"Enemy Combatants" Who Have Never Seen Combat

At congressional hearings last week, the backlash against the Supreme Court's landmark decision in Hamdan v. Rumsfeld was fully in evidence. Hoping to convince Congress to pass legislation to deprive detainees at Guantanamo of internationally-recognized rights, Bush Administration officials and allies such as former Solicitor General Ted Olson put forward a series of arguments, many having little basis in fact.

Striving for easy soundbites, they warned, for example, that U.S. soldiers might be dragged into federal court for frivolous prosecutions under the War Crimes Act. But the truth is that in what has been nearly a decade since the War Crimes Act was passed, not a single member of the military has ever been prosecuted under it.

The administration also argued that because of the exigencies of the battlefield, Administration officials claimed, trials in accordance with normal procedural rules were impossible. Speaker after speaker pointed out that soldiers could not be expected to act like police, and that people "captured on the battlefield" could not expect the benefit of rules designed for civilians.

Put aside, for the moment, the fact that the Uniform Code of Military Justice - the legal code that the Supreme Court said should be applied -- is perfectly adapted to the military context, and includes rules that accommodate battlefield exigencies. The relevant fact that the speakers ignored was that battlefield justifications fail to cover all the detainees in Pentagon custody at Guantanamo.

Indeed, like Jose Padilla, a former "enemy combatant" who was arrested in Chicago (and is currently a defendant in federal court), a significant proportion of the detainees held at Guantanamo were picked up far from anything remotely resembling a battlefield. Arrested in cities all over the world, they could only be deemed combatants if one accepts the Bush Administration's claim of a literal "war on terrorism."

And even if that strained analogy is accepted without demur, the administration's talk of front-line troops, battlefields, and rapid decisions made under fire is still entirely misplaced. A review of these cases shows that the arresting officers are police, not soldiers, and that the places of arrest include private homes, airports and police stations -- not battlefields.

Roughly one in three of the Guantanamo detainees for whom information is available was arrested outside of Afghanistan, the border region of Pakistan, or any other zone of combat. Some were picked up in Pakistan's cities - Karachi, Lahore, etc. - while others were arrested in a wide range of far-flung locations: Bosnia, Egypt, Thailand, Zambia, Gambia, Mauritania, Indonesia and elsewhere.

Perhaps the most shocking case in terms of place of arrest is one about which little is known. An unnamed Pakistani detainee - who, by one account, was Afghan - was arrested on the U.S.-Mexico border as he attempted to cross into the United States. Fearing that he had some connection to terrorism, the U.S. brought him to Guantanamo. After ascertaining that he was just an unlucky immigrant, the government released him back to his home country.

The following detainees, who are all still held at Guantanamo, are just a few of those arrested far from the battlefield:

• First bulleted item
Saifulah Paracha, a citizen of Pakistan, was arrested at Bangkok airport in July 2003. Held there for several days, he was then flown to Afghanistan, where he was held for fifteen months before being sent to Guantanamo.
• Second bulleted item
Mohammed Nechla and five other Algerians (some with Bosnian citizenship) were arrested in Bosnia in October 2001. After extended legal wrangling, which ended when Bosnia's highest court ordered their release, the six men were released from prison in January 2002, but immediately rearrested by the Bosnian police. The following day, they were handed over to the U.S. military and forced onto a plane for transport to Guantanamo. At a Combatant Status Review Tribunal hearing at Guantanamo in 2004, Nechla said that during the 36-hour period after his handover, he "received the worst treatment of his life," with no food, water or sleep.
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