Distant Justice

[August 9th, 2006] Ihlkham Battayev's optimism after four years in captivity at Guantánamo Bay, Cuba, surprises his Portland attorney.

Battayev, a 33-year-old Kazakh, has maintained that outlook despite not having seen his youngest child since the now 6-year-old boy was a toddler. Still, Portland lawyer Tom Johnson worries that Battayev's optimism will one day collapse.

It may have happened already. But Johnson won't know until later this month, when he visits Cuba and tells his client the latest development: that a recent U.S. Supreme Court decision doesn't immediately help Battayev, who is being held indefinitely by U.S. authorities.

The court decision in Hamdan v. Rumsfeld was monumental for other reasons. Issued June 29, the court's 5-3 opinion struck down the Bush administration's plan for trying detainees accused of war crimes, opening the door for new procedural protections in those detainees' trials.

But only about 10 out of the 450 detainees currently held at Guantánamo have been accused of war crimes. The rest, like Battayev, have been charged with no crime at all. They've been classified as "enemy combatants" by review tribunals simply for their alleged association with terrorists.

From his office with the Perkins Coie law firm in the Pearl District, Johnson drew a diagram of the distinction between the detainees.

"You only hear about this," he said, circling his pen around the figure representing the 10 accused of war crimes. "This," he said, pointing at the other half of the diagram, the one representing the 440-or-so men who are being held on no charges, "is the real problem."

Battayev's problems began in January 2001, months before Americans would wake up to the War on Terror.

The owner of a small trading business, Battayev says he had gone to Tajikistan from his native Kazakhstan in central Asia to sell apples and, while there, was kidnapped by thugs, possibly members of the Islamic Movement of Uzbekistan.

Battayev testified to military officers conducting his combatant status review tribunal in 2004 that he was then taken to Afghanistan, where, one month later, he was forced to work for the Taliban as a cook's helper.

When U.S. forces invaded Afghanistan in October 2001, Battayev says he and several other men tried to escape from the Taliban amid the chaos. Battayev's plan was to go hundreds of miles west to Iran, then return north to Kazakhstan.

At the time, U.S. forces were dropping leaflets on Afghanistan telling people to turn over anyone suspected of having ties to the Taliban. The leaflets also offered cash rewards.

So in his attempt to leave the country, Battayev was stopped, this time by followers of an Uzbek warlord friendly with the Taliban-fighting Northern Alliance. Battayev was turned over to U.S. authorities in December 2001, and taken to Guantánamo in early 2002. He has been held there ever since on the grounds that he is an enemy combatant.

It wasn't until June 2004 that the U.S. Supreme Court issued its first decision concerning Guantánamo detainees. But as a result of that case, Rasul v. Bush, enemy combatants were told they could, for the first time, challenge the constitutionality of their detention.

That's where lawyers like Johnson, his colleague Cody Weston and several others in Portland and around the country stepped in. With the support of the New York-based Center for Constitutional Rights, the lawyers filed habeas corpus petitions on behalf of the detainees, arguing that their clients' detention was, in simple terms, wrong.

The Supreme Court's June 2006 decision in Hamdan actually reaffirmed detainees' ability to pursue their petitions in federal court.

But the possibility of Battayev's returning to Kazakhstan soon is remote. His case is on hold in Washington, D.C.'s federal district court until a similar case is decided in a higher court, the D.C. Court of Appeals. It is uncertain when that decision will be made.

And while some detainees have been released (for a variety of reasons), Battayev remains in Guantánamo's Camp Four, which he shares with nine people.

"I always knew America as a democratic country and always heard positive things about America," Battayev testified at his review tribunal. "I believe that after 9/11 America became very aggressive, and that's possibly the only reason I'm here."

^Failure to Communicate

At his status review tribunal in 2004, Ihlkham Battayev was classified as an enemy combatant. His attorney, Tom Johnson, calls the proceeding "a joke." Here's an excerpt from the seven-page transcript of the exchange between Battayev and his questioners from the U.S. military:

Q: Most of the detainees in the camp wear orange. We notice you are wearing white. Why is that?

A: That is a question I intended to ask you.

Q: If I knew the answer, I wouldn't have asked you myself.

A: I don't know.

You can find the rest of the transcript at www.wweek.com/media/7873.pdf.