In recent months, those who have been studying Guantánamo closely have come to the disturbing conclusion that the biggest obstacle to President Obama’s pledge to close Guantánamo by January 2010 comes not from the fear-mongering and opportunistic politicians who recently voted to prohibit the use of any funds to release or to transfer prisoners to the United States, and who also authorized legislation that “requires the President to report periodically to Congress on the status of Guantánamo Bay detainees and plans for their transfer,” but from the administration’s own Justice Department.
Echoing the position taken by the Bush administration, Attorney General Eric Holder’s Justice Department is pursuing patently indefensible cases that should have been dropped before being presented to a judge, and is also engaged in what appears to be a systematic policy of delays when it comes to providing exculpatory material to the prisoners’ defense teams (in other words, material that tends to disprove the government’s case), or, in fact, any other material that is vital to mounting a proper defense. Moreover, when given the option to defend a judge’s right to order the release of prisoners against whom no case could be proved, the Justice Department sided with a notoriously pro-Bush judge in the Court of Appeals, who ruled that, although a District Court judge could demolish the government’s case against a Guantánamo prisoner, he or she was powerless to actually order the prisoner’s release.
When Barack Obama came to power, one of his first acts was to issue a number of executive orders to tackle some of the worst excesses of the Bush administration’s “war on terror.” The new president banned the use of torture and promised to close Guantánamo within a year, and to this end established an inter-departmental Guantánamo Task Force to review the prisoners’ cases and to work out what to do with them. While it was understandable that the Obama administration wanted to conduct its own review, to understand who was actually being held at Guantánamo, I had misgivings from the beginning about how this would mesh with the ongoing district court reviews of the prisoners’ cases, which had been triggered last June when the Supreme Court ruled, in Boumediene v. Bush, that the prisoners had habeas corpus rights.
In the months since, I have not been reassured that two layers of review — one by the executive and one by the judiciary — is the most effective way of dealing with the prisoners’ cases, and these misgivings have been exacerbated by the Justice Department’s obstruction, delays, and imitation of Bush-era policies outlined above, to the extent that I can only conclude that the administration is either attempting to sideline the courts, and believes that the only valid review process is the one being undertaken by its own inter-departmental Guantánamo Task Force, or that Eric Holder is not in charge of his own staff.
Both conclusions are disturbing; the first because sidelining the judiciary in favor of an essentially secretive executive review is so uncomfortably reminiscent of the ways in which the Bush administration operated, and the second because, on a topic as important as Guantánamo, the attorney general’s seeming inability to direct the operations of those working on the Guantánamo habeas cases reveals that the DOJ is still full of employees who maintain allegiance to Bush-era policies, that Holder himself holds those views, or, as above, that he is concerned only with the findings of the Guantánamo Task Force and is unconcerned by the prisoners’ long legal struggle to test the basis of the allegations against them in a court of law.
With the Justice Department recently humiliated in two habeas reviews — of Alla Ali Bin Ali Ahmed, a Yemeni, and of Abdul Rahim al-Ginco, a Syrian who was tortured by al-Qaeda before he ended up in U.S. custody — and almost certainly about to face another humiliation in the case of Mohamed Jawad, an Afghan whose story I have been reporting since October 2007 (see here, here, here and here), I have decided to take this opportunity to present a three-part overview of the habeas cases over the last 13 months.
In this first part, I examine the history of the habeas cases under the Bush administration, and in the second and third parts I bring the story up to date by looking in detail at the many failures of the Obama administration, as outlined above. Bear in mind throughout that, of the 31 cases decided by the courts, 26 have ended in defeat for the government, an 84 percent success rate for the prisoners that both justifies campaigners’ claims that the prison has largely held men (and boys) with no connection to al-Qaeda or any other terrorist group, and shows up the prison’s defenders (former Vice President Dick Cheney and the politicians mentioned above) as, at best, deluded, and, at worst, outright liars.
The Guantánamo prisoners’ long struggle to secure rights
Thirteen months ago, the long quest of the men held at Guantánamo to secure the most fundamental right of a prisoner — to be brought before a judge to ask why he is being held — was granted by the Supreme Court in Boumediene v. Bush (named after the Algerian prisoner, Lakhdar Boumediene, who was finally released from Guantánamo in May).
It was not the first time that the Guantánamo prisoners had been granted habeas corpus rights. Four years before, on June 29, 2004, the Supreme Court had ruled, in Rasul v. Bush, that they had habeas corpus rights, after concluding that Guantánamo — which was chosen as the location for the prison because it was presumed to be beyond the reach of the U.S. courts — was “in every practical respect a United States territory” and that therefore the 800-year old “Great Writ,” first conceived in England in the reign of King John, applied to the prisoners. As Justice John Paul Stevens declared,
Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.
The Supreme Court had been stirred to this unusual ruling, granting habeas rights to foreigners detained in wartime, because of its grave concerns that the prisoners, held, uniquely, as “enemy combatants” — in other words, neither as prisoners of war, protected by the Geneva Conventions nor as criminal suspects, who would face a trial in federal courts — had never been adequately screened to determine whether they should be held, and were, literally, outside the law.
The ruling in Rasul shattered the secrecy necessary for Guantánamo’s existence as a lawless experiment in coercive interrogations to continue as it had for two and a half years, because lawyers began arriving at the prison, to draw up habeas petitions, and to hear — and then to transmit to the outside world — some of the prisoners’ horrendous stories of the abuse and torture to which they had been subjected.
In terms of the law, however, little else changed. The Bush administration ignored the thrust of the Supreme Court’s ruling — that the prisoners should be able to challenge their detention in federal courts — and instead introduced military review boards (the combatant status review tribunals) to review their cases. Drawing on classified evidence that was not disclosed to the prisoners, who were prevented from having legal representation, these were dreadfully one-sided affairs, designed primarily to rubberstamp the prisoners’ automatic designation, on capture, as “enemy combatants,” as Lt. Col. Stephen Abraham, a veteran of U.S. intelligence who served on the tribunals, explained in a series of shocking and deeply damaging revelations in 2007.
Nevertheless, the administration behaved at the time as though the tribunals were legitimate, and, moreover, set about gutting Rasul by persuading Congress to pass two hideously flawed pieces of legislation — the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 (PDF) — which, amongst other provisions, purported to strip the prisoners of the habeas rights granted in Rasul.
These laws never prevented lawyers from visiting their clients in Guantánamo (although the Pentagon did all it could to be obstructive), but they did freeze the habeas cases, leaving the men to stew in a legal limbo that became all the more intolerable as the years dragged by.
This, then, was the main reason why Boumediene was so important, as, four years on from its first ruling, the Supreme Court was obliged to stamp its authority by ruling that Congress had acted unconstitutionally when it passed the habeas-stripping provisions in the DTA and the MCA, and to rule that this time around the prisoners’ habeas rights were constitutionally guaranteed, meaning that they could not once more be tampered with by somnambulant or otherwise incapacitated politicians, bent into unconstitutional shape by a bullying executive branch.
A stunning early victory, followed by Justice Department obstruction
Two weeks after Boumediene, one of the cases that had been frozen for years was resuscitated in the Court of Appeals, with dire results for the government. The case, Parhat v. Gates, was brought by Huzaifa Parhat, one of the Uighurs (Muslims from China’s oppressed Xinjiang province) who were finally freed from Guantánamo a month ago, and allowed to settle in Bermuda, and when the judges — two conservatives and a liberal, it should be noted — were free to act, they duly ruled that Parhat’s four-year old designation as an “enemy combatant” was “invalid.”
The court was unconvinced by the government’s claims that Parhat, who had fled Chinese oppression and had been living in a run-down settlement in Afghanistan’s Tora Bora mountains that was unconnected to either al-Qaeda or the Taliban, was part of a Uighur separatist group, and lambasted the quality of the government’s evidence — in which an attempt to make a case was conjured up by citing from three separate classified government reports — as being akin to a nonsense poem by Lewis Carroll, author of Alice’s Adventures in Wonderland. “Lewis Carroll notwithstanding,” the judges wrote, “the fact the government has ‘said it thrice’ does not make an allegation true.”
Despite this early victory, the District Court’s attempt to swiftly implement habeas reviews, which was driven, in particular, by the Supreme Court’s admonition that, “While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody,” and its demand that “The detainees in these cases are entitled to a prompt habeas corpus hearing,” was stymied when the Justice Department almost immediately began dragging its heels.
On July 2, 2008, the District Court’s Chief Judge Royce C. Lamberth announced that Senior Judge Thomas F. Hogan had been assigned “to coordinate and manage proceedings in all Guantánamo Bay cases so that these cases can be addressed as expeditiously as possible,” but when lawyers for the prisoners and DOJ representatives met Judge Hogan two weeks later, Assistant Attorney General Gregory Katsas “asked for two months to recruit lawyers and at least another two months to amend the existing returns [roughly 100 in total] and file 100 new ones.” He claimed, additionally, that the effort would strain the Justice Department’s resources “almost to the breaking point.”
As the Miami Herald explained in a pointed editorial, “the court was skeptical, to say the least. Judge Hogan said he could not fathom why evidence would suddenly have to be changed if it had been considered strong enough to warrant holding the detainees for periods of up to six years.” In Hogan’s own words, “If it wasn’t sufficient, then they shouldn’t have been picked up.”
In addition, as I explained in Reuters described it, that he “would not allow the Department of Defense or the CIA to delay the cases while reviewing classified information used to hold the prisoners as enemy combatants.” “Let there be no doubt that the Department of Defense and the CIA must be prepared to come to the courtroom and defend their decisions if we get any sense that there is an effort by those agencies to slow down the proceedings,” he said.
Judge Leon added that he wanted to decide the cases before the next president takes office in January 2009, and, although this was rather optimistic, the dogged determination with which he obeyed the Supreme Court’s order meant that he did indeed manage to review a number of cases before his self-imposed deadline, while other judges had not even gotten off the starting blocks.
To do this, however, he had to overcome more delaying tactics. As I reported last September, although judges had been appointed to review the 250 habeas cases in July, and the District Court “ordered the government to file factual returns at a rate of fifty per month, with the first fifty due by August 29, 2008,” the Justice Department waited until just before the deadline, and then, with only 22 returns filed, filed an “instant motion” begging for more time, pleading that it “simply did not appreciate the full extent of the challenges posed by the extensive need for classified information in these cases when [it] proposed to complete the first set of factual returns by the end of August,” and asking for an extension of 30 days.
Senior officials, including Daniel Dell’Orto, the acting general counsel for the Department of Defense, and Gen. Michael Hayden, the director of the CIA, described “the substantial resources and efforts the government has devoted to preparing factual returns and the risk of harm to the national security involved in releasing classified information to persons outside the Executive Branch.”
Judge Hogan agreed to grant the government’s motion, noting that the cases were “not run of the mill; they involve significant amounts of sensitive, classified information concerning individuals whom the government alleges were part of or supporting the Taliban or al-Qaeda or other organizations against which the United States is engaged in armed conflict.” However, he added that he only agreed “reluctantly,” and was “disappointed in the government’s failure to meet the schedule the Court adopted based in part on the government’s assurances.” Citing statements in which the government claimed that it had “attempt[ed] to meet its goal” and that it would “continue to strive to meet the 50-per-month requirement,” Judge Hogan added, pointedly, that the court was “not merely setting a ‘goal’ for which the government is to ‘strive,’” but was, rather, “ordering the government to produce at least fifty factual returns by month’s end, followed by at least another fifty more each month thereafter until production is complete.”
As I also explained in September,
In conclusion, while Judge Hogan recognized the government’s explanation that, since the Supreme Court ruling, its “[a]ttorneys and others from multiple agencies have worked long and hard, nights and weekends,” he reminded the executive that “the government has detained many of these petitioners for more than six years, and the time has come to provide them with the opportunity to fully test the legality of such detention in a prompt, meaningful manner.”
He added, with a hint of irritation about the administration’s sidelining of the judiciary, that the decision to grant the prisoners habeas rights was “no bolt out of the blue,” as the government contended, because the Supreme Court had ruled, four years before (in Rasul v. Bush), that they had this right.
Court victories for the Uighurs and five Bosnian Algerians
In October, when, after Parhat, the government conceded defeat in the case of the Uighurs and abandoned all pretense that any of the 17 men were “enemy combatants,” Judge Ricardo Urbina, reviewing their habeas cases in the District Court in Washington D.C., ordered all 17 men to be released to the care of communities in the capital, and in Tallahassee, Florida, who had prepared detailed plans for their resettlement, because it was unsafe for them to return to China, because no other country had been found that would accept them, and because their continued detention was unconstitutional.
“I think the moment has arrived for the court to shine the light of constitutionality on the reasons for detention,” Judge Urbina stated in his landmark decision, adding, “Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful. Because separation-of-powers concerns do not trump the very principle upon which this nation was founded — the unalienable right to liberty — the court orders the government to release the [men] into the United States.”
Sadly for the Uighurs (and for the cause of justice, so shamefully disdained at Guantánamo), the government fought back, launching an immediate appeal to prevent a judge from actually ordering the release of men into the United States against the wishes of the executive. Shamelessly resuscitating its own long-discredited claims that the Uighurs were “a danger to the public,” who had “admitted receiving weapons training at a military training camp” (even though it had failed to challenge the Uighurs’ cases before Judge Urbina), the government requested a stay on Judge Urbina’s ruling, and this was granted by a three-judge panel in the Court of Appeals, which included Judge A. Raymond Randolph, who, notoriously, voted for every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court.
This was an enormous disappointment, of course, but while the Uighurs awaited a full ruling by the Court of Appeals, Judge Leon then hit his stride, launching the first full habeas reviews since Guantánamo opened six years and ten months previously by demolishing the cases against five out of six Algerians who had been kidnapped in Bosnia (where they had been living and working for many years) and flown to Guantánamo in January 2002.
Notoriously, the men had been seized in connection with an alleged plot to blow up the U.S. embassy in Sarajevo, but the plot had never been mentioned during their detention at Guantánamo, and when the habeas reviews came round, five of the six men were, instead, accused of intending to travel to Afghanistan to take up arms against U.S. forces.
In his ruling, on November 20, when he was called upon to determine whether the prisoners could continue to be held as “enemy combatants” because they were “part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners” — or because they had “committed a belligerent act or ha[d] directly supported hostilities in aid of enemy armed forces” — Judge Leon authorized the habeas claims of five of the six men, explaining that the government had relied “exclusively on the information contained in a classified document from an unnamed source,” but stressing that this information — “the only evidence in the record directly supporting each detainee’s alleged knowledge of, or commitment to, this supposed plan” — was inadequate, because, although the government had “provided some information about the source’s credibility and reliability,” it had not “provided the Court with enough information to adequately evaluate the credibility and reliability of this source’s information.”
Three disturbing victories for the government
There was some consolation for the government, in that Judge Leon ruled that the sixth man, Belkacem Bansayah, could continue to be held as an “enemy combatant,” because the government had provided “credible and reliable evidence,” from a number of sources, “linking Bensayah to al-Qaeda and, more specifically, to a senior al-Qaeda facilitator.” Leon also stated, “There can be no question that facilitating the travel of others to join the fight against the United States in Afghanistan constitutes direct support to al-Qaeda in furtherance of its objectives and that this amounts to ‘support’ within the meaning of the ‘enemy combatant’ definition governing this case.”
Judge Leon’s ruling in Bensayah’s case raised a new set of problems for lawyers, as did his ruling in two further cases on December 30, when he turned down the habeas petitions of two other prisoners — Muaz al-Alawi, a Yemeni, and Hisham Sliti, a Tunisian — on the basis that Sliti was associated with al-Qaeda, and al-Alawi “was part of or supporting Taliban or al-Qaeda forces,” because he “stayed at guest houses associated with the Taliban and al-Qaeda … received military training at two separate camps closely associated with al-Qaeda and the Taliban and supported Taliban fighting forces on two different fronts in the Taliban’s war against the Northern Alliance.”
As I explained in an article at the time, the problem with all these decisions was that the Supreme Court had not empowered the lower courts to question whether the very definition of an “enemy combatant” was sufficient to hold prisoners indefinitely without charge or trial if a plausible case was established that they had somehow been involved with al-Qaeda or the Taliban. The most fundamental difficulty was with rulings relating to involvement with the Taliban, as this harked back to the initial mistakes that were made when the Taliban (a government, however despised) was equated with al-Qaeda (a small terrorist group), and this was made clear in the case of Muaz al-Alawi.
Although al-Alawi was in Afghanistan before the 9/11 attacks and was fighting with the Taliban against the Northern Alliance, Judge Leon ruled that he was an “enemy combatant” because he endorsed the government’s claim that, “rather than leave his Taliban unit in the aftermath of September 11, 2001,” al-Alawi “stayed with it until after the United States initiated Operation Enduring Freedom on October 7, 2001; fleeing to Khowst and then to Pakistan only after his unit was subjected to two-to-three U.S. bombing runs.” As I put it at the time,
In other words, Judge Leon ruled that Muaz al-Alawi can be held indefinitely without charge or trial because, despite traveling to Afghanistan to fight other Muslims before September 11, 2001, “contend[ing] that he had no association with al-Qaeda,” and stating that “his support for and association with the Taliban was minimal and not directed at U.S. or coalition forces,” he was still in Afghanistan when that conflict morphed into a different war following the U.S.-led invasion in October 2001. As Leon admitted in his ruling, “Although there is no evidence of petitioner actually using arms against U.S. or coalition forces, the Government does not need to prove such facts in order for petitioner to be classified as an enemy combatant under the definition adopted by the Court.”
While this suggests to me that Muaz al-Alawi should, at best, have been held as a prisoner of war according to the Geneva Conventions (so that we would now be discussing whether it was appropriate to hold POWs forever, when the specific conflict in which they were seized — toppling the Taliban regime in Afghanistan — was achieved seven years ago), the cases of Belkacem Bensayah and Hisham Sliti are rather more complicated. In Bensayah’s case, the problem is that his alleged involvement with al-Qaeda centered on his purported relationship with Abu Zubaydah, the supposed “high-value detainee,” who, as has been demonstrated in detail over the last few years, was not actually a member of al-Qaeda at all, and in Sliti’s case, Judge Leon’s ruling essentially involved guilt by association. As I explained in January,
He may well have been connected with others who were involved in or interested in terrorism, but his own trajectory is that of a junkie rather than a jihadist, or, if you prefer, a tourist rather than a terrorist. Judge Leon disregarded Sliti’s own claim that he went to Afghanistan “to kick a long-standing drug habit and to find a wife,” but it was certainly true that he had been a drug addict in Europe (where he had been imprisoned in various countries on several occasions), and, as his lawyer Clive Stafford Smith has explained, he has a worldly cynicism that is fundamentally at odds with the fanatical rigor of al-Qaeda.
Victory for Guantánamo’s youngest prisoner
As the Bush administration left office, these fundamental problems had not been addressed, leading me to conclude that, although Judge Leon was observing the law, it was both cruel and unjust, “as the three men in question continue to be held with less rights than those afforded to the most murderous individuals imprisoned on the U.S. mainland, even though none of them is alleged to have harmed a single U.S. citizen.”
However, the tally of verdicts — 22 habeas appeals granted in 25 cases — indicated that the habeas reviews had triumphantly demonstrated the necessity of providing the Guantánamo prisoners with a means to challenge the basis of their detention, and these odds improved on January 14, when Judge Leon delivered his final ruling under the Bush administration, delivering a last resounding blow to Guantánamo’s credibility by granting the habeas petition of Mohammed El-Gharani, a Saudi resident (and Chadian national) who was just 14 years old when he was seized in a random raid on a mosque in Karachi, Pakistan, where he had traveled in the hope of furthering his education.
In spite of this, the government claimed that El-Gharani “arrived in Afghanistan at some unspecified time in 2001,” and was “part of or supporting Taliban or al-Qaeda forces,” for a variety of reasons, including claims that he received military training at an al-Qaeda-affiliated military training camp, fought against U.S. and allied forces at the battle of Tora Bora, and was a member of an al-Qaeda cell based in London.
Noting that the government’s supposed evidence against El-Gharani consisted of statements made by two other prisoners at Guantánamo, and that, moreover, these statements were “either exclusively, or jointly, the only evidence offered by the Government to substantiate the majority of their allegations,” Judge Leon stated that “the credibility and reliability of the detainees being relied upon by the Government has either been directly called into question by Government personnel or has been characterized by Government personnel as undermined,” and dismissed all the claims, reserving particular criticism for the claim that El-Gharani had been a member of a London-based al-Qaeda cell. As I wrote in January,
This was, indeed, the most extraordinary allegation, as El-Gharani was just 11 years old at the time, and, as his lawyer, Clive Stafford Smith, explained in his book The Eight O’Clock Ferry to the Windward Side: Seeking Justice in Guantánamo Bay, “he must have been beamed over to the al-Qaeda meetings by the Starship Enterprise, since he never left Saudi Arabia by conventional means.”
Leon’s verdict was marginally less colorful, but no less devastating. “Putting aside the obvious and unanswered questions as to how a Saudi minor from a very poor family could have even become a member of a London-based cell,” he wrote, “the Government simply advances no corroborating evidence for these statements it believes to be reliable from a fellow detainee, the basis of whose knowledge is — at best — unknown.”
This was a high point in the litigation on behalf of the Guantánamo prisoners, and as Barack Obama swept into office, there was a widespread anticipation that the obstruction of the Bush years would come to an end, and that Obama and his Attorney General Eric Holder would move swiftly to facilitate the swift passage of the remaining habeas cases.
As I demonstrate in Parts Two and Three of this article, however, in its first six months in office, the Obama administration has behaved as though George W. Bush and Dick Cheney are still in the White House, pressing ahead with cases that are as worthless and unprincipled as those against the Uighurs, the Bosnian Algerians and Mohammed El-Gharani, indulging in the same obstruction that disappointed Judge Hogan last August, and refusing — ever — to tell the American public what it really needs to know: that the Bush administration’s “war on terror” was such a disaster that, when the Guantánamo prisoners have had an opportunity to challenge the basis of their detention in a US court, 84 percent of the cases considered have led to a humiliating defeat for the government, whether that government was led by George W. Bush, or by Barack Obama.
