Judges Keep Guantánamo Open Forever – OpEd

Seven years ago, on June 28, 2004, the Supreme Court issued a historically important ruling in Rasul v. Bush, establishing that foreign nationals held at the Bush administration’s “War on Terror” prison at Guantánamo Bay, Cuba, had habeas corpus rights; in other words, the right, under the “Great Writ,” first established in England in 1215, to ask an impartial judge to rule on whether there were grounds for their detention.

A bulwark against arbitrary imprisonment, habeas corpus was essential for the prisoners at Guantánamo, who, for the previous two and a half years, had been held in what Lord Steyn, a British law lord, described as a “legal black hole” in a speech in November 2003, unable to seek any redress whatsoever if, as many of them claimed, they had been seized by mistake.

With breathtaking arrogance, the Bush administration had refused to screen those it captured through Article 5 competent tribunals. Also known as battlefield tribunals, these are part of the Geneva Conventions, designed to screen prisoners who, like those in the “War on terror,” were not part of a regular army. The US military had used them since Vietnam, and in the first Gulf War, for example, had held 1196 tribunals, and, in 886 cases (74 percent), found it had detained civilians instead of combatants, and released them (PDF, p.663).

In Afghanistan, the Bush administration refused to allow the military to hold competent tribunals, and this, combined with the appalling incentives for dishonesty produced by offering substantial bounty payments for anyone who could be dressed up as al-Qaeda or the Taliban by America’s allies in Afghanistan and Pakistan, meant that Guantánamo, rather than holding “the worst of the worst,” actually held a large number of what Maj. Gen. Michael Dunlavey, a commander of the prison in 2002, described as “Mickey Mouse” prisoners.

Rasul v. Bush punctured the essential secrecy of Guantánamo, bringing the torture program at the prison to an end, and allowing lawyers access to the prisoners for the first time, but the Bush administration fought back, persuading Congress to pass two pieces of legislation that purported to remove the prisoners’ habeas rights — the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 (PDF) — and it was not until June 2008 that the Supreme Court ruled for a second time on the prisoners’ rights, establishing, in Boumediene v. Bush, on June 12, 2008, that Congress had acted unconstitutionally when it purported to strip the prisoners of their habeas rights, and ensuring that the prisoners’ habeas rights were constitutionally guaranteed.

Since then, judges in the District Court in Washington D.C. have examined the habeas petitions of 59 prisoners, and have concluded, in 38 of those cases, that the government failed to establish, “by a preponderance of the evidence” — a much lower standard than would apply in criminal cases — that the men in question were connected with either al-Qaeda and/or the Taliban.

Until a year ago, this was a resounding vindication for those like myself, and researchers at the Seton Hall Law School in New Jersey (PDF), who had highlighted how Guantánamo had come to hold so many innocent men or thoroughly insignificant foot soldiers, and how exaggerations, distortions and lies extracted through torture and coercion (or bribery) permeated what the government purported to present as evidence.

In case after case, judges — even Conservative appointees of George W. Bush, like Judge Richard Leon — exposed the government’s supposed evidence as being based on statements made by the prisoners themselves or by their fellow prisoners, either under torture or other forms of coercion, or, in some cases, as a means of securing more favourable treatment, or even release from Guantánamo.

However, this run of justice came to an end last July, when the full impact of a series of rulings in the appeals court (the D.C. Circuit Court) came into effect. Under the guidance of a handful of deeply Conservative judges — and in particular, Senior Judge A. Raymond Randolph, who had endorsed every piece of Guantánamo-related legislation under George W. Bush that was subsequently overturned by the Supreme Court — the Circuit Court has indicated that the government does not need to present much in the way of evidence, has reversed or vacated a number of successful habeas petitions, and has led to a situation in which the last seven petitions have all been won by the government.

The Circuit Court’s obstruction — unchallenged by the Supreme Court — is such that, just a month ago, two Yemeni prisoners — Fahmi Al-Assani and Suleiman Al-Nahdi, who lost their habeas petitions last February — gave up their appeals rather than proceeding. Their lawyer, Richard Murphy, explained that “appeals were futile.” He added:

Under the detention standard that has been developed by the D.C. Circuit (which the Supreme Court has refused to review), it is clear that the courts provide no hope for the men remaining at Guantánamo.

That is a bleak but appropriate conclusion, and not just because another prisoner, Musa’ab al-Madhwani, who lost his habeas petition in December 2009, lost his appeal a month ago, through a ruling in which the Circuit Court decided that prisoners can continue to be held not on the basis of “substantial support” for al-Qaeda or the Taliban (as endorsed by the Obama administration), but on “support” that is far less than substantial.

That ruling was also notable for the Circuit Court’s reiteration of an opinion from an earlier ruling (by Judge Randolph) that, “if a person stays in an al-Qaeda guesthouse or attends an al-Qaeda training camp, this constitutes ‘overwhelming’ evidence that the United States had authority to detain that person.”

However, the most distressing example recently is the case of Hussein Almerfedi, another Yemeni, who won his habeas petition last July but had that successful opinion reversed on June 10 (PDF). One of ten men seized in Iran and transferred to Afghan custody as part of a prisoner swap, Almerfedi and the other men were then transferred to US custody, held in secret prisons run by the CIA, and then moved to Guantánamo.

In granting Almerfedi’s habeas petition last July, Judge Paul Friedman accepted that he had been attempting to travel to Europe via Iran, when he was captured, and also refused to be swayed by unprincipled claims, on the government’s part, that it was appropriate to describe Jamaat-al-Tablighi, the vast missionary organisation with whom he stayed in Pakistan for two and a half months, as an organisation used “as cover to mask travel and activities of terrorists including members of al-Qaeda.”

This argument was used repeatedly at Guantánamo for many years, even though it is akin to designating the Catholic Church as a terrorist organisation because of the activities of the IRA. However, it was not until WikiLeaks recently released the military’s classified assessments of the Guantánamo prisoners that it was revealed that, according to the National Intelligence Priorities Framework used by the US intelligence agencies (see, for example, PDF, p. 2), Jamaat-al-Tablighi is a “Priority 3 Terrorist Support Entity (TSE),” and that “Priority 3 TSE have demonstrated intent and willingness to provide financial support to terrorist organisations willing to attack US persons or interests, or provide witting operational support to Priority 1-2 terrorist groups.”

In an explanatory note, it was stated that Jamaat-al-Tablighi “is a proselytizing organisation and has been supporting Islamic terrorist groups in South and Southeast Asia under the cover of conducting religious activities. Affiliation with the JT … has been identified as an al-Qaeda cover story. Al-Qaeda used the JT to facilitate and fund the international travels of its members.”

This is, to be blunt, a horribly sweeping generalization, but it is clearly accepted without criticism not only by the military, but also by the Circuit Court, as the judges in Almerfedi’s appeal — Senior Judge Silberman, and Judges Kavanaugh and Rogers — almost repeated verbatim what had, until WikiLeaks’ recent revelations, been unknown to the general public: that Jama’at Tablighi was

an Islamic missionary organization, which US intelligence has designated a Terrorist Support Entity. That is a category of organizations that has “demonstrated intent and willingness to provide financial support to terrorist organizations,” or to provide “witting operational support” to terrorist groups.

Beyond this, there were doubts about Almerfedi’s travels — why he had travelled east, from Tehran to Meshad, when he professed to be trying to travel west to reach Europe, but that — plus the $2000 that he had in his possession — was hardly sufficient to reverse his petition.

The only other supposed evidence on the government’s part should also have been regarded as worthless — a claim by a Saudi prisoner, Humoud al-Jadani, who was freed from Guantánamo in July 2007, that Almerfedi “told him that [he] was housed in a guesthouse in Tehran maintained by al-Qaeda in 2002 or 2003,” and that “other, unnamed detainees had said that a ‘Hussain al-Adeni’ [from Aden, like Almerfedi] was an al-Qaeda facilitator who resided at a guesthouse in Tehran.”

As the judges reported, but failed to accept:

Although Almerfedi does not contest much of the government’s narrative, he disputes that he ever stayed at an al-Qaeda-affiliated guesthouse in Tehran. He points out that the dates al-Jadani reports Almerfedi having been at a guesthouse in Tehran are obviously incorrect — because it is undisputed that Almerfedi was captured by the Iranians in December 2001 or January 2002, Almerfedi could not have been at a guesthouse in 2002 or 2003.

I’m not sure I can explain how disappointing it is that, with nothing resembling evidence, and with little more than distortions about Jamaat-al-Tablighi, and credence given to dubious testimony from a fellow prisoner of Hussein Almerfedi’s in Guantánamo, the Circuit Court has smugly, even triumphantly asserted yet again that, when it comes to Guantánamo, it has gutted habeas corpus of all meaning.

To be honest, the best I can do is return to the lament of Richard Murphy, the attorney for two men who recently gave up rather than appeal. It is indeed clear, as he said, that “the courts provide no hope for the men remaining at Guantánamo,” and that is a profound disappointment, as the courts were supposed to do what they did so admirably until about a year ago — provide some objective analysis of the propaganda and untested allegations used to detain the Guantánamo prisoners.

Now, however, in the hands of the D.C. Circuit Court, it is all worthless, and the barest of suspicions of involvement with al-Qaeda or the Taliban is regarded as sufficient to consign men to imprisonment for the rest of their lives at Guantánamo. Senior officials in the Obama administration — not to mention the Supreme Court — ought to be ashamed.