The D.C. Circuit heard oral arguments in a case brought by an exceptionally unlucky detainee named Abd al Rahim Al Janko. Lawfare has a useful recap of the legal issues here. But the facts of this case are so sad and bizarre that to focus only on the law seems inadequate.
Janko is one of six detainees who came to Guantanamo from a Taliban jail in Kandahar. I found out about the case reviewing CSRT transcripts in 2006, and tried to write an article about it but ultimately got scooped by the dailies. I then tried to shorten it & recast it as an op-ed, without success. An excerpt is below.
From Prison to Prison (excerpt)
In one particularly absurd case, a CSRT seems to have found a detainee to be an enemy combatant partly on the strength of a false confession he made after weeks of torture by the Taliban and al Qaeda. The prisoner, Abdul Rahim Ginco, is one of six men who came to Guantánamo by way of a notorious Taliban jail in Kandahar called Sar-e-Poza. Three of them have been released, but Ginco and two others remain imprisoned in Cuba five years after their “liberation” by Northern Alliance troops in December 2001.
Ginco, a Syrian citizen studying in the United Arab Emirates, ran away to Afghanistan in early 2000 as a result of a dispute with his father. A few weeks later, the Taliban arrested him, and accused him of spying for the United States and Israel. According to court papers filed by his attorneys last September, Ginco’s captors, supervised by two high-level Al Qaeda members named Sayf al-Adel and Mohammed Atef, subjected him to “beatings, electric shock, near drowning, hanging from the ceiling, all the while under immediate threat of death. His hand is still not recovered four years after it was smashed with a gun butt, and his ankles show the scars of cigarette burns….Under torture and duress, Abdul Rahim made statements videotaped by his captors.”
After three months of this treatment, Ginco was transferred to Sar-e-poza. The Northern Alliance freed most of prisoners there when the Taliban fled Kandahar in December 2001, but Ginco and several other foreigners remained in the prison as “guests” until U.S. forces took them to Kandahar Air Base on January 24, 2002.
The same day, U.S. Attorney General John Ashcroft held a press conference in Washington , in which he aired videotapes of Ginco and four other men. The videos had no sound, but Ashcroft described them as “martyrdom messages from suicide terrorists,” recovered from the rubble of Mohammed Atef’s home after its destruction by a U.S. airstrike.
Ginco’s interrogators at Kandahar eventually recognized him as one of the men in Ashcroft’s video, and his treatment became much worse. “They kept pushing me, they beat and tortured me,” he testified at his CSRT. “Military intelligence, they told me to say I’m al Qaida, so I told them ok, I’m al Qaida. How I told the Taliban I’m a spy, now I tell you guys I’m al Qaida.”
A few months later, he was sent to Guantánamo. He has spent much of his imprisonment in the camp’s psychiatric ward, where he receives treatment for posttraumatic stress disorder and protection from other detainees who still believe he is an American spy.
Ginco’s attorneys have not located the audio of the tape from Ashcroft’s press conference, but they have found a DVD of their client’s “confession” that aired on Abu Dhabi TV in 2000, and a transcript of it that the Taliban published that July. In the transcript, Ginco does indeed “swear by Allah that nothing could be more important to me than jihad,” and he asks to be spared execution so that he can become a martyr. But he also describes being recruited to spy for America and Israel by an Israeli agent named “Shamoyel” and two henchmen—a process that apparently began with playing video games, escalated into watching homosexual pornography, and culminated in blackmail, bribery, and unspecified “acts of impiety and debauchery.” After this outlandish confession, Ginco’s assurances that “no one has beaten or tortured me” and that his Taliban captors remind him of the “righteous Caliphs of Islam” ring completely hollow.
Ginco’s story has been corroborated by news reports from the time of his initial capture by the Taliban; published interviews with Western reporters in Kandahar in December 2001 and January 2002; detailed affidavits from family members; and testimony from the five other former Sar-e-poza prisoners. But Camp Commander Admiral Harry Harris is certain that “I am holding no innocent men in Guantánamo,” and Ginco is no exception. The government maintains that he is an enemy combatant, and that he has no right to prove his innocence in federal court. Unless the Supreme Court restores the writ of habeas corpus, he will remain in prison until the military feels like releasing him.
Fortunately, a district court ordered Janko’s release during the period after Boumediene & before the D.C. Circuit made habeas review meaningless, and the government resettled him rather than appeal. But apparently a lot of the oral argument touched on the CSRT determination of “enemy combatantcy.” I wanted to refresh people’s memories about exactly how absurd those tribunals were. Hopefully the PRBs will be better.