Last week, two years and three months after the US Supreme Court granted the prisoners held at Guantánamo constitutionally guaranteed habeas corpus rights in Boumediene v. Bush, Fawzi al-Odah, a Kuwaiti prisoner held for nearly nine years, became the first prisoner to appeal to the Supreme Court “to protest federal court interpretations of detainees’ right to contest their detention,” as AFP described it.
Over the last two years, the prisoners have won 38 out of the 55 cases in which the District Court judges in Washington D.C. have made a ruling, but al-Odah is one of the 17 whose appeals have been denied. As I reported when he lost his petition in August 2009:
[T]he government secured another shallow victory when Judge Colleen Kollar-Kotelly denied the habeas petition of Fawzi al-Odah, a Kuwaiti prisoner, agreeing with the government that it was “more likely than not” that he “became part of Taliban and al-Qaeda forces in Afghanistan.” Judge Kollar-Kotelly’s ruling was based on a dubious assemblage of information that relied more on inconsistencies in al-Odah’s account of his activities than it did on anything resembling concrete evidence, as she herself admitted, when she wrote that there were “significant reasons why the Government’s proffered evidence may not be accurate or authentic.”
Al-Odah has always claimed that he took a break from work and traveled to Afghanistan in August 2001 to teach the Koran and provide humanitarian aid (which he had done previously in other countries), and has also admitted that he established contact with the Taliban, as they were the government at the time, and spent one day at a Taliban-controlled training camp. He has also stated that, after the US-led invasion, he was sent by a Taliban representative to a safer location outside Kabul, and, from there, traveled to Jalalabad, where he stayed with another family, who gave him an AK-47 assault rifle to protect himself. He then joined other people crossing the mountains to Pakistan, where he handed himself in to the border guards, and was subsequently handed over — or sold — to US forces.
While Judge Kollar-Kotelly was undoubtedly justified in finding numerous holes in al-Odah’s account of his activities, including asking why he did not flee Afghanistan before traveling to Jalalabad, and why he allowed himself to travel with other armed men through the Tora Bora mountains, the result of her ruling, as I also explained at the time, was that:
[N]early eight years after the 9/11 attacks [now over nine years], the United States is still asserting that it has the right to hold a young man who spent just one day at a training camp, who did not flee Afghanistan after the 9/11 attacks (perhaps because he feared reprisals if he was found escaping), who traveled with other men to Kabul, and then to Logar and then to Tora Bora and his eventual capture, with no evidence that he ever used the weapon he was given, and no evidence that his training involved anything more than firing a few rounds from an AK-47 in a practice session.
Al-Odah’s appeal to the Supreme Court follows the dead end he reached in the lower courts, when, on June 30, the D.C. Circuit Court dismissed his appeal, endorsing Judge Kollar-Kotelly’s ruling, and refusing to acknowledge that there was any weight to al-Odah’s complaints regarding the “preponderance of evidence” standard for continued detention, and the use of hearsay evidence.
Although the burden of proof is on the government in the habeas cases, the “preponderance of evidence” standard is considerably lower than in criminal cases, for example, where a case must be established beyond reasonable doubt. However, the Circuit Court dismissed al-Odah’s complaint “under binding precedent in this circuit,” and also dismissed his complaint about the use of hearsay evidence, pointing out that the use of hearsay evidence had been approved by the Supreme Court in Hamdi v. Rumsfeld, the 2004 case that approved the detention of prisoners under the Authorization for Use of Military Force, the legislation passed by Congress the week after the 9/11 attacks, which authorized (and still authorizes) 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).
In Hamdi, the Supreme Court declared that “[h]earsay … may need to be accepted as the most reliable available evidence from the Government” to justify the prisoners’ detention, and the D.C. Circuit Court also noted that its use had been endorsed in previous habeas appeals considered by the Circuit Court — specifically, the cases of Adham Ali Awad and Sufyian Barhoumi, discussed here. It should also be noted that the use of hearsay has been accepted by the District Court judges ruling on the prisoners’ habeas petitions, although their approach has generally involved an attempt to establish that hearsay evidence corresponds with other evidence submitted by the government.
In his petition to the Supreme Court, al-Odah argues that the courts have “applied a burden of proof lower than any ever approved by this Court in a case involving prolonged imprisonment, allowing the government to justify indefinite detention by a mere preponderance of the evidence, rather than by clear and convincing evidence.” He also argues that “both the District Court and the Court of Appeals have … allowed the indiscriminate admission of hearsay, denying the detainees any meaningful opportunity to test the reliability of statements made against them.”
These are extremely valid points. By raising the question of whether a low evidentiary standard is appropriate for cases involving indefinite detention, al-Odah echoes what Tom Wilner, who represented the Kuwaiti prisoners in the early days of the habeas legislation, told me after the other remaining Kuwaiti, Fayiz al-Kandari, lost his habeas petition two weeks ago. Al-Kandari, he said (and, by extension, Fawzi al-Odah), “has not been convicted of any wrongdoing, yet he has been imprisoned for more than eight years. The low standard for habeas might be an appropriate standard for detaining someone initially, but it is hardly an appropriate standard for holding people for years without end.”
On hearsay, it will be difficult for al-Odah to argue that he District Court has allowed its “indiscriminate use,” as several judges have, very forcefully, refused to accept hearsay evidence as valid — in, to cite just a few examples, the cases of six Algerians kidnapped in Bosnia in January 2002, the case of Mohammed El-Gharani, a former child prisoner, the case of Alla Ali Bin Ali Ahmed, a Yemeni seized in a university guest house in Pakistan, and the cases of Farhi Saeed Bin Mohammed, an Algerian, and Uthman Abdul Rahim Mohammed Uthman, a Yemeni, whose cases were largely made up of hearsay evidence extracted from torture victims.
However, to provide a counter-weight, it remains apparent that the case against Fayiz al-Kandari consists almost entirely of unreliable hearsay, and Fawzi al-Odah’s case is also extremely weak on anything resembling actual evidence, rather than holes in his story into which suppositions were inserted.
What impresses me most about al-Odah’s complaint about the use of hearsay evidence is his assertion that it “den[ies] the detainees any meaningful opportunity to test the reliability of statements made against them,” as this is a vivid reminder of the failings of the Bush administration’s military review boards — the Combatant Status Review Tribunals — which were established in 2004 to review the prisoners’ cases to determine if, on capture, they had been correctly designated as “enemy combatants,” who could be held without charge or trial.
As was revealed in 2007 by Lt. Col. Stephen Abraham, a veteran of US intelligence who worked on the tribunals, the entire system was rigged, and geared towards rubber-stamping the detainees’ prior designation as “enemy combatants.” because the supposed evidence frequently consisted of intelligence “of a generalized nature — often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status.” In particular, however, I was reminded of Fawzi al-Odah’s complaint through recalling numerous examples of the use of hearsay evidence that prevented the prisoners from having “any meaningful opportunity to test the reliability of statements made against them,” and it struck me that on this point, al-Odah has made a powerful claim that little has actually changed in the last six years.
This, for example, is an exchange that took place in the CSRT of Mustafa Ait Idr, one of the six men kidnapped in Bosnia in January 2002, who was finally released in December 2008 after winning his habeas petition:
Recorder: While living in Bosnia, the detainee associated with a known al-Qaeda operative.
Detainee: Give me his name.
President: I do not know.
Detainee: How can I respond to this?
President: Did you know of anybody who was a member of al-Qaeda?
Detainee: No, no. These are accusations that I can’t even answer … You tell me I am from al-Qaeda, but I am not al-Qaeda. I don’t have any proof except to ask you to catch Bin Laden and ask him if I am part of al-Qaeda … What should be done is you should give me evidence regarding these accusations because I am not able to give you any evidence. I can just tell you no, and that is it.
Beyond these complaints, I can only reiterate my belief that the fundamental problem with the habeas litigation is the government’s reliance on the Authorization for Use of Military Force as its justification for holding prisoners neither as prisoners of war or as criminal suspects, but as a unique category of human being that is neither soldier nor terrorist, but something much more amorphous, with less rights than either.
This is the baleful legacy of the Bush administration, as maintained by President Obama, and it has infected the otherwise successful habeas litigation, largely by failing to distinguish between al-Qaeda (a terrorist organization) and the Taliban (the government of Afghanistan at the time of the US-led invasion in October 2001). The result of this confusion is that the majority of the men who have lost their habeas petitions (and whose detention is being robustly upheld by the Circuit Court) were, at best, minor players in a military conflict that had nothing to do with al-Qaeda’s international terrorist operations.
Fawzi al-Odah is right to ask the Supreme Court to consider whether the methods used to determine the quality of the evidence against him are substantial enough to prevent the government from continuing to hold men indefinitely at Guantánamo without any meaningful ability to challenge the evidence. However, it is surely just as important — if not more so — that prisoners found to have been foot soldiers in Afghanistan on the basis of plausible evidence are being consigned to indefinite detention in Guantánamo (a prison indelibly associated with allegations that it held “the worst of the worst” terrorists), when they should, all along, have been held as prisoners of war according to the Geneva Conventions.
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.
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), Nine Years After 9/11, US Court Concedes that International Laws of War Restrict President’s Wartime Powers (September 2010), Fayiz Al-Kandari, A Kuwaiti Aid Worker in Guantánamo, Loses His Habeas Petition (September 2010), Heads You Lose, Tails You Lose: The Betrayal of Mohamedou Ould Slahi (September 2010).
[...] This post was mentioned on Twitter by Andy Worthington, Susan Hall. Susan Hall said: First Guantánamo Habeas Appeal to US Supreme Court | Andy Worthington http://bit.ly/ceynhJ [...]
Here are some comments from Facebook:
Mujahid Ul-Haq wrote:
Inspiratonal stuff … please Andy … keep it up. i’m sharing this …
Susan Hall wrote:
Thank you for sharing. I reposted this shameful development.
And now the fun really begins: with Elena Kagan replacing John Paul Stevens on the High Court, one cannot conceive of a scenario under which certiorari review will be granted. Stevens (along with Sotomayor, Ginsburg and Breyer) might well have been inclined to take their chances getting Justice Kennedy to come along for yet another foray into a Guantanamo case… but Kagan– even if she were inclined to go counter to virtually everything she did in her year and a half or so as Solicitor General, HAS TO recuse herself in these cases, because her office (or she herself) actually signed off on the briefs in the lower court.
While there are those who will be delighted that Kagan (1) is a woman (2) from New York (3) who went to really good schools and (4) hence is likely to cast a meaningless vote to preserve what’s left of abortion rights… in terms of preserving the Constitution writ large, because Kagan is ostensibly obliged to be out of the game… the Obama Administration might well have simply given Sam Alito a second Supreme Court vote… of course, this was presumably part of the calculation to name Kagan in the first place.
Sadly, Fazwi al-Odah, who, amazingly was part of the very, very first group of cases filed by Tom Wilner and his team going back to 2002, and has been part of just about all of the major GTMO litigations since then, still finds himself stuck at GTMO, and now it seems, on the flimsiest of “evidence”, it looks like he’s going to be stuck there for a long, long time… but unless the political will develops to end the GTMO travesty, I’m guessing he can expect to spend the rest of his life there. Of course, at some point, the cost, be it diplomatic or just in plain old money, of holding a bunch of aging men guilty of nothing more than of being Arabs in the wrong part of the world at the wrong time, might just be perceived as just too high, particularly as America’s imperial ambitions (and our refusal to tax our own rich) eventually cause national bankruptcy. But that’s about the only scenario I can think of at this point, barring something in the Supreme Court that I’m just missing.
Yet another miserable day in the annals of my country… to go along with quite a few right before it.
Sounds about right, TD. Sadly so. I’m finding it hard to muster up any enthusiasm right now, so remorseless is the bad news from the States, and so dismally negative is the news from the Etonian chums taking their ideological axe to the very fabric of the UK, under the excuse of a financial crisis that they did nothing to stop.
It was alarming to discover that only AFP covered both the Guantanamo deaths case and Fawzi al-Odah’s appeal, and I still appear to be very much alone in arguing for a rethink of the AUMF. And I haven’t even found the time to comment on the supposed justification for assassinating American citizens abroad, nor, for that matter, to comment on how alarming it was to watch British broadcasters speak in such a matter of fact way yesterday about the murder by drone of German citizens whose “terrorist plot” may not have actually advanced beyond posturing.
Dark days indeed.
Does a little link love from Glennzilla (who has said what needs to be said about al-Awlaki) cheer you up?
It does. I am delighted. I hadn’t seen that.
Here’s an interesting exchange I had on Facebook with Rowland S. Whittet. Rowland asked:
Is Constitutional law professor Obama running these cases all the way through the legal process to get them to the supreme court hoping to have another appointment in place by the time they get there or am I misreading his eleven dimensional chess moves as positional?
This was my reply:
Sadly, Rowland, I don’t think there’s a grand scheme in place. Instead of accepting that the Guantanamo prisoners should be tried in federal court or released, the President has relied on the advice of lawyers, of lawmakers and of his interagency Task Force (including Pentagon representatives and representatives of various intelligence agancies, who may have had vested interests) to endorse indefinite detention through the Authorization for Use of Military Force, to revive Military Commissions, to freeze the release of any prisoners to Yemen, and to appeal almost every successful habeas petition (in the full knowledge that the Conservative D.C. Circuit Court generallty endorses sweeping, Bush-era powers for the government). He’s backed hmself into the wrong corner on almost everything to do with Guantanamo.
Indefinite detention on accusation without a trial is basically presumption of guilt instead of innocence and creates a separate category of defendant whose rights are automatically denied without recourse at the whim of his accuser.
I’d expect everyone involved in such a thing would be liable to penalties for false imprisonment or did we already pass through the looking glass into wonderland?
My hope was that Obama wasn’t that stupid, he has stood up to the military on Afghanistan and managed to find a way out by having Karzai engage in talks with the Taliban since January that resulted in their joining his government and the warlords and drug dealers leaving.
What I’m expecting is that he will have Holder make the best argument he can on all the Bush positions knowing that they still come up short and force the SCOTUS to rule against the legal atrocities or abandon all credibility.
This was my reply:
The problem is that the Authorization for Use of Military Force (with the Supreme Court’s approval of detention in Hamdi v. Rumsfeld) allows the President to hold whoever he likes for as long as he likes (the end of hostilities being a distant mirage), so the adminstration has a legal basis for stating that it intends to hold indefinitely 48 men against whom its evidence is too weak (tainted by torture, or composed of multiple levels of hearsay) but who it maintains are an ongoing threat.
The prisoners’ habeas petitions are performing a function that should have taken place on capture – the Geneva Conventions Article 5 competent tribunals, held close to the time and place of capture to separate combatants from civilians – and the Supreme Court approved the prisoners’ habeas rights essentially becasue the Court understood that the men had been thrown into a legal black hole with no review process, if, as many claimed with some justification, they had been seized by mistake and had not been adequately screened on capture.
In two years of habeas litigation, the majority of prisoners who have lost their petitions are nothing more than foot soldiers for the Taliban, and yet, under the AUMF (which fails to distinguish between al-Qaeda and the Taliban), they are being consigned to indefinite detention at Guantanamo on an apparently legal basis.
What I’d like to see is the repeal of the AUMF, so that there is no longer a third category of prisoner (Bush’s “enemy combatants”), and so that soldiers are held as prisoners of war according to the Geneva Conventions, and terror suspects are put forward for federal court trials.
At present, however, there’s no way out. Although I credit Eric Holder with some principles, he is the man ultimately responsible for allowing the same Justice Department lawyers employed under Bush to defend every single detention at Guantanamo in the District Court in Washington D.C., and as for the Supreme Court, the replacement of Stevens with Kagan has driven the court to the right, as Kagan will have to recuse herself from Guantanamo-related cases, having advocated on the governemnt’s behalf as Solicitor General.
I don’t think its the AUMF its the Patriot Act and the authority given there is specific and constrained.
Section 412 of the final version of the anti-terrorism legislation, the Uniting and Strengthening America By Providing Appropriate Tools Required To Intercept and Obstruct Terrorism (H.R. 3162, the “USA PATRIOT Act”) permits indefinite detention of immigrants and other non-citizens. There is no requirement that those who are detained indefinitely be removable because they are terrorists.
Section 412 requires that immigrants “certified” by the Attorney General be charged within seven days with a criminal offense or an immigration violation (which need not be on terrorism grounds).
However, immigrants who are found not to be deportable for terrorism, but have an immigration status violation, such as overstaying a visa, could face indefinite detention if their country refuses to accept them. Detention would be allowed on the Attorney General’s finding of “reasonable grounds to believe” involvement in terrorism or activity that poses a danger to national security, and detention could be indefinite upon a determination that such an individual threatens national security, or the safety of the community or any person. Sec. 412, adding new INA section 236A(a)(3) and (a)(6).
What amounts to a life sentence should at a minimum be based on clear proof at a hearing, not on a certification of merely the level of suspicion that normally allows only a brief stop and frisk on the street. See, e.g., Terry v. Ohio, 392 U.S. 1, 30 (1968) (permitting “stop and frisk” based on “reasonable grounds to believe” criminal activity was afoot and suspect could be armed).
The Supreme Court held in Zadvydas v. Davis, 121 S. Ct. 2491 (2001), that a law allowing indefinite detention of immigrants who could not be deported would pose a “serious constitutional problem.” Id. at 2498. The Supreme Court did not allow the government to hold such immigrants, even those who the government said were dangerous and who did not have a right to remain in the United States, if their deportation was not likely in the “reasonably foreseeable future.”
The Zadvydas Court did not address indefinite detention of persons ordered removed on terrorism grounds. Id. at 2499. But the Court made clear in its analysis that preventive detention would not be allowed in the absence of “strong procedural protections.” It explicitly indicated that indefinite detention would not be allowed “broadly [for] aliens ordered removed from many and various reasons, including tourist visa violations.” Id.
Section 412 fails the constitutional test set forth in Zadvydas. Under the final version of the bill, immigrants who are ordered removed but cannot be deported in the reasonably foreseeable future are entitled to reviews, at least each six months, of whether they continue to pose a danger. Section 203, adding new INA section 236A(a)(6). But there is no requirement that indefinite detainees ever be given a trial or a hearing in which the government would have to prove that they are, in fact, terrorists. Nor would other important procedural protections apply, such as the requirement of proof beyond a reasonable doubt (in criminal proceedings) or proof by “clear, convincing and unequivocal evidence” (in deportation proceedings). Instead, indefinite detention would apply merely on the basis of vague and unspecified allegations of threats to national security.
Rowland also wrote:
I looked at the AUMF and didn’t see where indefinite detention is authorised but maybe I missed something?
Authorization for Use of Military Force
September 18, 2001
Public Law 107-40 [S. J. RES. 23]
To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.
Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and
Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and
Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and
Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and
Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This joint resolution may be cited as the `Authorization for Use of Military Force’.
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL- That the President is authorized 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 by such nations, organizations or persons.
(b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.
Approved September 18, 2001.
It seems as if the authority granted is the authority the president has under the constitution as is necessary and appropriate to prevent future acts. This despite the Byrd ammendment being voted down.
This was my reply:
No, you’re right, it was the Supreme Court, in Hamdi v. Rumsfeld (2004), which made it clear that “Congress has clearly and unmistakably authorized detention” of individuals covered by the AUMF until the cessation of hostilities – a move which, to my mind, effectively involved the administration, Congress and the Supreme Court unilaterally creating an alternative to the Geneva Conventions. Incidentally, it took another two years, until Hamdan v. Rumsfeld (June 2006), for the Supreme Court to rule that the baseline Article 3 protections of the Geneva Conventions extended to the prisoners, finally guaranteeing their protection from torture and “humiliating and degrading treatment.”
Thanks for the insights into the Patriot Act, btw. Much appreciated.
I also received the following message frm Beth Adams:
I really enjoyed your incredible account of the proposition of Mr. Al-Odah winning his Habeas Appeal hearing at the Supreme Court! 9 years in Gitmo! It is amazing that his story hangs together at all!
Yes, he and all the 30,000 + in Iraq and in Bagram and Khandahar and elsewhere are indeed “Prisoners of War” and the Geneva Conventions *should be applied,* but I am afraid that we are dealing with the heartless Rockefeller clan and friends whose history of violence, disregard for life and the law go back a long way…
Investigative reporting such as yours is invaluable to helping these men have a fair hearing and be released someday…!
Witness Against Torture participant 2006-present
No More Guantanamos – Northampton Chapter
[...] On Guantánamo, the only comments in the book that have so far emerged are insultingly flippant, which is disgraceful from the man who shredded the Geneva Conventions and authorized an unprecedented program of arbitrary detention, coercive interrogation and torture. In addition, Bush’s baleful legacy lives on in the cases of the 174 men still held, in the recent show trial of Omar Khadr, and in the complacency regarding the basis for detaining prisoners of the “War on Terror” – the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks – on which Barack Obama continues to rely, despite its formidable shortcomings. [...]
[...] On Guantánamo, the only comments in the book that have so far emerged are insultingly flippant, which is disgraceful from the man who shredded the Geneva Conventions and authorized an unprecedented program of arbitrary detention, coercive interrogation and torture. In addition, Bush’s baleful legacy lives on in the cases of the 174 men still held, in the recent show trial of Omar Khadr, and in the complacency regarding the basis for detaining prisoners of the “War on Terror” — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks — on which Barack Obama continues to rely, despite its formidable shortcomings. [...]
[...] Bush’s baleful legacy lives on in the cases of the 174 men still held, in the recent show trial of Omar Khadr, and in the complacency regarding the basis for detaining prisoners of the “War on Terror” — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks — on which Barack Obama continues to rely, despite its formidable shortcomings. [...]
Investigative journalist, author, filmmaker, photographer and Guantanamo expert
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