The tribunal is an inquisitorial system, based entirely on charges brought by a military authority. Prisoners are prosecuted by the military, and judged and sentenced by military officers. Decisions made by a military tribunal cannot be appealed to federal courts.
In fact the authority granted by President Bush in 2001 was merely a re-awakening of a traditional U.S. tool against adversarial foes. General Washington used military tribunals during the American Revolution. The Union used them during, and in the immediate aftermath, of the Civil War. General Andrew Jackson used one to try a British spy during the War of 1812.
As stacked decks go, the old MT was right up there. And, once more by a process close to osmosis, the fluttering heart of America’s political left was touched: In July of 2004, a set of tribunals, the Combatant Status Reviews, were convened to decide whether detainees held at Guantanamo were correctly designated “enemy combatants.”
The hearings were exhaustive, the rights of each individual being weighed and balanced. The military, generally speaking, thought the whole world must have gone crazy, as they watched the U.S. legal system turning itself inside out in an attempt to liberate guys who had been hurling bombs, rockets, and other explosives at U.S. troops.
Then, in January 2005, Washington federal judge Joyce Hens Green ruled that the Combatant Status Review Tribunal was unconstitutional, and that detainees were entitled to the rights granted by the Constitution of the United States of America. Yousaf, Ibrahim, Ben, and Abu Hassan were essentially up and running.
Almost immediately two acts were introduced. The first one forbade the inhumane treatment of prisoners, including those at Guantanamo Bay, and laid out tough guidelines for “trials.” A few months later, however, the Bush administration forced the Military Commissions Act through Congress. This second act authorized trial by military commission for violations of the laws of war. Yousaf and his cohorts were still up, but not running.
And for two more years they waited for a new breakthrough, confident that in the end, the “soft” western conscience would prevail on their side. And they were right. On June 12, 2008, the Supreme Court, despite being almost deadlocked, ruled by the narrowest of divided margins that foreign detainees held for years at Guantanamo Bay had the right to appeal to U.S. civilian courts to challenge indefinite imprisonment without charges.
President Bush was furious at this third occasion the Supreme Court had repudiated him. Not only did he strongly disagree with the verdict, he actually threatened to seek yet another law to keep dangerous terror suspects locked up.
Justice Anthony Kennedy, whose vote had swayed the decision, acknowledged the terrorism threat that faced the United States but argued that “the Laws and Constitution are designed to survive and remain in force, even in extraordinary times.”
He also ruled that petitioners had the constitutional privilege of the writ of habeas corpus, the right to appear before a court to protest the illegality of their incarceration without trial. In Justice Kennedy’s opinion, their presence as prisoners in Guantanamo did not bar them from seeking the writ. Nor did it bar them from invoking the Suspension Clause, a civil guarantee that blocks Congress from suspending habeas corpus.
And just to stick it to the president and his military staff one more time, the justice referred to the government’s argument that this clause affords petitioners no rights, because the United States does not claim sovereignty over the U.S. Naval Station at the eastern tip of Cuba. “Rejected,” Kennedy wrote, not adding the word “garbage,” though he might have, so certain was he of his ruling.
Chief Justice John Roberts was among the four men who dissented from Kennedy’s opinion. The others were justices Antonin Scalia, Clarence Thomas, and Samuel Alito.
Ten days later the U.S. Court of Appeals for the District of Columbia Circuit issued an historic ruling—that a Guantanamo detainee Huzaifa Parhat had been improperly classified as an enemy combatant, thus giving him the chance to win his release. The appeals court ordered the government to release Parhat, or to hold a new tribunal hearing, consistent with the court’s opinion. They also gave Parhat’s lawyers permission to file a habeas corpus petition in the federal district court, as a consequence of the Supreme Court’s recent decision.
President Bush almost hit the Oval Office ceiling.
Because right here, in the capital city of the United States, it had been decided that foreign bombers and murderers who had illegally attacked, harmed, and killed U.S. troops on active service, were now to be granted the same rights as peaceful, law-abiding, tax-paying U.S. citizens. Abdul, the blood-thirsty, vengeful, foreign jihadist was regarded as the equal of a U.S. college professor or businessman.
Yousaf and his boys each had one leg over the Guantanamo razor-wire, so to speak.
Deep inside the Pentagon, the service chiefs were appalled. E-mails flashed between the White House and the office of the secretary for defense. Across the bridge at Langley, Virginia, the recently appointed head of the CIA, Bob Birmingham, was speaking on a secure line to the chairman of the joint chiefs. The chief of naval operations was on the wire to the new director of the National Security Agency, Captain James Ramshawe. The question being asked in several different forms amounted to the same one: “What the hell are we supposed to do when some damn-fool justice lets these crazy bastards loose?”
Guantanamo’s vital statistics were well known to the entire military Intelligence community. Of the 779 suspected terrorists detained in the prison since it first opened, 248 remained. Of these, some fifty had been cleared for release but faced prosecution in their own countries. A further fifty were still being interrogated, and of those, twenty would definitely be charged with a criminal offense.
Estimates were that Guantanamo held perhaps fifty hugely dangerous characters, and of these, fourteen were judged by the authorities to be lethal, and ought not be released ever. All of the principal security chiefs of the United States, both military and civilian, had a copy of that final list. Of the fourteen, four were not identified by name—just by prison number and a short note detailing the circumstances of arrest.
The missing names were Yousaf Mohammed, Ibrahim Sharif, Ben al-Turabi, and Abu Hassan Akbar. The latter two were believed to be former Palestinian “freedom fighters.”
Bob Birmingham, who stood six-foot-six, could scarcely believe what had happened. The U.S. justice system was plainly going to be hit by a barrage of lawyers demanding the writ of habeas corpus for their incarcerated clients. Each one of these suspected foreign cutthroats/murderers had precisely the same rights as he did, one of them being the right to be heard in an American court of law.
Bob paced his office. Okay, so a U.S. judge frees these four fanatics—what then? They have no passports, papers, or credit cards. No money, no residences in the United States. What happens now? Do we just release them outside the courtroom? Tell them to get on a bus and then get lost? We can’t put them on a civilian aircraft without proper security guards, and we can’t send them anywhere without informing that foreign government. Equally, we cannot lose them. Neither can we take action against them.
“Jesus Christ,” said Bob. And the big CIA boss knew as well as anyone that in all these cases against suspected terrorists, the advantage rested with the petitioners, not with the U.S. military lawyers who would argue against setting them free. Right now, no one could do much except wait for the appeals to come in from Washington attorneys, who would surely be retained by the al-Qaeda paymasters in faraway Afghanistan or Saudi Arabia.
“Goddamned lawyers,” he muttered. “Shameless. Anything for money.”
TWO DAYS LATER
PESHAWAR, NORTHWEST FRONTIER,
PAKISTAN
ALMOST ONE AND a quarter million souls reside in the ancient city of Peshawar, the world’s archetypal frontier town. Half of those souls can scarcely decide whether they are Pakistanis or Afghanis. Pashtuns, Pathans, city dwellers, tribesmen, traders, accountants, goldsmiths and jewelers, farmers
and kebab cooks, swarm through this place of romance, intrigue, and danger.
As far as the rest of Pakistan is concerned, the collective heart of these northwestern isolationists lies across the nearby border in Afghanistan. No one else tries to understand them. Not even the NWFP government is suspected of sympathy. Not for the Afghan rulers in Kabul or the leaders of the most sinister elements of the Taliban.
Peshawar has been for centuries the “Gateway to Afghanistan,” situated on the only route to the Khyber Pass, the fabled mountain road, which scythes through the frontier and connects the two countries. The Pathans describe Peshawar as the gateway to Central Asia, which of course it is, should you happen to be riding a yak off the heights of the Himalayas.
By western standards, however, Peshawar is the gateway to nowhere. It represents the end of the line for the north-running Pakistani railroad. They all terminate here, big diesel locomotives that have thundered through the mountainous terrain from ancient destinations like Karachi, Lahore, Quetta, and Rawalpindi.
The only train that departs from Peshawar and doesn’t head south, back to the “civilized” world, is the old Khyber Steam Safari, which carries tourists west up to the Khyber Pass a couple of times a month—straight up into bandit country, past the lairs of terrible warlords, who have dominated this near-lawless terrain for centuries
To the north of Peshawar lies the Swat Valley, a steep-sided, 150-mile-long range of towering mountains, running north-south, guarding the river. This is deep Pathan country, defiant of the laws of Pakistan, largely inaccessible, totally unconquerable, and home to the black-hearted training camps of Osama bin Laden’s al-Qaeda.
This is the principal refuge of the modern-day jihadists. Hand in glove with the fanatics of the Taliban, the guardians of The Sheik’s terrorist network, they live and train up here in the silence of the mountains along the banks of the great Swat River, and beneath the snowcapped peaks that form the southern escarpments of the mighty Hindu Kush range.
No one in two thousand years has managed to pull this place into any kind of order—not since Alexander the Great turned up in 367 BC, fought four battles in the heart of the valley, and carried on south toward Peshawar, lucky to be alive and thankful to have most of his army still intact. He never went back.
In modern Pakistan, the less people hear about the Swat Valley the better they like it. Its reputation is appalling, even by the standards of a nation so torn by religious and political divisions. Peshawar’s divided heart embraces neighboring Afghanistan and the warlike tribes of the valley, the men who nowadays form the soul of the jihad. Peshawar has nothing to do with the economic heartland of Pakistan: that’s the mega fourteen-million-strong city of Karachi, which lies six hundred miles to the south, on the eastern shore of the Arabian Sea.
Peshawar is a throwback to the lawless Middle Ages, cheerful and friendly on the surface, but with the coursing blood of fanatical Islamic warriors raging not so deeply below. No one understands this quasi-romantic, dangerous edge to the historic city. But it’s best to remember that even the friendly old tourist train, running visitors up to the Khyber Pass, never leaves Peshawar station without its squadron of heavily armed guards. Just in case.
There is no other place on earth where the disciples of the men who smashed the World Trade Center could operate with such freedom, where they could be tolerated, even welcomed, and assisted by the local populace. Such men spell problems for everyone. No one wants them, except perhaps Iran, and the deceptive, secretive politicians and tribal chiefs of Pakistan’s remote and forbidding Northwest Frontier.
The Swat Valley is officially closed to all foreigners, since no one can guarantee anyone’s chances of getting out alive. And that ban on overseas tourists is probably the only Pakistani law heeded by anyone in Peshawar and its northern hinterlands.
The city itself represents one of the world’s most dramatic clashes of the ancient and modern. Motorized rickshaws are all over the place, high-powered modern businessmen abound. Every other person is walking around with a cell phone stuck to his ear. The armada of modern auto - mobiles swamps the camel drovers. You can smell the exhaust pollution on the warm summer winds. . . .
And yet, the heady call of an ancient culture pervades the atmosphere, especially in the teeming bazaars in the warren of the old city. The air at all times is thick with the smell of grilling kebabs, and the majority of people are dressed traditionally in baggy pants and long robes, turbans, and Afghan hats. The presence of women is rare.
Great samovars dispense vast quantities of qawa, that delicious green tea with cardamom and lemon, which has refreshed the Pathan and Pashtun tribes for thousands of years. They pour it into little enameled pots, and fleet-footed boys race through the crowds to deliver these pots to prosperous-looking local merchants.
Some of these families have trading connections established over hundreds of years, stretching as far afield as Shanghai and St. Petersburg. At various intervals there are great houses built around courtyards with overhanging balconies, some of them owned by Peshawar’s merchant classes, others are further reminders of the Raj.
Behind one of these high-walled residences on a hot morning in late June 2008, a solemn gathering of five men sat quietly sipping tea beside the fountain on the shady southern wall of the courtyard. The house, approached through a dark alleyway leading directly to the Andar Shehr, belonged to Shakir Khan, a ranking government official in the assembly of the North West Frontier Province. He was accompanied by his assistant, thirty-year-old Kaiser Rashid, whose two brothers were both decorated Taliban commanders.
All of them had been born in the Swat Valley in the river town of Madyan, including Shakir Khan himself. The other two men, Ahmed and Gholam Azzan, were brothers, Afghanis by birth, forward commanders and assault instructors in al-Qaeda. Ahmed was thirty-eight years old, the senior brother by two years. He had served bin Laden faithfully through all the years of jihad and intended to continue doing so, whether or not The Sheikh had died in the U.S. onslaught on Tora Bora. Very few people had a definitive answer to that.
The last of the five was Captain Musa Amin, commander of a small Taliban army of perhaps two hundred warriors that operated in the Hindu Kush, harassing, and killing any U.S. military personnel with whom they closed to striking range. The Americans, however, had grown distinctly fed up with the activities of Captain Amin, and had very nearly wiped out his entire force in an ambush conducted in the mountains, ten thousand feet above sea level.
Amin, now forty, had fought valiantly on the ground, but the American bombing and rocket fire, as so often in the high escarpments, had been too tough. Amin had fled the Navy SEAL clean-up parties that swooped down onto the battlefield in the aftermath of the attack. Badly wounded, he had slowly made his way from village to village until, finally, he crossed the Pakistan border, and reached the Kachikani Pass, gateway to the northern end of the Swat Valley.
In the months that followed, his wounds had healed, and he had found his way into one of the al-Qaeda training camps, right here in the cradle of the jihadist movement. What also healed was his spirit, for Captain Amin had been terrified of the U.S. onslaught on his troops, and had doubted whether he would ever fight again.
His search for protection had not been easy, for he could not just present himself, bloodstained and shot, at any village house and demand help. He represented too much of a liability, and the Americans were everywhere. Inevitably he worked his way back into the embrace of his own kind, fellow terrorists who welcomed, and indeed lionized, him.
Such was Amin’s celebrity, the camp commandant realized that the Captain outranked him, both in experience and intellect. Within weeks he was appointed by the elders as the camp’s commanding officer. And he swiftly slipped back into the old routines, training the young Pashtuns from across the border, and recruiting young Pathans from the Pakistan side.
His new somewhat exalted status brought him into contact with al-Qaeda’s high command, and, at leas
t on the eastern side of the border, there was no one much higher than Shakir Khan, who was rich beyond reason, as are many government officials in that part of the world.
Shakir was no warrior, but he was the negotiator for illegal arms from Iran. He was the man who arranged the innocent-looking camel trains to haul the dynamite and the rockets and the Kalashnikovs up the through the passes under the pretence of honest traders.
Shakir too had been bin Laden’s banker, receiving the payments from Saudi Arabia, laundering the money, and funneling it through to The Sheikh for distribution, all the while extracting ten percent for himself.
Osama knew perfectly well that Shakir was a villain, but he was priceless in his position as a highly placed member of the government of the Northwest Frontier. His position alone meant cast-iron protection for those training camps, and a complete absence of intruders, including those from the United States armed forces.
Conversation in the courtyard centered around the usual topic, which had more or less consumed al-Qaeda for many years—the crying need for a better officer class. The men who now ran the organization had often been reckless in deploying young lieutenants after the massacre in Tora Bora. And these insurgents had died by the dozen in the hot, dusty backstreets of Baghdad and Basra, Gaza and Kabul, anywhere they decided to launch assaults on the Americans, British, or Israelis.
The result had been a chronic shortage of trained leaders, and, naturally, the lower the standards of military competence fell, the worse al-Qaeda’s casualty rate became. They had never succeeded in hitting the United States again in all the years of the Bush presidency simply because they did not have the senior staff officers to pull it off. They kept getting caught, over and over, by either the CIA, the FBI, British MI6, or the Mossad. And without the super-cunning hand of Osama to guide them, things had gone from bad to worse.
They had opened more training camps in the Swat Valley, but as the memory of the World Trade Center began to fade, young men of fifteen and sixteen were turning up with scarcely a memory of Osama’s Day of Glory. Like the U.S. Navy SEALs, Osama’s army promotes top combat troops into instructors, and the five men in the courtyard had been mulling over this obvious weakness in their indoctrination system for the past three hours.
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