Returning To The Battlefield: Abdullah Salih al Ajmi

by hilzoy

Bill Roggio has a story today called "Released Guantanamo detainee behind March suicide truck bombing at Combat Outpost Inman in Mosul". The bombing itself is a few months old, and got some press at the time. From the Boston Globe:

"Pentagon officials yesterday said Ajmi, who was among more than 500 former Guantanamo inmates who have been released or transferred to other countries, was a dramatic reminder of the danger in releasing those who are avowed terrorists - even to US allies who promise to ensure they will not pose a future threat."

Several months ago, I hadn't just read the Seton Hall report on released detainees. But now that I have, I recognized the story. It's a bit more complicated than those Pentagon officials make it sound.

"While Justice Scalia is clearly wrong about the number of detainee recidivists, his larger point seems to be that the Government, not the courts, should be trusted with separating the sheep from the goats. However, one of the greatest ironies of the whole recidivism debate is that not a single detainee has been released as a result of habeas corpus. All recidivists have been released by the Department of Defense, which has never explained why it released such individuals to “return to waging war” against us. Any assessment of the relative strengths of judicial and political processes should be made with full awareness of the story of ISN 220 [Ajmi], who “returned to the fight” not as the result of any judicial ruling but rather because of a decision made by the political appointees at the Department of Defense who released him despite the objections of the military. (...)

The Combat Status Review Tribunal (CSRT) declared ISN 220 to be an enemy combatant. See Appendix 2. The Tribunal held that he was a “fighter for” the Taliban who engaged in “hostilities” against either the United States or its coalition partners. The Tribunal based its first finding that ISN 220 was a Taliban fighter on two incidents. First, he went AWOL from the Kuwaiti military so that he could travel to Afghanistan to participate in the Jihad. Second, the Taliban issued ISN 220 an AK-47, ammunition, and hand grenades. With respect to the latter finding, the Tribunal considered allegations of five events to conclude that ISN 220 engaged in hostilities: he admitted that he fought with the Taliban in the Bagram area of Afghanistan; the Taliban placed him in a defensive position to block the Northern alliance; he spent eight months on the front line at the Aiubi Center in Afghanistan; he participated in two or three fire fights against the Northern Alliance; and he retreated to the Tora Bora region, and was later captured while attempting to escape to Pakistan.

Less than a year after ISN 220’s CSRT, on May 11, 2005, the Administrative Review Board of the Department of Defense affirmed the CSRT assessments and decided that ISN 220 should be further detained. See Appendix 3. Even with the extraordinary redaction of the Review Board’s report, ample evidence apparently existed for these assessments and the recommendation for continued detention. Specifically, a Government memorandum prepared for the ARB identified three factors that favored continued detention for ISN 220: (1) he is a Taliban Fighter; (2) he participated in military operations against the coalition; and (3) he is committed to Jihad. Moreover, the ARB primarily relied upon two factual bases for its conclusion that ISN 220 was committed to Jihad:

1. [ISN 220] went AWOL [from the Kuwaiti military] because he wanted to participate in the jihad in Afghanistan but could not get leave from the military.

2. In Aug 2004, [ISN 220] wanted to make sure that when the case goes before the Tribunal, they know that he is a Jihadist, an enemy combatant, and that he will kill as many Americans as he possibly can. (Emphasis added). (...)

While the documents which have been released strongly suggest that ISN 220 should still be detained, there are no available records indicating why he was released or who is responsible for the release. The only thing that can be said with assurance is that, Justice Scalia to the contrary notwithstanding, no federal judge is responsible. Perhaps if the process were more transparent, such a grave mistake would not have been made."

So: Ajmi was captured on a battlefield. He said he was there because he wanted to join the jihad. He also said that if released, he would kill as many Americans as possible. That means that the government had plenty of evidence that he was an enemy combatant, as alleged. And this evidence wasn't somehow suspect; it was his very own statements.

All that habeas motions give a detainee is the right to ask: is the government holding me for a good reason? If the answer is 'yes', then the detainee goes back to jail. (That's why there's no problem with allowing Osama bin Laden habeas rights: there's more than enough evidence to hold him either as an enemy combatant or on any number of straightforward criminal charges, like murder.) In Ajmi's case, the military seems to have had excellent reasons for thinking that Ajmi was an enemy combatant. Had he been allowed to file a habeas motion, he would probably have been sent back to jail.

The only reason why he might have been released is if all the evidence against him was produced under torture. That seems unlikely, given that some of the evidence that he was an enemy combatant was his having been captured at Tora Bora. But even if that were true, it would indicate not a problem with our legal system, but with this administration's use of torture, which defied not only basic moral norms, but also the requirements the government should have followed if it wanted to convict actual terrorists in a court of law.

Note: I am not trying to argue that released detainees never have and never will kill Americans. To my knowledge, none has done so yet, though the suicide bombings that Ajmi was part of killed seven Iraqis and wounded twenty eight. But of course they might.

I do think, however, that it's important to know the facts of these cases. Knowing that the thirty detainees who had 'returned to the battlefield' included people who had done nothing more than give interviews and write op-eds matters. And, in this case, I think it matters to know that this person was released over the objections of the military, and despite the existence of what seems like more than enough evidence to allow a judge to rule that he had been appropriately designated an enemy combatant.

Comments

[RepubAnon]

Then, too, being seized, tortured, and imprisoned without trial or any hope of being able to prove one's innocence could convince someone to make one last defiant stand.

WOLVERINES!

[John in Nashville]

Justice Scalia has an impressive mind, and he is an engaging writer. He is also a result oriented scold. In his case, I sometimes wish birth control were retroactive.

[Nombrilisme Vide]

And this evidence wasn't somehow suspect; it was his very own statements.

Even though there is ancillary evidence that supports it, I couldn't wholeheartedly agree with this one sentence here without knowing more precisely when and where the statements in question were made. I see no reason to believe ex post facto that this was not a frank and sincere declaration on his part... but that's because we have the cooberation of his subsequent behavior. Lacking that, I'd still be suspicious unless I had very good reason to believe that his statement was being made consistently and in neutral surroundings, which the above-quoted report does not really suggest. That well is good and poisoned at the moment...

[Katherine]

I would generally be extremely cautious about taking a CSRT/ARB summary at face value; they are always conclusory & often grossly inaccurate--remember the Corinne Hegland article? Detainee's statements that they saw Bin Laden on Al Jazeera rendered as "Detainee admitted knowing Osama Bin Laden", and the like? So to say that "the detainees' own statements" aren't suspect is, in general, actually totally credulous & a big mistake. The statement that he intended to kill as many Americans as possible, specific admissions about actual combat, etc. seem unusual & like giant red flags, and we have confirmation that he did intend to kill Americans. But just be wary of those summaries, in general.

[Katherine]

(In fact, I would normally accuse someone calling such a summary "evidence" of extreme credulity.

I mean, this guy sounds pretty scary, doesn't he?

a. The detainee is a member or ally of Al Qaida or its network...Detainee is a close associate with, and planned to travel to PK with, an individual who later engaged in a suicide bombing....The detainee participated in activities with a group that is part of the Al Qaida network.

And there's nothing suspect about this summary; it's based on the detainee's own statements:

b. Detainee engaged in hostilities against the US or its coalition partners. Detainee admits that he conducted surveillance of buildings, hospitals and schools with another detainee. Detainee admits that he assisted with the transfer of chemical weapons at a compound near Kabul, Afghanistan. Detainee states that he trained several of the September 11 hijackers in martial arts and had planned to hijack a plane himself. Detainee was captured along with two German Muslims in Pakistan by Pakistani authorities

.

Except, the first of those is from Murnat Kurnaz's CSRT & is totally made up; the second is from Mamdouh Habib's & was made based under confessions extracted under torture in Egypt.)

I doubt Ajmi's case is actually comparable, but treating the CSRT summaries as reliable evidence is just foolish, even it's convenient in this case. Mind you, I would guess his release had as much to do with his Kuwaiti nationality as the merits, and I would guess in his case there was real evidence to support continued detention...)

[hilzoy]

Katherine: point taken.

[rea]

ISN 220 was certainly an enemy combatant, but there seems precisous little evidence to justify catagorizing him as an unlawful enemy combatant rather than an ordinary prisoner of war. The evidence listed in the post shows him to be a member of the armed forces of the de facto government of Afghanistan. We might have had a basis for turning him over to the Kuwaitis for trial as a deserter, but there was no basis for holding at Guantanamo, as opposed to an ordinary POW facility, or to otherwise deny him the rights of an ordinary POW (including the right to release at the conclusion of hostilities).

[Charles gittings]

There are possibilities

Perhaps they tried to turn him.

Or perhaps they released him thinking he would do exactly what he did.

Or perhaps they murdered him and faked to bombing as political theater.

With criminals like Bush gang, just about anything is possible.

[bem]

I'm hope Katherine sleeps well...

[Dr. Morpheus]

I suppose, by your insipid insinuation, that you sleep soundly convinced that no innocents have ever been wrongly imprisoned or tortured at Gitmo or any other gulag prison this administration has set up?

Probably.

That, or you just don't care.

[baskaborr]

bem,
I doubt she does. I find it hard to believe anyone who has paid attention to the actions of the Bush administration and who cares about the fate of the US sleeps well.

[Sebastian]

Bem, don't be a jerk.

[Sean M. Brooks]

Dear Hilzoy: I hope you are well.

This might be an old topic by now, but I disagree with the Supreme Court's disastrous ruling in Boumedienne vs. Bush. The basic error, IMO, lies in trying to fight a WAR as tho it was a mere criminal justice matter. And it's an error to treat foreign terrorists captured while waging war on us as tho they were legitimate POWs. They are not.

Sincerely, Sean

[Nell]

Sean,
At this point, after all that has come out about the more than eight hundred prisoners who have passed through Guantanamo, it takes a real imperviousness to fact to proceed as if more than about thirty of them can in any way be described as "terrorists" or "waging war on us".

[Jeff]

That means that the government had plenty of evidence that he was an enemy combatant

"Enemy combatant" ys, I believe, a term made up bu BushCo. Let's not use it. Ajmiis, under the description above, a prisoner of war, and must be treated as such.

The only reason why he might have been released is if all the evidence against him was produced under torture.

I think that if any if the evidence used against him was produced under torture, it makes all the evidence suspect. As Fred Clark would say. "Torture is wrong."

[Nell]

@Hilzoy: Katherine's is such a significant point that it might be worth an update to the post, which would show even more clearly that it's been taken.

Also, what Jeff said about the unasterisked or un-scare-quoted use of the term "enemy combatant". I realize that for the purposes of this post it makes sense to stay within the govt/DoD's own frame of reference, but still...

[Anarch]

The basic error, IMO, lies in trying to fight a WAR as tho it was a mere criminal justice matter.

Who exactly are we at WAR with?