It All Depends on What You Mean by Battlefield . . .

By JOANNE MARINER

Tuesday, Jul. 18, 2006

At congressional hearings last week, the backlash against the Supreme Court's landmark decision in Hamdan v. Rumsfeld was fully in evidence. Hoping to convince Congress to pass legislation to deprive detainees at Guantanamo of internationally-recognized rights, Bush Administration officials and allies such as former Solicitor General Ted Olson put forward a series of arguments, many having little basis in fact.

Striving for easy soundbites, they warned, for example, that U.S. soldiers might be dragged into federal court for frivolous prosecutions under the War Crimes Act. But the truth is that in what has been nearly a decade since the War Crimes Act was passed, not a single member of the military has ever been prosecuted under it.

Another argument made either out of ignorance or in an effort to misinform, was that based on the battlefield capture. Because of the exigencies of the battlefield, Administration officials claimed, trials in accordance with normal procedural rules were impossible. Speaker after speaker pointed out that soldiers could not be expected to act like police, and that people "captured on the battlefield" could not expect the benefit of rules designed for civilians.

Put aside, for the moment, the fact that the Uniform Code of Military Justice - the legal code that the Supreme Court said should be applied -- is perfectly adapted to the military context, and includes rules that accommodate battlefield exigencies. The relevant fact that the speakers ignored was that battlefield justifications fail to cover all the detainees in Pentagon custody at Guantanamo.

Indeed, like Jose Padilla, a former "enemy combatant" who was arrested in Chicago (and is currently a defendant in federal court), a significant proportion of the detainees held at Guantanamo were picked up far from anything remotely resembling a battlefield. Arrested in cities all over the world, they could only be deemed combatants if one accepts the Bush Administration's claim of a literal "war on terrorism."

And even if that strained analogy is accepted without demur, the administration's talk of front-line troops, battlefields, and rapid decisions made under fire is still entirely misplaced. A review of these cases shows that the arresting officers are police, not soldiers, and that the places of arrest include private homes, airports and police stations -- not battlefields.

Roughly One in Three of the Detainees Was Arrested Away From the Battlefield

Roughly one in three of the Guantanamo detainees for whom information is available was arrested outside of Afghanistan, the border region of Pakistan, or any other zone of combat. Some were picked up in Pakistan's cities - Karachi, Lahore, etc. - while others were arrested in a wide range of far-flung locations: Bosnia, Egypt, Thailand, Zambia, Gambia, Mauritania, Indonesia and elsewhere.

Perhaps the most shocking case in terms of place of arrest is one about which little is known. An unnamed Pakistani detainee - who, by one account, was Afghan - was arrested on the U.S.-Mexico border as he attempted to cross into the United States. Fearing that he had some connection to terrorism, the U.S. brought him to Guantanamo. After ascertaining that he was just an unlucky immigrant, the government released him back to his home country.

The following detainees, who are all still held at Guantanamo, were also arrested far from the battlefield:

. Saifulah Paracha, a citizen of Pakistan, was arrested at Bangkok airport in July 2003. Held there for several days, he was then flown to Afghanistan, where he was held for fifteen months before being sent to Guantánamo.

. Mohammed Nechla and five other Algerians (some with Bosnian citizenship) were arrested in Bosnia in October 2001. After extended legal wrangling, which ended when Bosnia's highest court ordered their release, the six men were released from prison in January 2002, but immediately rearrested by the Bosnian police. The following day, they were handed over to the U.S. military and forced onto a plane for transport to Guantanamo. At a Combatant Status Review Tribunal hearing at Guantanamo in 2004, Nechla said that during the 36-hour period after his handover, he "received the worst treatment of his life," with no food, water or sleep.

. Bisher Al-Rawi and Jamil Al-Banna were arrested on November 8, 2002 in Banjul, Gambia. The Gambian national intelligence agency arrested the men in an airport and held them incommunicado for four weeks. The men claim that they were questioned by CIA agents, then transported to a prison in Afghanistan, and subsequently brought to Guantanamo Bay.

. Abd al-Salam Ali al-Hila, a Yemeni businessman, was arrested in Cairo, Egypt, in September 2002. After being handed over to U.S. authorities, al-Hila was "disappeared" into CIA custody in Afghanistan for more than a year and a half before being sent to Guantánamo. While imprisoned in Afghanistan, al-Hila managed to smuggle out a letter that was later published in a newspaper in Yemen. In it, he said: "I am writing this letter from a dark prison. I don't know why I am in jail .... I urge you to request my immediate release and my safe transfer home. If they accuse me of anything, then the minimum rights of any accused [include] standing trial in court."

. Mohamedou Ould Slahi, a citizen of Mauritania, voluntarily turned up for questioning by the Mauritanian authorities in September and then again in November 2001. Arrested by the Mauritanians in November, he was transferred to U.S. custody. Slahi stated in tribunal hearings at Guantánamo that U.S. authorities sent him to Jordan around November 28, 2001; that while in Jordan he was hit, slapped and threatened with beatings by Jordanian interrogators; and that he often heard screams, presumably from other prisoners. Slahi claims that he was transferred to Guantánamo in August 2002. He also claims that in August 2003, he was moved to a special zone at Guantánamo and subjected to torture by U.S. interrogators, as well as by Arab interrogators who claimed they were Egyptian and Jordanian. His claims are consistent with reporting in the Washington Post about a secret detention facility at Guantánamo that was in an area used by the CIA, but off-limits to the International Committee of the Red Cross.

Capture versus Arrest: Plainly a Meaningful Distinction

As this Administration well knows, the distinction between battlefield capture and law enforcement arrest is a meaningful one, not just in making rhetorical points before Congress, but also in making arguments before the courts.

For example, at the heart of the 2003 ruling by the U.S. Court of Appeals for the Second Circuit in the Padilla case is the fact that Chicago, where Padilla was found, is not Afghanistan. Rather than being captured in a combat zone, Padilla was arrested at an airport. The court took pains in its opinion to distinguish his case from that of the Yaser Hamdi, an "enemy combatant" (now released) who was captured in Afghanistan.

Salim Hamdan, the Guantanamo detainee whose case reached the Supreme Court, was picked up in Afghanistan, too. But his personal story should not obscure the very different circumstances of so many other Guantanamo detainees.


Joanne Mariner is a human rights attorney. Her previous columns on the detainee cases and the "war on terrorism" are available in FindLaw's archive.

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