The Terrorist as Litigant
by
Shaker Aamer, interviewed by BBC (YouTube screenshot)

We have read the stories. A burglar breaks into someone’s property, injures himself in the process, and so sues the people he was trying to rip off.

Something similar happened after 9/11. America was attacked. In response, the U.S., UK, and coalition forces detained and questioned terror suspects. The United States sent 779 to Guantanamo Bay. But it was the U.S. and UK who ended up in the dock, with the terror suspects as the accusers.

Most of those detained at Guantanamo were captured in Afghanistan and Pakistan. But, as is the case with today’s ISIS fighters (none of whom are at Gitmo), they had been recruited from all over the world. Take the example of the UK, where a small number of British terror suspects ended up in Guantanamo Bay. Considering Britain’s previous historic links to Islamist ideology — exporting fighters to Bosnia, Kashmir, and Afghanistan — there was nothing too unusual in that.

But then something strange did happen. The explanations these men offered for their capture — just being in the wrong place at the wrong time — garnered significant levels of domestic sympathy. Their increasingly lurid accusations of sadistic American torture — such as having their genitalia sliced open with knives — were credulously regurgitated by the press. Soon enough, these men became causes célèbres for the media, human rights groups, and politicians (mainly on the political left, but sometimes also the right).

The British government — nervous about Guantanamo’s existence in the first place — spent several years lobbying to get these detainees released. Eventually, Whitehall succeeded in gaining their release, only to see the former detainees sue it for being complicit in their detention in the first place. Wary of being bogged down in years of litigation and having to disclose sensitive intelligence in court, the government settled. The terror suspects earned an approximately $20 million payoff.

Today, some of these men are part of polite society as pundits, authors, or staples of the university speaking tour.

Consider Moazzam Begg. He claims he went to do charity work in Taliban-ruled Afghanistan in the summer of 2001. In January 2002, he was captured in Pakistan and transferred to Guantanamo Bay a year later.

The U.S. government assessed Begg as a possible al-Qaeda-affiliated facilitator, fundraiser, and fighter. In the UK, he had run a bookshop that, according to a Senate Select Committee on Intelligence report, was a “known jihadist gathering place.” After 9/11, the U.S. believed he joined al-Qaeda and Taliban forces making their last stand against the U.S. in the caves of Tora Bora. Begg says that if he was at Tora Bora, it was only because he was “totally lost.” He retreated to Pakistan, where, the committee report states, he was captured at an al-Qaeda safe house.

But that did not stop him becoming a columnist for the Guardian, Los Angeles Times, Boston Globe, and the Independent upon release from Guantanamo. It did not stop elite American colleges from inviting him to speak. It did not stop him from getting a book deal. It did not stop him being made one of GQ magazine’s top 100 men of the year or being placed above Bob Dylan, the Queen, and Stephen Hawking in the New Statesman’s top 50 “Heroes of our time.” His supporters even tried to persuade Begg to run for Parliament.

Then there is Begg’s good friend and fellow Gitmo detainee, Shaker Aamer. Saudi-born, Aamer also moved to Afghanistan in the summer of 2001. The U.S. government believed Aamer to be a military-trained al-Qaeda member who recruited for extremist causes and had close ties to Osama bin Laden. Officials assessed that he, too, had fought at Tora Bora before being captured in December 2001. Aamer was taken to Guantanamo in February 2002, where his influence among detainees became the stuff of legend. He was even linked to three detainee suicides at Guantanamo in the summer of 2006 that the U.S. Admiral in charge of the detainees regarded as an act of “asymmetric warfare,” an attempt to further sully the camp’s reputation (Aamer, naturally, denies any involvement).

None of this made the campaign for Aamer’s release any less fevered. British politicians demanded that he be released, regurgitating — and sometimes even embellishing — Aamer’s unproven allegations of torture. It became accepted wisdom that Washington knew Aamer was wrongfully detained but would never release him because he had explosive information about American interrogation practices.

The media served as a megaphone. Actor Ralph Fiennes read a poem on the BBC dedicated to Aamer. Roger Waters from Pink Floyd campaigned on his behalf. Protesters armed with a large blow-up Shaker Aamer doll became a regular sight on Parliament Square outside the House of Commons. From the right, the Daily Mail campaigned incessantly for his release.

In October 2015, Aamer was released, and the media fawned over him. In a BBC interview, Aamer was asked probing questions about how British coffee tasted and whether he liked animals. There were reports of a “Shaker Aamer Foundation for Peace and Philanthropy” in the works. The consensus was that, like Begg, this poor charity worker had been grossly wronged.

This was not a conclusion shared by a single intelligence assessment or any source I have ever spoken to inside or outside Guantanamo — including informants, spies, police, interrogators, guards, and senior officials — who knew the nature of these men’s activities best. Yet it remains the dominant narrative.

Outside of being a damning indictment on the state of journalism, there are lessons to learn from this. We are good at stopping acts of terror. We are less prepared, however, for the more subtle, subversive challenges posed by those hostile to democracy. The Guantanamo Brits saga exposed fault lines that we, as a society, still have not satisfactorily figured out how to navigate.

One issue is the terror suspect, once captured, seeing the legal process as yet another opportunity to propagandize. Some suspects use the legal system and their lawyers to maximum effect. In the UK, one law firm, acting on the word of their client, pursued British troops for alleged war crimes in Iraq so grave that a public inquiry was announced. After five years and tens of millions of pounds spent, the allegations were found to be “wholly and entirely without merit or justification,” the result of “deliberate and calculated lies.”

But not every case eventually finds justice. Look at Canada’s Omar Khadr who, despite pleading guilty to murder and support for terrorism, got over $10 million from the state following his return to Canada from Guantanamo.

Then there is the lesson of the Guantanamo Brits: You can become a British soldier and get paid £20,000 a year to go and fight the nation’s enemies, or you can join the nation’s enemies and land about £1 million instead.

Paying the other side better than your own is an odd way for a government to wage a war. It also contributes to the notion that we have lost track of who are the firefighters and who are the arsonists. You end up in a situation in which intelligence services are depicted as villainous liars and terror suspects lionized as fearless truth-tellers. Or in which an ex-CIA director is harangued on a college campus (as happened in New York) or in which students vote to ban the military from recruiting on campus (as happened in London), while former Guantanamo detainees are sought after by some of these same institutions to educate their students. A healthy democracy cannot behave in that way and hope to survive.

Similar tests await in the future. President Trump has decided he does not want the U.S. detaining thousands of fleeing ISIS fighters in northern Syria, so it is the responsibility of their host country to deal with them. Fair enough — better that than the complications that would arise from sending them to Guantanamo. These are rarely straightforward cases, however. While you may suspect that someone who departs for Syria just as a caliphate is being declared is up to no good, legislation is rarely fit for purpose when it comes to prosecutions (especially in Europe). That means many criminals go free.

This scenario conjures up images of terrorists roaming around Europe, planning fresh waves of carnage. But the fallout is often not that dramatic. Sometimes, as with the Guantanamo Brits, the damage affects the broader body politic instead. As we prepare for a new batch of ISIS returnees, Western democracies should give serious thought about how to navigate these fault lines better in the future.

As for the Guantanamo Brits, Begg never ran for Parliament. Despite being arrested for Syria-related terrorism offenses in 2014 (the charges were eventually dropped), however, he still regularly appears on campuses and in the media, and he recently had a film made about his life. Aamer’s Peace and Philanthropy Foundation is yet to be established, and he never did reveal the explosive secret about Guantanamo that was supposedly the reason behind his detention for all those years. But he has found the time to accept invitations to speak to British college students and also fundraise for an Islamist charity that supports the families of convicted terrorists and terror suspects. Other ex-detainees live in anonymity, the allegations of their previous conduct now long forgotten.

And then there is the case of Jamal al-Harith. He ended up in Guantanamo in 2002. Upon release two years later, journalists clamoring for an exclusive, tell-all interview with him were told by publicists that they better be willing to write a big check. The British government, of course, eventually wrote al-Harith an even bigger one. He then headed to Iraq and committed a suicide bombing.

The Heritage Foundation’s Margaret Thatcher Fellow, Robin Simcox specializes in counter-terrorism and national security policy.

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