The Justice Department suffered stinging defeats this week when federal judges ordered the release of two more Guantanamo prisoners – Kuwaiti Khaled Al Mutairi and Afghan national Mohammed Jawad. All told, the government has now failed to convince federal judges in 27 of 32 cases that the government can justify the detentions of Guantanamo Bay prisoners.
The bar for the government is extraordinarily low in habeas hearings. All the Justice Department has to do is demonstrate that a detained person might have committed some crime. The government does not have to prove a specific crime beyond a reasonable doubt. Yet, in most of the habeas cases, the government cannot produce even this bare minimum amount of credible evidence.
The staggering losses show that the government has been shockingly wrong in its detention policies. Seeking to save face, the government has been venue-shopping with the Gitmo cases – matching cases with the legal system most likely to produce a favorable outcome for the government.
Here’s how it works: If the government has reliable evidence untainted by abuse, it may send a detainee’s case to federal court. If the evidence is unreliable or tainted by abuse, the case goes to the military commissions where the standards are lower.
My client, Fayiz Mohammed Ahmed al-Kandari, is facing charges before a military commission based on evidence that an internal Department of Defense review found was “made up almost entirely of hearsay evidence recorded by unidentified individuals with no first-hand knowledge of the events they describe.”
Think about that for a minute. Fayiz has been detained for more than seven years on the flimsiest of evidence, so he gets to face a second-tier justice system that’s more tolerant of flimsy evidence. That’s if his case ever proceeds. After years of meticulous design and tweaks, the commission system has only managed to complete three cases.
Make no mistake about it, venue-shopping isn’t about justice for the detainees. It’s a desperate move by the government to rack up some wins. In these weak cases, however, perhaps there’s a better solution where both sides win – rehabilitation.
On a recent trip to Kuwait, I was pleased to learn that Kuwait, like Saudi Arabia, had built a rehabilitation center in anticipation of the return of its four remaining citizens. The center comes at just the right time. One Kuwaiti, Khaled Al Mutairi, was ordered released this week and the remaining three, including Fayiz, have their habeas hearings scheduled in the next two months.
I was impressed by the well-designed and secure facility. The staff includes medical and religious specialists designed to treat not only the individual but also his entire family, a necessity for reintegration into society following nearly eight years of incarceration.
If government’s cases are so weak that federal judges are throwing them out of court, wouldn’t the administration’s time be better spent focusing on the successful reintegration of detainees back into society?
While there are some bad men at Guantanamo, most detainees are not “worst of the worst.” That’s certainly true in the case of the Kuwaitis. It’s time for us to work with Kuwait, one of our coalition partners in the global war on terror, to transfer and successfully rehabilitate its detainees. One Kuwaiti has already been ordered released due to a lack of evidence. More will certainly follow.
Lt. Col. Barry Wingard is a member of the Pennsylvania Air National Guard, who represents Fayiz al-Kandari, a Kuwaiti who has spent seven and a half years in U.S. custody at Guantanamo Bay without trial.
For a complete archive of al-Kandari’s case and links to Col. Wingard’s previous op-eds, please visit The Political Carnival.
"[DNC Chair Tom Perez] has gotten instructions from Bill Clinton not to let the party go to the Bernie Sanders folks." - Jonathan Allen, co-author of Shattered, revealing new material in the upcoming paperback release pic.twitter.com/dLEnwl7kIc— HootHootBerns 🌹🐦 (@HootHootBerns) May 3, 2018