The sudden reopening of a case against two Malaysians and an Indonesian held at Guantanamo Bay prison has raised questions about the motive and timing of the prosecution. The US military may be trying to close the case as it is concerned about inquiries from the Biden administration over the questionable interrogation methods used over the years.
By Umair Jamal
The US military has announced it will prosecute two Malaysians and one Indonesian held at the US base in Guantanamo Bay, Cuba for planning the deadly terrorist bombings in Bali in 2002.
The Pentagon has suddenly moved to push the trial forward after previously rejecting the case in 2017.
The timing of the decision has prompted questions as the case was on hold throughout the Trump administration and President Joe Biden’s administration has announced intentions to close the infamous prison. It is the first new case at Guantánamo Bay since 2014.
The US military may be trying to close the case as it expects scrutiny from the Biden administration over its questionable interrogation methods, including torture.
The case may have little to do with the Indonesian and Malaysian governments as it is not on their radar.
Hambali and associates in US custody over deadly bombings in Indonesia
Encep Nurjaman, an Indonesian known as Hambali, and two Malaysian men, Mohammed Nazir Bin Lep and Mohammed Farik Bin Amin, have been in US custody for more than 15 years. They are accused of planning the 2002 Bali bombings which killed 202 people, mainly foreign tourists, including 88 Australians.
Hambali was the leader of the Jemaah Islamiah (JI), a Southeast Asian militant organization with ties to Al Qaeda.
The three men were arrested in Thailand in 2003 and held in an undisclosed CIA detention facility before they were transferred to the Guantanamo prison in Cuba in 2006.
The US military prosecutors filed charges against all three in June 2017. However, the case was rejected by the Pentagon for motives that are still unclear.
“The case fell apart on them. I cannot tell you why because that’s classified,” said Marine Corps Major James Valentine, Hambali’s military lawyer.
Now that the Pentagon has approved charges against them, the US must prosecute all three before a military commission at the base in Cuba. “The charges are only allegations that the accused committed offenses punishable under the Military Commissions Act,” a Defense Department announcement said, adding “the accused are presumed innocent unless proven guilty beyond a reasonable doubt.”
It is important to note that all court proceedings at Guantanamo remain closed due to the COVID-19 pandemic and it is unclear when they are likely to resume again. However, according to the US military commission procedures, the convicts are to be brought before a military judge for prosecution within 30 days of filing charges. According to one report, all three men are scheduled to appear before a military court on February 22.
Why has the US military suddenly resumed the case?
The Pentagon’s sudden resumption of the case after years of delay has raised many questions regarding President Biden’s policy for the Guantanamo prison.
The US currently holds 40 prisoners at Guantanamo. Former president Barack Obama, with whom Biden served as Vice President for two terms, wanted to close the prison. Obama intended to transfer Guantanamo prisoners to facilities within the United States and hand over military cases to civilian courts. He was able to reduce the number of prisoners at Guantanamo but his effort to close the facility was hindered by Congress.
Hambali’s lawyer suspects that there are ulterior motives for resuming the case. “The timing here is obvious, one day after the inauguration,” said Valentine, noting “This was done in a state of panic before the new administration could get settled.”
“The torture regime hit the panic button after yesterday’s inauguration,” he said. The approved charge sheet for the detainees shows that someone made changes to the wording as recently as January 13, and then Colonel Jeffrey D Wood, the convening authority for the case, made final changes before approving it. These edits in the days leading up to the Biden inauguration suggest authorities fast-tracked the case.
The timing of the charges has caught many by surprise as they seem to conflict with Biden’s declared intention to close the prison. The Pentagon declared the charges two days after Lloyd J. Austin, US defense secretary, told Congress that Biden’s administration “does not intend to bring new detainees to the facility and will seek to close it.”
It is not clear if the military has pushed the case’s resumption unilaterally, out of concern about political pressure from Biden on pending cases. The push may also come from the Central Intelligence Agency (CIA) as the agency faces legal challenges over violent treatment detainees in CIA facilities. A US Senate report on CIA detention of terror suspects and interrogation methods confirmed the use of torture in the years following the September 11, 2001 terror attacks in New York and Washington. According to the report, Hambali was not waterboarded but other painful “enhanced interrogation techniques” were used.
Achmad Michdan, an Indonesian lawyer who represents Hambali, says that “It seems that the US military did not know what to do with him, even though we had discussed that a trial should not take place there.”
Michdan noted that the issue of CIA torture and its possible disclosure is significant, saying that when Obama was planning to close Guantanamo, Hambali “could have confessed and negotiated for his return home, on a condition that he would not talk about torture.”
“We want to negotiate. If possible, we want him to be extradited,” Michdan said.
Malaysia and Indonesia appear unconcerned about the case
At this point, it is not clear whether the US State Department has informed the governments of Malaysia and Indonesia about the trial.
In the past, Indonesia has said that Hambali is stateless and doesn’t hold a national identification card, implying that the government doesn’t want to pursue the case or take him back if he is extradited. In 2016, Indonesian officials said that if Hambali was extradited, they would be reluctant to accept him as it could encourage other domestic terrorist groups and extremists.
On the other hand, Malaysian counterterror chief Normah Ishak has welcomed the US decision to prosecute the three men. “It’s a good move by the US—[the defendants] will now have the opportunity to argue their case in court,” Ishak told BenarNews.
“Justice will be served and seen [to] be served through a court trial,” she said.