For the US attorneys who represent prisoners in Guantánamo, and who have spent many years seeking justice for their clients, it has been a long, and generally disappointing road. After triumph in June 2004, when, in Rasul v. Bush
, the Supreme Court granted the prisoners habeas corpus rights, allowing them to meet their clients for the first time and to begin preparing their habeas corpus petitions, there were major setbacks in the years that followed.
In the Detainee Treatment Act of 2005
and the Military Commissions Act of 2006 (PDF
), Congress purported to strip the prisoners of their rights, freezing the habeas litigation until June 2008, in Boumediene v. Bush
), when, revisiting the prisoners' circumstances, the Supreme Court ruled
that the habeas-stripping provisions in the DTA and the MCA were unconstitutional, and granted the prisoners habeas rights for the second time.
How the habeas litigation began promisingly
In the wake of Boumediene
, the prisoners secured a number of significant victories in the District Court in Washington D.C., beginning with 17 Uighurs, Muslims from China's Xinjiang province, who had their habeas petition granted
in in October 2008, and five out of six Algerians, kidnapped in Sarajevo and rendered to Guantánamo in January 2002, who had their petitions granted
in November 2008.
Even with the low burden of proof imposed on the government by the court -- requiring them only to demonstrate, "by a preponderance of the evidence," that the prisoners seeking release were involved with al-Qaeda and/or the Taliban -- the prisoners continued to secure victories in significant numbers. Over the next 13 months
, as the District Court judges -- discussing amongst themselves the necessary conditions for ongoing detention, and generally concluding that the government had to demonstrate that the prisoners in question were part of the "command structure" of al-Qaeda and/or the Taliban (in other words, that they were to some extent involved in taking orders) -- ten prisoners won their petitions, while eight others lost.
Even with these impressive results for the prisoners, doubts remained about the wisdom of the Supreme Court's decision not to question the assumptions in the legislation that authorized the detention of the prisoners in the first place -- the Authorization for Use of Military Force
, passed by Congress the week after the 9/11 attacks. This was because the AUMF -- which authorized the President " to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September11,2001," or those who harbored them -- failed to distinguish between al-Qaeda (a terrorist group) and the Taliban (the government of Afghanistan in 2001, however reviled internationally).
The result of this classification failure was that most of the eight prisoners who lost their habeas petitions were not accused of having any involvement with terrorism, but were, instead, nothing more than low-level Taliban foot soldiers (and in one case, a cook
), who had been in Afghanistan fighting the Northern Alliance -- or supporting that struggle -- in the months before the 9/11 attacks, and had, therefore, only become embroiled in America's war by default, when the conflict in Afghanistan morphed from a civil war into a "War on Terror" after the US-led invasion on October 6, 2001.
No one, however, showed any willingness to discuss whether it was fair to equate al-Qaeda with the Taliban, and to label both as a unique category of human being -- "enemy combatants," who, when that designation had been invented, were supposedly detainable forever, without any rights whatsoever. The only concession made by President Obama's Justice Department was to drop the use of the term "enemy combatant,"
which was a shrewd PR move, but did nothing to address the more fundamental problems outlined above.
How the D.C. Circuit Court fought back
However, while the first 15 months of habeas hearings resulted in 32 victories for the prisoners, against just nine for the government, and also, crucially, led to the eventual release of 25 of the men
who had won their petitions, everything changed last year, beginning last January when the D.C. Circuit Court delivered a ruling
on the first appeal resulting from the District Court's decisions.
The case before the court was that of Ghaleb al-Bihani, the cook mentioned above, who had prepared food for Arab forces supporting the Taliban. Al-Bihani had lost his habeas petition during President Obama's first month in office a year before, but when the Circuit Court considered his appeal, the panel of three judges not only upheld the original ruling, but two of them -- Judge Janice Rogers Brown, supported by Judge Brett M. Kavanaugh -- argued that the government had sweeping powers that should not be constrained by judges, claiming that it was “mistaken” for al-Bihani’s lawyers to argue that “the war powers granted by the AUMF and other statutes are limited by the international laws of war.”
This was too much for the third judge, Senior Circuit Judge Stephen F. Williams, who noted that his colleagues' opinion was “hard to square with the approach that the Supreme Court took in Hamdi [v. Rumsfeld
, a 2004 Supreme Court case regarding Guantánamo that established the government’s right to hold men detained under the AUMF].” Judge Williams quoted Justice Souter, who stated explicitly, “[W]e understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.”
It was also too much for the Obama administration, which noted in a brief
that "The Government interprets the detention authority permitted under the AUMF as informed by the laws of war," and on August 31 last year, seven out of the nine judges ruling on an appeal of the original Circuit Court ruling upheld the decision regarding al-Bihani's detention, but effectively dismissed the claims
about the limits of the international laws of war.
This was important, but Judge Janice Rogers Brown and Judge Brett M. Kavanaugh were not alone in wishing to fundamentally challenge the decisions made by District Court judges. In another appeal in June last year
-- that of Adham Ali Awad, a Yemeni amputee who had been handed over to Afghan forces by al-Qaeda fighters besieged in a hospital in Afghanistan in December 2001, and had lost his habeas petition
in August 2009 -- three different judges (Chief Judge David B. Sentelle, Judge Merrick B. Garland and Judge Laurence H. Silberman) dismissed the "command structure" requirement for detention accepted by the majority of the District Court judges, noting that it was not mentioned in the AUMF, and insisting that being "part of" al-Qaeda or the Taliban was sufficient to justify a prisoner's ongoing detention.
Ths was a worryingly open-ended definition, of course, and it has, moreover, changed the course of the habeas litigation. Although four prisoners won their petitions between February and June 2010, and five prisoners lost (bringing the total to 36 victories for the prisoners, against 14 losses), just two prisoners have won their petitions since the Awad ruling, and the last seven rulings
have all been in the government's favor.
The latest victory for the government in the District Court -- the case of Mashur al-Sabri
The last of these government victories -- on February 5 -- was in the case of Mashur al-Sabri, a 32-year old Yemeni, whose habeas petition was denied by Judge Ricardo Urbina
. The unclassified opinion has not yet been released, so it is uncertain how Judge Urbina reached his conclusion, but from the publicly available information about al-Sabri, it is clear that it would not have been difficult to conclude that he was "part of" al-Qaeda and/or the Taliban. As I explained in a profile of him
According to the US authorities
, al-Sabri traveled to Afghanistan in summer 2000, lived in Jalalabad for a year, and traveled on occasion to the Taliban lines at Bagram and Kabul. Quite what else he did is difficult to ascertain -- not because there are no allegations, but because their trustworthiness is hard to gauge. According to various unidentified sources, in May 2001 he was working as a facilitator for new arrivals at two guest houses in Kabul, and was “well known and well respected as an administrator in the guest houses.” It was also noted that he “was said to facilitate the transfer of weapons and other supplies to the front lines,” and, most worryingly (or most outrageously, depending on your point of view), was accused of working for Osama bin Laden. According to the unidentified allegations, he was “believed to have sworn bayat
to Osama bin Laden,” because he and others around him knew bin Laden’s travel dates and routes, and another “source” identified him as “a member of al-Qaeda,” because he was “following Osama bin Laden’s orders to keep the guest house up and running.”
These latter claims look suspicious, as they increase his significance through nothing more than innuendo, and without them, we are left, as so often, with a man consigned to indefinite detention at Guantánamo on the basis of nothing more than being involved, to some extent, in the Taliban's military campaign against the Northern Alliance in the year before the 9/11 attacks.
As I mentioned above, this kind of role -- as, essentially, an insignificant foot soldier in a military conflict in Afghanistan that preceded the 9/11 attacks, and that had nothing to do with international terrorism -- dominates the cases of the men who have lost their habeas petitions, and I find it hard to see how they can be judged as any kind of success, as all they do is reinforce the notion that, in its "War on Terror," the Bush administration successfully destroyed the Geneva Conventions, creating a parallel quasi-legal world in which soldiers are held indefinitely as "enemy combatants" rather than as prisoners of war.
In contrast, the few men in Guantánamo
who are actually accused of involvement in terrorist activities either await federal court trials
that may or may not ever happen, or are cutting plea deals
in Military Commission trials that, if the administration honors its obligations, will see them released in the next few years, while the foot soldiers, the cook, a medic
and a handful of pointessly detained Afghans
rot in Guantánamo
A legally flawed victory for the government in the D.C. Circuit Court -- the case of Saeed Hatim
Hatim told his interrogators that he wanted to find a way to fight in Chechnya but concluded that he needed to train in Afghanistan. However, although he admitted attending the al-Farouq camp (associated with Osama bin Laden in the years before 9/11), he said that he “did not like anything about the training,” that he faked a fever so that he could leave the camp, and, after some time hanging around behind the Taliban’s front lines, made his way to the Pakistani border, where he surrendered to the Pakistani police, and was then handed over to US forces.
In granting Hatim's habeas petitiion, Judge Ricardo Urbina refused even to analyze whether the government's supposed evidence -- which came almost entirely from Hatim's own statements -- demonstrated sufficient involvement in al-Qaeda and /or the Taliban to justify his detention, ruling instead that everything he had said was unreliable because of his unrefuted claims that he was subjected to torture and abuse in the US prison at Kandahar before his transfer to Guantánamo. In his unclassified opinion, Judge Urbina wrote:
Hatim’s unrefuted allegations of torture undermine the reliability of the statements made subsequent to his detention at Kandahar. Thus, the government faces a steep uphill climb in attempting to persuade the court that the petitioner’s detention is justified based on the allegation that he trained at al-Farouq, given that the sole evidence offered in support of that allegation is tainted by torture.
In additon, as I noted at the time:
Judge Urbina added that, even if Hatim had attended al-Farouq, there was “scant evidence” that he “actually participated in al-Qaeda’s command structure by receiving and executing orders,” and that this interpretation was reinforced by his departure from the camp, and also because no third-party witness “indicate[d] that [he] was even seen at al-Farouq, much less that he was seen following orders on al-Qaeda’s behalf.”
He then proceeded to dismiss claims that Hatim had participated in al-Qaeda’s command structure either behind the front lines or in the guesthouses in which he had stayed, concluding that “the government has offered the court an inherently flawed justification for detention.”
The only other information offered by the government as evidence -- that Hatim had fought at Tora Bora, a showdown in December 2001 between al-Qaeda and their Taliban supporters, and a proxy Afghan army fighting for the US with back-up from US Special Forces -- was also dismissed by Judge Urbina, on the basis that the prisoner who had made this statement “has exhibited an ongoing pattern of severe psychological problems while detained at GTMO," and had, in fact, made false statements against 60 prisoners in total, which, despite their unreliability, are regularly used by Justice Department lawyers in the habeas litigation, where, to their credit, several District Court judges have picked up on them -- and on statements made by other unreliable witnesses -- and have dismmissed them outright.
However, when the government's appeal came before the Circuit Court, Hatim was confronted by a panel of judges that included Senior Judge A. Raymond Randolph, another judge noted for his aggressive defense of the government's right to hold whoever it wishes to hold, without much in the way of proof.
In July last year, Judge Randolph led a panel of judges that reversed the successful habeas petititon
of another Yemeni, Mohammed al-Adahi, who had won his petition in August 2009
. Al-Adahi, who was seized in Pakistan, had accompanied his sister to Afghanistan to marry a man who was undoubtedly connected to al-Qaeda, but Judge Gladys Kessler ruled that, despite this, al-Adahi himself had no connection to al-Qaeda, and granted his habeas petition. As I explained when al-Adahi's successful petition was reversed:
There was abundant evidence to suggest that she was correct -- primarily that he had never previously left Yemen, where he had a respectable job, that he was obliged to accompany his sister, who was not allowed to travel alone, and that he was kicked out of a training camp during his stay because he broke the rules by smoking -- but when the government’s appeal came before a panel including Judge Randolph (notorious for endorsing every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court), the Court reversed Judge Kessler’s ruling, with Judge Randolph describing it as “manifestly incorrect -- indeed startling.”
In his ruling, Judge Randolph personally impugned Judge Kessler's integrity, and also stated his belief that the low standard of proof required in the habeas cases --whereby the government only has to support its argument "by a preponderance of the evidence" -- was actually too high. Judge Randolph's intervention was not a legal requirement, but was still significant, as SCOTUSblog explained
, noting that “even if the Justice Department did not now take the Circuit Court’s hint to propose a ‘some evidence’ standard for use in the remaining Guantánamo cases, the way the panel interpreted the preponderance standard would seem to ease the government’s burden of proof significantly.”
With Judge Randolph exercising his baleful influence, it was unsurprising that the Circuit Court vacated Saeed Hatim's successful petittion, ordering it to be sent back for reconsideration by the District Court. With the case of Adham Ali Awad as a precedent, it was clear that Judge Urbina had not specifically addressed the question of whether Hatim had been "part of" al-Qaeda and/or the Taliban, rather than being involved in the "command structure" of either organization, although, in effect, it should have made no difference, as Judge Urbina refused to credit any of the government's supposed evidence because of Hatim's credible allegations that he was tortured.
The Circuit Court erroneously claims that “those who purposefully and materially support” al-Qaeda or the Taliban can be detained
However, in vacating Hatim's successful petition, the Circuit Court went one step further, drawing on the Circuit Court's January 2010 ruling in the case of Ghaleb al-Bihani to argue that even a demonstration that a prisoner was "part of" al-Qaeda and/or the Taliban was too high a hurdle. As the judges explained (PDF
The district court ruled that the military could detain only individuals who were “part of” al-Qaida or the Taliban; and that Hatim did not fit that description. That ruling is directly contrary to Al-Bihani v. Obama, which held that “those who purposefully and materially support” al-Qaeda or the Taliban could also be detained. Hatim admits the error, but says it was harmless. We cannot see how.
Personally, I cannot see how this fundamentally undermines Hatim's successful petition, as no evidence has been provided to overturn Judge Urbina's conclusion that everything Hatim admitted was tainted by torture, but the ruling is deeply disturbing because, as the lawyer Steve Vladeck explained on his blog
[T]he key here is the notion that anyone who "purposefully and materially support[s]" al-Qaeda or the Taliban can be detained indefinitely, whether or not they're in any way affiliated with either group, and whether or not they come anywhere near the definition of a "belligerent" under international humanitarian law.
This is indeed troubling, as it moves the litigation far beyond questions about whether or not it is justifiable to hold soldiers indefinitely at Guantánamo
, and takes us back to the darkest days of the Bush administration
, when, in a memorable exchange in a US court, Deputy Associate Attorney General Brian Boyle responded to a question by Judge Joyce Hens Green -- “If a little old lady in Switzerland gave money to a charity … and the money was passed to al-Qaeda, could she be held as an enemy combatant?” -- by replying, “She could. Someone’s intention is clearly not a factor that would disable detention.”
In his blog post, Steve Vladeck dissected the rather complicated legal reasons why the Al-Bihani panel's claim that “those who purposefully and materially support” al-Qaeda or the Taliban can be detained is wrong, but he was, understandably, concerned that other judges in the Circuit Court appeared to be unconcerned by the actions of a minority of their colleagues, asking:
As it becomes increasingly clear that a small but vocal minority of the D.C. Circuit (Judges Brown, Kavanaugh, and Randolph, in particular) will apparently find any way in any case to adopt holdings that (1) go beyond even what the government is asking for in these cases ... and (2) are indefensible as a matter of law and logic, is anyone else on that court going to notice?
How the mainstream media are asleep, and the Justice Department is appealing successful Yemeni petitions for nakedly political reasons
As the dreams of habeas as a remedy for any of the Guantánamo prisoners now lie in ruins, this is a valid and important question, but its scope should be larger. Why, for example, is no one in the mainstream media concerned by these decisions that are "indefensible as a matter of law and logic," and why is the Justice Department, under Attorney General Eric Holder, also unconcerned?
The answer to the first question appears to be that the mainstream media in the US is either unwilling or unable to address the importance of the Guantánamo habeas litigation, and the answer to the latter would have to be that Holder doesn't care -- and that, by entension, President Obama doesn't care either.
The blunt truth, sadly, is that, throughout Obama's Presidency, Eric Holder has failed to provide any advice or direction to the lawyers working on the Guantánamo
habeas cases, allowing them to behave as though it was business as usual with Bush still in power. Ridiculous cases were aggressively pursued by government lawyers in the District Court in 2009, leading to several high-profile humiliations -- in, for example, the cases of Mohammed El-Gharani
, Alla Ali Bin Ali Ahmed
, Abdul Rahim al-Ginco
, Mohamed Jawad
and Fouad al-Rabiah
In the last year, as the Circuit Court's most extreme judges have been pursuing their poisonous agenda, the Justice Department has shown no willingness to fight back (except on the point about the constraints of the international laws of war in Al-Bihani), and, in fact, seems to be delighted to have discovered that the Circuit Court will grant every government appeal that comes its way.
What makes this even more worrying is the perception that the Justice Department is not even necessarily appealing successful petitions on the basis of their merits, but is pursuing them with a political aim. Since last January, when President Obama announced a moratorium
on releasing any Yemenis from Guantánamo
-- in response to the hysteria that greeted the news that Umar Farouk Abdulmutallab, the failed Christmas 2009 plane bomber, had been recruited in Yemen -- every successful habeas petition by a Yemeni (with the exception of Mohammed Hassan Odaini
, a student whose clearly mistaken detention was picked up by the mainstream media) has been appealed.
This seems deeply suspicious to me, as the government has not only appealed the successful petition of Saeed Hatim, after Judge Urbina put forward a coherent argument that the entire case against him was dependant upon his torture, and on the testimony of a worthless witness, and that of Mohammed al-Adahi, whose guilt would seem to rest solely on the marriage of his sister, but has also appealed the successful petition
of Adnan Farhan Abdul Latif, who was cleared for release under the Bush administration, has severe mental health problems, and has attempted to commit suicide on a number of occasions.
Latif won his habeas petition after a hearing in which the government failed to demonstrate that he had lied about traveling to Pakistan, and then Afghanistan, in search of cheap medical treatment, but as with Saeed Hatim, Mohammed al-Adahi, and others Yemenis still held after winning their petititons, it seems that political expediency, rather than any notions of justice, is driving their ongoing detention
, with a handful of rogue judges in the D.C. Circuit Court allowed to dictate the sort of detention policy that, in Guantánamo
's tenth year of operations, could have come straight out of briefings with George W. Bush and Dick Cheney at the height of the arrogance, disdain for the law and paranoia that informed the unique, and uniquely disturbing detention policies at Guantánamo
That this is still happening now -- and happening under President Obama and Eric Holder -- ought to be a cause for alarm, and a wake-up call for the international community to redirect its attention to Guantánamo, if, as it appears, the United States itself has abandoned all notions of fairness and justice when it comes to the closure of the prison.