More Judicial Interference on Guantánamo

20.4.11

Last week, in my article, How the Supreme Court Gave Up on Guantánamo, I explained how, given the option of addressing complaints made by prisoners in Guantánamo regarding the basis of their ongoing detention, the Supreme Court chose not to, leaving the final decisions regarding the prisoners not in the hands of the District Court in Washington D.C., which has recommended, in 38 of the 59 cases decided, that the prisoners should be released, but in the hands of the D.C. Circuit Court.

This is alarming, because the Circuit Court has made a point of issuing rulings defending unfettered executive power, and, most importantly, of redefining the detention standard required to justify the ongoing imprisonment of the Guantánamo prisoners in the government’s favor, ruling that evidence of some sort of involvement in the “command structure” of al-Qaeda and/or the Taliban is far too strict, and that all the government should be required to do is to present any information that even remotely suggests that the prisoners in question were involved, in any way, with al-Qaeda and/or the Taliban.

In addition, the most notorious judge in the Circuit, Judge A. Raymond Randolph, who approved every measure relating to Guantánamo under President Bush that was subsequently overturned by the Supreme Court, and who, outrageously, is now effectively in charge of detainee policy, has made a point of criticizing the Supreme Court for its decision in June 2008, in Boumediene v. Bush, to grant the prisoners constitutionally guaranteed habeas corpus rights. As the New York Times reported in February:

In a speech called “The Guantánamo Mess” last fall [delivered to the right-wing Heritage Foundation], he said that the justices were wrong to [give the prisoners habeas rights] and all but expressed contempt for the holding. As the basis for the speech’s title, he compared the justices who reached it to characters in The Great Gatsby. “They were careless people,” he read. “They smashed things up … and let other people clean up the mess they had made.”

Alarmingly, Judge Randolph is not the only judge in the Circuit to openly criticize the Supreme Court for creating a law that the Circuit Court judges are obliged to follow, but which, it appears, they are deliberately subverting for political reasons.

On Friday April 8, when the Circuit Court, predictably, turned down an appeal by a Yemeni prisoner, Yasein Esmail, who had lost his habeas petition last April, one of the judges, Senior Judge Laurence H. Silberman, “one of the most conservative jurists in the federal system,” according to SCOTUSblog, filed a two-page concurring opinion (PDF, pp. 6-7), in which he criticized the Supreme Court and the Justice Department, and sounded a klaxon of alarm about the perceived dangerousness of the prisoners at Guantánamo, which was a perfect fit with the right-wing hysteria of the last nine years, even though it has no grounding whatsoever in reality.

In his extraordinary legal outburst, Judge Silberman — after declaring that he found Esmail’s story “phonier than a $4 bill” — issued the following alarming declaration about the perceived difference between dangerous people being released in the criminal justice system (because proof of guilt cannot be established) and prisoners from Guantánamo being released:

In the typical criminal case, a good judge will vote to overturn a conviction if the prosecutor lacked sufficient evidence, even when the judge is virtually certain that the defendant committed the crime. That can mean that a thoroughly bad person is released onto our streets, but I need not explain why our criminal justice system treats that risk as one we all believe, or should believe, is justified.

When we are dealing with detainees, candor obliges me to admit that one can not help but be conscious of the infinitely greater downside risk to our country, and its people, of an order releasing a detainee who is likely to return to terrorism.

What is particularly depressing about these passages is that, while Judge Silberman is correct to defend the criminal justice system’s adherence to the law, he thoroughly betrays those principles by treating the Guantánamo prisoners as some kind of exceptional beings beyond the law, super-terrorists who would wreak havoc on America in an instant, when, to be honest, someone like Yasein Ismael, a foot soldier for the Taliban, is not someone “likely to return to terrorism,” as he was never involved in terrorism in the first place.

Instead, he is one of many men at Guantánamo — including the majority of those who have lost their habeas petitions — who continue to suffer what should be slanderous or libelous comments about them because the Bush administration’s “War on Terror” was founded on the absurd notion that the international terrorists of al-Qaeda were the same as the Taliban, the government of Afghanistan at the time of the US-led invasion in October 2001. It is true that the Taliban’s military included foreign foot soldiers trained in camps associated with al-Qaeda, but it is absurd to regard these men as terrorists, when they were clearly soldiers, and should, all along, have been held as prisoners of war, protected by the Geneva Conventions, while the handful of men accused of involvement with acts of terrorism should have been tried in federal court.

Such is the hysteria regarding Guantánamo, however, that judges like Judge Silberman regard it as legitimate to let it infect their very notions of justice.

After this outburst, Judge Silberman proceeded to criticize the Justice Department, stating that the opinions described above mean that “there are powerful reasons for the government to rely on our opinion in Al-Adahi v. Obama [the case of a Yemeni judged to be an al-Qaeda sympathizer because he took his sister to Afghanistan to marry someone allegedly connected to terrorism], which persuasively explains that in a habeas corpus proceeding the preponderance of evidence standard that the government assumes binds it, is unnecessary — and moreover, unrealistic.”

Reinforcing this notion that very little evidence should be required to detain the terrorists of his imagination, Judge Silberman added that he doubted that any of his colleagues would grant a petition if it even appeared to be “somewhat likely” that the prisoner in question was “an al-Qaeda adherent or an active supporter.”

Judge Silberman then criticized the Supreme Court, snidely noting that the decisions made by he and his colleagues on this “somewhat likely” basis would stand “[u]nless, of course, the Supreme Court were to adopt the preponderance of the evidence standard (which it is unlikely to do — taking a case might obligate it to assume direct responsibility for the consequences of Boumediene v. Bush).”

This was a specific attack on the Supreme Court’s refusal to establish the detention standards required, leaving those decisions to the lower courts, and Judge Silberman clearly identified with the “mess” alluded to by Judge Randolph in his speech to the Heritage Foundation last fall.

The only salvation in this otherwise persistent assault on the executive, the Justice Department, the District Court and the Supreme Court, fueled by right-wing paranoia about the dangers posed by every single Guantánamo prisoner, came in Judge Silberman’s final words, when, suddenly, he shone a light on the overall failure of the habeas system to secure justice, writing:

Of course, if it turns out that regardless of our decisions the executive branch does not release winning petitioners because no other country will accept them and they will not be released into the United States, then the whole process leads to virtual advisory opinions. It becomes a charade prompted by the Supreme Court’s defiant — if only theoretical — assertion of judicial supremacy, sustained by posturing on the part of the Justice Department, and providing litigation exercise for the detainee bar.

Again, this was a savage attack on the Supreme Court, but it was also a sound analysis of all the roadblocks in the litigation — including the opposition by the executive, the Circuit Court and Congress to the release into the US of the Uighurs (Muslims from China, seized by mistake and cleared for release under President Bush, but unable to return home because of the risk of torture). As such it was so unexpected, after all the venom that had come before, that it took a while for observers to realize that, in this description of the charade maintained by all parties — including the executive branch and the Justice Department — was an unusual opportunity to strengthen the Uighurs’ ongoing appeal to the Supreme Court to allow them to live on the US mainland.

This, ironically, was in spite of the fact that it was the Circuit Court that had prevented them from coming to the US in February 2009, ruling that it was an immigration matter that was not for judges to decide, and handing responsibility to the executive branch, with depressing results for the Uighurs, when President Obama threw out a plan by White House counsel Greg Craig to bring a handful of the Uighurs to live in the US.

Last Tuesday, lawyers for the Uighurs duly filed a new plea to the Supreme Court (PDF), incorporating Judge Silberman’s comments, and arguing that they show that “the habeas jurisdiction recognized by this Court in Boumediene has essentially been nullified.”

I wish them success, and am glad that there was some hope to be extracted from Judge Silberman’s outburst, but in general it remains profoundly depressing that judges in the Circuit Court are approaching the Guantánamo litigation through a prism of paranoia and distortion, in which the lies and deceptions of the “War on Terror” are intact, and insignificant foot soldiers remain slandered as terrorist masterminds, and are used as an excuse to pretend that the normal rules of the law do not apply.

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 the website of the Future of Freedom Foundation.

25 Responses

  1. Andy Worthington says...

    On Facebook, Dhyanne Green wrote:

    Andy, again an enlightening and unbiased article. Thanks for all the time and effort you put into everything you write to give people of the world truth. Peace – Love – Blessings

  2. Andy Worthington says...

    Thanks, Dhyanne. That’s very much appreciated!

  3. Andy Worthington says...

    Harsha Prabhu wrote:

    Thanks again Andy for keeping on case with another incisive article on what passes for the US justice system

  4. Andy Worthington says...

    Tashi Farmilo-Marouf wrote:

    Ironic, these ‘judges’ seem more dangerous to Americans than the prisoners themselves.
    Why? Because their ultra conservative stances are creating more fear in people. And fear leads to uncertainty, which leads to more anger and more hatred. When people are fearful and angry, they will be more likely to act upon those emotions in negative ways.
    If only people could search more deeply, perhaps – even more spiritually, on such matters, we would find a just way to deal with all these problems in a long lasting, substantial way that would actually prevent future repetitions of this vicious cycle.

  5. Andy Worthington says...

    George Kenneth Berger ‎wrote:

    Tashi–Once again you all but took the words out of my own mouth. I was about to point out that Judge Silberman’s argument exactly parallels the “ticking bomb” argument used to defend torture. In this sense it does, as you say, create fear in Americans. I know two who indeed are scared.

  6. Andy Worthington says...

    Willy Bach wrote:

    Thanks Andy another depressing article about the non-functioning of the US justice system. I admire your patience, but I see no improvement.

    In declaring themselves to be an exceptional people and nation the US seems blind to its own paradoxes. Who are all those ‘contractors’ mercenaries from all corners of the world, foot soldiers from the poorest African countries like Uganda, US soldiers from poor South and Central American countries earnestly hoping for the right to become US citizens? Yet, as you say, “the Taliban’s military included foreign foot soldiers” – and we are all supposed to be shocked! What, the Taliban employed people from outside Afghanistan? That’s not playing fair.

    Farcical doesn’t begin to describe this blindness, yet the serious consequences are that US judges deem these men too dangerous to release. Raymond Davis was released from a court in Pakistan – he is probably in Libya by now helping to start yet another war.

  7. Andy Worthington says...

    Tashi Farmilo-Marouf wrote:

    George, The Americans are the best producers of ‘ticking bombs’ on the planet – both literal and figurative! (Don’t you think!) And I like Willy’s point about who these mercenaries are – the poor and disenfranchised people on the planet. The Americans prop up the dictators, make impoverished countries dependent on aid and keep them riddled with debt and interest payments – and then have the nerve to wonder why people are acting out against injustice (not that they should) but no wonder!
    The world is depressing, because our own actions towards other humans make it so.

  8. Andy Worthington says...

    George Kenneth Berger ‎wrote:

    Tashi–I was a bit surprised to read Willy’s post. I did not realise that many of those ‘contractors’ are from impoverished countries. You are right about the cycle that generates. I’ll only add two things. That the IMF-World Bank helps keep things this way (by making loans dependent on, e.g., privatisation), and that seemingly ok firms do so too: Starbucks for instance. I’ve been boycotting them for years.

    Starbucks lets local plantation owners grow the beans. The owners run their farms like “company towns.” The pay so low that the workers are more or less trapped there (work being hard to find). Since by order of the IMF schools (I forget the country) are privatized, the workers cannot afford to send their children to school. They become the plantation’s new generation of workers……or perhaps a mercenary as above. I read this in an article by an African union organiser. It was in Dutch. Since then no Starbucks for my ex and me!

  9. Andy Worthington says...

    Monique D’hooghe wote:

    andy, i really enjoy your articles, i find them well researched and lucid…. therefore i would like to ask you if i am allowed to translate some of them into dutch for the belgian alternative press….unfortunately alternative in this case also means no money in it :o(… i would be honoured if nevertheless you would allow us to introduce your work to the dutch speakers…

  10. Andy Worthington says...

    Roland Jesperson wrote:

    First, Andy–what Dhyanne said (waaay above).

    Second, and probably to belabor the obvious for all of you, in the modern, globalized world, everything is indeed connected. And those power-elites who control so much of the world economy foist propaganda as “news” while remaining silent on what really matters, et al, ad nauseum ….they Know that; the Neo-Liberal global agenda is and has been accomplishing its goals quite well; this applies from the top levels, e.g., the IMF, to the level of the lowly US/State/County trial judge …If there’s a point in my rambling here at all, it’s that, as Noam Chomsky puts it (and i keep repeating) “Power already knows truth.” These people may be sociopathic, some even psychopathic, but they are not stupid, and the few who are (Dubya, ferrinstance) have the resources to buy the best minds and experts in any field that can be bought. It becomes distressing when so few people seem to realize this; hence, people express bewilderment that their politician (Obama, your representative, senator, whatever …) act and vote contrary to their interests and the interests of the common good, and in favor (whether knowingly or not) of furthering this power/money-elite agenda ….. they know Exactly what they’re doing.

  11. Andy Worthington says...

    Tashi Farmilo-Marouf wrote:

    You are so right, Roland – they are cold and calculating

  12. Andy Worthington says...

    Roland Jesperson wrote:

    And with an agenda … and it’s working, for the most part … the only way to counter it is with a massive infusion of understading, in as many people as possible, of what is Really going on … (reminds me of a famous quote from the playwright, Arthur Miller: “Most Americans have no idea what forces really control their lives.” … and, if memory serves, he said this in the late 1950’s) …. This is working in some places, particularly parts of Central and South America (despite all the US efforts to crush, destabalize, kill it–the very last thing that’s wanted is an outbreak of Real democracy, especially so close to US shores …) … But, with the ultra-sophisticated methods of propaganda and censorship bombarding all of us, in the US at least, from cradle to grave, in all major institutions, and total saturation in the mainstream media … how the hell do you get people out of their constantly-reinforced illusions? That’s been my one Big question for a long time … i’ve asked it of some of the leading Leftist intellectuals, and the only answer I ever get is one step at a time … and i guess that’s true … social change happens slowly and over long periods of time … so just keep on keepin’ on, i guess ….what Andy does helps a Lot, what the rest of us (being mere mortals) less so, but we can still have an impact. besides, what other choice is there? (end of rant)

  13. Andy Worthington says...

    Tashi Farmilo-Marouf wrote:

    ‎”what Andy does helps a Lot” — Very true “what the rest of us (being mere mortals) less so, but we can still have an impact. besides, what other choice is there? (end of rant)” — very hilarious! “how the hell do you get people out of their constantly-reinforced illusions?” — Very good question!!! I would say through consciousness and awareness. Meaning, people need to know how the information they receive impacts them in the long term. People won’t be likely to ‘do’ anything unless they see a personal benefit from ‘doing’ it (whatever it is – being just, kind, good, helpful, etc.) People have ingrained prejudices, and media reinforces those prejudices. Which in my opinion, all leads back to doing what benefits the person. Take Guantanamo as an example, if people are misled into believing there is a ‘war on terror’ and that there are ‘groups’ out there plotting to harm their fellow citizens, families, land – they will see a place like Guantanamo as helpful – as keeping them ‘safe’. And if no one says any differently, if no one draws their (personal) awareness to the fact that it may actually be doing the opposite, the person will keep believing it forever. Mainly because they have no reason not to. And no matter how may Leftist intellectuals disagree – as long as they carry a title of ‘leftist’ – they are categorized or labeled and only others who identify with such labels will agree with what they say. (end of my rant – lol!)

  14. Andy Worthington says...

    Roland Jesperson wrote:

    True enough, Tashi. Just a bit of housekeeping: i used the term “leftist” in context–for This audience–for whom it doesn’t carry negative connotations (necessarily). More important: while most everything you say is true, imo, it still leaves the question hanging of how to inform people of the realities–not the illusions–that affect, control their lives. Your example of Gitmo is illustrative of something else, i think; the propagandistic utility of fear; also, imo, the instillation of fear in anyone considering challenging the Empire–my personal view is that that’s the primary reason why places like Gitmo and Bagram, et al, and the atrocities committed at them, have been allowed to be leaked out–the message is clear: you work against us, this, or worse, very possibly could happen to you. Hell, our currrent Prez said as much in a (signing stattement, was it?) over a year ago, when he declared unto himself the right to kill any american citizen anywhere in the world, just on vague suspicion (so vague, and by design, as to apply to anyone). As long as people have been organized into groups the efficacy of fear-as-motivator–to do Anything–Anything–has been well-known and effectively utilized. But that’s just one part of a much, much larger dynamic. People need to connect enough of the dots to get some sense of the realities involved, imo, and that requires un-learning a lot. Also, just paranthetically, i condemn the use of torture prima facie, no matter what the circumstances–keeping us safe, whatever–Any time–Any time (imo) that this becomes acceptable, this opens the floodgates to hell; the reason being, once you allow for such a thing under some circumstances and based on some justification, then human ingenuity, coupled with the inherent lack of exactitude in language, will always find ways to broaden the scope, to justify it in any circumstance, and against anyone, that those in power desire. (Please understand, i’m not suggesting that you personally condone torture under any circumstances–but this is my basic response to those who do find justifications for it.) Btw, there’s an excellent talk by Ray McGovern on the multitude of hamful effects of torture on all individual and societal levels; i don’t have a link, but i’m sure it’s on you-tube; if i remember correctly, this talk was given circa 2005 at the University of Chicago Law School–he did speak there at about that time–don’t recall for sure if this talk was that talk :), but it’s pretty close.

  15. Andy Worthington says...

    Tashi Farmilo-Marouf wrote:

    Yes, it is a good question – how to change the awareness? If the mass media isn’t willing and people are too lazy to search out other outlets for information, then it seems dismal. I wonder if people want to know anything or if ignorance really is bliss? The more we know – the more we are responsible to change – if we have a conscience, that is. Which is another big problem in the world. Many seem without conscience – at all. I agree entirely about there being no justification for torture, however that isn’t good enough for the ‘average Joe’ who will thinks that the ends justify the means. If you are spiritual or religious – you could think of it as ‘bad karma’ or ‘evil deeds’ to torture – do unto to others as you would have them do unto you. If we don’t want to carry the burden of evil – then no matter what evil others do – we should not partake in it. It is bad for our soul.

  16. Andy Worthington says...

    Roland Jesperson wrote:

    All of the above. And, neither spirituality nor religion has a lock on the Golden Rule; it stands on its own; you can accept it, or you can not. but for those who don’t, it really would be refreshing were they to admit that and present themselves as what they really are; that will never happen … on the contrary, often, those who scream out their piety and concern for [fill in the blank--god, country, whatever-the-hell you want] are those who violate such norms the most and have the least regard for them. That’s the one (and only) thing i kind-of admire about Uncle Rupert Murdoch: he makes no pretense of being anything but what he is, and he openly uses gross propaganda techniques to further his speciific agenda–making money, and this permeates political and social structures to the bone.

  17. Andy Worthington says...

    Tashi Farmilo-Marouf wrote:

    Don’t you think that would qualify as bad karma? lol! (Making money at the expense of every other person one destroys in their midst… sounds very destructive.) But I agree, I would rather know where a person stands than have them deceive. There is nothing more destructive than a hypocrite!

  18. Andy Worthington says...

    Thanks, everyone, for taking interest in this topic — when so many in America don’t care, or are kept uninformed about it — and thanks also to those who shared it, and to Roland and Tashi for the interesting conversation.

    I’m in another cybercafe in Wales — well, actually, a bookshop-cum-cafe in Brecon called “The Hours,” which is a lovely place, recently opened — so that’s why I wasn’t able to respond until now.

  19. Andy Worthington says...

    Nancy Vining Van Ness wrote:

    This is shameful. I am doing what I can through my blog to tell the stories of the remaining prisoners, but find that few people read the stories. We keep plugging and plan an exhibit of the stories with readings and performance as well as visual art. Maybe that will help.

  20. Andy Worthington says...

    Ciudadano Kane Kane wrote:

    Thank you very much Andy!, nice to know you are well and about!

  21. Andy Worthington says...

    Thanks for your hard work, Nancy. The exhibit sounds like a good idea. Otherwise, the only advice I can give you is to keep trying to get people interested. It’s a hard subject to interest people in. That’s a sad indictment of people’s priorities, but it’s no reason to give up; in fact, it’s even more reason to carry on trying!

    And thanks, Ciudadano. I had a good few days away. I wasn’t out walking the hills with my family and friends, but I did get fresh air, the company was excellent, and I had a few opportunities to be out in the landscape, with a different view to the inside of the hospital, or my house!

  22. Andy Worthington says...

    Portuguese readers out there might wish to know that a Portuguese translation, via my friend Murilo Leme, is available here:
    http://zqxjkv0.blogspot.com/2011/04/fff-commentaries-more-judicial.html

    This is the opening paragraph:

    Semana passada, em meu artigo “Como o Supremo Tribunal Desistiu de Guantánamo,” expliquei como, dada a opção de levar em consideração questionamentos feitos por prisioneiros de Guantánamo a respeito da base para sua detenção, o Supremo Tribunal optou por não fazê-lo, deixando as decisões finais acerca dos prisioneiros não nas mãos do Tribunal Distrital de Washington, D.C., que recomendou, em 38 dos 59 casos já decididos, a libertação dos prisioneiros, e sim nas mãos do Tribunal de Circuito do D.C.

  23. susan murauskas says...

    Thank you all and Andy haven’t had any hope for many years, but your words were wonderful, made me consider that maybe there is a chance ??,,As ‘Aung San Suu Kyi’ said “Even though I’m Free I am not,,,We Are Together in the Prison without Bars of our Country”…..In order to keep us sane,,,taught my children to live by the ‘golden rule’ and never lose your sense of humor,,,,,Dave Barry says it best ‘
    “A Sense of Humor is a measurement of the extent to which you realize that we trapped in a World almost Devoid of Reason !! Laughter is how we express the anxiety we feel a this knowledge.” Found great stuff going on @Tedx & @thoughtmaybe: enlightening videos,,,,,Wishing you all ‘keep-on’,,That’s also what my protester friends would say to one another,,,,Special thanks to Roland for bring back to my mind, memories of some awesome friends I had and how we were going to ‘save the world’….Don’t stop believing,,,That’s what they want everyone to believe,,that it’s hopeless,,,,They know the Truth “We are Millions,,they are few”,,,,,I mean really,,How can any Human Being not laugh with tears streaming at Trump-the-Clown !!!

  24. Abandonment Of Guantánamo’s Uighurs - OpEd says...

    [...] [...]

  25. Guantánamo: The Definitive Prisoner List - OpEd says...

    [...] dark forces at work — in the D.C. Circuit Court, where deeply Conservative judges are undermining the prisoners’ habeas corpus rights, granted by a Supreme Court that no longer seems to care, and in Congress, where the most cynical, [...]

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