Ten years after the “War on Terror” began, the distressing misconceptions and exaggerations on which it was founded continue to plague its victims — and also to corrode America’s belief that it is a nation founded on justice and the law.
Ten years ago, Congress launched this “war,” approving the Authorization for Use of Military Force, a sweeping and overbroad piece of legislation which allowed 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.
The AUMF led to the equation of al-Qaeda (a terrorist group) with the Taliban (the government of Afghanistan), and the fallout from this decision to regard soldiers and terrorists as one and the same, and to hold both as “enemy combatants” without rights, continues to resonate in the corridors of power, and in US courtrooms.
In tackling the predicament of the Guantánamo prisoners — held, initially, without any rights whatsoever — the Supreme Court granted them habeas corpus rights in June 2004, and, after Congress tried to take those rights away (in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006), the Supreme Court was obliged to reassert the prisoners’ habeas rights in June 2008, and to rule that Congress’s interference was unconstitutional.
This was a great success for those seeking to resist the Bush administration’s intention to enshrine arbitrary detention as a replacement for trials and the Geneva Conventions. However, although initially the Supreme Court’s ruling, and the lower courts’ involvement, led to 36 victories for the prisoners, and the release of 26 of these men, the Supreme Court did not attempt to define what an “enemy combatant” was. The lower courts worked hard to define what kind of involvement in al-Qaeda and/or the Taliban was required to justify detention, but they too refused to tackle whether or not it was appropriate to equate al-Qaeda with the Taliban.
As a result, over time — as the right-wing D.C. Circuit Court has become involved in appeals, whittling away at the lower court’s analysis — the government has discovered that, because it is only required to establish by a “preponderance of the evidence” that the prisoners submitting habeas corpus petitions were involved with al-Qaeda and/or the Taliban, and because the Circuit Court is prepared to consider the vaguest of hearsay allegations as evidence, it has been winning case after case, both in the lower court and on appeal.
Because of this, habeas corpus for those held at Guantánamo has been gutted of all meaning, and all that has happened, because of the Circuit Court’s unchallenged interventions, is that indefinite detention (approved by the courts) has replaced arbitrary detention (approved by Congress).
The problem, as it was ten years ago, concerns the definition of those detained in George W. Bush’s “War on Terror,” and the current predicament has come about because no one challenged the Bush administration’s failure to distinguish between al-Qaeda and the Taliban, and President Obama failed to recognize (or chose to ignore) that, in order to close Guantánamo and bring to an end the Bush administration’s excesses, he needed to separate the soldiers from the terror suspects, and to hold the former as prisoners of war.
While 36 of the 171 men still held at Guantánamo were recommended to face trials by the President’s Guantánamo Review Task Force, which examined all their cases in Obama’s first year in office, the soldiers have largely been abandoned, left to file habeas petitions that, even if they succeed, will be overturned by the Circuit Court. consigning them to ongoing detention at Guantánamo on an apparently legal basis that may, as far as they know, last forever.
A case in point is Shawali Khan, an Afghan who lost his habeas petition last September, after the Circuit Court’s instructions to demand little in the way of evidence had filtered down to the lower court. As I explained at the time, Khan, a former farmer, in his 40s, who had traveled with his brother to the city of Kandahar after a drought, and had set up a shop selling kerosene and gasoline, was seized by Afghan forces in November 2002 while riding a motorbike from his home to the market.
On occasion, before his capture, Khan had been a driver for forces loyal to President Hamid Karzai, but he was subsequently accused of being an insurgent with Hezb-e-Islami Gulbuddin (HIG), the anti-US militia headed by Afghan warlord Gulbuddin Hekmatyar, even though there was no actual evidence that this was the case.
As one of his lawyers, Len Goodman, explained, “around the time of his capture, one or more Afghan informants told US intelligence officials in Kandahar that Khan was an active member of a local insurgent group that was plotting to bomb Americans in and around the Kandahar region.” However, “The US intelligence officer did not bother to record the informant’s name or whether he was paid a bounty. Nor did he inquire how the informant acquired his information or whether the informant is a credible person or a criminal. Nor did the official attempt to corroborate the allegations against Khan before sending him off to … Guantánamo.”
It also transpired that Khan had been cleared for release by an Administrative Review Board at Guantánamo under the Bush administration, and had also been approved for release by the Guantánamo Review Task Force, but, when it came to his habeas petition, Judge John D. Bates refused to follow suit, allowing the Circuit Court’s instructions to persuade him that Khan’s appeal should be denied. This was in spite of the fact that the three Afghan informants relied on by the government to prove its case were no more reliable than they had ever been, and their claims were included in reports compiled by Army intelligence collectors, one of which, in Judge Bates’ words, was “perhaps the most redacted report in history.”
However, in the surreal world of Guantánamo, nearly three years after President Obama took office, the habeas litigation, which has become an absurd charade, continues unabated. The Supreme Court has washed its hands of it, and the Justice Department, under Attorney General Eric Holder, has never been instructed to behave as though George W. Bush is not still in power, and has never cross-referenced the cases it prosecutes with the Guantánamo Review Task Force’s findings, which would obviously make sense.
Instead, a meaningless ballet takes place, in which the semblance of justice is still played out by the straitjacketed judges of the District Court, while the paranoid and vengeful judges of the Circuit Court make all the decisions, keeping everyone still in Guantánamo whose case comes before them locked up forever.
Last week, the Circuit Court dealt with an appeal submitted by Shawali Khan, although it was a foregone conclusion that they would turn down his appeal (PDF). Just as predictable was the silence in the mainstream media, which doesn’t even bother to report the habeas litigation anymore, even though it has become a bitter joke — of the kind that damages the credibility of the US justice system.
As for Shawali Khan, Kent Spriggs, one of his lawyers, explained to me almost a year ago, after Khan’s petition was denied, why justice had so thoroughly failed him, when I asked if there were any compelling reasons to doubt the government’s case. “Yes,” he said. “Shawali Khan’s defense team had nine affidavits from his rural village and from Kandahar where he drove for the Karzai government before he supposedly started an HIG cell in an area hundreds of miles from any HIG cells.”
One of the few people to write about Khan’s failed appeal last week was Steven D. Schwinn, an Associate Professor of Law at John Marshall Law School in Chicago, who writes for the Constitutional Law Prof Blog. Explaining what will happen to Khan now, he stated that he “will presumably receive periodic review” under the Executive Order issued by President Obama in March this year, establishing his intention to continue holding 46 prisoners without charge or trial, but to grant them periodic reviews of their cases.
As Professor Schwinn noted, the review process does not favor the prisoners. “Khan,” he wrote, “will have to show, with little help and against the weight of the government, that his detention is not ‘necessary to protect against a significant threat to the security of the United States.’ If he can’t so show, he’ll apparently be subject to detention as long as US forces are fighting al-Qaeda and the Taliban — potentially indefinitely.”
For a man who should never have been held as “a significant threat to the security of the United States” in the first place — either because he was innocent, or, at worst, a minor insurgent in a war zone — that’s a truly depressing conclusion, and a sign that America, at every level — the executive, Congress, the judiciary, the media and the public — has failed to understand how thoroughly Guantánamo continues to erode its moral authority.
As published exclusively on the website of the Future of Freedom Foundation.
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