Habeas Hell: How the Great Writ Was Gutted at Guantánamo

24.2.11

For the US attorneys who represent prisoners in Guantánamo, and who have spent many years seeking justice for their clients, it has been a long, and generally disappointing road. After triumph in June 2004, when, in Rasul v. Bush, the Supreme Court granted the prisoners habeas corpus rights, allowing them to meet their clients for the first time and to begin preparing their habeas corpus petitions, there were major setbacks in the years that followed.

In the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 (PDF), Congress purported to strip the prisoners of their rights, freezing the habeas litigation until June 2008, in Boumediene v. Bush (PDF), when, revisiting the prisoners’ circumstances, the Supreme Court ruled that the habeas-stripping provisions in the DTA and the MCA were unconstitutional, and granted the prisoners habeas rights for the second time.

How the habeas litigation began promisingly

In the wake of Boumediene, the prisoners secured a number of significant victories in the District Court in Washington D.C., beginning with 17 Uighurs, Muslims from China’s Xinjiang province, who had their habeas petition granted in in October 2008, and five out of six Algerians, kidnapped in Sarajevo and rendered to Guantánamo in January 2002, who had their petitions granted in November 2008.

Even with the low burden of proof imposed on the government by the court — requiring them only to demonstrate, “by a preponderance of the evidence,” that the prisoners seeking release were involved with al-Qaeda and/or the Taliban — the prisoners continued to secure victories in significant numbers. Over the next 13 months, as the District Court judges — discussing amongst themselves the necessary conditions for ongoing detention, and generally concluding that the government had to demonstrate that the prisoners in question were part of the “command structure” of al-Qaeda and/or the Taliban (in other words, that they were to some extent involved in taking orders) — ten prisoners won their petitions, while eight others lost.

Even with these impressive results for the prisoners, doubts remained about the wisdom of the Supreme Court’s decision not to question the assumptions in the legislation that authorized the detention of the prisoners in the first place — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks. This was because the AUMF — 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 September11,2001,” or those who harbored them — failed to distinguish between al-Qaeda (a terrorist group) and the Taliban (the government of Afghanistan in 2001, however reviled internationally).

The result of this classification failure was that most of the eight prisoners who lost their habeas petitions were not accused of having any involvement with terrorism, but were, instead, nothing more than low-level Taliban foot soldiers (and in one case, a cook), who had been in Afghanistan fighting the Northern Alliance — or supporting that struggle — in the months before the 9/11 attacks, and had, therefore, only become embroiled in America’s war by default, when the conflict in Afghanistan morphed from a civil war into a “War on Terror” after the US-led invasion on October 6, 2001.

No one, however, showed any willingness to discuss whether it was fair to equate al-Qaeda with the Taliban, and to label both as a unique category of human being — “enemy combatants,” who, when that designation had been invented, were supposedly detainable forever, without any rights whatsoever. The only concession made by President Obama’s Justice Department was to drop the use of the term “enemy combatant,” which was a shrewd PR move, but did nothing to address the more fundamental problems outlined above.

How the D.C. Circuit Court fought back

However, while the first 15 months of habeas hearings resulted in 32 victories for the prisoners, against just nine for the government, and also, crucially, led to the eventual release of 25 of the men who had won their petitions, everything changed last year, beginning last January when the D.C. Circuit Court delivered a ruling on the first appeal resulting from the District Court’s decisions.

The case before the court was that of Ghaleb al-Bihani, the cook mentioned above, who had prepared food for Arab forces supporting the Taliban. Al-Bihani had lost his habeas petition during President Obama’s first month in office a year before, but when the Circuit Court considered his appeal, the panel of three judges not only upheld the original ruling, but two of them — Judge Janice Rogers Brown, supported by Judge Brett M. Kavanaugh — argued that the government had sweeping powers that should not be constrained by judges, claiming that it was “mistaken” for al-Bihani’s lawyers to argue that “the war powers granted by the AUMF and other statutes are limited by the international laws of war.”

This was too much for the third judge, Senior Circuit Judge Stephen F. Williams, who noted that his colleagues’ opinion was “hard to square with the approach that the Supreme Court took in Hamdi [v. Rumsfeld, a 2004 Supreme Court case regarding Guantánamo that established the government’s right to hold men detained under the AUMF].” 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.”

It was also too much for the Obama administration, which noted in a brief that “The Government interprets the detention authority permitted under the AUMF as informed by the laws of war,” and on August 31 last year, seven out of the nine judges ruling on an appeal of the original Circuit Court ruling upheld the decision regarding al-Bihani’s detention, but effectively dismissed the claims about the limits of the international laws of war.

This was important, but Judge Janice Rogers Brown and Judge Brett M. Kavanaugh were not alone in wishing to fundamentally challenge the decisions made by District Court judges. In another appeal in June last year — that of Adham Ali Awad, a Yemeni amputee who had been handed over to Afghan forces by al-Qaeda fighters besieged in a hospital in Afghanistan in December 2001, and had lost his habeas petition in August 2009 — three different judges (Chief Judge David B. Sentelle, Judge Merrick B. Garland and Judge Laurence H. Silberman) dismissed the “command structure” requirement  for detention accepted by the majority of the District Court judges, noting that it was not mentioned in the AUMF, and insisting that being “part of” al-Qaeda or the Taliban was sufficient to justify a prisoner’s ongoing detention.

Ths was a worryingly open-ended definition, of course, and it has, moreover, changed the course of the habeas litigation. Although four prisoners won their petitions between February and June 2010, and five prisoners lost (bringing the total to 36 victories for the prisoners, against 14 losses), just two prisoners have won their petitions since the Awad ruling, and the last seven rulings have all been in the government’s favor.

The latest victory for the government in the District Court — the case of Mashur al-Sabri

The last of these government victories — on February 5 — was in the case of Mashur al-Sabri (also identified as Mashour Alsabri), a 32-year old Yemeni, whose habeas petition was denied by Judge Ricardo Urbina. I have not yet had time to read Judge Urbina’s unclassified opinion (PDF) to analyze exactly how he reached his conclusion, but from the publicly available information about al-Sabri, it is clear that it would not have been difficult to conclude that he was “part of” al-Qaeda and/or the Taliban. As I explained in a profile of him in September:

According to the US authorities, al-Sabri traveled to Afghanistan in summer 2000, lived in Jalalabad for a year, and traveled on occasion to the Taliban lines at Bagram and Kabul. Quite what else he did is difficult to ascertain — not because there are no allegations, but because their trustworthiness is hard to gauge. According to various unidentified sources, in May 2001 he was working as a facilitator for new arrivals at two guest houses in Kabul, and was “well known and well respected as an administrator in the guest houses.” It was also noted that he “was said to facilitate the transfer of weapons and other supplies to the front lines,” and, most worryingly (or most outrageously, depending on your point of view), was accused of working for Osama bin Laden. According to the unidentified allegations, he was “believed to have sworn bayat to Osama bin Laden,” because he and others around him knew bin Laden’s travel dates and routes, and another “source” identified him as “a member of al-Qaeda,” because he was “following Osama bin Laden’s orders to keep the guest house up and running.”

These latter claims look suspicious, as they increase his significance through nothing more than innuendo, and without them, we are left, as so often, with a man consigned to indefinite detention at Guantánamo on the basis of nothing more than being involved, to some extent, in the Taliban’s military campaign against the Northern Alliance in the year before the 9/11 attacks.

As I mentioned above, this kind of role — as, essentially, an insignificant foot soldier in a military conflict in Afghanistan that preceded the 9/11 attacks, and that had nothing to do with international terrorism — dominates the cases of the men who have lost their habeas petitions, and I find it hard to see how they can be judged as any kind of success, as all they do is reinforce the notion that, in its “War on Terror,” the Bush administration successfully destroyed the Geneva Conventions, creating a parallel quasi-legal world in which soldiers are held indefinitely as “enemy combatants” rather than as prisoners of war.

In contrast, the few men in Guantánamo who are actually accused of involvement in terrorist activities either await federal court trials that may or may not ever happen, or are cutting plea deals in Military Commission trials that, if the administration honors its obligations, will see them released in the next few years, while the foot soldiers, the cook, a medic and a handful of pointessly detained Afghans rot in Guantánamo forever.

A legally flawed victory for the government in the D.C. Circuit Court – the case of Saeed Hatim

This is, moreover, not the end of the story. On February 15, a panel of Circuit Court judges took another step into dubious legal territory when they vacated the successful habeas petition of Saeed Hatim, another Yemeni, who had won his habeas petition in December 2009. As I explained at the time:

Hatim told his interrogators that he wanted to find a way to fight in Chechnya but concluded that he needed to train in Afghanistan. However, although he admitted attending the al-Farouq camp (associated with Osama bin Laden in the years before 9/11), he said that he “did not like anything about the training,” that he faked a fever so that he could leave the camp, and, after some time hanging around behind the Taliban’s front lines, made his way to the Pakistani border, where he surrendered to the Pakistani police, and was then handed over to US forces.

In granting Hatim’s habeas petitiion, Judge Ricardo Urbina refused even to analyze whether the government’s supposed evidence — which came almost entirely from Hatim’s own statements — demonstrated sufficient involvement in al-Qaeda and /or the Taliban to justify his detention, ruling instead that everything he had said was unreliable because of his unrefuted claims that he was subjected to torture and abuse in the US prison at Kandahar before his transfer to Guantánamo. In his unclassified opinion, Judge Urbina wrote:

Hatim’s unrefuted allegations of torture undermine the reliability of the statements made subsequent to his detention at Kandahar. Thus, the government faces a steep uphill climb in attempting to persuade the court that the petitioner’s detention is justified based on the allegation that he trained at al-Farouq, given that the sole evidence offered in support of that allegation is tainted by torture.

In addition, as I noted at the time:

Judge Urbina added that, even if Hatim had attended al-Farouq, there was “scant evidence” that he “actually participated in al-Qaeda’s command structure by receiving and executing orders,” and that this interpretation was reinforced by his departure from the camp, and also because no third-party witness “indicate[d] that [he] was even seen at al-Farouq, much less that he was seen following orders on al-Qaeda’s behalf.”

He then proceeded to dismiss claims that Hatim had participated in al-Qaeda’s command structure either behind the front lines or in the guesthouses in which he had stayed, concluding that “the government has offered the court an inherently flawed justification for detention.”

The only other information offered by the government as evidence — that Hatim had fought at Tora Bora, a showdown in December 2001 between al-Qaeda and their Taliban supporters, and a proxy Afghan army fighting for the US with back-up from US Special Forces — was also dismissed by Judge Urbina, on the basis that the prisoner who had made this statement “has exhibited an ongoing pattern of severe psychological problems while detained at GTMO,” and had, in fact, made false statements against 60 prisoners in total, which, despite their unreliability, are regularly used by Justice Department lawyers in the habeas litigation, where, to their credit, several District Court judges have picked up on them — and on statements made by other unreliable witnesses — and have dismmissed them outright.

However, when the government’s appeal came before the Circuit Court, Hatim was confronted by a panel of judges that included Senior Judge A. Raymond Randolph, another judge noted for his aggressive defense of the government’s right to hold whoever it wishes to hold, without much in the way of proof.

In July last year, Judge Randolph led a panel of judges that reversed the successful habeas petititon of another Yemeni, Mohammed al-Adahi, who had won his petition in August 2009. Al-Adahi, who was seized in Pakistan, had accompanied his sister to Afghanistan to marry a man who was undoubtedly connected to al-Qaeda, but Judge Gladys Kessler ruled that, despite this, al-Adahi himself had no connection to al-Qaeda, and granted his habeas petition. As I explained when al-Adahi’s successful petition was reversed:

There was abundant evidence to suggest that she was correct — primarily that he had never previously left Yemen, where he had a respectable job, that he was obliged to accompany his sister, who was not allowed to travel alone, and that he was kicked out of a training camp during his stay because he broke the rules by smoking — but when the government’s appeal came before a panel including Judge Randolph (notorious for endorsing every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court), the Court reversed Judge Kessler’s ruling, with Judge Randolph describing it as “manifestly incorrect — indeed startling.”

In his ruling, Judge Randolph personally impugned Judge Kessler’s integrity, and also stated his belief that the low standard of proof required in the habeas cases — whereby the government only has to support its argument “by a preponderance of the evidence” — was actually too high. Judge Randolph’s intervention was not a legal requirement, but was still significant, as SCOTUSblog explained, noting that “even if the Justice Department did not now take the Circuit Court’s hint to propose a ‘some evidence’ standard for use in the remaining Guantánamo cases, the way the panel interpreted the preponderance standard would seem to ease the government’s burden of proof significantly.”

With Judge Randolph exercising his baleful influence, it was unsurprising that the Circuit Court vacated Saeed Hatim’s successful petittion, ordering it to be sent back for reconsideration by the District Court. With the case of Adham Ali Awad as a precedent, it was clear that Judge Urbina had not specifically addressed the question of whether Hatim had been “part of” al-Qaeda and/or the Taliban, rather than being involved in the “command structure” of either organization, although, in effect, it should have made no difference, as Judge Urbina refused to credit any of the government’s supposed evidence because of Hatim’s credible allegations that he was tortured.

The Circuit Court erroneously claims that “those who purposefully and materially support” al-Qaeda or the Taliban can be detained

However, in vacating Hatim’s successful petition, the Circuit Court went one step further, drawing on the Circuit Court’s January 2010 ruling in the case of Ghaleb al-Bihani to argue that even a demonstration that a prisoner was “part of” al-Qaeda and/or the Taliban was too high a hurdle. As the judges explained (PDF):

The district court ruled that the military could detain only individuals who were “part of” al-Qaida or the Taliban; and that Hatim did not fit that description. That ruling is directly contrary to Al-Bihani v. Obama, which held that “those who purposefully and materially support” al-Qaeda or the Taliban could also be detained. Hatim admits the error, but says it was harmless. We cannot see how.

Personally, I cannot see how this fundamentally undermines Hatim’s successful petition, as no evidence has been provided to overturn Judge Urbina’s conclusion that everything Hatim admitted was tainted by torture, but the ruling is deeply disturbing because, as the lawyer Steve Vladeck explained on his blog:

[T]he key here is the notion that anyone who “purposefully and materially support[s]” al-Qaeda or the Taliban can be detained indefinitely, whether or not they’re in any way affiliated with either group, and whether or not they come anywhere near the definition of a “belligerent” under international humanitarian law.

This is indeed troubling, as it moves the litigation far beyond questions about whether or not it is justifiable to hold soldiers indefinitely at Guantánamo, and takes us back to the darkest days of the Bush administration, when, in a memorable exchange in a US court, Deputy Associate Attorney General Brian Boyle responded to a question by Judge Joyce Hens Green — “If a little old lady in Switzerland gave money to a charity … and the money was passed to al-Qaeda, could she be held as an enemy combatant?” — by replying, “She could. Someone’s intention is clearly not a factor that would disable detention.”

In his blog post, Steve Vladeck dissected the rather complicated legal reasons why the Al-Bihani panel’s claim that “those who purposefully and materially support” al-Qaeda or the Taliban can be detained is wrong, but he was, understandably, concerned that other judges in the Circuit Court appeared to be unconcerned by the actions of a minority of their colleagues, asking:

As it becomes increasingly clear that a small but vocal minority of the D.C. Circuit (Judges Brown, Kavanaugh, and Randolph, in particular) will apparently find any way in any case to adopt holdings that (1) go beyond even what the government is asking for in these cases … and (2) are indefensible as a matter of law and logic, is anyone else on that court going to notice?

How the mainstream media are asleep, and the Justice Department is appealing successful Yemeni petitions for nakedly political reasons

As the dreams of habeas as a remedy for any of the Guantánamo prisoners now lie in ruins, this is a valid and important question, but its scope should be larger. Why, for example, is no one in the mainstream media concerned by these decisions that are “indefensible as a matter of law and logic,” and why is the Justice Department, under Attorney General Eric Holder, also unconcerned?

The answer to the first question appears to be that the mainstream media in the US is either unwilling or unable to address the importance of the Guantánamo habeas litigation, and the answer to the latter would have to be that Holder doesn’t care — and that, by extension, President Obama doesn’t care either.

The blunt truth, sadly, is that, throughout Obama’s Presidency, Eric Holder has failed to provide any advice or direction to the lawyers working on the Guantánamo habeas cases, allowing them to behave as though it was business as usual with Bush still in power. Ridiculous cases were aggressively pursued by government lawyers in the District Court in 2009, leading to several high-profile humiliations — in, for example, the cases of Mohammed El-Gharani, Alla Ali Bin Ali Ahmed, Abdul Rahim al-Ginco, Mohamed Jawad and Fouad al-Rabiah.

In the last year, as the Circuit Court’s most extreme judges have been pursuing their poisonous agenda, the Justice Department has shown no willingness to fight back (except on the point about the constraints of the international laws of war in Al-Bihani), and, in fact, seems to be delighted to have discovered that the Circuit Court will grant every government appeal that comes its way.

What makes this even more worrying is the perception that the Justice Department is not even necessarily appealing successful petitions on the basis of their merits, but is pursuing them with a political aim. Since last January, when President Obama announced a moratorium on releasing any Yemenis from Guantánamo — in response to the hysteria that greeted the news that Umar Farouk Abdulmutallab, the failed Christmas 2009 plane bomber, had been recruited in Yemen — every successful habeas petition by a Yemeni (with the exception of Mohammed Hassan Odaini, a student whose clearly mistaken detention was picked up by the mainstream media) has been appealed.

This seems deeply suspicious to me, as the government has not only appealed the successful petition of Saeed Hatim, after Judge Urbina put forward a coherent argument that the entire case against him was dependant upon his torture, and on the testimony of a worthless witness, and that of Mohammed al-Adahi, whose guilt would seem to rest solely on the marriage of his sister, but has also appealed the successful petition of Adnan Farhan Abdul Latif, who was cleared for release under the Bush administration, has severe mental health problems, and has attempted to commit suicide on a number of occasions.

Latif won his habeas petition after a hearing in which the government failed to demonstrate that he had lied about traveling to Pakistan, and then Afghanistan, in search of cheap medical treatment, but as with Saeed Hatim, Mohammed al-Adahi, and others Yemenis still held after winning their petititons, it seems that political expediency, rather than any notions of justice, is driving their ongoing detention, with a handful of rogue judges in the D.C. Circuit Court allowed to dictate the sort of detention policy that, in Guantánamo’s tenth year of operations, could have come straight out of briefings with George W. Bush and Dick Cheney at the height of the arrogance, disdain for the law and paranoia that informed the unique, and uniquely disturbing detention policies at Guantánamo.

That this is still happening now — and happening under President Obama and Eric Holder — ought to be a cause for alarm, and a wake-up call for the international community to redirect its attention to Guantánamo, if, as it appears, the United States itself has abandoned all notions of fairness and justice when it comes to the closure of the prison.

Note: For details of all the habeas cases ruled on in the US courts, see the dedicated page, Guantánamo Habeas Results: The Definitive List, which is regularly updated when new developments are announced.

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, on tour in the UK throughout 2011, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners.

15 Responses

  1. Andy Worthington says...

    On Facebook, Eileen Brophy wrote:

    I will share Andy but I abandoned Digg a long time ago when there was so much right wing trouble on that site.

  2. Andy Worthington says...

    Susan Hall wrote:

    Just call me a bird, tweeted, or a worm, digging & a FB fan reposting. Thanks Andy. Small group liked your film – Thanks again. I always cry when Omar says he missed being with his little boy. I can’t help thinking how Shaker Aamer must cry over this. My husband cried when our children were born, & to think he would never see them again or one of them not being born would be excruciating, especially if he was by himself without me to put my hand on his hand, or on his shoulder to say we will make it together.

  3. Andy Worthington says...

    Very moving, Susan. Thanks. You express perfectly the empathy that is missing in so many people.

  4. Norwegian Shooter says...

    Excellent work, Andy. I’m not sure it was a shrewd PR move, as the new label sometimes used is “‘unprivileged enemy belligerent” and everybody knows they are the exact same thing as “enemy combatant.”

    Small correction, “Al-Bihani had lost his habeas petition during President Obama’s first month in office a year before, but when the Circuit Court considered [al-Bihani's] appeal”

    Who is the detainee that has made false statements against 60 other detainees?

    Unfortunately, the Department of Justice isn’t just being unjust with habeas petitions. The whole Department seems to be corroding from within. The other Scott Horton (Harper’s) has ably documented this tragedy. I seriously wonder whether it will ever recover.

  5. Virginia Simson says...

    Reading this stuff sometimes just makes the days – and nights – too long.

    I hope Anonymous reads your “dispatches” and DOES something, I truly do. Meanwhile I do all I CAN do – march, email, pass out postcards and remind people.

    I was thinking last night it’s time to write Omar Khadr again to tell him he is still in my heart.

    I know you have great heart (verb, not noun), Andy. I am so glad that you are our articulate, loving voice. No one could take on your “mission” with the dedication and talent you have, Many of us see this, not just me.

    I am so grateful, I even “digg” the articles … : )
    On sad days, remember we love YOU, too.

  6. Andy Worthington says...

    Norwegian Shooter,
    Thank you, my friend, for your eagle eyes. I have now made that correction you pointed out.
    As for the witness who lied, I’d rather not disclose his identity, but I remain shocked that the story is not more widely known, and — even more so — that the Justice department lawyers dealing with the habeas cases don’t care where their supposed evidence comes from if it bolsters their case. i guess this is normal fare for attorneys, but there’s something deeply cynical about it in the context of Guantanamo, where decisions about the fate of these men – possibly affecting the rest of their lives – are so clearly politized.
    Here’s the article I wrote, back in July 2007, in which I first drew on the story of the witness who told lies about 60 prisoners: http://www.andyworthington.co.uk/2007/07/03/guantanamo-whistleblowers-lt-col-stephen-abraham-is-not-the-first-insider-to-condemn-the-kangaroo-courts/
    And here’s where it first appeared, in two ground-breaking articles by Corine Hegland in the National Journal in February 2006 — five long years ago:
    http://nationaljournal.com/about/njweekly/stories/2006/0203nj1.htm
    http://nationaljournal.com/about/njweekly/stories/2006/0203nj4.htm

  7. Andy Worthington says...

    Thank you, Virginia. That really does mean a lot to me.

    I’m not sure if this is one of those sad days, but it may well be. On a professional level, I may never have felt as despondent about Guantanamo as I do now. When Bush was in power, we knew who the enemy was — the enemy who scorned the law and brutalized men, largely seized randomly, in Guantanamo and elsewhere — and we could take comfort from the outrage of the international community, and from those hugely important rulings in the Supreme Court.

    Now, however, there are few of us who recognize that the enemy is still with us — in Congress, in the D.C. Circuit Court, in significant parts of the media, in the Justice Department and in The White House, and in many of the other departments and agencies involved in the Guantanamo Review Task Force.

    For at least six months, I have been tempted, on occasion, to write a simple post saying, “Goodbye, America, You Are Beyond Redemption,” and throughout this period I have regularly written articles in which, although I know how to shape and channel and direct my words, I have literally been burning with a barely suppressed indignation and deep, deep disappointment and sorrow.

    Last night I spent 40 minutes pacing around a room in a college in Cambridge University pouring all of this out — in painstaking detail — to a group of 30 students who may not quite have known what hit them, so remorseless is the deviousness with which one or other of the powers-that-be in the US has, in the last two years, shut off justice to any of the 172 men still held.

    I won’t give up, of course, and I will continue to try working with organizations who do care in order to find ways to break through the deadlock in the US, to restore some semblance of justice, and to find ways to reach out once more to the international community to tell them that the men in Guantanamo are in a worse position than they have been since sometime in 2004, just before it became apparent that the Supreme Court was going to grant them habeas corpus rights in Rasul v. Bush.

    This is about human rights, as it has been all along — and those rights apply to everyone, not just to everyone who isn’t a Muslim and who, if seized in the “War on Terror,” has been used as the most distressing sort of scapegoat for over nine years by people who are not content with all the brutality, humiliation and lawlessness, but actually want nothing less than the total sacrifice of these men’s lives — for them to be held in US custody forever without the meaningful remedy that the Supreme Court insisted on granting to them not once, but twice.

    On a personal level, my profound sorrow at the betrayal of justice, the easy cowardice of the administration, and the almost unutterable cruelty and cynicism (or self-obsessed stupidity) of the US judges and lawmakers who are working so hard to prevent Guantanamo’s closure is so much a part of my life now that I am probably unable to remember life in any other way, but my feelings are certainly sharpened by other events — the recent death of my father, for example, which, though sudden (a mercy) and accompanied at his funeral by a recognition that he had enjoyed life more as it went on, and was remembered fondly by many people, has, of course, prompted reflections on mortality that I had not foreseen.

    There are also other unexpected factors — the poignancy of the my son’s life, aged 11; the aging I feel, days away from my 48th birthday; recently reading an entire dossier of information about the clinical torture of Khalid Sheikh Mohammed and other “high-value detainees,” and imagining being them, and wondering what the torture does to the torturers, and what kind of kicks Dick Cheney got from hearing about it; even watching the last ever episode of Blackadder this evening, with my wife and son, and crying, and recalling that much of what prompts my work can be traced back to teenage despair about the brutality of the First World War, and that almost incalculable loss of life — and a rage against the impulses of almost everyone who seeks and secures power over others, who nearly all turn out to be psychopaths, with a delight in inflicting misery — or death — on those under their control.

    And in my lifetime, here in the UK, those psychopaths would include Margaret Thatcher, Tony Blair, and now David Cameron, George Osborne and the rest of the petty dictators in the Tory-led coalition government, who are bullying most of the country into poverty while continuing to advance the thievery of their banking and corporate chums.

    Ah, but there I go again: raging against the psychopaths. It’s why the revolutions in the Middle East — and the youthful protest movements in the West — give me so much hope. And although it’s hard to find hope in the situation at Guantanamo, without it — and without the will to fight injustice — we are lost.

  8. Andy Worthington says...

    On Facebook, George Kenneth Berger wrote:

    Sharing, thanks

  9. Andy Worthington says...

    Ruth Blakeley wrote:

    Thank you Andy, really helpful analysis

  10. amanda goode says...

    Andy you are the hope of the men held captive in Guantanamo. And if President Obama and Atty General Eric Holder believe that ignoring the blatent inconsistencies in these rulings will allow them to retain power they are terribly mistaken. We have not forgotten these men. And because of your labor, time & the obvious care you have put into documenting every detail of their cases we have what we need as citizens of the US to require our government to address every single abuse they have endured. We will not stop until this is done…otherwise America is destined to crumble under the weight of the self-centered, bloated, ignorant misconception too many citizens have of it.

  11. Andy Worthington says...

    Thank you, Amanda. That’s very good to hear.

  12. Norwegian Shooter says...

    As I’ve read more and more of the Gitmo tragedy, I keep asking, “Can it get any worse?” The answer is always yes. There is always terribly damning information right around the corner wherever you look. It’s a veritable mountain by now. And yet, the mountain has not only triggered almost no reaction, but it is actually slipping into the sea of obscurity: the National Journal article links are dead.

    I’ve an idea of who the liar is, but that doesn’t give me any satisfaction.

  13. Andy Worthington says...

  14. WikiLeaks Reveals Yemenis Cleared For Guantanamo Release Up To Seven Years - OpEd says...

    [...] Hatim, whose habeas corpus petition was granted in December 2009, had his successful petition vacated by the Court of Appeals (the D.C. Circuit Court) in February this year, and Adnan Farhan Abdul Latif, who won his petition [...]

  15. Guantanamo: Jemeniten schon bis zu 7 Jahre eingekerkert « Ticker says...

    [...] 2009, had his successful petition vacated by the Court of Appeals (the DC Circuit Court) in February this year and Adnan Farhan Abdul Latif, who won his petition last July, is currently preparing to challenge [...]

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Andy Worthington

Investigative journalist, author, filmmaker, photographer and Guantanamo expert
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Outside the Law: Stories from Guantánamo

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