In the struggle in the US courts to establish who can be detained at Guantánamo, and on what basis, following the Supreme Court’s ruling, in June 2008, that the Guantánamo prisoners have constitutionally guaranteed habeas corpus rights, there are three main players: the District Court judges, who, in 57 cases over the last two years, have formulated their own interpretation of the level of involvement with al-Qaeda and/or the Taliban that is required to endorse ongoing detention, granting the petitions of 38 prisoners; and, broadly speaking, two blocs within the largely conservative D.C. Circuit Court, who have been issuing rulings on appeals since January this year, pushing back, to varying degrees, against the lower court, and favoring more expansive powers for the government.
Differing power blocs within the D.C. Circuit Court
The first bloc within the Circuit Court consists of Judge Janice Rogers Brown, and Judge Brett M. Kavanaugh, both appointees of George W. Bush, and Senior Judge A. Raymond Randolph.
In January, ruling on the appeal of Ghaleb al-Bihani, a Yemeni who had served as a cook for Arab forces supporting the Taliban, and had lost his habeas petition in January 2009, Judges Brown and Kavanaugh claimed that the President’s detention powers in wartime were not limited by the international laws of war. These two judges were mounting a far-reaching defense of the legislation used to justify the detentions at Guantánamo — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks — that even the Obama administration thought was excessive.
Judge Randolph’s interventions, meanwhile, have been even more troubling. Having defended every piece of legislation related to Guantánamo that was subsequently overturned by the Supreme Court during the Bush administration, he delighted, in July, in overturning the successful habeas petition of Mohammed al-Adahi, a Yemeni who had accompanied his sister to Afghanistan to marry a man connected to al-Qaeda, but who had won his habeas petition because Judge Gladys Kessler had concluded that al-Adahi himself was not “part of” al-Qaeda.
This appeared to be correct, but in a ruling notable for personal slurs against Judge Kessler’s integrity, Judge Randolph not only reversed al-Adahi’s successful petition, but also indicated that he thought that the burden of proof in the habeas cases was too high, even though the government only has to establish, by a preponderance of the evidence (a potentially very vague balance of probabilities), that the petitioners were “part of” al-Qaeda and/or the Taliban to approve their ongoing detention.
The other bloc in the Circuit Court, consisting of 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, has proven to be rather less driven by ideology in dealing with the habeas appeals. In August, when they denied al-Bihani’s en banc habeas appeal, they nevertheless made a point of issuing a note demonstrating their dissatisfaction with the extreme position taken by Judges Brown and Kavanaugh regarding the President’s wartime powers, which effectively discredited it.
In addition, in June this year, Judges Ginsburg and Henderson and another judge, Senior Judge Harry T. Edwards, ordered the lower court to reconsider the case of Belkacem Bensayah, one of six Algerians living in Bosnia-Herzegovina, who had been kidnapped and flown to Guantánamo in January 2002, on the basis of a spectral plot to blow up the US embassy in Sarajevo. In November 2008, Judge Richard Leon had granted the habeas petitions of all these men, with the exception of Bensayah, but the Circuit Court found that “the evidence upon which the district court relied in concluding Bensayah ‘supported’ al-Qaeda is insufficient … to show he was part of that organization.”
These judges have not always been so alert. Just six days before the Bensayah ruling, for example, Judges Ginsburg and Tatel joined Judge Kavanaugh in denying the habeas appeal of Sufyian Barhoumi, an Algerian seized with Abu Zubaydah in Faisalabad, Pakistan in March 2002, drawing on discredited claims that Zubaydah, for whom the CIA torture program was specifically developed, was a major player in al-Qaeda, despite copious evidence in recent years to demonstrate that, in fact, the misappraisal of Abu Zubaydah’s significance is one of the most chronic intelligence failures in the whole of the “War on Terror.”
Nevertheless, on Friday, when Chief Judge Sentelle and Judge Tatel were joined by Judge Brown to consider the government’s appeal against the successful habeas petition of Mohamedou Ould Salahi (aka Slahi), a Mauritanian whose habeas petition was granted in April by Judge James Robertson, it was noticeable that reason was rather more in evidence than ideology.
Crucially, however, in every appeal from Al-Bihani onwards, the Circuit Court has agreed that being “part of” al-Qaeda and/or the Taliban is sufficient to justify detention, rather than being part of the “command structure” of either organization, as Judge John D. Bates had, for a while, established in the District Court rulings. This narrowing of the detention standard has had a knock-on effect on recent rulings, leading to more recent victories for the government, and it also played a major part in the deliberations of Judges Sentelle, Tatel and Brown.
The case of Mohamedou Ould Salahi: Torture, and Judge Robertson’s ruling
Salahi’s case is contentious for a variety of reasons, not least because, after his capture in Mauritania in November 2001, he was subjected to torture in Jordan, on behalf of the CIA, and was then subjected to a specifically tailored torture program in Guantánamo, which included:
prolonged isolation, prolonged sleep deprivation, beatings, death threats, and threats that his mother would be brought to Guantánamo and gang-raped. This program, which was implemented in May 2003, and augmented with further “enhanced interrogation techniques” authorized by defense secretary Donald Rumsfeld, culminated, in August 2003, in an incident when Salahi was taken out on a boat, wearing isolation goggles, while agents whispered, within earshot, that he was “about to be executed and made to disappear.”
Salahi’s torture was so severe that that, in May 2004, Lt. Col. Stuart Couch of the Marine Corps, who had been assigned his case as a prosecutor the year before, resigned rather than pursuing the case, telling his boss that, in addition to legal reasons, he was “morally opposed” to the interrogation techniques used on Salahi.
Quite what Salahi had done to warrant this treatment, and that had led to him once being described as the “highest-value detainee at the facility,” was thoroughly explored by Judge Robertson in April. Although the 9/11 Commission Report described him as “a significant al-Qaeda operative” who “recruited 9/11 hijackers in Germany,” along with Ramzi bin al-Shibh, the “high-value detainee” who allegedly coordinated the 9/11 attacks with Khalid Sheikh Mohammed, Judge Robertson was not convinced, noting that Salahi has stated that “he did nothing more than give bin al-Shibh and his friends lodging for one night,” and also noting that the government now “acknowledg[es] that Salahi probably did not even know about the 9/11 attacks.”
Judge Robertson accepted, as I explained in a previous article, that “Salahi was obviously no stranger to al-Qaeda. His cousin and brother-in-law is Mahfouz Walad al-Walid (better known as Abu Hafs al-Mauritania, a religious scholar regarded by US authorities as a spiritual advisor to Osama bin Laden,” and he also lived briefly in Canada, where he moved in circles that included Ahmed Ressam, the failed “Millennium Bomber,” and was also in contact, at various points in the 1990s, with a handful of other men who were later convicted for terrorist activities. However, as I also pointed out:
[A]s Judge Robertson explained in his unclassified opinion, “Associations alone are not enough … to make detention lawful.” Although he accepted, as Salahi himself admitted, that “he traveled to Afghanistan in early 1990 to fight jihad against communists and that there he swore bayat [an oath of loyalty] to al-Qaeda,” he also, essentially, accepted Salahi’s assertion that “his association with al-Qaeda ended after 1992, and that, even though he remained in contact thereafter with people he knew to be al-Qaeda members, he did nothing for al-Qaeda after that time.”
The Circuit Court refers the case back to the District Court
In assessing the government’s appeal, the Circuit Court judges accepted (PDF) that the government had dropped claims that Salahi was involved in any way in the 9/11 attacks or had “’purposefully and materially support[ed]’ forces associated with al-Qaeda ‘in hostilities against US Coalition partners,’” but maintained that, following the Circuit Court’s narrowing of the definition of involvement with al-Qaeda and/or the Taliban required to justify ongoing detention — that the prisoners were “part of” either organization — Judge Robertson’s opinion should be vacated and the case sent back to the District Court to reconsider in light of the revised definition.
This was, I believe, an acceptable compromise, as the government had urged the Circuit Court “to reverse and direct the district court to deny Salahi’s habeas petition,” whereas the Court accepted instead that further questions needed asking, which required further investigations by the lower court. Crucially, the Court noted that, “When Salahi took his oath of allegiance in March 1991, al-Qaeda and the United States shared a common objective: they both sought to topple Afghanistan’s Communist Government,” which is an important point, and the judges also included a list of possible questions for the District Court to consider, which demonstrate that they had given some thought to Salahi’s history:
For example, does the government’s evidence support the inference that even if Salahi was not acting under express orders, he nonetheless had a tacit understanding with al-Qaeda operatives that he would refer prospective jihadists to the organization? Has the government presented sufficient evidence for the court to make findings regarding what Salahi said to bin al-Shibh during their “discussion of jihad and Afghanistan”? Did al-Qaeda operatives ask Salahi to assist the organization with telecommunications projects in Sudan, Afghanistan, or Pakistan? Did Salahi provide any assistance to al-Qaeda in planning denial-of-service computer attacks, even if those attacks never came to fruition? May the court infer from Salahi’s numerous ties to known al-Qaeda operatives that he remained a trusted member of the organization?
The government’s unacceptable position regarding Salahi’s torture and his status as an informer
However, while the decision to “remand for further proceedings” is acceptable, it remains apparent that the government continues to play unacceptable games with Salahi for two reasons. The first is because its behavior begs the question of whether it is morally acceptable to seek a legal basis for Salahi’s ongoing detention when, as Judge Robertson stated (and as was cited by the Circuit Court), “The government’s problem is that its proof that Salahi gave material support to terrorists is so attenuated, or so tainted by coercion and mistreatment, or so classified, that it cannot support a successful criminal prosecution.”
The second reason, as I have discussed before, is because, as Peter Finn explained for the Washington Post in an article in March this year, Salahi and another man, Tariq al-Sawah, an Egyptian explosives expert for al-Qaeda, have, over the years, become “two of the most significant informants ever to be held at Guantánamo” — in al-Sawah’s case because he was thoroughly disillusioned with his former life, and in Salahi’s case because he began cooperating after his torture in 2003.
As a result of their cooperation, both men “are housed in a little fenced-in compound at the military prison, where they live a life of relative privilege — gardening, writing and painting — separated from other detainees in a cocoon designed to reward and protect … Each has a modular unit outfitted with a television. Each has a well-stocked refrigerator. They share a garden, where they grow mint for tea [and] are reported to have become close.”
Crucially, as I also explained:
[A]lthough the government has, to some extent, “rewarded them for cooperation,” no one in a position of authority has dared to propose the next logical step: releasing them under some sort of witness protection program. Finn explained that some military officials endorsed this proposal, believing that the establishment of a witness protection program, “in conjunction with allies,” might well “cultivate more informants.”
W. Patrick Lang, a retired senior military intelligence officer, told Finn bluntly, “I don’t see why they aren’t given asylum. If we don’t do this right, it will be that much harder to get other people to cooperate with us. And if I was still in the business, I’d want it known we protected them. It’s good advertising.”
As Guantánamo nears the ninth anniversary of its opening, however, no one in the Obama administration seems to care how counter-productive it is to treat informants this way. Instead, the Justice Department remains as determined as it was under George W. Bush to defeat every habeas petition, whether, as in most of the 19 cases won by the government, the men in question were nothing more than insignificant foot soldiers for the Taliban in a military conflict that had nothing to do with the 9/11 attacks or other acts of international terrorism, or whether, as in the cases of Salahi and Tariq al-Sawah, it would be useful to reflect on what message it sends to would-be informants when the government fights aggressively in court to continue detaining “two of the most significant informants ever to be held at Guantánamo,” rewarding them only with mint tea.
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 “Terrorism, Habeas Corpus, and the D.C. Circuit Court of Appeals Habeas Petition.”
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 since the start of 2010, see: 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), First Guantánamo Habeas Appeal to US Supreme Court (Fayiz al-Kandari, October 2010).
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Good to see your post on the Friday ruling. I read Lawfare’s post over the weekend and emailed Ben Wittes about it. I was delighted to get a response inviting me to write a guest post about it! I’ve just sent it to him this morning, we’ll see what happens.
On your post, why do you say the criteria narrowed going from “command structure” to a “part of”? I would think that expands the criteria so that it covers more people. You rightly say it has lead to more government victories, so am I just looking at this backward from your approach?
I think you’ve confused matters slightly in your paragraph starting “However, while the decision to “remand for further proceedings” is acceptable.” Judge Robertson’s point is that a criminal charge of material support is untenable – that the rules governing Article III courts would never allow the evidence needed to convict. He isn’t commenting on the rules of a military commission or its ability to convict. And he certainly doesn’t mean torture has eviscerated the government’s ability to continue to detain Salahi under AUMF-AT. He completely acknowledged the torture by the U.S. in 2003 (although I think he ignored the torture in Jordan). This fact didn’t prevent him from considering the government’s right to detain him, rather he ignored any statements from Salahi during this time and held that the rest of the government’s case wasn’t strong enough continue detention. Although under the “command structure” theory which is now discredited.
Good to hear from you, Norwegian Shooter.
What I meant by noting that it was acceptable for the court to remand the case was that the judges had identified issues that required further investigation, in their opinion, and I thought that was fair enough.
As for the narrowing of criteria, Judge Bates was arguing that the government had to demonstrate some sort of involvement in the command structure of al-Qaeda/the Taliban — i.e. giving or receiving orders — and from that perspective it seemed to make sense to me that the Circuit Court had narrowed that down to being “part of” the organization, although you’re right, of course, to state that the effect was actually to widen the criteria of those who can be detained.
Sorry for the confusion.
It’s somewhat heartening to see that the vast majority of members of the D.C. Circuit are actually taking some moral responsibility here, knowing as they do, that as long as the she-who-must-recuse-herself-from-all-of-this Elena Kagan breathes, barring a number of unexpected Supreme Court vacancies, the D.C. Circuit is now essentially the last word as to whether the overwhelmingly completely innocent men being held as domestic political pawns at Guantanamo Bay will ever get to see the light of day again, and thus they had damned well best be careful before slamming the doors shut on them for all eternity.
As morally outrageous as it is to continue to lock up Taliban foot-soldiers, stepping outside of the Alice-in-Wonderland aspects of all this, such men have, historically at least, been considered fair game for prisoner of war status. While the process has been convoluted, to the extent that’s what happens, it’s still less troubling than relying on hearsay, coerced statements and “the mosaic”… enough volume of unreliable information suddenly becomes compelling evidence!
To the extent that the jurists of the D.C. Cir. are, at least, behaving more like judges and human beings and less as political operatives and radio talk show hosts, there’s at least some hope for something approaching “fairness,” if not, of course, “justice.” Sadly, the judges do appear to be the last hope here, as a President Obama who showed nothing but cowardice in the face of his own promises back when he had huge Congressional majorities and wasn’t imminently running for reelection himself can certainly be expected to show even more “pragmatism” and “caution” going forward.
Forgot to include the link to Lawfare. This is the quote I was questioning, I just tried to make it shorter by using the first sentence of the paragraph:
“The first is because its behavior begs the question of whether it is morally acceptable to seek a legal basis for Salahi’s ongoing detention when, as Judge Robertson stated (and as was cited by the Circuit Court), “The government’s problem is that its proof that Salahi gave material support to terrorists is so attenuated, or so tainted by coercion and mistreatment, or so classified, that it cannot support a successful criminal prosecution.”
Salahi’s ongoing detention is under the easy standard of AUMF, which only excludes tortured confessions by a judicial case-by-case basis. Robertson is dismissing out of hand a claim of criminal prosecution that the government has since dropped.
Thanks, TD. Good to get your reassurance that I wasn’t deluding myself seeing different approaches in the Circuit Court, and that not all the judges are as depressingly ideological as Brown, Kavanaugh and Randolph.
And here are a few comments from Facebook:
Bee Bumble wrote:
Today America has become little more than the land of the freaks and brain dead.
Patrick O’Brien wrote:
… thank you for helping us understand what is going on, Andy.
Great work … (!!!) …
Wittes published my critique! Reader Response on Salahi. Unedited, too. If I get 8 comments (including Facebook) I’ll be a very happy man.
[…] several Guantánamo prisoners including Mohamedou Ould Salahi, who, last November, had his successful petition vacated and sent back to the District Court to reconsider, complained that the Circuit Court’s […]
Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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