The Obama administration is negotiating with Malaysia over a deal to repatriate and continue to incarcerate a Guantánamo Bay detainee being held on suspicions he was an accessory to two major terrorist attacks in Indonesia, officials said.
While challenges remain, the prospective deal is important because it could set up a way to prosecute the detainee and two others, including an Indonesian man best known as Hambali, who U.S. intelligence reports link to the two attacks. They are among the 30 men who have been held in indefinite wartime detention without charges for more than a decade and who are still deemed too dangerous to release.
The high-level talks also have broader importance for the future of the United States’ security cooperation and relationship with Malaysia. They are being held amid tensions over China’s efforts to assert greater control over the South China Sea and over a scandal involving Malaysia’s prime minister, whom the Justice Department recently accused in a civil complaint of playing a role in a billion-dollar corruption scheme.
Early this month, the State Department and the Defense Department envoys for closing Guantánamo, Lee Wolosky and Paul Lewis, and the chief prosecutor of the military commissions system, Army Brig. Gen. Mark Martins, flew to Malaysia. They met Nov. 2 with the Malaysian deputy prime minister and other top Malaysian officials to discuss the potential deal, officials said.
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The talks center on a Malaysian detainee at Guantánamo, Mohd Farik Bin Amin, 41, better known as Zubair. Along with another Malaysian detainee, Mohammed Bashir Bin Lap, 39, who is often called Lillie, Zubair is described as helping Hambali evade arrest after the 2002 nightclub bombings in Bali and of moving funds later used to finance the 2003 Marriott Hotel bombing in Jakarta. (Hambali is also named Riduan Isamuddin.)
The idea is that Zubair would plead guilty to terrorism offenses before a U.S. military commission and agree to testify against Lillie and Hambali. If he lives up to that promise and serves about four more years in U.S. custody, Zubair would be repatriated to Malaysia to serve the remainder of his sentence.
The Obama administration declined to comment on the deliberations. The officials who described them spoke on the condition of anonymity because the deal is not public or final. Lawyers for Hambali and Lillie had no details.
Last year, Zubair had been close to agreeing to a similar plea deal in the military commissions system, according to the officials and to his defense lawyer, Mark Denbeaux, who provided The New York Times with a copy of a charge sheet that prosecutors had drafted for those talks. But the deal collapsed after Malaysia’s attorney general at the time suggested that Malaysian law might not permit carrying out a sentence imposed by the tribunal, they said.
There is a new attorney general in Malaysia, and there appears to be greater high-level political will for Malaysia to take back its two nationals at Guantánamo.
The talks have also explored whether Zubair might plead guilty both to military commission charges and — via videoconference link from Cuba — to domestic criminal offenses in Malaysia, potentially bolstering Malaysia’s domestic legal authority to keep imprisoning him after a transfer.
The Malaysian government wants to get back Lillie as well, and the U.S. government wants to convict him — either through a plea or by trial with help from Zubair’s testimony. But its ultimate goal is to use testimony from one or both of them to win a conviction against Hambali. The Bali bombings killed 202 people, including seven Americans; the Jakarta bombing killed at least 11 people and wounded about 140 more.
Denbeaux said he had not yet discussed any new plea deal with Zubair. But he cautioned that while his client wanted to go home, their hope during the talks last year was that Malaysian courts might grant him some credit for the 13 years he has spent in custody, despite rules in the military commissions system that bar crediting time served toward a sentence.
“I can’t say whether he’d take a deal,” Denbeaux said. “He wants to go back. It’s just a question of what the terms are. He doesn’t want Malaysia to become Guantánamo 2.0.”