Kuwait Times

Published Date: April 15, 2010
By Lt Col Barry Wingard

In March 2010, the US Department of Justice (DOJ) suffered yet another stinging defeat in the habeas corpus action of Mauritanian Guantanamo Bay detainee Mohammmed Ould Slahi, calling to mind the DOJ's earlier losses in the cases of Kuwaitis Khaled Al-Mutairi and Fouad Al-Rabiah. In fact, in 34 of 46 habeas cases to date, the US government has failed to convince federal judges its evidence is sufficient to justify continued detention at Guantanamo.

These events are all the more extraordinary given the low burden of proof the government must meet in a habeas corpus proceeding. The government does not have to prove any specific crime beyond a reasonable doubt. In order to prevail, the DOJ needs only to demonstrate that a detained person was "more likely than not" a member or supporter of an enemy organization, typically Al-Qaeda or the Taleban. Still, in the vast majority of these habeas cases, the government has been unable to meet even this minimal
standard.

In the face of these losses and in an effort to avoid further embarrassment, the United States is now pursuing a policy of forum shopping. Specifically, the government is assigning individual Guantanamo detainee cases to the particular legal system (either federal court or military commission) most likely to produce a favorable result for the government. Meanwhile, for those detainees unlikely to be convicted in either system, the Obama administration appears ready to resurrect the worst of the George W.
Bush detention policies - indefinite detention.

Here is how it appears to work: If the government has reliable evidence untainted by abuse, it may try a detainee in federal court. If the evidence is less reliable, possibly because it is tainted by abuse or constitutes hearsay, the detainee may be tried before a military commission where the rules of evidence are more relaxed. If the evidence is too weak or tainted even for a military commission, the detainee will likely be marked for indefinite detention.

My client, Kuwaiti detainee Fayiz Mohammed Ahmed Al-Kandari, has been confined for more than eight years, with military commission charges pending since Oct 2008. An internal US Department of Defense review, however, found the evidence against Fayiz to be "made up almost entirely of hearsay evidence recorded by unidentified individuals with no first-hand knowledge of the events they describe." So, given the lack of credible evidence against him, it is unlikely Fayiz' military commission will ever take pla
ce. And there is almost no chance he will be granted a real trial in federal court. Consequently, to spare the United States another embarrassing defeat, I fear Fayiz will likely be placed in indefinite detention without any trial at all.

The government's venue shopping is not about justice; it's about winning or, at a minimum, not losing. But there is a better solution in which both sides win: rehabilitation and reintegration. On a recent trip to Kuwait, I was pleased to learn that Kuwait, like Saudi Arabia, has built a multi-million dollar rehabilitation and reintegration center in anticipation of the return of its remaining Guantanamo Bay detainees. I was very impressed by all aspects of this secure, well-designed and professionally staf
fed facility located within Kuwait's Central Prison.

In fact, two former Guantanamo Bay detainees - Khalid Al-Mutairi and Fouad Al-Rabiah - have already been successfully treated at this facility. As a result, I cannot help but think working with Kuwait to rehabilitate and reintegrate detainees would be a much better use of the US government's time and effort than continually losing in federal court, working toward illegitimate convictions in military commissions, or indefinitely detaining suspects without trial. Even if the US government abandons the rule o
f law, I hope Kuwait will not give up on its sons. It is time for the United States to trust Kuwait to reintegrate its own citizens.

NOTE: Lt Col Barry Wingard represents Fayiz Al-Kandari, a Kuwaiti who has spent more than eight years in US custody at Guantanamo Bay without trial. The opinions expressed are those of the author and do not represent the views of the United States or any of its agencies.