Armed Conflict Criminal Justice & the Rule of Law Foreign Relations & International Law Terrorism & Extremism

Shaker Aamer Goes Free: A Great Win for I'm Not Sure What

Benjamin Wittes
Friday, October 30, 2015, 4:57 PM

No, I'm not going write a grouchy piece on the release of Guantanamo detainee Shaker Aamer to Britain listing all the reasons to think this might not be the world's greatest idea.

Published by The Lawfare Institute
in Cooperation With

No, I'm not going write a grouchy piece on the release of Guantanamo detainee Shaker Aamer to Britain listing all the reasons to think this might not be the world's greatest idea. For those interested in why someone else might plausibly write such a piece, this 2007 document gives, I think, some pretty good reasons for pause about releasing the man who has had Britain's human rights advocates in a moral panic about US behavior since, well, the United States let all the actual British nationals out of Guantanamo.

The reason I'm not going to write that piece is that I actually believe in the processes that President Obama set up early in his tenure to evaluate the Guantanamo population.

I have high regard for the people who ran Obama's Guantanamo task force. And the processes they set up recommended transferring Aamer under the right circumstances—circumstances that have now been met. I'm also not opposed to taking risks in order to not hold people forever. So if Britain wants to take responsibility for Aamer, that's fine by me. And if Britain now wants to make a millionaire out of him, as I suspect will be the next step, well, there's no end to human folly but British sovereignty is such that I don't—so to speak—have a dog in that fight.

Here's a fight I do have a dog in: I think the specific recommendation for Aamer's transfer ought to be made public.

A lot of people, particularly but not exclusively in Britain, think this man is—as the New York Times put it this morning—"a victim falsely accused of ties to terrorism." The flabby way the press (not including the Times news staff, incidentally) covers decisions to transfer Guantanamo detainees has certainly contributed to that perception. But so has the fact that the government does not say why it is judging individuals as fit for departure. Aamer was "cleared for transfer," after all, and that translates in a lot of people's minds and in a lot of news stories to "cleared," which translates in turn in a lot of people's minds to "innocent."

Aamer's is a strange kind of innocence. His lawyers have emphasized it, but I have followed the Guantanamo litigation about as closely as anyone, and I am unaware that this man ever actually litigated over the facts behind his categorization by the government as an unlawful enemy belligerent. Many Guantanamo detainees have litigated extensive habeas cases contending that the government got their designations wrong. At least to my knowledge, Aamer has not, though he did litigate treatment matters and health issues extensively. Why on Earth would an innocent man spend years in detention not pointing out to courts open to hearing from him that he was not, in fact, part of enemy forces? (Memo to the habeas bar: If I am wrong and there is, in fact, a merits habeas case litigated to completion on this detention, I would very much like to know about it.)

I suspect that the reason is that Aamer and his lawyers knew perfectly well he could never prevail in a challenge to his detention based on the facts. And I suspect as well that the decision to clear him for transfer has nothing whatsoever to do with any judgment that he was "innocent," as his many champions imagine. I suspect what that recommendation, if it were ever to become public, will say is that (a) Aamer was part of enemy forces and lawfully subject to detention, (b) that the risk he poses is potentially managable by means short of detention under the right circumstances, and (c) that one of our closest allies wants him freed and there are therefore compelling diplomatic reasons to resolve his case without holding him longer than is strictly necessary.

This is just a guess, the purest of speculation, in fact. But it's perhaps worth bearing in mind as you read the shouts of triumph coming from the other side of the pond over the next few days.

And to the many Britons who are today probably wondering why their country has inherited a Saudi national whom the US government alleged roomed with Zacarias Moussaoui, took training at the Khaldan Camp, served as a fighter at Tora Bora, and was caught with a false Belgian passport . . . I've got nothing for you on this one. Your government wants him, and wants him free in your country. Who am I to object even if I can't fathom why it would?

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

Subscribe to Lawfare