The US flag flies over the war crimes courtroom in Camp Justice at the US Naval Base in Guantanamo Bay, Cuba in a photo reviewed by the US Department of Defense.  Photo: AFP/Michelle Shephard/ Toronto Star
The US flag flies over the war crimes courtroom in Camp Justice at the US Naval Base in Guantanamo Bay, Cuba. Photo: AFP / Michelle Shephard / Toronto Star

It has been 14 years since American and Thai intelligence agents tracked down and captured Indonesian terrorist mastermind Riduan Isamuddin, better known as Hambali, after discovering he frequented a mosque in Thailand’s ancient riverside capital of Ayutthaya.

While Indonesian authorities have successfully prosecuted hundreds of other home-grown Islamic militants over the period, the chief planner of the 2002 Bali bombing has been held in legal limbo in the US’ detention facility at Guantanamo Bay, Cuba.

Now, seemingly out of the blue, a US military court has charged Hambali, 52, with the murder of the 202 people who died in the twin nightclub blasts, as well as the 12 victims of the 2003 bombing of Jakarta’s JW Marriott Hotel.

That does not mean, however, Hambali, often referred to as the ‘Osama Bin Laden of the East’, is facing imminent trial. Rather, it may be a mechanism to make his continued incarceration more palatable to human rights groups and others uncomfortable with his current legal status.

It is widely believed the US has been reluctant to prosecute Hambali because he underwent torture at the hands of his American captors, described in the US Senate Select Committee’s 2014 report into the CIA’s secret rendition program for suspected terrorists.

Undated picture of Riduan Isamuddin, aka Hambali, taken from a Malaysian Police website wanted list. Photo: AFP 

All but 60 of the 780 alleged militants detained at the Cuba facility since it opened in 2002 have been either transferred or released. But Hambali is among the 14 still incarcerated there who have high-value status.

Like others who were subjected to so-called enhanced interrogation techniques, he was allegedly waterboarded on numerous occasions at a time when it was deemed justified to extract actionable intelligence.

Last August, the US government’s Periodic Review board said Hambali remained “a significant threat to the security of the United States” in rejecting his request to be released.

Created by the Barack Obama administration to whittle down the Guantanamo population, the board cited Hambali’s role in major terrorist attacks as well as his lack of remorse.

A key link between Southeast Asia’s Jemaah Islamiyah (JI) and the global Al Qaeda terrorist networks, Hambali was flown after his capture to the US Indian Ocean base of Diego Garcia and then to a secret location in Jordan, from where he was transferred to Guantanamo in September 2006.

It was only two years later that Detachment 88 counter-terrorism unit officer Tito Karnavian, now Indonesia’s national police chief, and two National Intelligence Agency (BIN) operatives, were permitted to interrogate Hambali.

During that questioning, he is said to have made several admissions about his involvement in the Al Qaeda-funded 2000 Christmas bombings, the 2002 Bali blasts and the first of the two attacks on the Marriott.

The aftermath of the 2002 Bali bombing that killed 202 people, mostly foreign tourists. Photo: AFP/Darma

On a visit to Washington as vice-president to former President Susilo Bambang Yudhoyono, Jusuf Kalla reportedly told US national intelligence director Dennis Blair the government wanted Hambali to be returned to Jakarta to stand trial.

But that was for public consumption. Indonesian police and prosecutors were always worried about the publicity surrounding such a high-profile trial and, more importantly, whether Hambali’s conviction could be guaranteed.

Chief political minister Luhut Panjaitan expressed those same misgivings in March 2016 when the US once again held off closing Guantanamo.

“Thank God, so it will not increase our domestic problem then,” he said, confirming Washington had no plans to hand over the terrorist leader.

Speculation over him standing trial in Indonesia had intensified in early 2009 when president Obama signed an executive order to close the controversial prison facility within a year.

But that was never accomplished and US President Donald Trump seems in no mood to do so either, saying last year he would “load it up with bad dudes” and that he would be fine with American terrorism suspects being tried there.

US President Donald Trump reacts after delivering remarks during a visit to the Central Intelligence Agency (CIA) in Langley, Virginia US, January 21, 2017. Photo: Reuters/Carlos Barria

US allegations do not link Hambali to the 9/11 attacks, despite his known close association with Khalid Sheik Mohammed, a top Al Qaeda operative involved in planning the assaults on American soil.

But reference is made to the seven Americans who died in Bali, the targeting of the Marriott hotel chain and an aborted plot to bomb the US embassy in Singapore.

He also allegedly planned an attack on the US embassy in Bangkok in 2000 – the same year he and other top militants met in the Thai capital and agreed to hit “soft targets” across Southeast Asia.

Two years after that meeting, one of the participants, Malaysian militant Wan Min bin Wan Mat, claims that Hambali gave him two tranches of the US$30,000 used to finance the Bali bombing.

The eventual fate of the former JI operations chief depended at one point on what kind of admissible evidence the US had against him and, failing that, what it believed the Indonesians would do with him if he were returned here.

Ironically, if Indonesia had an Internal Security Act, as in Malaysia and Singapore, it might have made the decision easier. But it doesn’t — and the vagaries of the Indonesian judicial system hardly gave the US confidence.

Indonesia’s police chief General Tito Karnavian speaks to reporters after his inauguration in Jakarta, Indonesia July 13, 2016. Photo: Reuters/Darren Whiteside 

As it was, he would have had to be prosecuted under Article 12 of the 1951 Emergency law or, failing that, under the country’s Criminal Code for the Christmas and Bali bombing.

Under those measures, the rules of evidence are much tighter and could have provided difficulties for the prosecution, particularly if electronic or video testimony was required.

One senior prosecutor said Indonesia’s 2003 Terrorism Law could only be applied for him facilitating the transfer of a further US$50,000 from Pakistan to Indonesia to finance the 2003 Marriott bombing.

The funds are said to have come from Karachi-based Al Qaeda operative Ammar al-Baluchi, another of Guantanamo’s “Top 14” facing a possible death sentence for arranging the financing for 9/11.

Hambali’s brother, Gunawan, was the deputy leader of a cell known as al-Ghuraba, established in Karachi in 1999 to provide advanced military training for JI operatives who, unlike today’s militants in Iraq and Syria, had every intention of returning home.