The Taliban tortured Abdul Rahim Abdul Razak al-Ginco. They thought he was a U.S. spy. Then, U.S. soldiers called the Syrian native an enemy and shipped him to Guantanamo Bay, Cuba.
Now, Ginco will be turning a spotlight back on the Bush administration itself. Newly empowered by the Supreme Court, Ginco and several hundred other Guantanamo Bay detainees can start demanding hard evidence and quick action.
The war on terror may never be the same.
On June 12, the court rewrote the rules for the Guantanamo detainees in the landmark case known as Boumediene v. Bush. The 5-4 majority opinion authored by Justice Anthony Kennedy concluded that the foreigners held at the U.S. Navy's Guantanamo Bay facility were protected by the U.S. Constitution's habeas corpus protections.
The ruling empowers the detainees to obtain what Kennedy termed a “prompt” hearing into the evidence used to justify their incarceration.
Some detainees will almost certainly be released. Others will reveal evidence of mistreatment. The Bush administration will have to defend its practices in open court. The military will have to adjust its treatment of prisoners and figure out the future of Guantanamo Bay.
“It is far less likely that anybody new will be brought to Guantanamo,” said Brad Berenson, former associate counsel to President Bush and a former Supreme Court clerk to Kennedy. “There will probably be changes in how interrogations and captures are conducted and where they're conducted.”
The ruling comes as the Bush administration is under fire for its legal justifications of harsh interrogation practices, which critics say equated to an endorsement of torture prohibited by U.S. and international laws.
Last week, Physicians for Human Rights released a report that found that U.S. personnel abused detainees in Iraq, Afghanistan and Guantanamo, using beatings, electrical shocks, sexual humiliation and other practices.
The report, “Broken Laws, Broken Lives,” had echoes of a five-part McClatchy Newspapers investigation of Guantanamo published last week.
And retired Army Maj. Gen. Antonio Taguba, who investigated the abuse at the Abu Ghraib prison in Iraq, accused top officials in the Bush administration of war crimes.
Administration officials have vowed to close Guantanamo someday, but say they're “stuck” with the 190 or so detainees who have been identified for release because their countries have refused to accept them back. So far, the Pentagon has identified 20 people who are to be charged with war crimes and an additional 60 others are slated to go before military tribunals.
The court's decision throws all of those cases into doubt.
“There's going to be an absolute avalanche of detainee litigation,” Berenson said. “It is true that there are many people who will not get released, but there are a lot more people who will get released now than would have been if the military had been allowed to maintain more control over this.”
No matter what, the administration is likely to detain fewer detainees overseas in the future.
“Now that they know from the outset that the courts will be watching, the executive branch will be much more discriminating about who they detain and how they treat those who they do detain,” said Martin Lederman, a constitutional law professor at Georgetown University and a former legal adviser in the Justice Department's Office of Legal Counsel under Clinton and Bush.
Al-Ginco appears to be the first Guantanamo Bay detainee to seek a new federal court hearing within hours of the Supreme Court's decision. Between 100 and 200 other detainees will likewise be filing habeas corpus petitions in the wake of the Boumediene ruling, lawyers predict.
Each will put a human face on the abstract principles enunciated in court.
Al-Ginco, for one, is a former university student who reports that he tried to leave a Taliban training camp after 18 days. The Taliban imprisoned him, beat him, hung him from the ceiling, subjected him to water torture and struck the bottom of his feet with clubs. He subsequently declared on Abu Dhabi television – falsely, he now says – that he was a U.S. spy.
Americans freed him, and then put him back in prison.
“What do the American forces want with me?” al-Ginco asked in his 2005 declaration.