This was compounded when the US authorities refused to screen them according to the Geneva Conventions to ascertain whether they were combatants or civilians, in spite of the fact that, in the first Gulf War, the US military screened 1,196 men, via what are known as competent tribunals, held close to the time and place of capture, and subsequently concluded that 74 percent of them -- 886 men in total -- had been wrongly seized. In Afghanistan, in contrast, where the prisoners were processed before the long flight to Guantánamo, the instructions handed down from the military leaders, stationed in Kuwait, were that every single Arab who came into US custody was to be sent to Guantánamo.
It was not until June 2004, in Rasul v. Bush, that the US Supreme Court ruled that the prisoners had habeas corpus rights -- in other words, the right to ask a judge why they were being held. This allowed them access to lawyers for the first time, but, although habeas petitions were filed, Congress soon stepped in to help the President preserve his disturbing and unprecedented policy of indefinite detention without charge or trial, passing two pieces of legislation -- the Detainee Treatment Act of 2005, and the Military Commissions Act of 2006 -- which purported to strip the prisoners of the habeas rights granted to them by the Supreme Court.
It took until June 2008, in Boumediene v. Bush, for the Supreme Court to revisit its original habeas ruling, and the Court duly decided that the habeas-stripping sections of the DTA and MCA were unconstitutional, and proceeded to grant the Guantánamo prisoners constitutionally guaranteed habeas corpus rights.
In the two years since Boumediene -- the second anniversary was on June 12 -- judges in the District Court in Washington D.C. have ruled on 50 prisoners’ habeas petitions, and, in 36 of those cases, have concluded that the government failed to establish that the men in question were involved with either al-Qaeda or the Taliban.
Progress has been slow, despite the Court stating that “the costs of delay can no longer be borne by those who are held in custody,” and adding that the prisoners were “entitled to a prompt habeas corpus hearing,” primarily because of obstruction by the Justice Department officials charged with preparing the government’s cases. Disturbingly, those dealing with the cases under President Bush are, for the most part, still in place under President Obama, pursuing cases whether or not there seems to be any sense in doing so.
Judges and lawyers support the habeas litigation in a new report
Nevertheless, as was demonstrated last week in “Habeas Works: Federal Courts’ Proven Ability to Handle Guantánamo Cases” (PDF), a 56-page report published by Human Rights First and The Constitution Project, the judges in the District Court have risen above the obstructions, and have demonstrated, over the last two years, that they are more than capable of separating fact from fiction in the allegations against the prisoners.
As stated by the 16 former federal judges who endorsed the report -- and who, it should be noted, were appointed by Presidents Johnson, Nixon, Ford, Carter, Reagan, George H.W. Bush and Clinton:
Habeas is working … As former federal judges, many of us expressed our confidence as amici in Boumediene v. Bush that courts are competent to resolve these cases. We write now to affirm that our confidence has been vindicated. [A] review of the District Court’s treatment of the Guantánamo litigation convinces us that the court has effectively developed a consistent, coherent, and stable jurisprudence.
The report primarily analyzes the methodology used by the judges, beginning with the Case Management Order drafted by Judge Thomas Hogan shortly after Boumediene, which established “a cautious and coherent set of procedural and evidentiary rules,” giving prisoners “access to three categories of evidence: 1) exculpatory evidence; 2) evidence relied on by the government to justify its detention; and 3) additional evidence if and only if the detainees can show good cause.”
As the authors also explained:
For the first category, the CMO directs the government to disclose to the petitioner “all reasonably available evidence in its possession that tends materially to undermine the information presented to support the government’s justification for detaining the petitioner.” Over a series of cases, the District Court has settled on the interpretation that “reasonably available” means information in one of three databases compiled by the government. The District Court judges have also arrived at uniform interpretations of what evidence “tends materially to undermine” the government’s case. They agree, for instance, that it includes evidence that a witness was subjected to “abusive treatment [or] torture.”
The authors also noted that, for the third category of “additional evidence,” the District Court judges have been “quick to reject broad requests and ‘fishing expeditions,’ but [have] granted narrow and specific requests, such as requests for medical records and evidence of torture.” They also addressed further aspects of the evidence, noting that “the government generally enjoys a rebuttable presumption that its evidence is authentic, but not that its evidence is accurate” -- a key point throughout the cases -- and also covered the use of hearsay (generally evaluated by judges based on its place in the entire record), and other difficult problems addressed by the judges: whether the circumstances in which involuntary statements were made (either through torture or coercion) is affected by the passage of time; what is required for a relationship with al-Qaeda or the Taliban to lapse; and difficulties with the government’s “mosaic theory” of intelligence as a basis for detention.
In addition, the report’s authors, and the retired judges, steered carefully away from making any value judgments about individual rulings. This is important, as one of the report’s key aims -- perhaps its single, overriding aim -- is to silence prominent critics who have argued that the courts have failed to deal coherently with the cases, and that new legislation, specifically aimed at authorizing indefinite detention for terror suspects, is required.
Silencing the critics
Those critics are, primarily, a team of researchers at the Brookings Institution, led by Benjamin Wittes, and the Republican Senator Lindsey Graham. As the authors of “Habeas Works” noted, the Brookings report, “The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking” (PDF), issued in January, argued that the habeas judges “are serving as ‘default legislators’ who are drafting ‘the substantive law of detention itself.’” This, of course, is nonsense, as the authors explained in the following response:
But the courts are doing no such thing. Instead, they are doing what courts in this country are uniquely qualified to do and what they do everyday -- namely, interpreting and applying a substantive standard that has been given to them by the political branches.
That standard is the Authorization for Use of Military Force, passed by Congress within days of the 9/11 attacks, which authorizes 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 September 11, 2001” (or those who harbored them). As interpreted by the Supreme Court in June 2004, in Hamdi v. Rumsfeld, the authorization in the AUMF to use “’necessary and appropriate force’ includes the power to detain combatants subject to such force” when captured on the battlefield, and it is, therefore, erroneous to suggest that the habeas judges “are serving as ‘default legislators’ who are drafting ‘the substantive law of detention itself,’” when what they are clearly doing, as they do every day of their working lives, is interpreting existing laws.
Even more worrying, however, is the Brookings report’s attempt to claim that the habeas judges “have reached inconsistent results,” and its call for a legislative solution, which has been echoed by Sen. Lindsey Graham, who has claimed that Congress needs to “change our laws [and] come up with better guidance” for judges.
This is truly ridiculous, as the authors of “Habeas Works” explained, noting that “close examination of the jurisprudence reveals that what some critics describe as inconsistent applications is, rather, the consistent application of the same standard to different fact patterns” [emphasis in original]. To Benjamin Wittes and the team at Brookings, it was alarming and unacceptable that “some detainees freed by certain district judges would likely have had the lawfulness of their detentions affirmed had other judges -- who have articulated different standards – heard their cases. And some detainees whose incarceration these other judges have approved would likely have had habeas writs granted had the first group of judges heard their cases.” For the authors of “Habeas Works,” however, this attempt to suggest that differing opinions undermine the entire process fundamentally fails to comprehend that this is how the law works -- not just in relation to terrorism, but to all cases that come before the courts. As they explained:
Unsurprisingly, this sometimes leads to different results, but that is a virtue of the common law process, not a fault, for it means that judges are providing precisely the individualized review required by the law and demanded by justice. That different judges may offer modestly different articulations of the same standard is equally unremarkable.
In their conclusion to the report, the retired judges also took exception to these complaints, explaining:
The Guantánamo litigation has tested the judiciary as it has tested the nation. But the judiciary, like the country and the Constitution it serves, has risen to the challenge. As former judges, we do not doubt for an instant that Congress has the power, within constitutional limits, to draft a detailed code that would set this litigation on yet a new direction. Congress could, within limits, write a new detention standard for the courts to apply. Congress could, within limits, write different procedural rules to govern this litigation. But such a course is at once unwise and unnecessary: unwise because it would bring us back to square one just when the courts are finally beginning to resolve these cases; and unnecessary because the federal bench, as it has done for centuries, is steadily developing a coherent and rational jurisprudence.
The final word on this should go, once more, to the report’s authors, who, elaborating on the folly of the proposals put forward by the Brookings Institution and Sen. Graham, noted that any new legislation would also be “subject to judicial interpretation,” because “Even the most detailed regulatory schemes require litigation to define the meanings of terms in specific cases.” As a result, “Congressional involvement … would not clarify the law. On the contrary, it would throw the jurisprudence into disarray and require years of additional litigation just to return to the point we have now reached post-Boumediene.”
I hope that this will be the end of calls to establish new litigation along the lines proposed by the Brookings Institution and Sen. Graham, not just because further delays would contradict the Supreme Court’s requirement, stated in Boumediene, that “the costs of delay can no longer be borne by those who are held in custody,” but also because the cheerleaders for new legislation are so clearly influenced by their preconceived notions of who the prisoners are, which are based on nothing more than the government’s own untested allegations.
This was revealed in another Brookings Institution report, “The Current Detainee Population of Guantánamo: An Empirical Study,” published in January 2009, which drew almost exclusively on the government’s allegations to categorize the prisoners according to the threat they purportedly posed, but ignored the contradictions in the allegations, and failed, abysmally, to do what the habeas judges have done: to expose those contradictions, to test them, and, perhaps most importantly, to test the basis of other allegations that, on the surface, may look substantial, but which, under examination, have been revealed, time and again, to be false statements produced by the prisoners themselves, or by their fellow prisoners, as the result of unacceptable pressures (torture, coercion and threats) or bribery (the promise of better living conditions).
An understandable but crucial omission
While I wholeheartedly endorse the findings of “Habeas Works,” I cannot conclude an analysis of the report without mentioning one particular omission, which relates to fundamental problems with the legislation authorizing the detention of prisoners at Guantánamo in the first place.
On this particular point, I have been arguing, since last January, when Ghaleb al-Bihani, a cook for Arab forces supporting the Taliban, lost his habeas petition, that the basis for holding prisoners at Guantánamo -- the AUMF -- is fundamentally and irredeemably flawed, equating al-Qaeda (a terrorist group) with the Taliban (the government of Afghanistan at the time of the US-led invasion in October 2001), and failing to distinguish between those involved with al-Qaeda in relation to terrorist attacks and those involved with al-Qaeda only insofar as its activities supported the Taliban in its military struggle against the Northern Alliance, which preceded the 9/11 attacks, and had nothing to do with al-Qaeda’s international terrorist operations.
As a result, although I am content to see genuine terror suspects put forward for trials, it is unacceptable that the majority of the 14 prisoners who, to date, have lost their habeas petitions -- and who were nothing more than lowly foot soldiers in an inter-Muslim civil war that mutated into a war against the US following the invasion -- have been consigned to indefinite detention in Guantánamo, on the basis of the AUMF, when they should, all along, have been held as prisoners of war, protected by the Geneva Conventions.
Viewed from this perspective, the primary function of the judges has been to review the prisoners’ cases, as should have happened at the time of capture, evaluating when innocent men were seized by mistake, when others had some sort of involvement with terrorism, when others accused of involvement with terrorism did not, and when others were soldiers (or personnel supporting soldiers).
In most respects, this process has been successful, but the soldiers are the unacceptable exception, not only because they are not held as prisoners of war, but also, crucially, because their ongoing detention at Guantánamo, on an apparently legal basis, fails to raise this distinction at all. Instead, it plays into the hands of those who -- like the researchers at the Brookings Institution, and Sen. Graham, and, it should be noted, the most extreme defenders of Guantánamo, including former Vice President Dick Cheney -- portray the men held at Guantánamo as terrorists, and are allowed to conveniently ignore the yawning gulf, endorsed by the AUMF, that exists between men involved in acts of international terrorism and others involved in a military conflict in Afghanistan.
This confusion is at the heart of the proposed trial by military commission of Omar Khadr, the Canadian citizen who was just 15 years old when he was seized in Afghanistan in July 2002. Khadr is accused of throwing a grenade that killed a US soldier during the firefight that led to his capture, but the case against him is based primarily on the intolerable and unsupportable premise that, since 9/11, when the US is engaged in military conflict, its own men are soldiers, but those who oppose them are terrorists.
As it stands at present, the judges in the habeas cases are being obliged to defend the fundamental errors at the heart of the “War on Terror” inherited by President Obama from the Bush administration, which equates soldiers with terrorists, consigning all of them to equal oblivion, without any regard for the Geneva Conventions, and thereby damages the credibility the habeas judges have established in the many cases in which they have, correctly, dissected the government’s supposed evidence and found it woefully lacking in substance.
Habeas does indeed work, and is the most reliable method for ascertaining the status of the men still held -- far more so than the deliberations of President Obama’s own Guantánamo Review Task Force, which reviewed the cases last year, but found itself, as I explained last week, infected by “institutional caution, credulity regarding the contributions of the intelligence services, an inability to address fundamental problems with the legislation that authorized President Bush’s detention policies in the first place, and a willingness to bend to the demands of political expediency.”
The judges have avoided most of these problems, but they too find themselves unable to address the most fundamental error in the Bush administration’s detention policies. Unlike the Task Force, which could have woken up to this fact, it is not the job of the District Court to recommend that the AUMF be scrapped, but it is something that the administration and lawmakers should be thinking about, instead of listening to the Brookings Institution, Sen. Graham, and the tired tirades of Dick Cheney.
Andy Worthington is a Senior Researcher for Cageprisoners. He is also the author of The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison (published by Pluto Press) and the co-director (with Polly Nash) of the new documentary, “Outside the Law: Stories from Guantánamo.” Visit his website here, and see here for details of the UK tour of “Outside the Law.”