Wednesday, March 28, 2007

Welcome to the Least Worst Place: Guantanamo's New Detainee

Wednesday, Mar. 28, 2007

Yesterday's papers all ran stories about the guilty plea made by David Hicks, the Australian held at Guantanamo. But there was little news coverage of what may be a more significant development: the arrival of a new detainee.

Except for the 14 prisoners moved from CIA custody in September 2006, transfers to Guantanamo ended in September 2004. For two-and-a-half years, even as the Bush administration has continued to defend the facility's usefulness, Guantanamo's population has been steadily shrinking. Several hundred detainees have now been released, and ex-detainees currently outnumber those who are imprisoned there.

Yet on Monday, in a surprise move, the Pentagon announced that it had transferred a detainee named Abdul Malik to Guantanamo over the weekend. It gave little information about the new arrival, saying only that he was a "dangerous terror suspect," that he had confessed to terrorist acts, and that he had been arrested "as a result of our ongoing conflict against Al Qaida."

While the Pentagon disclosed neither the detainee's nationality nor where he had been arrested, knowledgeable observers knew that he was a Kenyan picked up in Kenya a few weeks ago. He was reportedly arrested at a foreign exchange bureau in the city of Mombasa, held for a time in Kenyan police custody, and then handed over to the United States.

Malik is accused of serious terrorist crimes, and was arrested far from any zone of combat. So why is he now at Guantanamo and not in U.S. federal court?

A Parallel and Substandard Justice System

Although prisoners at Guantanamo are officially labeled "enemy combatants," Malik is not the only detainee at Guantanamo with no apparent connection to combat. Although the war in Afghanistan provided the excuse for Guantanamo's creation, the majority of detainees held there were apparently not captured on the battlefield; they were arrested outside of Afghanistan, primarily in neighboring Pakistan. Some were even picked up in other regions, in places as diverse as Egypt, Indonesia, Bosnia, Zambia and Mauritania.

Kenya fits fairly easily on this list, but the timing of Malik's transfer is still jarring. Now, more than five years after the September 11 attacks, the choice of bringing a new terrorism suspect to Guantanamo -- someone with no obvious nexus to traditional armed conflict - seems like a studied decision to avoid the civilian courts.

What this decision suggests, in short, is that the U.S. government is intent on establishing a parallel criminal justice system at Guantanamo for foreign terrorism suspects, not simply a limited wartime detention facility. Whereas Americans suspected of terrorism receive fair treatment in U.S. courts, foreigners are sent to Guantanamo for indefinite detention and rigged proceedings.

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The vastly different treatment of a similarly-situated terrorism suspect reinforces this view. Malik's transfer to Guantanamo came not long after the transfer of Daniel Joseph Maldonado from Kenya to Houston, Texas, for prosecution in US federal court. Maldonado, an American citizen, was arrested in Kenya in late January for illegally entering the country from Somalia, sent to the United States, and charged with undergoing training in weapons and bomb-making.

Missing Weeks

A full understanding of the reasons for Malik's transfer to Guantanamo may require an investigation into his detention in Kenya.

Malik was reportedly arrested in Mombasa late February. In early March he was held in various police stations in Nairobi, where local human rights groups briefly spoke to him. Sometime in the first half of March, he reportedly disappeared from Kenyan custody. A Kenyan press article dated March 14 cited police sources who said that he had been flown to Guantanamo.

The Pentagon now claims that Malik confessed to participating in two terrorist plots, but it has not revealed where Malik was held when he made these confessions. Clearly, if Malik was in secret detention somewhere, such as in CIA custody, it would raise serious questions about the treatment he experienced and the value of his statements.

Dumping him at Guantanamo would be a way of avoiding these questions. At Guantanamo, secret evidence can be a basis for indefinite detention, and even the military commission proceedings allow evidence obtained coercively.

A Most Bad Place

Dubbed the "least worst place" to hold detainees by then-Defense Secretary Donald Rumsfeld in 2001, Guantanamo's bad aspects have long been apparent. The one encouraging fact was that, little by little, detainee by detainee, Guantanamo was shrinking in size.

Just last week, the New York Times reported that Robert Gates, Rumsfeld's replacement as Defense Secretary, was recently pressing to close Guantanamo altogether. While one new detainee does not alter population trends in any meaningful way, it still sends the signal that some officials in this administration want Guantanamo to remain open for business.


Joanne Mariner is a New York-based human rights attorney. Her previous columns on Guantanamo, Abu Ghraib, and the "war on terror" may be found in FindLaw's archive.

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