Regular readers will know that the Guantánamo prisoners’ habeas corpus petitions led to the release of 26 prisoners between December 2008 and January 2011, providing confirmation that the US courts were able to address mistakes made by the Bush administration in rounding up "detainees" in its "War on Terror," to expose those mistakes, and even to provide a remedy for them by securing the release of prisoners who should never have been held.
Last year, however, the D.C. Circuit Court — dominated by right-wingers, including Senior Judge A. Raymond Randolph, notorious for supporting every piece of Guantánamo-related legislation that was later overturned by the Supreme Court — began to fight back, pushing the lower courts to accept that very little in the way of evidence was required to justify detentions.
I have long railed against the inability of the executive, lawmakers or the judiciary to address the built-in problems of detention policies in the "War on Terror" — the Bush administration’s dreadful decision to equate the Taliban with al-Qaeda, thereby ensuring that both soldiers and terror suspects were held as interchangeable "detainees" at Guantánamo, and continue to be held as such.
This remains a huge problem, almost entirely ignored by the mainstream media in the US, although it is matched by the media’s lack of interest in what has happened since the D.C. Circuit Court began to dictate detainee policy, even though that has led to success for the government on every appeal, with the Circuit Court reversing or vacating the lower courts’ rulings in six habeas petitions, and has also led to the last eight habeas petitions (since July last year) being refused (see here, here, here, here and here for the evidence).
One of the prisoners who won his petition, but remains held while the government appeals, is Ravil Mingazov, a citizen of the former Soviet Union, whose story I told in detail when his habeas petition was granted by Judge Henry H. Kennedy Jr, in May 2010, in an article entitled, "Judge Orders Release from Guantánamo of Russian Caught in Abu Zubaydah’s Web."
One of Ravil’s lawyers, Allison M. Lefrak, who is the litigation director at Human Rights USA, described as "a nonprofit organization in Washington working to bring US laws in line with universal human rights standards," recently wrote an article for the National Law Journal, describing the lack of progress in Ravil’s case, and her most recent visit to see him in Guantánamo.
This is a fascinating insight into the man behind the government’s propaganda, and also into the shocking delays and manipulation in his case, with, as Lefrak reports, the government’s appeal "now stayed in light of the government’s motion to present the lower court with 'new’ evidence — evidence the government purportedly only located recently, eight years after Ravil was arrested in Faisalabad," and which, according to the government, "would persuade Kennedy to reverse his decision and deny Ravil the writ of habeas corpus."
That, I think, is the injustice of Guantánamo in a nutshell, and I hope you have time to read Allison Lefrak’s article in full.
Justice denied at Guantánamo
By Allison M. Lefrak, National Law Journal, September 19, 2011
As we always do at the onset of our meeting with Ravil Mingazov, my interpreter and I spread a variety of food items on the table in front of us — crusty bread, cheese and an array of sweets. We’ve gone through this same ritual every three months for five years now. And while things change for us in the outside world — marriages occur, babies are born, holidays are celebrated — for Ravil, there is very little that has changed from our first meeting back in January 2006.
Ravil remains in Guantánamo Bay, Cuba — [nine and a half] years after the night he was arrested at a house for refugees in Faisalabad, Pakistan. He remains in Guantánamo more than three years after the US Supreme Court issued its opinion in Boumediene v. Bush extending the writ of habeas corpus to Guantánamo detainees and giving the lower courts great discretion in how to handle these cases.
He remains in Guantánamo, 18 months after a week-long trial at the US District Court for the District of Columbia before Judge Henry Kennedy Jr., in which the facts of his case were presented in a closed courtroom. He remains in Guantánamo more than a year after Kennedy issued a comprehensive 42-page opinion [PDF] methodically analyzing each piece of evidence presented by the government, and concluding that, after eight years of detention, the government failed to prove by a preponderance of the evidence that Mingazov was "a part of or substantially supported" al-Qaeda or the Taliban.
Ravil Mingazov remains in Guantánamo three and a half years after newly elected President Obama issued an executive order providing for the closure of the detention center at Guantánamo Bay within one year.
Ravil tears off a piece of bread, spreads a generous portion of cheese on it and looks up with eyes surprisingly full of light. "So," he says slowly, "what should we talk about today?"
I look down at the agenda that I prepared for the meeting and begin, just as I have many times before, to explain why he still remains locked up in Guantánamo and why all of our efforts to date have been essentially futile. As I launch into my detailed explanation of the basis of the government’s appeal of Kennedy’s order granting him the writ of habeas corpus, I pause after every few sentences and stare closely at his face as he registers my words while they are spoken in Russian by the interpreter. His expression does not change — though his eyes continue to have a light in them, as if he is smiling when in fact he’s not.
I hear myself saying these words, "The US court of appeals has not affirmed a single decision ordering the release of a detainee." I explain to my client that the government’s appeal to the US Court of Appeals for the D.C. Circuit is now stayed in light of the government’s motion to present the lower court with "new" evidence — evidence the government purportedly only located recently, eight years after Ravil was arrested in Faisalabad. I tell him that the government argues that this evidence would persuade Kennedy to reverse his decision and deny Ravil the writ of habeas of corpus. At the end of this lengthy update on the legal status of his case, I pause for the last time and ask Ravil if he has any questions.
"No," he says. And then he smiles. "But you forgot to mention the good news." I know him well enough to realize that he is setting me up for a one-liner. "We will all see each other again in three months."
Some may argue that this glacial speed with which the Guantánamo detainees’ cases move one step forward and two steps back in the courts is unfortunate yet necessary to ensure that a potential terrorist is not mistakenly released. It is true that district court judges are entrusted with a great responsibility when they are considering the habeas cases of Guantánamo detainees and that there is much at stake in each of these cases.
Kennedy’s thorough and thoughtful opinion, like many of the other opinions both granting and denying the habeas petitions of Guantánamo detainees, speaks for itself. District court judges are doing what they are supposed to do, and they are doing it well. It is true, this takes time. But there are limits.
The longer Ravil Mingazov and other detainees sit languishing in Guantánamo as their cases gradually make their way through the courts (only to face near inevitable denial of the writ from the D.C. Circuit), the more credibility the US judicial system loses. As Chief Justice Warren Burger noted, "A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people … Delay will drain even a just judgment of its value."
I wonder how many more times I will have to explain to Ravil that, despite the Supreme Court’s mandate to promptly process detainees’ habeas claims, the president’s promise to close the prison and his own victory in federal court, it is more likely than not that we will meet again in three months in this overly air-conditioned cell on a steamy island very far away from his elderly mother, his loving wife and his growing son that Ravil last saw eight years ago when he was a baby.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, "The Complete Guantánamo Files," a 70-part, 700,000-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, "Outside the Law: Stories from Guantánamo" (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.
