Gitmo Lawsuits: The Next Generation

Even before President Bush has signed the new terror detainee legislation that Congress passed last week, there are two new challenges to the way the Administration is handling detainees all over the world. On Monday, a lawsuit was a lawsuit challenging the detention of about 50 men currently being held at Bagram Air Force base in Afghanistan. And today, just a few hours ago, another lawsuit was filed on behalf of one of the 14 new detainees transferred last month to Guantanamo Bay, Cuba on the orders of the White House. Both challenges are designed to bring to court all of the legal issues raised by the new legislation which, remember, seeks to ban the ability of detainees to make precisely the sorts of arguments they are making now.

In the Bagram lawsuit, the detainees, through attorneys, claim they "are innocent men" held unustly and without cause. "They are," their attorneys tell the court, "not now, nor have they ever been, enemy aliens or combatants of any kind, including enemy combatants, unlawful combatants, or unprivileged combatants. On information and belief, they are not now, nor have they ever been, members of or associated with the Taliban government, the Al Qaeda terrorist network, or any group or organization whose interests or aims are adverse to those of the United States."
The men had no military training, the attorneys say, they never voluntarily joined any terrorist force, and the President has never formally or officially or legally declared them to be the sorts of detainees who can and should be deprived of due process.

The new Gitmo lawsuit, on the other hand, focuses upon a single man, Majid Khan, a 26-year-old Pakistani man who also says he has been wrongly held for three and a half years without any finding by our government that "there is a lawful and factual basis" for the determination that he is an enemy combatant. His petition for a writ of habeas corpus (The so-called "Great Writ") is chalk full of facts about his relatively pedestrian upbringing (he worked for the Maryland Office of Planning as a "certified Oracle Database Adminsitrator" for example) and about how it came to pass that the government essentially made him disappear from March 5, 2003, when he was woken up in his family home and taken away, until early September, when he re-emerged at Gitmo as one of the prized "Gang of Fourteen" detainees.

I don't know how these challenges will turn out. I don't even know if the federal courts will hear on the merits the arguments made by lawyers for the men. Clearly, that is not what Congress or the White House want to happen, which is why the new terror detainee legislation tries to freeze out the courts. We'll see.

By Andrew Cohen |  October 3, 2006; 3:00 PM ET
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"The Unending Torture of Omar Khadr" is the story (largely based on information provided by his lawyers) of the treatment a 16 year old enemy combatant (he really was one) received at Gitmo.

What is relevant about this article to the current discussion is not just the window it provides into an American torture chamber but also the following passage:

"In Afghanistan, the U.S. offered cash rewards for suspected Al Qaeda members that were sometimes equivalent to several years of local wages. The American military thus made every Arab-looking person in Afghanistan vulnerable to opportunists. Warlords rounded up people and brought them en masse to American authorities. Others were turned in to settle grudges, or because they had once associated with someone from Al Qaeda. U.S. intelligence apparently took criminals and mercenaries and underpaid soldiers at their word."

Posted by: MC | October 3, 2006 04:11 PM

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