In preventing the release of prisoners from Guantánamo, all three branches of the U.S. government are responsible. Barack Obama promised to close the prison within a year of taking office, but he lacked a concrete plan and soon caved in to criticism, blocking a plan by White House counsel Greg Craig to bring some cleared prisoners who couldn’t be safely repatriated — the Uighurs, Muslims from China’s Xinjiang province — to live in the United States, and imposing a ban on releasing all Yemenis after it was discovered that a failed plot to blow up a plane bound for the United States on Christmas Day 2009 was hatched in Yemen.
Congress, in turn, imposed first a ban on bringing prisoners to the U.S. mainland and then, in the last two versions of the National Defense Authorization Act, a ban on releasing prisoners to any country where even a single released prisoner is alleged to have engaged in recidivism (returning to the battlefield) and a requirement that, if prisoners were to be released, the Secretary of Defense would have to certify that they would not be able, in the future, to engage in any terrorist activities — a requirement that appears to be impossible to fulfill.
Largely overlooked has been the responsibility of the judiciary — and specifically, the Court of Appeals in Washington, D.C. (the D.C. Circuit Court), and the Supreme Court, but their role in keeping men at Guantánamo is also crucial.
Nine years ago, in June 2004, in Rasul v. Bush, the Supreme Court granted the prisoners habeas corpus rights, a momentous ruling that pierced the veil of secrecy that had allowed the Bush administration to establish a torture regime at Guantánamo, and also allowed the prisoners to be represented by lawyers, who were allowed to visit them.
No habeas corpus petitions proceeded to court, however, because Congress passed laws that purported to strip the prisoners of their newly granted rights. It was not until June 2008, in Boumediene v. Bush, that the Supreme Court declared that those laws had been illegal and restored the prisoners’ habeas corpus rights.
That second momentous decision led to 38 victories for the prisoners between October 2008 and July 2010, as judges in the District Court in Washington, D.C., examined the cases against them, and concluded that the government had failed to establish, by a preponderance of the evidence (a lower standard than that used in trials), that the prisoners were involved with al-Qaeda or the Taliban.
That was a vindication for those like me who had always maintained that the supposed evidence was profoundly unreliable, consisting largely of witness statements that involved the use of torture, other forms of coercion, or bribery. The decision led to the release of 28 prisoners, but the D.C. Circuit Court soon fought back, on a basis that can only, in all honesty, be attributed to ideology, rather than judicial fairness.
In rulings on appeals, undertaken from January 2010 to October 2011, a handful of judges in this generally very conservative court redefined the standards used by the lower court, reversing or vacating a number of successful petitions and pushing the District Court judges to stop doubting the information put forward by the government as evidence.
The bleakest decision of all took place in October 2011, when the D.C. Circuit reversed the successful petition of Adnan Latif, a mentally ill Yemeni who had also been cleared for release under George W. Bush and by Obama’s interagency task force, telling the lower court that anything put forward by the government as evidence — even battlefield intelligence reports that were often nothing more than hasty, ad hoc assessments — had to be treated as reliable, unless the prisoners could prove otherwise.
Latif died at Guantánamo last September, spurned not only by the D.C. Circuit Court, but by the Supreme Court. In June, the Court had been presented with the opportunity to challenge the Circuit Court’s distortions and its hijacking and annihilation of the prisoners’ habeas rights in seven cases, including Latif’s, but it refused to get involved.
The power of the D.C. Circuit Court to prevent the release of prisoners under any circumstances has been so successful that the eleven habeas petitions that were ruled on between July 2010 and October 2011 were lost, and the prisoners and their lawyers essentially gave up, accepting that habeas corpus for the men in Guantánamo had been killed off by the D.C Circuit Court, and that the Supreme Court didn’t care. Neither did the Justice Department, which had never shown any willingness to drop cases — for prisoners cleared for release by the task force, for example — rather than pursuing them as aggressively as possible.
On June 18, 2013, a judge in the D.C. Circuit Court finally spoke out about this continuing injustice, in a rare appeal by one of the last prisoners whose habeas petition was denied in October 2011. The appeal of Abdul al-Qader Ahmed Hussain, a Yemeni and one of 16 men seized in a house raid in Pakistan in March 2002 — on a house that appears to have largely held students — was denied, but not before Senior Circuit Judge Harry T. Edwards “called on the president and Congress to consider a different approach to the handling of legal cases of Guantánamo Bay prisoners,” as the Associated Press described it.
Edwards made his comments at the end of a written opinion in which he “reluctantly concurred” with the decision of his two fellow judges to reject Hussain’s appeal because of the precedent established by the court.
“However,” he wrote, “when I review a record like the one presented in this case, I am disquieted by our jurisprudence.” He added, “I think we have strained to make sense of the applicable law, apply the applicable standards of review, and adhere to the commands of the Supreme Court. The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantánamo detainee cases.”
This is an important call, one that needs to be heeded by the Obama administration and by lawmakers.
The case against Hussain is demonstrably thin. He had been in Afghanistan prior to the 9/11 attacks and had been living near the front lines of the civil war between the Taliban and the Northern Alliance. There, housemates of his, involved with the Taliban, had supplied him with an AK-47 and had trained him to use it.
According to Judge Thomas Griffith, who wrote the majority opinion, and was backed by Judge Karen LeCraft Henderson, that was sufficient to authorize Hussain’s ongoing imprisonment because it was likely that he was part of an enemy force when he was captured.
Griffith wrote, “Evidence that Hussain carried an assault rifle given him by Taliban forces while living among Taliban forces near a battle line fought over by Taliban forces brings to mind the common sense view in the infamous duck test,” — a reference to the saying “if it looks like a duck, walks like a duck, and quacks like a duck, it’s a duck.”
In response, Edwards called the duck test “quite invidious because, arguably, any young, Muslim man traveling or temporarily residing in areas in which terrorists are known to operate would pass the ‘duck test.’”
More important, he challenged the basis for assessing whether or not Hussain should continue to be detained. Under the Authorization for Use of Military Force, which Congress passed the week after the 9/11 attacks, the president can detain anyone who “planned, authorized, committed, or aided” the attacks. In the prisoners’ habeas corpus petitions, as noted above, the government is required to show, by a preponderance of the evidence, that the prisoner being detained was part of al-Qaeda or the Taliban.
However, as Edwards explained, his fellow judges had “implicitly [shifted] the burden of proof from the Government to Hussain.” He added,
Under the approach adopted by the majority, Hussain’s petition is rejected because he could not offer a coherent story about his whereabouts during the times in question, not because the Government proved by a preponderance of the evidence that he was “part of” al-Qaeda, the Taliban, or associated forces. Respectfully, this is not an appropriate application of the preponderance of the evidence standard. It was the Government’s burden to show that Hussain “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” and this burden was not met by Hussain’s failure to explain his whereabouts. Hussain is not presumed to be guilty under the applicable law merely because he was taken into custody and transferred to Guantánamo.
That is not how it should be, but it is a fair summary of the truth: that the mere fact of having been in Afghanistan or Pakistan with a gun, or staying in a guest house alleged to be associated with al-Qaeda or the Taliban is enough to justify imprisonment for life. So tangential are these claims to the existence of any kind of real threat that it is hardly a great leap to state that many of the men held in Guantánamo are only there because the fact that they ended up in U.S. custody is regarded as proving something significant about the threat they pose.
It is well beyond time that this dark farce, which ruins the lives of men who are no threat to the United States and which blackens America’s name, costs a fortune, and is dangerously counterproductive is brought to an end. If no one will do anything now, then the withdrawal of troops from Afghanistan next year ought to provide a spur for the prison’s closure, a repeal of the outrageous Authorization for Use of Military Force, and, one would hope, an end to the unjustifiable tyranny of judges who — with the exception of Judge Edwards — confuse being a Muslim in Afghanistan or Pakistan between 2001 and 2003 with being a member of al-Qaeda or the Taliban.