Indonesia's Hot Potato

Following up on Asia Sentinel's question last week: "Whatever became of Hambali?," interest in the future of the alleged terror mastermind of Southeast Asia has perked up.

The question is who does or does not want to be responsible for him when the Guantanamo Bay detention center is closed and he must be either tried somewhere or released. According to the Jakarta Globe, the government in Jakarta is not anxious to have him back, fearing he would become a rallying point for the country's nascent but growing Islamist, and particularly Wahabist, fundamentalists.

According to the Globe, quoting unnamed sources in the Indonesian counter-terror police, Hambali himself is anxious to come home to Indonesia and face trial there. He is said to be homesick, which would not be surprising after being in US captivity since picked up in Thailand in 2003, latterly at Guantanamo but until 2006 at an even less comfortable CIA detention center in an undisclosed location – Jordan, according to a Human Rights Watch Report.

According to these sources, who claim to have interrogated him while in US custody Hambali has confessed to his involvement in bombings in Indonesia and is ready to submit himself to the local justice system. This might make more sense for him than facing the music in the US, let alone in Malaysia or the Philippines where he is also wanted. Malaysia would most likely put him in indefinite ISA detention without benefit of a court appearance. (His wife has been held under the ISA since 2003) The Philippines is too well-known for extra-judicial killings for him to be comfortable there.

But whether Hambali gets what he is said to want and return to trial in Indonesia is another matter. Other government sources in Indonesia suggest that they do not want him back as a trial might stir up jihadist sympathy, or at least be divisive as was that of the Abu Bakar Bashir, the so-called spiritual leader of Jemaah Islamiyah in southeast Asia.

Confessions made under duress at Guantanamo would not be valid in Indonesia so would have to be repeated in Indonesia – which he might well refuse to do. Meanwhile it is also not clear whether the Indonesian police have substantive evidence of his direct role in any of the bombings. The 2002 Bali bombing induced a huge new effort by Indonesia to smarten up its terror prevention and investigation capability. But investigations of previous bombings were inefficient and the lapse of time might make effective prosecution very difficult.

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Thus in the end he might well get off with a light sentence for preaching rather than practicing terror tactics. Or having been sentenced to a longer term, find the ways out of an easily-bribed prison system. One way or another Hambali at home would be more of an embarrassment or problem than leaving him to others.

Yet failure to demand his return and trial for alleged involvement in a string of bombings in Indonesia, including Bali and various church bombings before that, would appear curious. He is Indonesian and most his alleged crimes were committed in Indonesia and most of the victims were Indonesian. Not to demand him back to face the music at home would be an insult to national dignity.

For now however, it is the US which has to decide what to do with him now that Guantanamo is to be closed. In 2007 the Combatant Status Review Tribunal set up by the US Defense Department to review evidence against Guantanamo detainees determined that Hambali had been correctly classified as an "enemy combatant" and would ultimately be tried by a military commission.

The tribunal ruling was made on a long list of allegations, not tested by normal court rules of evidence. These included some specifics: December 24 2000 church bombings in Indonesia which killed 18 people; supervision of a plan to bomb the US, Australian and British embassies in Singapore; proposing a plan to attack a Singapore MRT station.

However other allegations were more vague. The Bali combing was cited but only as an event and no specific connection to Hambali. Likewise allegations that he was "Operations chief of the Jemaah Islamiyah and its main contact and point man for al Qaida in southeast Asia".

The specific bomb plot allegations and a broader one of plotting small bombings in bars and café frequented by westerners in the Philippines, Thailand, Malaysia, Indonesia and Singapore were all sourced to an unnamed individual – presumably either an undercover agent or another captive who had given evidence, possibly as a result of the "waterboarding" torture known to have been used against so-called "high value" detainees.

The US military commissions to try so-called enemy combatants were deemed illegal by the US Supreme Court in 2006. Congress then passed an Act allowing the President to designate certain people as "unlawful enemy combatants", making them subject to military commissions where they had fewer rights than in ordinary trials. It was thus that Hambali was due at some point to be charged.

However, on January 22, Barack Obama in one of his first acts as President ordered that no new charges were referred to the military commissions and stated his intention to close Guantanamo within a year. Now it is up to the new US administration to make good on that promise and decide whether to charge Hambali in the US or to hand him over to Indonesia.