Mocking the Law, Judges Rule that Evidence Is Not Necessary to Hold Insignificant Guantánamo Prisoners for the Rest of Their Lives

31.3.11

If I was an American lawyer who had fought for many years to secure habeas corpus rights for the prisoners held at Guantánamo Bay, Cuba — in other words, the right to ask an impartial judge to rule on my captors’ reasons for slinging me in a legal black hole and leaving me to rot there forever — the latest news from the Court of Appeals in Washington D.C. (also known as the D.C. Circuit Court) would make me sick in a bucket rather than believing any longer that the law — the revered law on which the United States was founded — can bring any meaningful remedy for the prisoners at Guantánamo.

Treated as punchbags without rights when first picked up, mostly in Afghanistan and Pakistan in the wake of the 9/11 attacks and the US-led invasion of Afghanistan, the 172 men still held at Guantánamo are still treated with scorn by the administration of Barack Obama, the standard bearer of “hope” and “change,” who promised to close Guantánamo and to do away with “the dark halls of Abu Ghraib and the detention cells of Guantánamo, [where] we have compromised our most precious values.” Instead, however, Obama has revealed himself to be nothing more than a hollow man whose ability to read from an autocue made him look caring, clever and capable when that was exactly the antidote we needed to eight years of Bush and Cheney.

Today, the reason for despair is that on Tuesday the D.C. Circuit Court reversed a ruling made last February by Judge Henry H. Kennedy Jr. of the District Court, in the case of Uthman Abdul Rahim Mohammed Uthman, a Yemeni held at Guantánamo without charge or trial since the prison opened in January 2002. Last February, after examining all the government’s supposed evidence against Uthman, Judge Kennedy ruled that, although the government had presented what appeared to be a coherent timeline of events that was typical for young men from the Gulf, recruited to visit a training camp in Afghanistan to learn to fight for the Taliban against the Northern Alliance, none of the government’s supposed evidence proving Uthman’s presence in guest houses, at a training camp, and in the Tora Bora mountains (where a showdown took place in December 2001 between remnants of al-Qaeda and the Taliban, and Afghan forces recruited to fight for the Americans) was reliable.

The reason for this, Judge Kennedy concluded, was because the government’s supposed evidence consisted of statements produced by other prisoners who had been tortured, and whose testimony was therefore unreliable, as well as other witnesses whose statements were also considered to be untrustworthy.

This could have been the end of the story, and Uthman could have been released, were it not for the fact that he is a Yemeni, and the month before he won his petition, President Obama bowed to hysteria following the announcement that Umar Farouk Abdulmutallab, the failed Christmas Day plane bomber, had been recruited in Yemen by announcing an immediate, open-ended moratorium on releasing any Yemenis from Guantánamo.

The fact that this moratorium was unjustifiable, consigning prisoners cleared for release by a US court, or by Obama’s own interagency Guantánamo Review Task Force, to indefinite detention on the basis of “guilt by nationality,” appeared to trouble no one, and, similarly, no one blinked when every Yemeni who won his habeas corpus petition — with one heroic exception — subsequently had his successful petition appealed.

This was in spite of the fact that it was obvious to anyone who was reasonably sentient that the main reason for doing so was to avoid having to try to persuade Congress that an exception should be made to the moratorium, which, very clearly, was actually intended to function as a permanent obstacle to the release of any Yemeni, the kind of legally and morally dubious device that President Bush also favored, although his chosen vehicle was the executive order.

The noble exception, by the way, was Mohammed Hassan Odaini, a student who had been seized while staying the night wth other students at their universtiy dorm in Faisalabad, Pakistan, in March 2002. Many of the other students staying in the dorm are still held, but Odaini was lucky because a judge reached the point where he was satisfied that he could make a ruling on his habeas petition, and forcefully explained that the US government had no reason for having deprived Odaini of eight years of his life, when intelligence officials knew, almost from the moment of his capture, that he was an innocent man.

It also helped that his case was picked up by the Washington Post, which ran an editorial entitled, Meet one Gitmo inmate who can’t be described as ‘the worst of the worst.’ At this point, he became a kind of minor celebrity victim, and the administration conceded that it wouldn’t dare appeal, although officials still made a concession to outrageousness by explaining, straight-faced, that they still would have challenged his release if they hadn’t discovered that he was from a good family. “People [in the administration] were comfortable with this,” an anonymous official told the Washington Post, “because of the guy’s background, his family and where he comes from in Yemen.”

For Uthman Abdul Rahim Mohammed Uthman — not as well-connected as Mohammed Hassan Odaini — all that awaited him was a date with the D.C. Circuit Court that was bound to result in Judge Kennedy’s ruling being reversed, and Uthman himself being consigned to indefinite detention at Guantánamo for the rest of his life.

The reason I state this with such confidence is that, since they first began considering Guantánamo habeas appeals last January, the judges of the D.C. Circuit Court — and, in particular, Judges A. Raymond Randolph, Brett M. Kavanaugh and Janice Rogers Brown — have generally functioned as though possessed by the spirit of George W. Bush and Dick Cheney, sedating the spirit of justice and taking revenge on the Supreme Court, which granted constitutionally guaranteed habeas corpus rights to the Guantánamo prisoners in June 2008.

Of these, Judge Randolph is the most notorious, having endorsed every piece of Guantánamo legislation that came his way under the Bush administration, even though all his rulings were subsequently reveresed by the Supreme Court, but all of them (plus others, in various combinations) have almost entirely guaranteed success for the government’s appeals in the habeas legislation, as I explained in my articles, Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part One), Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part Two) and Habeas Hell: How the Great Writ Was Gutted at Guantánamo.

In challenging, reversing and vacating the District Court opinions, the D.C.Circuit Court has issued a contentious opinion about unfettered executive power, which claimed greater wartime powers for the government than senior officials wanted, wondered — in an opinion by Judge Randolph — why any kind of test was required for the quality of the government’s evidence in cases related to terrorism, and, most damagingly for the prisoners, decided that the involvement with al-Qaeda and/or the Taliban that is required to justify detention is not, as the District Court judges decided, limited to some sort of involvement in the command structure of the organizations (intended to demonstrate important indicators like the requirement to take orders), but is, instead, the much more open-ended requirement that those under consideration are “part of” al-Qaeda and/or the Taliban.

On Tuesday, demonstrating quite how open-ended this description is, Judge Kavanaugh, who wrote the judges’ opinion, declared, as ProPublica stated, “that the government doesn’t need direct evidence that a detainee fought for or was a member of al-Qaeda in order to justify a detention.” ProPublica added that the court “determined that circumstantial evidence, such as a detainee being in the same location as other al-Qaeda members, is enough to meet the standard to hold a prisoner without charge.”

In the ruling (PDF), the judges wrote, “Uthman’s account piles coincidence upon coincidence upon coincidence … it remains possible that Uthman was innocently going about his business and just happened to show up in a variety of extraordinary places — a kind of Forrest Gump in the war against al-Qaeda. But Uthman’s account at best strains credulity, and the far more likely explanation for the plethora of damning circumstantial evidence is that he was part of al-Qaeda.”

Jonathan Hafetz, a professor at Seton Hall Law School, who has represented 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 ruling “significantly favors the government in ways the Supreme Court did not intend when it granted detainees the right to challenge detentions.”

“The Uthman case cements the trend in the D.C. Circuit’s decisions toward a broad and malleable definition of who can be considered ‘part of’ al-Qaeda, combined with a highly deferential view of the government’s interpretation of the facts,” Hafetz said. “In many cases, the result is indefinite detention based on suspicion or assumptions about a detainee’s behavior.”

He added that the ruling is not only dismissive of the considered approach taken by the District Court, but is also dismissive of the intent of the Supreme Court. The Supreme Court, he said, “mandated a meaningful judicial process in which the government would be called to account; Uthman says judges should not require much in the way of an answer.”

The other problem for Uthman, and for the majoriity of the other prisoners who have lost their habeas petitions (22 out of 59 cases in total), is that all this legal maneuvering fails to address a fundamental problem with the habeas petitions that no one has ever wanted to deal with — the fact that the habeas petitions are specifically to decide whether the government is able to demonstrate, by a preponderance of the evidence, that the prisoners in question were involved with al-Qaeda and/or the Taliban, without making any distinction between them, even though one is a terrorist group, and the other was the government of Afghanistan at the time of the 9/11 attacks.

This refusal to distinguish between two decidedly different groups — despite the limited crossover between them, which also extended to a failure to realize that those who trained in camps associated wth al-Qaeda were generally only involved in what might be called al-Qaeda’s military wing, rather than its involvement with international terrorism — is enshrined in the founding document of the “War on Terror,” the Authorization for Use of Military Force. Passed by Congress the week after the 9/11 attacks, the AUMF 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.

Interpreted by the Supreme Court, in Hamdi v. Rumsfeld, in June 2004, as “clearly and unmistakably” authorizing the detention of individuals, the AUMF therefore provides the rationale for holding prisoners neither as criminal suspects, to be put forward for trials, nor as prisoners of war protected by the Geneva Conventions, but as what Bush called “illegal enemy combatants,” and it crafts the fiction, maintained ever since, that terrorists and soldiers are somehow one and the same, when, if those involved in the habeas legislation were allowed to express an honest and  unguarded opinion about many of the cases, I’m sure that many of them would concede that terrorists are criminals, whereas those involved in the Taliban’s military conflict with the Northern Alliance, which morphed, after 9/11, into a global war against the US, were nothing more than soldiers, and should have been held as such according to the Geneva Conventions.

Time and again, however — and Uthman is just the latest example — these foot soldiers have been losing petitions and being slung back into Guantánamo as though they were convicted terrorists, even when they are no such thing, and, in two cases, were not even foot soldiers but a cook and a medic. Sadly, few people realize that this is what has been happening, as the mainstream media in the US has done little to interest the American public in the prisoners’ habeas corpus petitions.

However, as with my imaginary scenario with the judges, if it were possible to make a cross-section of the American public sit down for a few hours and have spelled out to them the stories of those who have been losing their habeas petitions and who may now spend the rest of their lives in Guantánamo, I’m sure that they too would realize that there’s an enormous difference between someone involved in a plot to kill hundreds or thousands of civilians on the US mainland or anywhere else in the world, and someone who attended a training camp, and may, in some way or another, have engaged in military conflict with the Northern Alliance and/or the US military in Afghanistan.

Nearly ten years after the 9/11 attacks, the time to sort out the difference between terrorists and soldiers is surely long overdue, so that people like Uthman are treated with justice, rather than the lingering effects of the hyperbole that typefied the Bush administration’s “War on Terror.” Moroever, it is also important for America itself to stop pretending that there is a magical third category of prisoner on whose heads can be poured all the pain and loss of 9/11. Prisoners are either criminal suspects, to be put on trial, or soldiers, seized in wartime, to be held as prisoners of war and protected by the Geneva Conventions.

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, Twitter, Digg and YouTube). 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 — or here for the US), 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.

83 Responses

  1. Andy Worthington says...

    Tom Joad wrote:

    Yes the founders thought that “ALL men are created equal” as long as they are white, rich, male and of Northern European descent. As Orwell noted in his famous allegory “Animal Farm,” “…some animals are more equal than others.”

  2. Andy Worthington says...

    Dizi wrote:

    When Pres Bush #1 held the crack cocaine on TV and started a new phase in the War on Drugs, ZERO TOLERANCE, the New World Order took a stride forward. So many were illegally arrested for drugs and had their properties seized with no court action – me being one of those. Now Obama beats the drums for the NWO to march forward.

    It’s time to give-up on the government and start trying to make our local lives better and maybe some type of grassroots spirit will work its way up. Individuals no longer matter to the laws of the USA.

  3. Andy Worthington says...

    quickstepper wrote:

    I believe that it was Reagan who started the zero-tolerance policy.

  4. Andy Worthington says...

    Dizi wrote:

    Maybe so, but shortly after the Bush ‘cocaine’ speech, the government went nuts with illegal arrests and seizures. 60 Minutes reported on it in 1990. I was ‘terrorized’ just weeks after the Bush speech, so it really sticks in my mind.

  5. Andy Worthington says...

    Tom Joad wrote:

    “It’s time to give up on the government…”

    I would propose that it’s time to ABOLISH the government. You’re correct that “Individuals no longer matter to the laws of (AmeriKKKa)” unless, of course, the are among the ruling elite. Unless and until We the People make radical changes in the way government operates, laws will only get more repressive, wages will buy less and fewer will prosper.

    General strikes, boycotts and non-violent direct action. NOW!

  6. Andy Worthington says...

    Paranoid Pessimist wrote:

    Be hard to keep things nonviolent in present day America where there are so many Tea Partiers who are touchy about what they see as attempts to deprive them of their “right to bear arms.” The owners and operators certainly deserve to have general strikes and boycotts done at them. Whether they would lead to GOOD changes in the way government operates . . . well, unless those changes are spelled out ahead of time, I have my doubts.

    I hope we can avoid violence. I’m not into it at all. I’ll duck for cover and run.

  7. Andy Worthington says...

    Nietzsche wrote:

    I’m not into violence either, but I suspect most of these tea party clowns are far too queasy at the sight of blood to start anything of the sort. They talk and talk about their guns, but how many of them have actually seen how flesh and bone come off second best to a full metal jacket?

  8. Andy Worthington says...

    quickstepper wrote:

    I’ll paraphrase Stalin’s famous remark about voting. It doesn’t matter how laws are written; what matters is who interprets them.

    Ten judges can read the same law and derive ten different meanings.

  9. Andy Worthington says...

    rat4 wrote:

    The way Obama is acting, 180 degrees from his campaign promises so soon after election, one must believe someone has something on him which would get his election nullified. Or he is the most pathological liar ever to be in the White House.

    Someone may have a birth certificate showing he was born in Kenya.

  10. Andy Worthington says...

    quickstepper wrote:

    I personally believe that he’s just chicken shit.

  11. Andy Worthington says...

    amitola wrote:

    Yeah. I’ve always had the notion that the Powers that Be have threatened him (or maybe his family) with ‘harm’ if he doesn’t tow the corpora-fascist line.

  12. Andy Worthington says...

    Rainborowe wrote:

    I don’t believe that at all. I’m with quickstepper. He’s just chickenshit. And part of the “powers that be.”

  13. Andy Worthington says...

    Jill wrote:

    amitola,

    That idea is propaganda. If it were true Obama should have the courage to put himself in harm’s way by refusing to participate in such consistently evil actions. If you really pay attention, the candidate Obama is not different from the president–this to is propaganda–that candidate Obama was such a good, kindly, wonderful man who would never do anything wrong, like for example vote to fund the wars, vote for FISA, lunch with telecom hotshots while a reporter was arrested legally asking questions on the sidewalk out front of this secret meeting, etc. Obama must be getting very desperate to hold onto his cult members because I see all the old propaganda being resurrected at this time.

  14. Andy Worthington says...

    Tom Joad wrote:

    Judging from events in Stalinist Russia, Hitler’s Germany and now in Bush/Cheney/Obama’s AmeriKKKa, most people do not have the ability to accept that some are willing to commit deeds so monstrous and hideous that millions suffer indescribable torment and death. Instead, they cling to the notion that if only our leaders knew the cruelties that are occurring, they would surely put an end to them.

    God damn AmeriKKKa!

  15. Andy Worthington says...

    rat4 wrote:

    OK, so Obama is a pathological liar doing the work of the corporate ruling elite.

  16. Andy Worthington says...

    Tom Joad wrote:

    Yup, that about sums it up.

  17. Andy Worthington says...

    Reverend_Boomerang wrote:

    There ya go. The rule of law becomes fuzzier and fuzzier with every decision that is made by our corporate judges. Pretty soon, we’ll be imitating Castro’s good days when a “trial” consisted of the judge, the prosecutor, the accused and the witness(es). The state never ever lost a trial. Ha ha!

  18. Andy Worthington says...

    Bodryn wrote:

    I thought that when Dubya left office, surely these cases would be allowed to wind their way through the legal system. But no. What we have here is a type of legal limbo reminiscent of Aleksandr Solzhenitsyn’s stories about the Gulag Archipelago. Guantanamo has become America’s Gulag. Did anybody ever think we’d see it in the USA?

  19. Andy Worthington says...

    And back on Facebook, Esther Angel wrote:

    Sorry to hear about your poor foot, Andy! Wishing you a speedy recovery and thanks so much for continuing your good work.
    I suppose being a realist doesn’t really allow for much optimism when these kind of news roll in. Still, there is plenty of hope because a lot of people are outraged by miscarriages of justice. I bet next march will be well attended again, be in Anti Cuts or Anti War (war and cuts being flip sides of each other….).

  20. Andy Worthington says...

    And here’s a lovely message I received by email, reposted here with permission:

    Dear Andy,

    A lot of us here are sick in a bucket too, because we voted for Obama to change the way Bush ruined our laws. We depend on journalists like you to lead the fight for justice. Thanks so much.


    Clarence Fasgold
    Oklahoma City

  21. Andy Worthington says...

    On The Pubic Record, a reader called John wrote:

    It must be terribly tedious and defeating to have followed all this, all these years, and to see what direction our institutions are now headed.
    In some future time, people can be proud of the ones like you, who tried to hold on to what was, as long as possible.

  22. Andy Worthington says...

    Back on Facebook, Mui J. Steph wrote:

    I’m convinced the DC circuit exists to reinforce brick walls that the peerage put up to protect themselves.

  23. Andy Worthington says...

    You may be right in general, Mui, but on “national security,” with Randolph on record as having defended every scummy bit of “War on Terror” legislation that was subsequently overturned by the Supreme Court (in 2004, 2006 and 2008), there’s enough evidence to conclude that a handful of influential judges in the Court of Appeals are convinced that, in this “war against terrorism,” anything the government says it wants to do should be allowed.

    It really is like having Dick Cheney directing affairs from the court, and especially depressing now that the Supreme Court will, at best, split 4-4 on the issues, with Kagan having to recuse herself, having worked on the cases as Obama’s Solicitor-General, meaning that the final word on these cases now rests with the likes of Judge Randolph …

  24. Andy Worthington says...

    On The Public Record, Mary-Alice Strom wrote:

    If it were not for you, and those who, like you, report on these humanitarian crimes, I, and others like me who are deprived of news by the msm would not even know about them. Knowing about them for me, is difficult. I can only imagine what it is for you. My heart is heavy. I am almost 80 years old, and NEVER did I imagine that these things could come to pass. Thank you for helping me to remain aware and human. You have my undying respect and support.

  25. Andy Worthington says...

    Thank you very much for your supportive comments, Mary-Alice. Believe me, it is feedback like yours that helps writers like me to know that what we’re doing is worthwhile.

  26. Andy Worthington « Antiwar Radio with Scott Horton and Charles Goyette says...

    […] Files, discusses the right-wing judges on the DC Circuit Court who think prisoners can be detained indefinitely with no evidence and who habitually reverse lower court decisions on Guantanamo habeas petitions; why today’s […]

  27. Andy Worthington | ANOMALY RADIO says...

    […] Files, discusses the right-wing judges on the DC Circuit Court who think prisoners can be detained indefinitely with no evidence and who habitually reverse lower court decisions on Guantanamo habeas petitions; why today’s […]

  28. How The US Supreme Court Gave Up On Guantánamo – OpEd « Eurasia Review says...

    […] be nothing more than “some evidence” — and that in a very open-ended way, as I explained in my last broadside directed at the Circuit Court. If they could, one suspects that the Circuit Court judges would simply return to the Combatant […]

  29. No War No Torture » Blog Archive » Omar al-Dayi Refused to Participate in the US Kangaroo Courts in Guantanamo says...

    […] Andy Worthington remarks on his blog that no one is addressing a fundamental issue about many of the remaining men in the US torture camp at Guantanamo and that is evident here. No distinction is made, remarks Worthington between al-Qaeda and the Taliban, though the first is a terrorist organization and the second was the government of Afghanistan on 9/11. […]

  30. No War No Torture » Blog Archive » “strains credulity”: The Story of Uthman Abdul Rahim Mohammed Uthman says...

    […] “On March 29, 2011, [Uthman Abdul Rahim Mohammed Uthman’s February 24, 2010 habeas corpus ruling declaring his imprisonment illegal] was overturned in a United States federal appeals court. [The Obama regime had appealed immediately upon the original decision.]  The three judge panel stated that Uthman’s explanation of his activities ’strains credulity’.”  Read the rest here of the statement here. Also, read Andy Worthington’s response to this shameful decision here. […]

  31. US Justice Department Finally Allows Attorneys to See Leaked Guantánamo Files, But Not To Download, Save Or Print Them - OpEd says...

    […] has been rendered largely irrelevant. The appeal court judges have decided that the government doesn’t even need to present credible allegations in order to continue detaining prisoners, very possibly for the rest of their lives, even though […]

  32. TheAZCowBoy says...

    Ahhhh, the Great Satan approches its final dayze with that lack of dignity since he turned into a V5.0 of Pol Plot.
    Hey, don’t feel so tough – The Taliban has been eating your lunch with its old Vietnam era AK-47’s and RPG-7 rocket launchers for 10+ years now, LOL!.
    Worried?
    Yup, you shouldn’t be.
    But, of couse, a fool rarely sees that last KO punch coming.

  33. Clergy Gitmo Justice Fast. | Speaking of... says...

    […] Uthman was derived from torture and therefore unreliable.  But the government appealed, and the decision was reversed in March 2011. He is still in […]

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Andy Worthington

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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