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The end of 2020 and the beginning of 2021 saw one of the most disgraceful periods in US politics. Despite the victory of the Biden/Harris team for the Democrats, now former PoTUS, Donald Trump became, by turns, truculent, childish and petulant and disowned by many in his own party, the Republicans. There were indications that his final days would be downright dangerous. And so, in some respects, so it proved.
Possibly the most challenging time-bomb he left for the Biden/Harris administration was his decision, announced after he had left the White House, that charges had been laid against three alleged terrorists detained in Guantanamo Bay.
It is fascinating that today, in 2021, there may be people reading this who were not born at the height of the pan-Asian bombing campaign by apparently disparate groups of terrorists. You will note that I specifically avoid the term ″Islamic Extremists″ - as I explained in my book ″The Ten Real Life Exploits That Da'esh / ISIS use to Hack The World,″ this is not a problem caused by Islam: Da'esh / ISIS is a criminal gang which has developed techniques that exploit tiny weaknesses and hacks into them to destroy society. Da'esh uses similar techniques to destroy Islam. It drives wedges between Islam's fifty shades of green which represent the sects and factions of Islam, promoting intolerance at every turn. There are other books appearing relating to Da'esh / ISIS. They are, mostly, focussing on the so-called "Islamist" fundamentalism and on the extreme violence of Da'esh. This is not the thesis or the premise of my book which seeks to de-align this criminal gang from Islam in the minds of the world's population. Nor does my book support Da'esh's own propaganda that its behaviour represents the views of Muslims as a whole, a failing in much of the partisan work which is being published at present.″
At that time, Da’esh was active almost exclusively in the Middle East. The active groups across South-East Asia were largely those in the South Eastern Philippines, Southern Thailand and several parts of Indonesia.
However, there was a publicly pronounced plan to create a so-called Caliphate embracing the Southern Philippines, the whole of Borneo (both the Malaysian and the Indonesian territories plus Brunei), Singapore, Indonesia and Southern Thailand.
While the terrorist groups stated their intention, some political groups offered their support for the plan and did not condemn the proposed methods.
The terrorist groups operated independently but there was nevertheless a network and membership was to a degree fluid – and most of the groups used a small number of specialists who worked for anyone that asked them.
One of those was the alleged bomb maker known as Hambali . His real name is Encep Nurjaman but he is also known by several versions of the name Riduan Isamuddin.
He was alleged leader of the principle terrorist group in Indonesia, Jemaah Islamiah. He was rumoured to be the prime link between South East Asian terrorist groups and Al-Qaeda.
After an extensive manhunt across the entire region, Hambali was arrested in Thailand, with two of his most senior lieutenants, Malaysians Mohammed Nazir Bin Lep and Mohammed Farik Bin Amin.
Later, they were transferred to the US base at Guantanamo Bay in Cuba where they have been imprisoned for some 14 years, without charge and, obviously, without trial. There now are an estimated 40 prisoners at the base. At the time of Hambali’s arrest there were almost 800.
The announcement by the US Department of Defence has been presumed to be as the result of one of Trump’s final acts because
a) Biden / Harris have not claimed credit for it despite Biden having been Obama’s deputy in 2016 when plans were formed, but not acted upon, to close Guantanamo Bay; and
b) the plan must have been in the works for some time before Biden sat in the Oval Office and, while he and Harris had a significant number of things in hand prior to taking over, he had other things on his mind. It was not on his priority list of things to do as his transition spokesman indicated. Ned Price reportedly said that Biden supports closing the base but did not intend to discuss it before taking office.
Why is this a time bomb?
It’s because whenever discussions as to the closing of the Guantanamo have taken place one stumbling block has repeatedly arisen: what to do about the inmates?
The hard-core that remain are those that their own countries have disowned or that the USA considers too dangerous to release on the grounds of its own national security.
Why not put them on trial?
They are in a constitutional limbo: the USA is not at war so the designation as ″enemy combatants″ is legally dubious; in Guantanamo, they are – again by legal fiction – outside the scope of the US Constitution.
If they were to be tried in a US civilian court, they would have all the protections that the Constitution brings.
The USA, then, claims that these men are ″law of war″ detainees and that the USA has the right to detain them for the period of hostilities.
But, to repeat, there is no actual war and, therefore, this, too, is legally dubious.
Various cobbled together solutions have been suggested: a civilian hearing conducted via video-link so that the defendants never set foot in a US state and then their sentence to be given effect in a jurisdiction willing to take them.
The charges laid against the three men named at the top are before the Military Commission created by the Obama Administration as a method of bringing Guantanamo prisoners to trial.
The time bomb is booby-trapped. Under the relevant legislation, there are strict, and short, time limits for those who are charged to be brought before an approved judge: but there are no judges in Guantanamo and under current restrictions it is not possible to get one there in time.
So, Biden/Harris are left with an intractable problem: do they find a way to bend the quarantine and other rules to get a judge to what is geographically if not politically Cuba?
Do they find a way to create an artificial area designated ″not really in the USA″ somewhere that Judges can get to and transfer the prisoners there?
One thing is clear: Indonesia and Malaysia do not want the three men back; nor does any neighbouring country.
On the other side of that coin is that the USA doesn’t want them either and especially not anywhere near US soil.
Yet constitutionalists and humanitarians have been waging a quiet war of their own: the USA delights in telling other countries to let prisoners go or to charge and try them.
After 14 years, their plight is polarising. There are those who would happily see them dropped into the shark infested waters off Cuba – but that’s a bad idea because, according to reports, since 1580, there have been a total of 11 attacks on people by sharks in Cuban waters.
There are those that say the three are not the USA’s problem and they should simply do reverse rendition and drop them back in Thailand.
There are those that say to bring them into the USA -without thinking through that, regardless of conviction or acquittal, they would then be entitled to claim vast amounts in damages against the US Government – and no one who thinks that through is in any doubt where that money would end up.
It would be amusing to watch the machinations of government as the USA tries to worm its way out of charges of providing material support for known or suspected terrorists when they make the payment. Amusing but scary.
There isn’t a straightforward way out of the problem, which is, presumably, what Trump wanted. It was a malevolent masterstroke.