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Kuwaiti detainees' case getting 'much worse'

Ahmad Saeid, Staff Writer

Kuwait Times
June 13, 2010


KUWAIT: Lawyers representing the remaining two Kuwaiti detainees being held at the American military base in Guantanamo Bay said that their clients' situations are getting much worse due to the continued conditions imposed by the US administration for their release, and the administration's inclination towards the idea of indefinite detention. The attorneys gave this statement to Kuwait Times during their recent visit to Kuwait.

"When we came here last time in December 2009, one of our objections was the possibility that Fayez Al-Kandari might be tried in a military commission system--a system that was custom-designed to allow evidence that wouldn't be admissible in a normal court; essentially a system that was designed to get convictions. Since then things have gotten much worse," said Kevin Bogucki, the attorney assigned by the military commission to represent Fayez Al-Kandari.

"Now what they are talking about is this concept of indefinite detention, which essentially means that if there is not enough evidence to take you to trial, you get the worst possible result, which is that they continue to detain you forever, and you never get an opportunity to appear before a judge," he added.

The team of attorneys said that the concept of indefinite detention is basically a presumption of guilt, that was originally brought up during the Bush administration and denounced by Barack Obama during his presidential campaign, but then reinforced after Obama became president. "It was stated by the current administration that they didn't believe in military commissions, they didn't believe in secret prisons, they didn't believe in indefinite detention, but now we see the Attorney General Eric Holder repeating numerous times that he is working hard to refine indefinite detention," said Barry Wingard, the Department of Defense Attorney assigned to Al-Kandari.

Wingard added that among the new difficulties facing the efforts to release the Kuwaiti detainees are the possible negative effects of closing the Guantanamo Bay prison on the attention given to those detained by the United States.

"The American administration is currently considering relocating the Guantanamo detainees to the US, but our problem is not in the zip code of the detention area," Wingard said, explaining "By not creating a system of justice, you really just avoid the problem, and the problem is not that these guys are in Guantanamo Bay; the problem is that the administration is focused more on closing the detention facility, as opposed to giving Fayez justice. So what could happen is that once Guantanamo Bay is closed everyone will be celebrating that fact, while my client will be moving to his indefinite detention, to live in a cage like an animal till the day he dies."

Wingard argues that the American administration is trying to avoid granting the Guantanamo detainees a fair trial in a federal court because it does not possess sufficient evidences to convict them in a fair trial. "The government of the United States is huge," says Wingard, adding, "They have resources, they have people, they have money; they can do virtually anything they want. All Fayez has is me, a public defender from Pittsburg, Pennsylvania, and they are afraid to go to a fair trial because they don' t think, despite all their resources they can't get by me in a fair trial with the evidence they have!"

Kevin Bogucki explained that among the obstacles they face in gaining the right to defend their clients in a federal court is so-called Habeas Corpus, which in this form requires the prosecution to prove the defendant's guilt rather than requiring the defendant to prove his innocence.

"Under no reasonable system of justice is an accused person required to prove his innocence. If I say 'We know you were in Afghanistan, prove to me that you weren't there opposing the American forces,' how are you going to do that?" Bogucki asked. "It should fall upon the government to prove that you were there opposing American forces," he said pointedly.

Bogucki, who handled the case of Al-Rabia, one of the rare cases of successful Habeas cases, said that the only reason why Al-Rabia was able to win a federal trial was the fact that he took a two-week leave period prior to leaving for Afghanistan, and also the fact that he had written numerous letters home, asking his parents to notify his employer that he would not be able to return to work on time, due to the beginning of the military operations in Afghanistan.

"That is clearly not something that you would do if you are going to fight a Jihad war against American forces," Bogucki said, adding, "Now think about all the other detainees in Guantanamo and ask yourself this question - what are their chances?"

The attorney went on to say that the case of Al-Rabia proves the allegations of the American administration wrong. "Before Al-Rabia's Habeas proceeding, the United States government was saying that he was a bad man, and that it had evidence against him, and that Kuwait should simply trust the United States, whilst when his case finally got in front of a federal judge what we found out was that the United States had no evidence against him, and he was an innocent man," said Bogucki.

The lawyer pointed out that Al-Rabia's case itself is an undeniable evidence that innocent men have been held at Guantanamo bay. "Therefore there is no reason for Kuwait to trust the US when it says 'your two citizens are bad men'," he added.

Bogucki said that the only reasonable explanation of why the US continues to detain these people despite not being able to provide a conviction is to save face. "At this point it's really just about saving face," he said, adding "once you have held someone for eight years, and you've told the United Nations that the reason you are holding them is because they are the worst of the worst, when it comes down to it, you can't simply say 'Oh, guess what, we made a mistake, this guy really wasn't a bad guy, we just held him for eight years without a trial!'"

Bogucki continued, "This decision process of which of the remaining detainees goes to a trial, and which of them are identified for indefinite detention defies logic, and turns everything on its head; if you've got evidence against someone then maybe you send him to trial, but if you don't have any evidence against him, you don't take him to trial, because you know you are going to lose, and that guy winds up in indefinite detention, so it's basically like this - the worse the government's evidence, the better the chance that you are going to end up in indefinite detention, it's crazy!"

Speaking about the conditions the American administration is demanding that Kuwait follow in order to review detainees' cases, Bogucki said that Kuwait has met each and every one of these demands, no matter how unreasonable. "It's been so many years now, and there've been so many conditions, and Kuwait has met every single condition, that it's hard not to look at these conditions as just a stall tactic.

"The US chooses to impose more and more conditions instead of just saying 'No, you can't have your people back,' they think 'Let's impose an additional condition that will buy us another six months, and then when Kuwait meets that condition, we impose another one, and then another one, and honestly they've gotten to the point where there aren't any reasonable conditions left to impose, so they are now imposing unreasonable conditions, which is to say two men, that were found innocent by United States federal judges, have to have their passports restricted, and have to be subject to monitoring by the Kuwaiti government. That's outrageous! These are innocent men, and Kuwait will have no legal basis for doing that.

"Fortunately, both of those previously released Kuwaiti detainees, consented to these conditions voluntarily, so once again, as outrageous as this condition has become, Kuwait was able to meet that condition, and now we have to see what happens in four months, to reevaluate the file, and I would bet that there will be no change by then. At that point, there will be pressure upon Kuwait to take some stronger stance and demand that America treat Kuwait the way America would expect to be treated," Bogucki revealed.

The attorneys said that during their visit they had talked to Kuwaiti parliamentarians about the legal circumstances surrounding the case, and initiated cooperation with Kuwaiti lawyer Adel Al-Abdulhadi, who will handle the legal procedure concerning this issue in Kuwait. Nonetheless, they said, the Kuwaiti people and Kuwaiti government have a great part to play in this case.

"When I meet with all the ministers and officials, they always say 'Well, what do you have us do?' and I tell them 'Just look at what we would do if you had a few of our citizens, and you decided to put them in prison for the rest of their lives under the presumption of guilt; just imagine that you are the Americans - what do you think you would do?" said US Air Force Lieutenant Colonel Barry Wingard.

Wingard said that his client, Fayez Al-Kandari is still counting on the support of the Kuwaiti people for his release. "He is as doing as well as anybody who is living in a cage could be, but he is still holding out hope that his people will at some point help him," concluded Wingard. The Kuwait Times contacted the US Department of Defense, and the US Embassy in Kuwait to ask their comments on the accusations brought up in this news report, but received no response.

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