rest of their lives.
Last Friday, July 22, the Circuit Court reinforced its position, denying the appeal of Muaz al-Alawi (known to the authorities as Moath al-Alwi), who lost his habeas petition 18 months ago, in January 2009. Al-Alawi was one of the first prisoners to lose his habeas petition, and his case was emblematic of the distortions required to equate soldiers with terrorists.
By Leon’s own account of the evidence, al-Alawi was in Afghanistan before the 9/11 attacks, and was fighting with the Taliban against the Northern Alliance. To counter this, he endorsed the government’s additional claim that, “rather than leave his Taliban unit in the aftermath of September 11, 2001,” al-Alawi “stayed with it until after the United States initiated Operation Enduring Freedom on October 7, 2001; fleeing to Khowst and then to Pakistan only after his unit was subjected to two-to-three US bombing runs.”
In other words, Judge Leon ruled that Muaz al-Alawi can be held indefinitely without charge or trial because, despite traveling to Afghanistan to fight other Muslims before September 11, 2001, “contend[ing] that he had no association with al-Qaeda,” and stating that “his support for and association with the Taliban was minimal and not directed at US or coalition forces,” he was still in Afghanistan when that conflict morphed into a different war following the US-led invasion in October 2001. As Leon admitted in his ruling, “Although there is no evidence of petitioner actually using arms against US or coalition forces, the Government does not need to prove such facts in order for petitioner to be classified as an enemy combatant under the definition adopted by the Court.”
As with the case of Khairullah Khairkhwa, the wrong questions are still being asked. Rather than asking whether these men can legitimately be held, what those who are disturbed by the ongoing existence of Guantánamo need to be asking instead is why the courts are justifying the ongoing — and possibly indefinite — detention of the Guantánamo prisoners, when that is inappropriate.
As published exclusively on the website of the Future of Freedom Foundation.