Sunday, June 07, 2009

Guantanamo Quandry

If there is any prisoner at Guantanamo Bay who fits President Barack Obama’s definition of a detainee who cannot be effectively prosecuted but who is too dangerous to be let free, it is probably Hambali, also known as the “Osama bin Laden of Southeast Asia.”

Scarcely known outside of Asia and among counterterrorism experts, the Indonesian-born jihadist was arrested in Thailand in 2003, held incommunicado for three years, possibly in Jordan, before being moved to the Cuban establishment in 2006 as one of 14 “high value” suspects transferred there.

On January 22 in one of his first acts as president Obama declared his intention to close Guantanamo by the end of this year. Most would be transferred to the mainland U.S. for trial, but Obama elaborated on this by explaining that there were some who might have to be detained indefinitely, even without trial.

Obama didn’t mention Hambali by name, but his case seems to embody all of the difficulties and contradictions of applying due process of law in what was once known as the “War on Terrorism.” Take the first part of the equation: Can Hambali be effectively prosecuted in the U.S.?

He is linked any number of despicable and violent crimes, ranging from the October, 2002, bombing of a tourist resort on the island of Bali, the bombings of the Australian Embassy and Marriott Hotel in Jakarta, the string of bombings of Christian churches in 2000 that killed 15 and injured a hundred.

But all of those crimes took place in Indonesia, involved Indonesians or other foreign casualties and did not strike directly at U.S. interests, making it harder to determine what American laws he broke. Perhaps something could be made of the fact that seven Americans were among the 202 that died in the Bali bombings or that Hambali lent material support to a terror group.

Take the other side of the equation, that he is undeniably an enemy of the U.S. by virtue of his reputedly close association with Osama bin Laden. Hambali is a long-time jihadist, a man who cut his teeth supporting the jihad against the former Soviet Union in Afghanistan. His time there even predates Osama bin Laden’s.

He is often described as Osama bin Laden’s main representative in Southeast Asia. Indeed, he once sat on Osama’s shura, or council, the only non-Arab on the council. He is supposed to have served as “operations officer” for the Jemaah Islamyia (JI), thought to be behind much of the terror and sectarian violence that has taken place in Indonesia.

So the obvious solution to the dilemma would be to extradite Hambali back to Indonesia where he could stand trial on various terrorism charges, but that might not be so easy.

In the early days of his captivity, Jakarta did seem keen to get their hands on him. The Indonesians were irritated, too, that the administration of George W. Bush refused to allow Indonesian authorities to interview Hambali in captivity, which is said to have hampered the prosecution of some of the Bali bombing suspects. Only recently has Obama relaxed that prohibition, allowing some members of Indonesia’s crack Detachment 88 anti-terrorism unit to interrogate Hambali in his Guantanamo cell.

As recently as last February, during a visit to Washington, Indonesian Vice President Josef Kalla, publically asked that Hambali be returned to Indonesia for trial. However, there is good reason to believe that Jakarta actually prefers that he remain in U.S. custody.

In February, soon after the closure announcement, two Indonesian officials reportedly flew to Washington to meet with counterparts in the State Department and FBI. They requested that the U.S. continue to detain Hambali, presumably on the mainland, after Guantanamo closes.

They fear that his return to Indonesia would turn him into an instant celebrity and “re-energize” the jihadist movement in the country, which has been weakened considerably by the government’s successful anti-terrorism measures in recent years. The U.S. said it had no intention of releasing Hambali to Indonesia or any other country.

One concern that Washington harbors is that the authorities would not aggressively prosecute or punish Hambali if he were to stand trial in Indonesia. Last November Jakarta executed three men by firing squad convicted of bombing the tourist spot in Bali. It was said to show considerable backbone considering the three men’s potential for martyrdom.

On the other hand, other Indonesians more indirectly connected with the bombings received much lighter sentences. Indeed, Jakarta has shown a reluctance to seriously punish with long sentences people who don’t actually make and plant the bombs.

The obvious example is Abu Bakar Ba’asyir, the so-called “spiritual head” of JI, who openly calls for a Muslim caliphate across Southeast Asia and was convicted of advocating the overthrow of the government but not the bombings himself. He is now free, having served a light sentence, made lighter by traditional Independence Day remissions.

It is felt that Hambali might receive the same cautious treatment, in part because of his prominence and because of the difficulty of proving that he was directly connected with the various bombings. Being the “operations officer” of JI would not necessarily cut it as the jihadist organization is legal in Indonesia.

The one plot where Jakarta might get a conviction is the church bombings of 2000, said Indonesian counterterrorism expert Ken Conboy. “And he is not likely to get a very long sentence for that,” he added. Unlike neighboring Singapore or Malaysia, and to its credit, Indonesia does not have an Internal Security Act that provides for indefinite detention without trial.

Maybe Cambodia would be willing to take Hambali off Washington’s hands. The jihadist has already been convicted in absentia and sentenced to life imprisonment in 2004 for plotting to bomb the British Embassy in Phnom Penh. Unfortunately, there is no extradition treaty between Cambodia and the United States.


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