The US Department of Defense announced Oct. 23 that it has filed new war crimes charges against two Kuwaiti men held at Guantánamo Bay. Fouad Rabia, a US-educated aeronautical engineer suspected of running a supply depot at Tora Bora, and Fayiz Kandari, an alleged adviser to Osama bin Laden, were charged with conspiracy and providing material support for terror. The two men, who have spent over seven years in Guantánamo, are said to have the longest-running unlawful detention lawsuits pending in the US District Court in Washington. Rabia and Kandari now face a maximum of life in prison.
The Defense Department’s filing follows a decision one day earlier by the Office of Military Commissions Convening Authority to dismiss charges without prejudice against five other Guantanamo detainees. Noor Uthman Mohammed, Binyam Mohammed, Sufyiam Barhoumi, Ghassan Abdullah al-Sharbi, and Jabran Said Bin al-Qahtani remain in custody, and Chief Prosecutor Army Col. Lawrence Morris has appointed teams to consider whether to recharge each prisoner. Lawyers for Binyam Mohammed called the move a “farce,” reporting that they had been informed of plans to “charge [Mohammed] again within a month, after the election.” (Jurist, Oct. 23)
Binyam Mohamed, a former British resident accused in the so-called “dirty bomb” case, asserts he was tortured while in US custody. His lawyers argued that the government was trying to avoid having to answer his accusations. “They have been cornered into doing this to avoid admitting torture,” said Clare Algar, the executive director of Reprieve, a legal organization that represents Mohamed.
Government officials said Mohamed had worked with Jose Padilla and studied how to construct a primitive nuclear device and detonate it with C-4 explosives. Before the Pentagon announced the dismissal of the military commission charges, the Justice Department in a separate case involving Mohamed said for the first time last week that it would not try to prove accusations it had made for years about his involvement in the supposed “dirty bomb” plot. That filing came in a federal habeas corpus case challenging to his detention at Guantánamo.
Also on Oct. 22, the Justice Department changed course in another Guantánamo case—this one involving six Algerian detainees who had been living in Bosnia when they were turned over to US forces in 2002. In military hearings over the years, the Pentagon had argued that the men were tied to a Sarajevo embassy bomb plot, although a court in Bosnia said at the time that there was not enough evidence to hold the men.
The men were at the heart of a landmark Supreme Court ruling in June that said Guantánamo detainees have a constitutional right to contest their detention in federal habeas corpus suits. The ruling, Boumediene v. Bush, was named for one of the men, Lakhdar Boumediene.
The case of the six men is now scheduled for a hearing in Federal District Court in Washington. Those hearings are to be the first in which the administration is to provide a court with a full explanation of its reasons for holding detainees. In a cryptic filing made public Oct. 22, the Justice Department said that in a classified filing it had withdrawn “reliance on certain assertions.”
Robert C. Kirsch, a lawyer for the men, said he could not discuss the classified filing. But he said that in an unclassified conversation, Justice Department lawyers had told him that the government did not plan to introduce any evidence about the embassy bomb plot. “The government,” he said, “is finally being forced to look at whether it has or does not have evidence to justify holding these men.” (NYT, Oct. 22)