Archive for September 8th, 2010

RIP Sid Rawle, Land Reformer, Free Festival Pioneer, Stonehenge Stalwart

So farewell, then, Sid Rawle, who passed away, aged 64, at the end of his annual SuperSpirit summer camp, overlooking the River Severn near Rodley, on August 31. The “King of the Hippies,” as the press dubbed him — although it was never a title that he claimed for himself — Sid played a major part in the British counter-culture from the 1960s until his death, although he is, of course, best known for his involvement in the free festival movement, first at Windsor, from 1972 to 1974, and then at Stonehenge, until the violent suppression of the festival in 1985.

The author and activist Jeremy Sandford (who died in 2003) described him as “the squatter to end them all, having squatted flats, houses, commons, forests, a village, boats, an island, an army camp, Windsor Great Park,” and I would only add that, if I was to be asked to identify one topic for which he should be remembered, it was his passion for land reform in the UK, something that the State always regards with the utmost fear and suspicion.

I only met Sid once, when I was invited to attend his SummerSpirit camp in August 2004, following the publication of my book Stonehenge: Celebration and Subversion. I arrived to find Sid and the author and historian Ronald Hutton sitting together at a table in the camp’s café, greeting me warmly and congratulating me on writing the social history of Stonehenge and the counter-culture that they had hoped someone would eventually write (which was a great honour), and I spent a thoroughly enjoyable few days hanging out, holding a few workshops, at which I read out excerpts from the book and Sid chipped in, drawing on his vast repertoire of memories of the time, and, one evening, watching political folk-rockers Seize the Day play a storming set.

People tended to either love or loathe Sid, but I was given the most gracious welcome, and have nothing but respect for his revolutionary example. At the time of my visit, he was surrounded by supportive family members, who all made me feel extremely welcome, and his camp — which aimed to have no more than 400 people present — appeared to be a refined example of the kind of gatherings that he was involved in establishing in the 1970s — often chaotic affairs, but ones that were seeking out a new world.

Below I publish excerpts from Stonehenge: Celebration and Subversion that deal with Sid’s life, interspersed with some contemporary commentary, and at the end of this article I publish Sid’s manifesto, “The Vision of Albion,” and some comments by Jeremy Sandford regarding his failings, and his attempts to address them in later life.

Sid Rawle and his contributions to the British counter-culture

In the mid-1960s, Sid was already a colourful figure in London’s counter-cultural scene, where he gave the youthful squatting movement some historical ballast by establishing the Hyde Park Diggers, inspired by the example of the original seventeenth century Diggers, founded by Gerrard Winstanley […]

By 1970, John Lennon was so impressed by Sid Rawle’s revolutionary rhetoric that he summoned him to the offices of Apple, the Beatles’ short-lived and ill-conceived Utopian business offshoot, and offered him custodianship of Dorinish Island — a small, uninhabited island off the coast of County Mayo that Lennon had bought in 1967 — for use as a Digger commune, ‘for the common good’. After a brief recruitment drive amongst the hippies of London, twenty-five adults and a baby duly set off for the west coast of Ireland. Rawle described their initial experience as follows: ‘We decided we would hold a six-week summer camp on the island. Then we would see what came out of that and decide if we wanted to extend our stay. It was heaven and it was hell. We lived in tents because there were no stone buildings on the island at all’, although he concluded that, ‘Most of the time it was really good’.

In the end, the Diggers stayed for two years, growing their own vegetables, which they stored in specially dug hollows, and cadging lifts off the local oyster fishermen every fortnight or so for supplementary shopping trips to Westport on the mainland. There was a certain amount of conflict — in March 1971 The Connaught Telegraph declared, ‘After a year of seething anger, Westport has finally declared war on the ‘Republic of Dorinish’ — but the commune finally closed down of its own volition the year after, when a fire destroyed the main tent used to store supplies.

Rawle had made sporadic visits to England throughout the duration of the commune. At the Glastonbury Fayre in June 1971, for example, free food had been provided by two groups — the wittily named Communal Knead, and Sid’s Diggers, now known as the Digger Action Movement. On his return to London in the spring of 1972, he took the Diggers’ message on from Dorinish and Glastonbury to a new and more politically explosive location. Along with members of the Free City of Camden, ‘a loose street-by-street network of squatters, revolutionaries and artists’ and the ubiquitous White Panthers, he was involved in setting up the first People’s Free Festival in Windsor Great Park over the August Bank Holiday weekend, under the leadership of Bill ‘Ubi’ Dwyer, a well-known anarchist activist, ‘on the basis of an acid vision he’d had’.

Windsor was the most direct affront to the land rights of the establishment yet seen. By squatting the Queen’s own backyard, the festival’s organizers were joining the Diggers in taking on unfinished historical business. Windsor’s park had been common land before it was enclosed by King George III to provide himself with an exclusive hunting ground. The hippies were simply taking back land that had been stolen from the people for 200 years.

The People’s Free Festival ran for three years, growing in size and influence, with the result that, in 1974, it was violently suppressed by the authorities. In the meantime, another charismatic individual, Phil Russell (aka Wally Hope) had established the Stonehenge Free Festival at Britain’s most celebrated ancient monument. Phil died in mysterious circumstances the following year, but the Stonehenge Free Festival had already taken root, and Sid Rawle soon became involved:

Imprisoned after the last Windsor festival along with Bill Dwyer, Sid came to Stonehenge as one of the chief organizers of the fourth People’s Free Festival, which took place in August 1975 at Watchfield, a disused airfield in Oxfordshire. Set up as a one-off replacement for the bitterly contested Windsor site, Watchfield was an extraordinary event — the only instance in British history of the government providing a free festival site. Although no inquest had taken place after the brutal suppression of Windsor the year before, Home Secretary Roy Jenkins clearly felt that the hippies were due some kind of compensation. Independent reports suggested that the police’s instructions for people to leave the site had not been clearly heard, that the Drug Squad broke the law in searching suspects for drugs, that excessive force had been used in the eviction of the site, and in particular that the 220 people arrested had been treated with unnecessary harshness. Taken to a nearby army barracks, suspects were made to undress completely, and were subjected to anal and vaginal searches, according to one of the doctors present.

Watchfield duly cemented the success of the second Stonehenge Free Festival, running for nine days, attracting over 5,000 people, and providing the clearest working example to date of the free festival as a self-regulating alternative community, despite a persistent police presence that led to ninety-five arrests, and despite sporadic violence from the Windsor chapter of the Hell’s Angels. Festival regular Convoy Steve ‘especially liked the daily site meetings where everyone sat around and said their piece. Policy was made, site matters were discussed and it felt like real democracy in action’ […]

In the end, however, the most significant aspect of the trade-off between the festival-goers and the government that led to the provision of Watchfield was that it also included the Stonehenge Free Festival in its ambit. According to Sid Rawle, ‘the representatives stated that if they [the festival-goers] kept away from Windsor Great Park, they would be left alone at Stonehenge’.

From 1976 to 1984, Sid was a key figure in the summer solstice celebrations at Stonehenge, where, as I explained in relation to my own visit in 1984, “on solstice morning the fences came down, the sun shone out in all its summer glory, and the Druids and the festival-goers were once more at the stones together. There were pagan weddings, children were blessed, there was nakedness, and all manner of other rituals were performed, from the profound to the impenetrable.”

Summer solstice in the stones, 1984. Photo by Alan Lodge.

Summer solstice at Stonehenge, 1984 (Sid Rawle, arms outstretched, greets the sun). Photo copyright Alan Lodge.

During this period, Sid was also involved in establishing the enormously influential Tipi Valley community in south Wales (also see here, here and here), where he lived from 1976 to 1982. He was then involved in setting up the Peace Convoy, which traveled from Stonehenge to Greenham Common in 1981, in solidarity with the Women’s Peace Camp, and in 1984 was involved in establishing the Rainbow Village at Molesworth in Cambridgeshire, the proposed site for the second cruise missile base in the UK after Greenham, which was broken up by the largest peacetime mobilization of the military in February 1985.

He was also involved in numerous other free festivals — mainly in the West Country and Wales — that were part of the travelling free festival community’s summer itinerary, and in establishing smaller, more sustainable gatherings than Stonehenge, whose unfettered anarchy — and crowds of 50,000 or more throughout the month of June — prompted the violent clampdown at the Beanfield in June 1985.

In the summer of 1980, for example:

[T]he first Ecology Party Summer Gathering was held at Worthy Farm in Pilton. This small but significant step for the nascent ecological movement was convened by Michael Eavis in the absence of the Glastonbury festival, which he’d been forced to cancel for a year while he juggled the financial loss he’d made in 1979 with his ambitious plans for a larger festival in 1981. Significantly, the Summer Gathering brought the existing green pioneers, including Jonathan Porritt, into contact with the ecological leanings of the free festival scene for the first time. Music was provided by Roy Harper and Nik Turner’s Inner City Unit, and Sid Rawle became so involved that he was duly elected to the Party Council at the Autumn Conference in Cardiff, when ‘a controversial motion for the legalisation of cannabis was passed’.

In July 1982, Sid was involved in establishing the first Green Gathering at Worthy Farm, a development of the Ecology Party meetings that attracted over 5,000 people. As I explained in Stonehenge: Celebration and Subversion:

As well as widening the scope of the green movement, the gathering also established a template for sustainable gatherings that were able to maintain the ethos of the free festivals in the face of a growing influx of less focused ‘consumers’. The music was restricted to acoustic music only, everyone was encouraged to participate — financially, physically and spiritually — and it’s significant that the Green Gatherings, as well as other small scale gatherings along the same lines, are still running today [although see this report about the cancellation of the Big Green Gathering in 2009].

In 1985, after the Battle of the Beanfield, when over 1,300 police from six counties cornered a convoy travelling to Stonehenge to establish the 12th free festival and subjected men, women and children to brutal treatment, abruptly ending the festival and signaling an end to the state’s tolerance of the burgeoning new age traveller movement — and its interest in land reform and political campaigning against militarism and nuclear power — Sid retired from the road, settling in the Forest of Dean with his family, where he lived until his death.

On the day of the Beanfield, as I explained in my book The Battle of the Beanfield, Sid “was so convinced that the state was planning a disproportionate response to the threat posed by the convoy that he stayed behind in Savernake [Forest, the location from which the convoy for Stonehenge had set off], arguing that if all the travellers stayed put and waited for thousands more people to join them, the authorities would be powerless to break up the ever-growing movement that he had worked for so long to encourage.”

He may have been right, but we will never know. Personally, I think that, even if disaster had been avoided at the Beanfield, the State was committed to destroying the travellers’ movement. The Beanfield took place just four months after the eviction of Molesworth, and the two events were not unconnected. Both the Greenham women and the Rainbow Village had attracted the wrath of Margaret Thatcher’s government by opposing cruise missile bases on UK soil, and I have always maintained that the only reason that the authorities could not truncheon the Greenham protestors into submission — as they did with the travellers at the Battle of the Beanfield — was because they were women. With the Rainbow Village, however, the Stonehenge connection meant that “decommissioning” the travellers en route to Stonehenge could be sold to the media and the public as ridding the country of a violent anarchic scourge.

Sid subsequently became involved with the Green Party (as it developed from its original incarnation as the Ecology Party), and, after also playing a part in the Oak Dragon and Rainbow Circle camps — developments of the smaller scale gatherings pioneered in the early 1980s — set up Rainbow 2000, which held a number of camps each summer, including the SuperSpirit camp at which he passed away, while packing up on its final day.

Sunset at the SuperSpirit camp, August 2004 (photo by Andy Worthington)

Sunset at the SuperSpirit summer camp, August 2004.

The Vision of Albion
By Sid Rawle

In the end it all gets back to land. Looking back, I see that a link that runs through my life concerns the right to land and property on it.

Shared out equally, there would be a couple of acres for every adult living in Britain. That would mean each family or group could have a reasonably sized small holding of ten or twenty acres and learn once again to become self sufficient.

The present day reality is the reverse, with some folk owning hundreds of thousands of acres and others owning none. That can’t be fair!

There’s talk of community in wartime. We can be ordered to go and fight and die for Queen and country. In peacetime is it too much to ask for just a few square yards of our green and pleasant land to rear our children on?

That’s all we want, myself and the squatters and travellers and hippy movements I’ve been involved with. Just a few square yards of this land that we can quite easily be asked to go out and die for.

And if we ever achieve that, what else? What else is what I call the Vision of Albion.

Albion, the most ancient name of this fair country. It was in Albion that the industrial revolution occurred. And I and many others now have a sneaking suspicion that in Albion will be forged the first post industrial society, a Green Community in this green land, living in equity and peace.

The Vision of Albion is a vision of one world united in love, a vision of unity in diversity. Not the same chant every day. Not everyone finding the same cure for the same ills. But a vision of all people uniting in love and respect for one another.

We have to find out how all us individuals in the world can have enough space to live in love and harmony, enough to be self-sufficient and be ourselves, and how to give everyone else this space. That is the vision of Albion, that is the vision of the Rainbow people.

It is the Rainbow vision because the rainbow is the symbol of God’s promise. And it is the vision of Albion because there is a sneaking feeling amongst some of us that it is from these islands, the islands that make up Albion, that change will come. So many of the white man’s dreadful fuck-ups in the world originated here. It is from these islands that peace and harmony must come.

Because although we’ve given the world so many of its institutions and a common language to communicate to each other in, we’ve lost our own real ancient roots. We don’t know who built our stone circles, how they did it, how they loved, what their economic system was, what their religion was, all this we’re ignorant of.

All over the world there are other peoples who do remember what their roots are, people who are still in touch with their tribal history. What lies deep in their systems must also lie deep within our system. We have to learn to find it again.

We have to reclaim or rediscover some of their ancient wisdom, the wisdom of ancient Albion.

There’s no magic in this, no mystery, however. The mystery is that we keep ourselves in hell when we could be in heaven. That’s the mystery.

Note: Sid attracted criticism as well as praise during his life, and it would not be fair and balanced to present this article without acknowledging his failings. The best comments I have seen came from Jeremy Sandford, who explained how his “enthusiastic breaking down of what were then perceived as the shackles of sexual taboos, including boundaries of age, sex, or style, which were such a feature of the sixties, were in Sid’s case characterised by a fervour which, though not unusual then, became inappropriate when carried on into the time of vastly different sexual mores of the 80s and 90s.” He added that Sid, “although still admired by many, was not sufficiently able to change, or change enough, in these areas.”

After working with Sid on his unpublished memoirs, Jeremy Sandford noted, “Speaking very frankly of all of this and while defending his actions in many cases and roundly condemning his critics, there are areas in which the present day mature Sid feels he has erred and strayed into actions which he now regrets.” He also wrote that, in his memoirs, his “confession of mistakes, and what amounts to his first public confession and apology, gives to his book an added poignancy and resonance.” As I mentioned above, excerpts of the book are available here (scroll down for links that begin with “sid”), and I hope that someone will one day be able to make the whole manuscript available.

For further information about Sid Rawle, see the videos here, and the obituaries here, here and here. For information about the Beanfield and its impact on civil liberties, see this article I wrote for the Guardian last year, and this accompanying article, and also see the articles here and here, written to mark the 25th anniversary. Also see these articles about Stonehenge here, here and here (and also see here for information about a book of photos from the 1994 Solsbury Hill road protest). Also see the website of Alan Lodge, and the Festival Zone website.

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 and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

Nine Years After 9/11, US Court Concedes that International Laws of War Restrict President’s Wartime Powers

Under President George W. Bush, a small group of advisors tied closely to Vice President Dick Cheney argued that neither Congress nor the judiciary should attempt to prevent the President from doing whatever he felt was appropriate as the Commander-in-Chief of a “War on Terror” that was declared after the terrorist attacks of September 11, 2001. As Sidney Blumenthal explained in an article for Salon in January 2006, the President and his advisors believed in the “unitary executive” theory — “the idea that the President as Commander-in-Chief is the sole judge of the law, unbound by hindrances such as the Geneva Conventions, and possesses inherent authority to subordinate independent government agencies to his fiat.” Blumenthal added, accurately, that this concept was “the cornerstone of the Bush legal doctrine.”

The extreme position taken by John Yoo regarding Presidential power

The most grisly public assertion of this purported dictatorial power came in December 2005, in a debate in Chicago between Notre Dame law professor Doug Cassel, and John Yoo, a lawyer in the Justice Department’s Office of Legal Counsel, who had written two memoranda in August 2002 purporting to redefine torture so that it could be used by US personnel. This was the exchange:

Doug Cassel: If the president deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?
John Yoo: No treaty.
Doug Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.
John Yoo: I think it depends on why the president thinks he needs to do that.

As recently as February this year, Yoo continued to defend the President’s absolute right to do what he considered “necessary” in wartime without opposition, and was, to a distressing extent, justified in doing so when a senior Justice Department official, David Margolis, rewrote the conclusion of a four-year internal investigation into the “torture memos,” claiming that Yoo (and Jay S. Bybee, the head of the OLC), were not guilty of “professional misconduct,” as the report’s authors had asserted, but had, instead, merely exercised “poor judgment.”

The Obama administration must bear the responsibility for allowing Margolis to doctor the report so shamefully, especially because, on his second day in office,  President Obama issued a number of executive orders, one of which thoroughly repudiated his predecessor’s reliance on claims of unfettered executive power. In cleaning up the “mess” inherited from the Bush administration with regard to torture and detention without charge or trial, Obama also issued an executive order upholding the absolute ban on torture, and made it clear that, in authorizing the detention of prisoners seized in the “War on Terror” who were held at Guantánamo, he would only rely on legislation passed by Congress.

The problems with Obama’s reliance on Congress and the Authorization for Use of Military Force

Although there are gray areas regarding Obama’s torture ban (particularly with regard to the US prison at Bagram airbase in Afghanistan, where challenges to prisoners’ detention have also been resisted), the President has been true to his word regarding the detention of prisoners at Guantánamo, relying only on the Authorization for Use of Military Force, passed the week after the 9/11 attacks, which authorized 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 harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States,” and which, as interpreted by the Supreme Court in Hamdi v. Rumsfeld, in 2004, involved the assertion that “Congress has clearly and unmistakably authorized detention” of individuals covered by the AUMF.

Unfortunately, this apparent distinction between relying on claims of executive power or relying on Congressional authority means little in reality to the prisoners held at Guantánamo, because the AUMF is an overbroad policy, which fails to distinguish between al-Qaeda and the Taliban, and seems to justify holding even the most peripheral figures in the military conflict in Afghanistan in 2001 (as well as genuine terror suspects) in the same sort of open-ended detention created by President Bush. The result is complacency on the part of the administration regarding the importance of trying or freeing the remaining prisoners, after over eight years of detention.

In addition, in the District Court in Washington D.C., where judges have been ruling on the prisoners’ habeas corpus petitions for the last two years, the overbroad scope of the AUMF has led to the denial of 16 out of 54 petitions, mostly because the men in question were foot soldiers for the Taliban, and not because they had ever demonstrated any involvement in terrorism.

While I believe that the majority of these rulings also fail to fulfill the AUMF’s requirement that the men detained are being deprived of their liberty “to prevent any future acts of international terrorism against the United States,” adding to the unsuitability of the AUMF as a substitute for holding soldiers as prisoners of war according to the Geneva Conventions, a more pressing problem is that, as the prisoners have been challenging these rulings, they have discovered that the Court of Appeals has been resolutely looking the other way. In a number of rulings, judges in the D.C. Circuit Court have demonstrated that they are determined not only to deny the prisoners’ appeals, but also to tell the government that its powers of detention are far more sweeping than the AUMF suggests.

The case of Ghaleb al-Bihani, a cook

This bizarre, and genuinely disturbing scenario first surfaced in January this year, in the case of Ghaleb al-Bihani, a Yemeni who had cooked for Arab forces supporting the Taliban in a military capacity, and had lost his habeas corpus petition in January 2009. In a ruling denying his appeal (PDF), two of the most conservative judges in the D.C. Circuit Court — Judge Janice Rogers Brown, and Judge Brett M. Kavanaugh, both appointees of George W. Bush — not only defended al-Bihani’s detention under the terms of the AUMF, but also dismissed arguments made by al-Bihani that “rel[ied] heavily on the premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war.” The judges claimed, “This premise is mistaken.”

Judge Brown also described the international laws of war as not “a fixed code,” refused to “quibble over the intricate application of vague treaty provisions and amorphous customary principles,” and concluded that “their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers.”

In response, Senior Circuit Judge Stephen F. Williams, the third judge, who concurred with the overall judgment and with part of the majority opinion, took exception to this conclusion, noting that the paragraph ending in “This premise is mistaken” was “hard to square with the approach that the Supreme Court took in Hamdi.” Judge Williams quoted Justice Souter, who stated explicitly, “[W]e understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.”

As I explained at the time:

This may not be much, but it was refreshing that Judge Williams at least perceived that the Supreme Court had set limits on the Executive’s wartime detention powers, and that he chastised the other judges for putting forward an argument that “goes well beyond what even the government has argued in this case” — that “[t]he authority conferred by the AUMF is informed by the laws of war.”

Judge Williams’ opinion chimed with that of numerous legal experts who were appalled by the Circuit Court’s Bush-like advocacy of unfettered executive power — and also, as he pointed out, endorsed powers for the Obama administration which went “beyond what even the government ha[d] argued in this case.” His reference to the government’s argument resurfaced in May, when the government submitted a brief (PDF), in which, although lawyers opposed en banc review and agreed with the Circuit Court on almost every point in its January opinion, they disagreed with the court’s opinion about Presidential power and the international laws of war.

As the government’s lawyers explained in their brief:

Petitioner cites the panel majority’s statement that the “premise that the war powers granted by the [Authorization for Use of Military Force] and other statutes are limited by the international laws of war is mistaken.” The Government agrees that this broad statement does not properly reflect the state of the law. The Government interprets the detention authority permitted under the AUMF as informed by the laws of war.

In addition, as I explained in a recent article:

The lawyers proceeded to explain that their interpretation was “consistent” with Hamdi, as cited above, “and with longstanding Supreme Court precedent that statutes should be construed as consistent with applicable international law.” The lawyers also pointed out that the government had accepted “its detention authority under the AUMF to be informed by the laws of war” in a court filing on March 13, 2009, in response to a request for clarification from Judge John D. Bates, which I discussed in an article entitled, “Guantánamo: The Nobodies Formerly Known As Enemy Combatants.”

The D.C. Circuit Court backs down on Presidential power

Last Tuesday, the Court of Appeals finally issued an opinion on al-Bihani’s appeal (PDF). Predictably, all nine judges turned down the appeal, but in an unusual move, seven of the judges — Chief Judge David B. Sentelle and Judges Douglas H. Ginsburg, Karen LeCraft Henderson, Judith Ann Wilson Rogers, David S. Tatel, Merrick B. Garland, and Thomas B. Griffith — issued the following joint statement:

We decline to en banc this case to determine the role of international law-of-war principles in interpreting the AUMF because, as the various opinions issued in the case indicate, the panel’s discussion of that question is not necessary to the disposition of the merits.

Although the decision does nothing to challenge the fundamental problem with detaining al-Bihani under the AUMF, rather than as a prisoner of war, it is enormously significant, as was pointed out by Stephen Vladeck, Professor of Law at American University Washington College of Law, who filed an amicus brief in support of the en banc appeal. Vladeck told the New York Times that the note by the seven judges “amounted to a nullification of the more sweeping parts of the January ruling without the court bothering to rehear it.” He added, as the Times described it, that the paragraph “tells the world that the section of the January ruling about international law should be treated like what lawyers call ‘dicta’ — editorializing about issues that are not necessary to decide the matter at hand, which has little controlling authority for other cases.” As Vladeck explained,

They’ve basically removed the single biggest complaint people had with that opinion. They said, “We don’t think we need to rehear the whole case just to limit the opinion — we can just say it, and going forward this is how we understand it.” That matters a lot.

Confirmation of Vladeck’s opinion can be found in the responses of Judge Brown and Kavanaugh. In a desperate attempt to salvage their defense of sweeping war powers, unrestrained by the international laws of war, Judge Brown issued a 15-page opinion, attacking her colleagues for “appending ‘a cryptic statement’ that she said would ‘muddy the clear holding’ that international law does not limit the war powers Congress authorized,” and Judge Kavanaugh issued an 87-page opinion, arguing that “only rules explicitly enacted by Congress, not international laws of armed conflict, can constrain what an American president can do in wartime,” and stating, “International law is not a judicially enforceable limit on a president’s wartime authority unless Congress expressly says it is” (emphasis in original).

On Balkinization, Stephen Vladick summed up the significance of the seven judges’ note by stating, “Whatever the merits of the decision in al-Bihani’s case, specifically, its significance in other cases has been unquestionably lessened (along with any chance that the Supreme Court would feel the need to step in).”  This is to be welcomed, but although it is reassuring that seven judges (two nominated by Reagan, one by Bush Sr., three by Clinton and one by Bush Jr.) refused to endorse their colleagues’ extreme opinions, it is still apparent that the courts’ jurisdiction regarding the Guantánamo habeas cases leaves the fundamental problems with the AUMF untouched.

Why none of this helps al-Bihani — or other Guantánamo prisoners

At the heart of al-Bihani’s appeal is his contention that the AUMF only authorizes detention “for the sole purpose of preventing future acts of terrorism against the US,” and that it therefore “authorizes preventative, not punitive, detention,” because the government has failed to prove that he poses a future threat to the United States. To my mind, this is a powerful argument, and it is one that was first advanced by Judge Ellen Segal Huvelle in March 2009, in the case of Yasim Basardah, a Yemeni prisoner.

What troubled Judge Huvelle, as I explained in an article last summer, was the fact that the Guantánamo prisoners were akin to prisoners of war, but without the ability to be released if it could be demonstrated that they no longer posed a threat to the United States. Drawing on the AUMF’s authorization to hold prisoners “in order to prevent any future acts of international terrorism,” she declared that the AUMF “does not authorize unlimited, unreviewable detention,” and “does not authorize the detention of individuals beyond that which is necessary to prevent those individuals from rejoining the battle, and it certainly cannot be read to authorize detention where its purpose can no longer be attained.”

Unfortunately, judges in other habeas cases have failed to follow up on Judge Huvelle’s suggestion, but even more worrying, for the prisoners, must be the fact that one other judge, Senior Judge A. Raymond Randolph (who was not part of the nine last week), has thrown another hurdle in the prisoners’ way. In an appeal in July, reversing a successful habeas petition last August — that of Mohammed al-Adahi, another Yemeni — Judge Randolph, notorious for upholding every Bush decision on detention in the “War on Terror” that was subsequently overturned by the Supreme Court, drifted off the point as dangerously as Judges Brown and Kavanaugh, indicating that he believed that the standard of evidence required in the habeas cases was too high for the government.

Given that all that is required is for the government to prove, “by a preponderance of the evidence,” that plaintiffs in the habeas cases were involved in some way with al-Qaeda and/or the Taliban, and that this standard is much lower than it would be in criminal trials, Judge Randolph was clearly using some creativity to reach the same ideological place as Judges Brown and Kavanaugh — that, in wartime, the President should not be subjected to constraints on his power.

How this will affect future cases has not yet become apparent, although it will surely strengthen the hand of those in the Justice Department — and elsewhere in the administration — who have been pushing for appeals in the cases of prisoners who have won their habeas petitions, and have, to date, appealed five successful petitions, as well as repeatedly appealing against an order to release 17 other men (the Uighurs) into the United States.

Compared to that, last Tuesday’s ruling, though welcome in its restraint on executive power, still does nothing to free men from Guantánamo or have them redesignated as prisoners of war, even when, as with Ghaleb al-Bihani, they were nothing more than a cook who, as far as we know, never fired a single shot at US forces.

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 and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation, as “Restricting Presidential Wartime Powers.” Cross-posted on Cageprisoners, Uruknet, Eurasia ReviewNew Left Project and Dandelion Salad.

For an overview of all the habeas rulings, including links to all my articles, and to the judges’ unclassified opinions, see: Guantánamo Habeas Results: The Definitive List. For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (September 2009), 75 Guantánamo Prisoners Cleared For Release; 31 Could Leave Today (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Justice Department Pointlessly Gags Guantánamo Lawyer (November 2009), Judge Orders Release Of Algerian From Guantánamo (But He’s Not Going Anywhere) (November 2009), Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait (December 2009), What Does It Take To Get Out Of Obama’s Guantánamo? (December 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Judge Orders Release From Guantánamo Of Unwilling Yemeni Recruit (December 2009), Serious Problems With Obama’s Plan To Move Guantánamo To Illinois (December 2009), Appeals Court Extends President’s Wartime Powers, Limits Guantánamo Prisoners’ Rights (January 2010), Fear and Paranoia as Guantánamo Marks its Eighth Anniversary (January 2010), Rubbing Salt in Guantánamo’s Wounds: Task Force Announces Indefinite Detention (January 2010), The Black Hole of Guantánamo (March 2010), Guantánamo Uighurs Back in Legal Limbo (March 2010), Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit (April 2010), An Insignificant Yemeni at Guantánamo Loses His Habeas Petition (April 2010), With Regrets, Judge Allows Indefinite Detention at Guantánamo of a Medic (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), Why Judges Can’t Free Torture Victims from Guantánamo (April 2010), How Binyam Mohamed’s Torture Was Revealed in a US Court (May 2010), Guantánamo and Habeas Corpus: Consigning Soldiers to Oblivion (May 2010), Judge Denies Habeas Petition of an Ill and Abused Libyan in Guantánamo (May 2010), Judge Orders Release from Guantánamo of Russian Caught in Abu Zubaydah’s Web (May 2010), No Escape from Guantánamo: Uighurs Lose Again in US Court (June 2010), Does Obama Really Know or Care About Who Is at Guantánamo? (June 2010), Guantánamo and Habeas Corpus: 2 Years, 50 Cases, 36 Victories for the Prisoners (June 2010), Obama Thinks About Releasing Innocent Yemenis from Guantánamo (June 2010), Calling for US Accountability on the International Day in Support of Victims of Torture (June 2010), Judge Orders Release from Guantánamo of Yemeni Seized in Iran, Held in Secret CIA Prisons (July 2010), Innocent Student Finally Released from Guantánamo (July 2010), Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part One) (July 2010), Obama and US Courts Repatriate Algerian from Guantánamo Against His Will; May Be Complicit in Torture (July 2010), In Abu Zubaydah’s Case, Court Relies on Propaganda and Lies (July 2010), Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part Two) (July 2010), Judge Orders Release from Guantánamo of Mentally Ill Yemeni; 2nd Judge Approves Detention of Minor Taliban Recruit (August 2010), Judge Denies Habeas Petition of Afghan Shopkeeper at Guantánamo (September 2010).

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Andy Worthington

Investigative journalist, author, filmmaker, photographer and Guantanamo expert
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The Guantánamo Files book cover

The Guantánamo Files

The Battle of the Beanfield book cover

The Battle of the Beanfield

Stonehenge: Celebration & Subversion book cover

Stonehenge: Celebration & Subversion

Outside The Law DVD cover

Outside the Law: Stories from Guantánamo

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