Guantánamo and the Death of Habeas Corpus


Last month, the third anniversary of Boumediene v. Bush (on June 12) passed without mention. This was a great shame, not only because it was a powerful ruling, granting the Guantánamo prisoners constitutionally guaranteed habeas corpus rights, but also because, after that bold intervention, which led to the release of 26 prisoners who subsequently won their habeas corpus petitions, the prisoners at Guantánamo have once more been abandoned by the courts.

The courts’ failure has come about largely because a number of judges in the D.C. Circuit Court, where appeals against the habeas rungs are filed, have revealed themselves to be at least as right-wing as the architects of the “War on Terror” in the Bush administration. Led by Judge A. Raymond Randolph, whose previous claim to fame on national security issues was that he supported every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court, the Circuit Court has, in the last year, succeeded in gutting habeas corpus of all meaning, when its relief is sought by any of the 171 men still held at Guantánamo.

Throughout this year, I have followed, with despair, the Circuit Court’s rulings, which are distressing on two fronts: firstly, because judges have whittled away at the lower courts’ demands that the government establish its case “by a preponderance of the evidence,” which is a very low standard in the first place; and secondly, because the Circuit Court has reinforced the misconception at the heart of the “War on Terror,” almost delighting, it seems, in failing to acknowledge that soldiers are different from terrorists.

In fact, despite the Supreme Court’s attempt to grant rights to the prisoners, both soldiers and terrorists are still, essentially, held at Guantánamo as a category of human being with almost no rights at all — what George W. Bush notoriously referred to as “unlawful enemy combatants.”

Last month, just after the Boumediene anniversary, on June 23, Judge Ricardo Urbina delivered the 60th Guantánamo habeas ruling, turning down the habeas petition of Khairullah Khairkhwa, an Afghan prisoner (PDF). This was unsurprising, as Khairkhwa was the governor of the western province of Herat under the Taliban, and had also served as the Taliban’s Minister of the Interior. Crucially, Khairkhwa’s defense turned on his claim that he did not have a military role, but Judge Urbina agreed with the Justice Department that there was evidence indicating that “he served as a member of a Taliban envoy that met clandestinely with senior Iranian officials to discuss Iran’s offer to provide the Taliban with weapons and other military support in anticipation of imminent hostilities with US coalition forces.”

This may well be the case, although it does not detract from the ongoing, and largely unchallenged absurdity of holding prisoners at Guantánamo who were involved in military activity, rather than those who were involved with acts of international terrorism. Unless Khairkhwa was involved in the planning and execution of the 9/11 attacks, he should, I contend, have been held as a prisoner of war, and not as an “enemy combatant,” and, very possibly, tried in Afghanistan for the war crimes of which he has been accused. These took place in 1998, when he was in charge as the Taliban took the northern Afghan city of Mazar-e-Sharif, and proceeded to massacre thousands of its inhabitants, the Hazara and the Uzbeks, who, along with Tajiks and Pashtuns, make up the four main ethnic groups in Afghanistan.

It is to no one’s credit that, nearly ten years after the 9/11 attacks, the deliberate confusion at the heart of the “War on Terror” — designed by senior Bush administration officials to allow them to set up an illegal interrogation camp at Guantánamo, and to coercively interrogate those it held, and even to torture them — still exists, imprisoning soldiers, and even military commanders like Khairkhwa, in an experimental prison associated with terrorism, possibly for the rest of their lives.

Last Friday, July 22, the Circuit Court reinforced its position, denying the appeal of Muaz al-Alawi (known to the authorities as Moath al-Alwi), who lost his habeas petition 18 months ago, in January 2009. Al-Alawi was one of the first prisoners to lose his habeas petition, and his case was emblematic of the distortions required to equate soldiers with terrorists.

At the time Judge Richard Leon turned down his habeas petition, the Court first had to establish that, in order to be detained, prisoners were required to be “part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the US or its coalition partners,” which included “any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.” As I explained at the time:

By Leon’s own account of the evidence, al-Alawi was in Afghanistan before the 9/11 attacks, and was fighting with the Taliban against the Northern Alliance. To counter this, he endorsed the government’s additional claim that, “rather than leave his Taliban unit in the aftermath of September 11, 2001,” al-Alawi “stayed with it until after the United States initiated Operation Enduring Freedom on October 7, 2001; fleeing to Khowst and then to Pakistan only after his unit was subjected to two-to-three US bombing runs.”

In other words, Judge Leon ruled that Muaz al-Alawi can be held indefinitely without charge or trial because, despite traveling to Afghanistan to fight other Muslims before September 11, 2001, “contend[ing] that he had no association with al-Qaeda,” and stating that “his support for and association with the Taliban was minimal and not directed at US or coalition forces,” he was still in Afghanistan when that conflict morphed into a different war following the US-led invasion in October 2001. As Leon admitted in his ruling, “Although there is no evidence of petitioner actually using arms against US or coalition forces, the Government does not need to prove such facts in order for petitioner to be classified as an enemy combatant under the definition adopted by the Court.”

Given the confused definition of who can legitimately be detained at Guantánamo, and the impact, in the last year, of the Circuit Court’s repeated assaults on the lower courts’ rulings, it was obvious that al-Alawi’s appeal would fail (PDF), but that is no cause for celebration.

As with the case of Khairullah Khairkhwa, the wrong questions are still being asked. Rather than asking whether these men can legitimately be held, what those who are disturbed by the ongoing existence of Guantánamo need to be asking instead is why the courts are justifying the ongoing — and possibly indefinite — detention of the Guantánamo prisoners, when that is inappropriate.

The majority of those still held were soldiers, who should be able to argue now that the conflict in which they were seized was finite, and cannot be an endless “War on Terror,” and the rest, accused of involvement with terrorism, should be tried for their alleged involvement in criminal activities.

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 June 2011, 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.

26 Responses

  1. Andy Worthington says...

    On Facebook, Tejana Gloria wrote:

    American political prisoners exist and who rallies to free them? Guatamamo is a washout. For shame it is discredited by prioritizing soap operas. Distraction.

  2. Andy Worthington says...

    Thanks, Tejana, for that interesting perspective.
    Also, my friends, please note that I’m away for a few days, at the WOMAD world music festival in Wiltshire. Hoping for good weather. I really need the break. See you on Monday.

  3. Andy Worthington says...

    Jaq White wrote:

    Have a good break Andy, I hope the weather stays like this and you get some sun on your bones! x

  4. Andy Worthington says...

    Yes, that would be good, Jaq. Hope all is well with you. Can’t believe how the years are passing …

  5. Andy Worthington says...

    Jaq White wrote:

    All good thanks Andy. Know what you mean – it’s 10 years since I moved out of London…yikes

  6. Andy Worthington says...

    That’s rather alarming! Glad all is well, though. This is our 10th year at WOMAD, doing children’s workshops, and how we’ve changed. Back at the beginning we wheeled our babies/toddlers around in buggies and got drunk when they fell asleep. Now I’m celebrating the start of my fourth year without alcohol, and the kids will soon be staying up later than me!

  7. the talking dog says...

    Great piece, Andy. Habeas had a great run, but clearly, by 2015 (assuming we’re still allowed to study it by then) we will learn that 800 years or so is long enough for just about any program… and yes, habeas has finally outlived its usefulness, at least in some quarters.

    Habeas, of course, is a means of getting out of prison if the Gov’t can’t legally justify your presence there. But… my nation just loves its prisons; as this interesting piece observes, of course, running our prisons, which incarcerate (or directly control the lives of) around 2% of our US population at any moment is darned expensive (about $600B [US], or damned near 4 or 5% of our overall GDP. Heck, it’s an entire industry, almost as important as anti-depressant pharmaceuticals or Blackwater!

    And GTMO, although technically part of the military and technically not housing any Americans (other than by the occasional and quickly corrected mistake of some bad apple– never by the system itself— is nonetheless our best known prison-“brand” throughout the world. Accordingly, our American judiciary has gone out of its way to make sure that the Made in USA Prison Brand is not diluted by any kind of “escape”– a very bad trait for prisons, especially as they seek to hold and expand their market shares. And “escape” through the legal system is very bad indeed.

    And this, indeed, is the whole problem with Boumediene and the cases in its progeny, most of which, for a while at least, went against the Government: they diluted the Guantanamo brand. Any finding that the Government made mistakes, and held innocent men who should never have been there in the first place, undermined the confidence game faith in the system. And, as George W. Bush first told us, as duly echoed by Barack H. Obama, the United States Government simply doesn’t make mistakes.

    And hence, it’s all perfectly consistent with the D.C. Circuit’s stepping in to make sure the courts do nothing more than rubber-stamp the seamless continuation-of-doctrine by the Administration of Barack “Close Guantanamo Within One Year… Oops” Obama to do nothing short of restoring the balance of the universe, and show the rest of the world– and especially the prison-loving American population itself– that there’s simply no reason to worry, because their government just doesn’t make mistakes. So… if you’re being incarcerated in draconian conditions for no apparent reason– not to worry– your government knows what it’s doing!

    I understand that many of us think that the bedrock purpose of the courts is to hold the government itself accountable, as an independent arbiter of the legality of its actions– but, it seems, when voting for Barack Obama, Americans were supporting “Hope” and “Change.” There’s no doubt we got “Change.” Perhaps not “Change you can believe in…” but given most Americans favorable attitude toward wholesale draconian incarceration, [especially towards swarthy, mysterious, foreign-looking scary men], maybe it is.

  8. Andy Worthington says...

    Thanks, TD. Very good to hear from you, as always, and thanks for the explanation of how important the notion is that the US government “simply doesn’t make mistakes,” and — for the first time ever, to my knowledge — presenting Guantanamo as a brand.
    What a great shame that my article and your comments are even more marginalized now than they would have been when we first met online, four years ago, as Guantanamo and its ills — and what those ills represent for the American people — are now in the remotest backwater that they have ever inhabited.

  9. Andy Worthington says...

    On Digg, cosmicsurfer wrote:

    It is sad that the country still claiming to be the “shining beacon on the hill” for freedom and democracy has no idea of its self-destruction through sloth, greed, narcissism and willful ignorance.
    We refuse to hold anyone accountable for their crimes against humanity but claim everyone ELSE (except their ‘allies”) MUST be accountable for theirs.
    We continue to treat our own people without respect as we hide from everything we find uncomfortable – .
    privatize prisons so we don’t have to deal with the people inside; privatize armies so we don’t have to hear of the cruelty we cause; privatize everything even selling our collective soul

  10. Andy Worthington says...

    atomheartmother wrote:

    Unfortunately, you illustrate on a daily basis that stupidity is still very much public.

  11. Andy Worthington says...

    wanacare wrote:

    Democracy like every other word the U.S. presidents speak no longer means what it once did. It doesn’t mean that a gov. can arrest you, torture or kill you no matter what age and hold you as tool for propaganda that establishes lies and profit for the wealthiest worst of the worst corrupt cooperations in the world.

    After more than 100 Years the U.S. now is realizing that democracy does not mean following just laws that bring respect, liberty, rights and true concern for human beings; instead it means once again returning to the cruel greedy impulses of kingly oligarchies that rule as stated in [the] Norway-Nazi Fascist[‘s manifesto].

    I call for the U.S. to return to the old meaning of Democracy and rule in favor of the innocent and set them free from Guantanamo, those as the UK Shaker Aamer and Yemenis. Stop the secret Black torture chambers around the world. Stop spending the vulnerable and hard working citizens[‘ money] on weapons of mass destruction and return to the true ideals of laws [which] should always lean toward the most vulnerable rather than the wealthiest most powerful.

  12. Andy Worthington says...

    Thanks, cosmicsurfer, atomheartmother and wanacare. Good to hear from you!

  13. Andy Worthington says...

    On Facebook, George Kenneth Berger wrote:

    Have a good time, Andy. I’ll Digg this now.

  14. Andy Worthington says...

    Dejanka Bryant wrote:

    Have a wonderful time at the WOMAD music festival, Andy. Enjoy your time.

  15. Andy Worthington says...

    Thank you for the good wishes, my friends. It was a truly wonderful WOMAD, with good weather, great music, and, particularly, the company of excellent friends, and the opportunity for our kids to run wild for a few days and for me to get to sing and play guitar at our camp rather than obsessively sitting at a computer. Readjusting to life as experienced via a computer screen and acres of bad news is rather demanding! Please bear with me as I struggle towards the resumption of normal service …!

  16. Andy Worthington says...

    Fatima Naeem Khan wrote:

    u don’t drink?

  17. Andy Worthington says...

    Fatima, that’s right, yes. I gave up alcohol four years ago. I now find it cheaper and healthier just to wave a glass of someone else’s drink under my nose and breathe it in. Works well with whisky and fine wines!

  18. Andy Worthington says...

    Dejanka Bryant wrote:

    I am so glad you enjoyed it, Andy. Now, back to your typing – yes, obsessively, that’s how I remember my dear Mum, a journalist.

  19. Andy Worthington says...

    It’s hard to be a slacker with encouragement like that, Dejanka. Thanks for the welcome back!

  20. Andy Worthington says...

    George Kenneth Berger wrote:

    Hear, Hear! I second Dejanka.

  21. Andy Worthington says...

    Alright, I get the message, George and Dejanka! Part Six of my latest WikiLeaks/Guantanamo series, telling ALL the Guantanamo stories from now until the end of the year, is just up:

  22. Andy Worthington says...

    Karen Martin wrote:

    Anyone that works on such a humanitarian mission as Andy deserves many vacations. I agree Tejana, too many Americans are imbeciles with their Soap Operas, reality shows, etc. After what wrapped up in America this past weekend I’m a wreck. To watch my country descend backwards is painful, to know most Americans know little about prisoners in Guantanmo, and those that do believe they deserve their captivity and torture. Sigh……..George Orwell sure saw the future accurately—at least as it’s playing out in the U.S.A.

  23. Andy Worthington says...

    Dejanka Bryant wrote:

    Thanks, Andy, I will read it later. Great to see you back.

  24. Andy Worthington says...

    Thanks, Karen and Dejanka. I have another break lined up — a two-week long family holiday in Greece, starting next Monday — but then it’s definitely back to the grindstone for the long haul until Christmas. It really was good to get away from the madness of the world, though, even if just for four days. A genuinely relaxing break, in the company of good friends, really reinforces how stressful it is these days to be a conscious human being with an international perspective and an ability to grasp the bigger picture. I’m just catching up on developments, Karen, but the Tea Party’s triumph over Obama — although expected, as he is the master of capitulation — does not augur well for America’s future.

  25. Andy Worthington says...

    Here’s a Spanish translation, from the Spanish version of The World Can’t Wait. Thanks!

    Here’s the first paragraph:

    El mes pasado, el tercer aniversario de Boumediene v. Bush (el 12 de junio) pasó sin mención. Esto fue una gran pena, no sólo porque fue una sentencia poderosa, conceder a los prisioneros de Guantánamo los derechos constitucionales que consagra el habeas corpus, sino también porque después de esa audaz intervención que condujo a la liberación de 26 presos que subsecuentemente obtuvieron sus peticiones de habeas corpus, los reclusos de Guantánamo han sido abandonados una vez más por los tribunales.

  26. As Judges Kill Off Habeas Corpus For Guantánamo Prisoners, Will Supreme Court Act? says...

    […] any updates since summer, when I wrote about how Khairullah Khairkhwa, a former Taliban minister, lost his habeas petition in June. The next prisoner to lose was Fadel Hentif (also identified as Fadil Hintif), a Yemeni whose […]

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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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