Daesh in US Courts… Under What Circumstances? The Forgotten Lessons from the War on Terror

In the twilight of the failing and ongoing War on Terror, legal questions surrounding Daesh militants and those accused of aiding the group remain fraught. I previously wrote about informal tribunals in Iraq being used to deal with accused Daesh fighters, highlighting the deeply questionable practices being employed. I wrote a second piece at Medium.com exploring different instances of the same troubling phenomena.  More recently, Human Rights Watch (HRW) raised questions about cases where Iraqi forces were accused of human rights violations in dealing with accused Daesh fighters. HRW angered people with its defense of what many perceived to be the indefensible, prompting some to call the organization “Daesh Rights Watch.” The case I will detail below raises questions about the nature of “enemy combatant” status, the relationship between US courts and US citizens, and finally about negotiated leniency in sentencing for jihadis to facilitate both defection from jihadi groups and the fight against radicalization.

A recent story about the ACLU suing the DOJ on behalf of a Daesh member caught my eye. However, that is the tail end of the story. The story began when a US citizen was seized and handed over to US forces in Syria by the Syrian Democratic Forces (SDF). The name of the US citizen in question has not been released, and he was being held without access to a lawyer as an “enemy combatant.” He apparently holds a second citizenship, which has not been specified. Several months ago, when the Washington Post reported on this case, they reported that USDOJ officials did not believe they had enough evidence to charge him and that he was being held in a “short-term facility” in Iraq. Why had he been given the “enemy combatant” distinction? The vague details of the case leave too many such questions open. This is when the ACLU sued the US government on this man’s behalf and a judge agreed, saying that the detainee could not be denied access to a lawyer. Hanging over all of this was the fact that the unnamed detainee was the first such capture since Donald Trump entered office as the POTUS.

Daesh in US courts... Under What Circumstances? The Forgotten Lessons from the War on Terror

screenshot of Mohamad Khweis from Kurdistan24.net

 

A different case that made headlines can help illuminate a different angle of issues surrounding Daesh and “enemy combatant” distinctions. Mohamad Khweis was tried for having joined ISIS before fleeing of his own accord. Khweis turned himself over to Kurdish forces and was brought back to the United States to face trial. Khweis claims to have not participated in any violence but prosecutors found this dubious. The judge ultimately believed him, stating that he (the judge) “…believe(d) you left because you became disillusioned…you didn’t kill anyone… you left of your own volition.” Khweis was sentenced to twenty years in prison, a sentence around which there was no agreement. His defense attorneys asked for five years, while prosecutors pushed for thirty-five years, saying that Khweis had lied repeatedly and that he did not show true remorse for his actions.

Khweis’ case displays the governmental and judicial transparency that should accompany any case, while the aforementioned case of the unnamed “enemy combatant” begs the question: what was the nature of the evidence for classifying this man as an enemy combatant? The secrecy clouds the distinction and makes one wonder, is it all happening again? Could an innocent man have been railroaded by a justice system rigged against him if the ACLU hadn’t intervened?

One person who helped answer this question was Seamus Hughes, a fellow at the George Washington University Program on Extremism (GWPoE) who follows US court cases involving Daesh closely. He explained that some accused jihadis have been declared “enemy combatants” after capture before having that distinction removed so a civilian trial could proceed. To his knowledge, this is the first case he has seen where the state did not drop the “enemy combatant” distinction.

Spencer Ackerman raised a related question: shouldn’t governments be trying to encourage Daesh members to defect, and does this “enemy combatant” distinction for someone with apparently little evidence against him undercut that? Defectors are perceived to be weapons in the fight against radicalization domestically but if these defectors are thrown in jail with no remorse, what incentive do they have to cooperate? Such choices would force defectors underground, a situation that does not help them or governments in their fight against Daesh.

There are few easy answers to the fight against Daesh which tests legal systems where ever it is fought. The desire to label jihadis as exceptional, sub-human, lacking basic rights tests human nature and our belief in the power of human rights. Even those whom we despise and are guilty of awful crimes must be protected by basic human rights for the concept to be of value. Onur Bakiner emphasized this to me through an historical example. Onur is a political scientist at Seattle University who studies courts and their politics in Latin America as well as Turkey. He discussed how the spirit of the Nuremberg Trials at the end of WWII showed the value of due process guarantees for war criminals. Allied forces could have executed the captured war criminals, but chose instead to put them on trial.

Screen Shot 2018-01-03 at 6.54.01 PM
Nuremberg Trials- Nov 22, 1945. photo from National Archives and Records (NARA) College Park, Md.

This lesson of the Nuremberg Trials is one that key people in the US government forgot or deemed outdated. The US showed over the last two decades in its “War on Terror” that it would detain and torture anyone the system deemed a combatant. The US scooped under hundreds of innocent people, and more than 700 of those who were detained at Guantanamo were eventually released. While most cases for American Daesh fighters are apparently being resolved in civilian courts, the case detailed here of the unnamed combatant represents a serious step backward for the USDOJ which seems to coincide with Donald Trump’s presidency and Jeff Sessions’ time running the USDOJ. Mohamad Khweis’ case, detailed above, shows us that trials for Daesh members in civilian courts are not only possible, but the best path. If the US continues to declare fighters to be “enemy combatants” while denying them basic due process in a court of law, this will not help defeat Daesh, but it will ensnare innocent people.

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