Kenyan Suspect Transferred to Guantanamo Prison: Abdul Malik

Abdul Malik, an alleged al-Qaida operative captured in Kenya and accused of participating in a string of attacks in East Africa has been transferred to Guantanamo, because he is thought to pose a danger to the U.S. Chito Peppler, a Pentagon spokesman, said Malik was a high-ranking member of al-Qaida in East Africa.^[1]

Malik, also known as Mohamed Abdulmalik Abduljabar, was allegedly involved in a lobster business that sent profits to al-Qaida in the late 1990s, then was allegedly involved in the November 2002 attack on the Israeli-owned Paradise Hotel in Kikambala, Kenya, where 13 people died, as well as an unsuccessful attempt to shoot down an Israeli airliner in 2002.^[2] The East Africa al-Qaida network is also blamed for the 1998 bombings of the U.S. Embassies in Kenya and Tanzania, which killed more than 200 people.^[3]

Malik will likely face interrogation at Guantanamo, where the military says it holds "enemy combatants" to prevent them from threatening the United States.^[4] "The U.S. government will take all necessary steps to protect the citizens of the United States and those of our allies…[and]Guantanamo remains the most secure and efficient environment to process and contain these enemy combatants." Peppler said.^[5]

Malik faces a hearing in coming months to determine whether he is an enemy combatant -- a classification that would make him eligible for indefinite detention.^[6] If he is designated as an enemy combatant under the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism Military Order,^[7] he will enjoy no rights of judicial review, or even habeas applications.^[8] “The only remedies available are within military commissions which contain minimal due process guarantees. The Department of State has stated that these rules are designed to ‘ensure that the conduct of U.S. military commissions will provide the fundamental protections found in international law."^[9] It is also worth noting that the designation “enemy combatant” effectively denies the detainees prisoner of war(POW) status - a status which would immunize them from prosecutions for lawful acts of war.^[10] This is of course assuming that the detainee even qualified as a POW under Common Article 2 of the Geneva Conventions, which most suspected terrorists do not.^[11]

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^[1] Michael Melia, Terror Suspect From Kenya Sent to Gitmo, AP (via Los Angeles Times), March 28, 2007.
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, Military Order of November 13, 2001, 66 Fed. Reg. 57,833 (Nov. 16, 2001) (authorizing the Secretary of Defense to employ "all necessary measures" to detain those connected to a terrorist organization).
^[8] U.S. Dep't of Defense, Military Commission Order No. 1, 13-14 (2002)
^[9] James Thuo Gathii, Torture, Extraterritoriality, Terrorism, and International Law, 67 Alb. L. Rev. 335, 349-50 (2003) (quoting W. H. Taft, U.S. Dep't of State, Military Commissions: Fair Trials and Justice (2002), available at http://usinfo.state.gov/topical/pol/terror/02032603.htm (explaining that current U.S. military commission regulations remain consistent with those employed in the past)).
^[10] Id.
^[11] Participants in an armed conflict must meet the criteria outlined in Common Article II of the Geneva Conventions in order to qualify as a POW. See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed forces in the Field, Aug. 12, 1949, art. 2, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, art. 2, 66 U.S.T. 31, 14 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 2, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 2, 6 U.S.T. 3516, 75 U.N.T.S. 287.