Shortly after the 9/11 attacks on the US in 2001, and in the wake of the US and its coalition partners’ invasion of Afghanistan the following month, Tarek Mahmoud Ahmed El-Sawah, an Egyptian citizen, was detained and transferred to the notorious US military prison in Guantanamo Bay, Cuba, which was established after the invasion.
El-Sawah, like hundreds of other detainees in Guantanamo, remains in custody. For over ten years, he had been denied a trial, and, like the great majority of the camp’s detainees, he currently faces no charges and is subject to indefinite detention.
El-Sawah’s road to Guantanamo started when he left Egypt for work in Greece in 1990, after which he travelled to Croatia to join an Islamic relief organisation providing aid in the Bosnian war.
According to media and intelligence reports, El-Sawah then joined the Bosnian government in its fight against Bosnian Serbs until the war ended in 1995.
He then settled in Bosnia until, in 2000, he left after the Dayton peace accords stipulated the withdrawal of foreign fighters. El-Sawah then made his way to Afghanistan, fearing arrest by the (now-defunct) State Security apparatus if he returned to Egypt.
In Afghanistan, he joined the Taliban and then, according to US intelligence, joined Al-Qaeda. He was captured a few months after the invasion.
In August, El-Sawah's case came into the limelight when the Egyptian government, under the presidency of the Muslim Brotherhood’s Mohamed Morsi, formally requested that the US release him.
An official letter was given to the US Department of State in which Egyptian Foreign Minister Mohamed Kamel Amr "stressed the importance Egypt attaches" to releasing El-Sawah, who had been held since 2001 "without trial or conviction."
El-Sawah was charged in 2008 with providing support for terrorism and being a member of Al-Qaeda, for which he worked as an explosives expert. But according to a 2008 US Defence Department file, El-Sawah "acknowledged that he was a member of Al-Qaeda but then backtracked and said he was not a member."
Another military report also asserted that El-Sawah gave conflicting accounts. In fact, a spate of reports and leaked documents reveal that much of the information given by Guantanamo detainees was confessed under Pentagon-mandated torture.
However, the question of El-Sawah’s innocence or guilt pales when the foundation upon which his detainment rests comes into question.
"Guantanamo is built to exist outside of the rule of law," says Ahmed Ghappour, a trial attorney who represents national security prisoners in the US and Guantanamo. Ghappour has previously represented 42 Guantanamo detainees in court.
"Every single person in Guantanamo is held primarily without charge, meaning that the authority to detain them does not turn on whether or not they have been charged," Ghappour told Ahram Online.
The fact that the "vast majority" of Guantanamo Bay prisoners have never been charged with anything makes their detention against the law, contends Ghappour.
Elaborating on the arbitrariness of Guantanamo detention, Ghappour explains that "detainees are just 'designated enemy combatants,' and the designation of 'enemy combatant' is an executive order by the president."
Ghappour likened the practice to that of administrative detention in Egypt. "What that means is no trial, no charges, nothing," he said.
El-Sawah's military attorney Sean Gleason, who had urged the Egyptian government to file a request for his release, stated that El-Sawah "is being held at the discretion of the president of the United States; the president has the ability to release him at any point in time."
The minority, or "super minority," Ghappour stresses, who have actually been charged, as El-Sawah had been in 2008, are tried by military tribunal. Those trials, says Ghappour, lack any due process.
El-Sawah wasn't taken to court despite his being charged. "It sounds crazy, but they charged him but never let him go into court; they never provided the defence with any evidence that he was guilty of anything," Gleason told Ahram Online.
The dropping of charges in 2012, contrary to reports, was a mere formality at the time, when all charges against detainees were dropped due to a change in administration, Ghappour clarified.
As for the great majority of detainees not charged (only ten were charged), they now have the right to habeas corpus, i.e., the right not to be held by the government without cause.
Surpassing legal obstacles during the Bush administration, pleas for habeas corpus may now be presented in US courts challenging the authority of the executive branch of government to hold detainees without charge.
There is no guarantee however, according to Ghappour, that if a detainee’s habeas case is won he would be released thereafter. The best chance for a detainee's release is through pressure put by governments on the US administration, which is why Saudi and British citizens were the first to be released. Ghappour says that since the detention is political, the release will also be political.
In El-Sawah’s case, this holds true. Gleason says that, even though the Egyptian government has formally asked for the repatriation of El-Sawah to Egypt, it must maintain pressure on the US to send him back if it wants him to be freed.
According to Gleason, El-Sawah is in very poor health, mentally and physically. In his opinion, he is in a dangerous state. Gleason sent a request to the commander of the military base in Guantanamo, in which he asked for a specialist to evaluate El-Sawah – but the request was never granted, he said.
Gleason explained that, to release El-Sawah, the secretary of defence must certify that the detainee is not a threat and is unlikely to pose a threat to the US or any of its coalition partners.
"In Mr. El-Sawah’s case, this is a no-brainer; it is clear that he doesn’t pose a threat to anybody," said Gleason, before adding that several former Guantanamo commanders had indicated that El-Sawah was not a threat and recommended his release.
Eighty-nine of the 167 detainees in Guantanamo have been cleared for release but remain in detention. Dozens of others are – admittedly – not members of Al-Qaeda, according to the Centre of Constitutional Rights. A ninth detainee died in the detention camp Tuesday. His identity remains undisclosed .