June 17, 2012
I wrote the following article for the "Close Guantánamo" website, which I established in January with US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.
This week, the Supreme Court took a decision not to accept appeals by seven Guantánamo prisoners who, over the last few years, either had their habeas petitions denied, or had their successful petitions overturned on appeal. The ruling came the day before the 4th anniversary of Boumediene v. Bush, the 2008 case in which the Supreme Court granted the prisoners constitutionally guaranteed habeas corpus rights.
That led to a number of stunning court victories for the prisoners between 2008 and 2010, but in the last two years no prisoners have had their habeas petitions granted, because judges in the D.C. Circuit Court, a bastion of Bush-era paranoia about the "war on terror," where the deeply Conservative Senior Judge A. Raymond Randolph holds sway, have unfairly rewritten the rules in the government’s favor, so that it is now almost impossible for a habeas petition to be granted.
This is a particularly low point in Guantánamo’s bleak history, because, with the Supreme Court’s refusal to rescue habeas corpus, and its death as a remedy for the Guantánamo prisoners, the remaining 169 men — and especially the 87 already cleared for release but still held – are now trapped, possibly forever, because all three branches of the US government have failed them.
In addition to the Supreme Court, the Obama administration has failed the remaining prisoners, not only through the President’s failure to close Guantánamo within a year, as he promised, but also through his refusal, ever since, to show any interest in belatedly fulfilling his promise. Blame also lies with Congress, where lawmakers have cynically imposed onerous restrictions on the ability of the administration to release or transfer any of the remaining prisoners, with the intention of making it impossible for the administration to close the prison — and almost impossible for anyone to be released.
As Tom Wilner (attorney and "Close Guantánamo" steering committee member) noted back in January, a waiver exists in the latest legislation, the National Defense Authorization Act (NDAA), allowing the President to bypass Congress when it comes to releasing prisoners, but President Obama has not yet chosen to use it.
Last week, we secured some good coverage for our exclusive report, "Guantánamo Scandal: The 40 Prisoners Still Held But Cleared for Release At Least Five Years Ago," with the report’s author, Andy Worthington, being interviewed on RT and Democracy Now! to discuss not only the report, revealing the identities of 40 prisoners cleared for release between 2004 and 2007, but also the Supreme Court’s shameful abdication of its responsibilities.
Some of the coverage focused on the story of one of the men whose appeals were turned down, Adnan Farhan Abdul Latif, a Yemeni. Noticeably, he is one of the prisoners featured in our report, and in fact he had his release approved on three separate occasions before the D.C. Circuit Court intervened to trap him at Guantánamo, possibly for the rest of his life.
Latif was cleared by a military review board under President Bush in December 2006, by the interagency Guantánamo Review Task Force established by President Obama in 2009, and by Judge Anthony Kennedy Jr., of the District Court in Washington D.C., who granted his habeas corpus petition in July 2010.
When the D.C. Circuit Court intervened to prevent his release, overturning his successful habeas petition in November last year, two of the three judges ordered that "a presumption of regularity" should be given to an intelligence report that was central to the government’s case against Latif, who has always maintained that he traveled to Pakistan to secure treatment for a head injury sustained in a car crash in Yemen, and was then advised to seek help in Afghanistan.
In a dissenting opinion, the third judge, David Tatel, took exception to his colleagues’s demands, noting that an intelligence report was "produced in the fog of war, by a clandestine method that we know almost nothing about," and could not, therefore, be regarded as necessarily reliable. He also — unlike the Supreme Court — noted that it was "hard to see what is left of the Supreme Court’s command" that the habeas review process be "meaningful," in light of his colleagues’ ruling, and warned that, in future, if the ruling stood, it would be impossible for any prisoner to have their habeas petition granted.
In reflecting on this dreadful state of affairs, it is impossible not to notice the gulf between the courage of Judge Tatel compared to the justices of the Supreme Court, who refused — unanimously, but without elaboration — to accept Latif’s appeal, even though Latif had a compelling case, in which, as Lyle Denniston noted for SCOTUSblog, he challenged "the presumption of accuracy of US intelligence reports," challenged the Circuit Court’s "power to find facts on its own," and also challenged the Circuit Court’s "refusal to uphold any release order."
In considering Latif’s case, it occurred to me that the other six prisoners had also, to varying degrees, been failed disgracefully by the Supreme Court — and, in some cases at least, by the Obama administration, which had proceeded with cases through the Justice Department, even when there were sometimes clear reasons for officials not to do so.
Latif’s case — with his repeated history of being cleared — was one example, but another was that of Hussein Almerfedi, another Yemeni, who, as noted in the "Guantánamo Scandal" report, was approved for transfer, probably in 2008, by an unidentified "Designated Civilian Official," and then had his habeas petition granted by Judge Paul Friedman in July 2010, only for that ruling to be reversed on appeal in July 2011.
Almerfedi, seized in Iran, and held in secret prisons in Afghanistan before his transfer to Guantánamo, had challenged the government’s detention authority if, as he claimed in his case, it was "based on non-incriminating facts." He, like Latif, also challenged the Circuit Court’s "refusal to uphold any release order," as well as asking about the validity of a detainee being required to "rebut government evidence found to be credible," when he had — and has — no means of doing so.
The point about the inability to refute evidence, as with Latif’s challenge to the requirement that the government’s evidence should be automatically regarded as accurate, found an echo in a challenge by a third prisoner, Fayiz al-Kandari, a Kuwaiti who lost his habeas petition in September 2010, after the Circuit Court rewrote the rules. Al-Kandari has always insisted that he traveled to Afghanistan to provide humanitarian aid, and the case against him is desperately weak, as it relies almost entirely on statements made by unreliable witnesses. However, the Circuit Court’s rewriting of the rules trapped al-Kandari, who, as a result, was calling on the Supreme Court to to allow him the right to restrict the government’s use of hearsay evidence.
Despite the lack of evidence against him, al-Kandari has never been cleared for release — either by military officials, or by a judge — but another of the seven, Uthman Abdul Rahman Mohammed Uthman, another Yemeni, had. Uthman’s habeas corpus petition was granted in February 2010, but the government appealed, and his successful opinion was reversed on appeal in March 2011. He took a different approach, challenging the government’s right to detain someone who, as he claimed in his case, "did not actually fight against US or allied forces and provided no direct support to terrorists." He also claimed that it was a "violation of the habeas Suspension Clause if habeas review is not meaningful."
These, too, were valid points, which, like all the others, were turned down by the Supreme Court without explanation.
The last three men had less reason for hoping that the Supreme Court would look favorably on their cases, as they all had their habeas petitions denied by the District Court for low-level or peripheral involvement with the Taliban, and it is apparently outside anyone’s remit to ask why it is that the justification for all the prisoners’ detention — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks — fails to distinguish between those allegedly involved with the international terrorist activities of al-Qaeda, and those involved with the Taliban’s military conflict with the Northern Alliance, which had nothing to do with terrorism, and predated the 9/11 attacks.
Of these men, Musa’ab al-Madhwani, one of six men seized in house raids in Pakistan in September 2002, who lost his habeas petition in December 2009, when Judge Thomas Hogan made a point of stating that he did not consider him to be a threat to the US, challenged his detention "based on 'guilt by association’ with suspected terrorists," which was "based on visits to guesthouses and training facilities," as SCOTUSblog described it, and also called for a "right to constitutional due process protection."
Muaz al-Alawi (described as al-Alwi), who lost his habeas petition in January 2009 for being a lowly Taliban foot soldier, challenged his detention "based on ties to the Taliban after hostilities had ended," and also claimed there was "inadequate time" for his attorney to prepare a defense.
The last of the seven, Tawfiq al-Bihani, who lost his habeas petition in October 2010 — also for being a lowly Taliban foot soldier, seized in Iran, like Hussein Almerfedi, and also held in secret prisons in Afghanistan before his transfer to Guantánamo — sought "a basic definition of detention power, limited by the laws of war," but like all the other claims, it was apparently regarded as irrelevant by the Supreme Court.
I hope this provides some additional context for the Supreme Court’s decision, on Monday, to accept that Judge Randolph and his colleagues are now in charge of the legal legacy of George W. Bush’s "war on terror" detainee policy. If you wish to know more, SCOTUSblog has links to all the court submissions, by both the prisoners and the government.
From our point of view, here at "Close Guantánamo," it only confirms our resolve to keep pushing for the closure of Guantánamo, and the release of the 87 men held hostage for political reasons, and we will be working hard to build our campaign in preparation for putting pressure on whoever will be inaugurated as the next President of the United States in January 2013. If you haven’t already signed up, please do so here (just an email address required), and please also ask your friends and family to join up as well. It is time to bring this monstrous miscarriage of justice to an end.
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 April 2012, "The Complete Guantánamo Files," a 70-part, million-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 please also consider joining the new "Close Guantánamo campaign," and, if you appreciate my work, feel free to make a donation.