Train With Al-qaeda, Get Out Of Jail Free

Last Tuesday, a Parisian appeals court overturned the convictions of five former Guantanamo inmates who had been found guilty on terrorist conspiracy charges in 2007. The development should give pause to wonder not only about the wisdom of plans to transfer Guantanamo inmates to European countries (see my earlier FF piece here), but more fundamentally about the very idea of treating the “disposition” of Guantanamo inmates as an issue for civilian courts, whether in the US or abroad. The five French Gitmo detainees were repatriated to France in 2004 and 2005. They were tried and convicted on charges of belonging to a “criminal association formed for the purpose of undertaking a terrorist act.” The definition of this crime in French law is exceptionally broad. Not only does it permit what are, in effect, preventive detentions, but a suspect may be convicted by virtue of merely having had “regular contact” [relations habituelles] with one or more other persons who form part of such a terrorist enterprise.

The five former Gitmo detainees, however, did not merely have casual contact with members of a terror group. All five have admitted to receiving military training in Al-Qaeda camps in Afghanistan. They were taken prisoner in the Afghan-Pakistani border region in late 2001, while fleeing the Battle of Tora-Bora. The five men – Brahim Yadel, Mourad Benchellali, Nizar Sassi, Redouane Khalid, and Khaled ben Mustafa – have provided various far-fetched alibis that are supposed to explain how they could have found themselves training in Qaeda camps, but still somehow not be implicated in Qaeda’s wars. Undoubtedly, the most amusingly incongruous of these alibis comes to us by way of none other than the New York Times, which in June 2006 published an “op-ed” signed by Mourad Benchellali. In the article, Benchellali claims that he left France for Afghanistan in early summer 2001 to go on a “dream vacation.”

In an 11 February 2006 interview with the French daily Le Figaro, Benchellali explained his departure otherwise: “I’d been told so much about this country at war. To go there was almost a challenge.” On the stand, Benchellali admitted to having attended a sermon by Osama bin Laden. His co-defendant Brahim Yadel also admitted to having crossed paths with bin Laden in Afghanistan.

It should be noted that although the five men were convicted in 2007, the sentences they received were already so mild that none of them had any further prison time to serve. “I don’t want them to return to prison,” the prosecutor pleaded at their original trial (source: em>Le Figaro)<. The men have now had their records cleared on a legal technicality. While in Guantanamo, the five were questioned by agents of the French domestic intelligence service the DST. The appeals court accepted the defense’s argument that this fact had somehow “contaminated” the evidence against them: including apparently their own sworn testimony.

Redouane Khalid’s lawyer Paul-Albert Iwens predictably welcomed the ruling as a victory for “the rule of law.” Alluding to Guantanamo, he added: “One could not…let it be said that a police agency could question people detained on foreign territory in conditions contrary to international conventions” (source: em>Nouvel Observateur/AP France<).

And Maître Iwens is certainly correct that the detention of people at Guantanamo is contrary to international law – unless, of course, the people in question are members of an organization that is at war with the United States. In winter 2001-2002, the virtual entirety of the international community, including France, accepted that the 9/11 attacks provided the United States with legitimate grounds for undertaking military action against al-Qaeda in Afghanistan. Al-Qaeda had not only engaged in acts of war against the United States, it had also declared war on the United States. That declaration is known as the “World Islamic Front Statement for Jihad against Jews and Crusaders”. Among other things, it states: “to kill the Americans and their allies – civilians and military – is an individual duty for every Muslim who can do it in any country in which it is possible to do it….” It is signed by both Osama bin Laden and Ayman al-Zawahiri.

The World Islamic Front Statement was issued in February 1998 and it is known to have served as an important recruiting tool for al-Qaeda in Europe. Persons as well-connected to Islamist networks as Brahim Yadel and Mourad Benchellali will surely have been familiar with it.

For America to hold trained fighters captured while fleeing from al-Qaeda camps is no more anomalous or contrary to international law than it was for America to hold fleeing members of the German Wehrmacht or members of German paramilitary organizations during WWII. The French court ruling yet again makes clear the stark choice with which the Obama administration is confronted. Is it going to defend American national security interests or is it going to bow to the flagrant misrepresentations of America’s “war on terror” that have been cultivated and popularized by Obama’s European admirers, even at the price of undermining American national security?

(On a related Belgian court case, see my January 2008 report “Convicted Jihadist Goes Free Following Degauque Trial in Brussels”.)