After Guantanamo

These are individuals who were caught on the battlefield in Afghanistan – now where do they go?

A federal judge in Washington DC has ordered the release of five Algerians who have been in custody at Guantanamo Bay as al-Qaida suspects for the past six years.

In authorizing the continued detention of one Algerian, he declared that the others could not be held indefinitely on the evidence of a single uncorroborated source. This is the first case of its kind to be brought before the federal courts after it was accepted that the U.S. courts could exercise jurisdiction over Gitmo.

To that extent Judge Richard L. Leon’s ruling is a landmark decision, although it is likely to be appealed. None of the six have been charged with any offences, and were not scheduled to appear before the military tribunals created by Congress to find a solution to the legal conundrum of how to categorize what have been termed “enemy combatants”.

These are individuals who were caught on the battlefield in Afghanistan who were identified by credible intelligence to be known to have links to al-Qaida. If they had been wearing a uniform then their future as a prisoner of war probably would have been covered by international convention, but there are no treaties on how to handle insurgents.

Until there is such an agreement, these dangerous men are likely to remain in a legal limbo of the kind experienced for the past four years by seventeen Chinese Muslims picked up in Afghanistan during the Coalition invasion.

Although the courts have ordered their release from Gitmo, no country will accept them and China has failed to give assurances that they won’t be tortured if returned to Beijing.

Without anywhere else to go, they remain in custody even though there is no evidence that they pose a danger to the public. They admit undergoing military training, but deny any participation in terrorism.