On Monday, when the Supreme Court decided to turn down seven appeals submitted by prisoners held at Guantánamo, without providing any explanation, a particularly low point was reached in the prison’s history.
The decision came just one day before the fourth anniversary of Boumediene v. Bush, the hugely significant 2008 ruling granting the prisoners constitutionally guaranteed habeas corpus rights.
That ruling reaffirmed a previous Supreme Court ruling, Rasul v. Bush, in June 2004, granting the prisoners habeas rights, and involved the Court establishing that Congressional attempts to strip habeas rights from the prisoners — in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 — had been unconstitutional.
Boumediene led to a flurry of activity, as long-frozen cases were revived. District Court judges in Washington D.C. then decided the evidentiary standards required, assessing that the government needed only to establish its case by a preponderance of the evidence, and not beyond a reasonable doubt, as is required in criminal cases.
Even so, the weaknesses in the government’s cases were such that, between October 2008 and July 2010, 38 of the prisoners had their habeas corpus petitions granted, and just 14 had their petitions denied. For reasons that have never been explained, prosecutors in the Justice Department continued to work on the Guantánamo cases as aggressively under Barack Obama as they had under George W. Bush, without either President Obama or Attorney General Eric Holder calling for a rethink in the way they were operating, even though the District Court judges repeatedly poured scorn on the government’s lawyers.
Vindicating the work of investigative journalists like myself and researchers at the Seton Hall Law School, who had produced a series of reports debunking exaggerated claims about the prisoners’ significance, the judges ascertained that many of the witnesses relied upon by the government had mental health issues, actually identified in reports by government officials, which made their statements untrustworthy, and they also took apart flimsy claims made by intelligence analysts, military officials and Justice Department prosecutors. Even so, they were careful to follow the rules, denying petitions when evidence of involvement with the Taliban was produced, even though, in most cases, that demonstrated only that they had been involved in the Taliban’s long-standing military campaign against the Northern Alliance, which pre-dated — and had nothing to do with — the 9/11 attacks.
28 of these prisoners were released — the only ones, out of 602 prisoners released in total, who were freed through legal means — but in 2010 the D.C. Circuit Court began dealing with appeals submitted by the government, and decided to rewrite the rules in the government’s favor. In successive rulings, the Circuit Court judges have insisted that the barest association with either al-Qaeda or the Taliban is sufficient to justify detention (whereas the lower court judges had determined that prisoners had to be demonstrably part of the command structure of either organization), and, most recently, have demanded that intelligence reports submitted by the government should be regarded as accurate, even though, objectively, there are perfectly sound reasons for believing that field reports, produced under pressure, should be subjected to rigorous scrutiny. As a result, the last eleven habeas petitions, over the last two years, have all been denied, and other previously successful petitions have been reversed or vacated.
The most vociferous of the dissenting judges, Senior Judge A. Raymond Randolph, who is notorious for having endorsed every piece of Guantánamo-related legislation under President Bush that was subsequently overturned by the Supreme Court, went so far as to show open contempt for the Court and its Boumediene ruling in a speech at the Heritage Foundation, in October 2010, which was entitled, “The Guantánamo Mess.” In that speech, he compared the justices to characters in The Great Gatsby by F. Scott Fitzgerald. “They were careless people,” he read. “They smashed things up … and let other people clean up the mess they had made.”
Another judge, Senior Judge Laurence Silberman, indulged in a disturbing outburst while turning down an appeal by Yasein Esmail, a Yemeni, in April 2011. Noting that, in a “typical criminal case,” judges will “overturn a conviction if the prosecutor lacked sufficient evidence, even when the judge is virtually certain that the defendant committed the crime,” he added, “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.” However, he claimed that, in the case of the Guantánamo prisoners, “candour obliges me to admit that one cannot 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.”
As was noted in a report in January by the Center for Constitutional Rights (PDF), on which I worked:
This outburst was particularly troubling — but also revealing. First, Judge Silberman undermined the fundamental principle that the accused must be released if there is insufficient evidence to secure a conviction. Thus, for Judge Silberman, the men held at Guantánamo are somehow exempted from rights afforded to the rest of the human race. Second, Judge Silberman talked about detainees being “likely to return to terrorism,” when most were never involved in terrorism in the first place.
In refusing to accept any of the Guantánamo appeals, the justices of the Supreme Court have allowed Judge Randolph — on his fourth attempt — to dictate detainee policy, and have failed one particular prisoner, Adnan Farhan Abdul Latif, a Yemeni whose case is emblematic of the problems with the Supreme Court’s refusal to engage with the Circuit Court’s hijacking of Boumediene.
Latif, who has always maintained that he traveled to Pakistan for treatment on a severe head wound he received in a car crash in Yemen, and ended up being advised to seek help in Afghanistan, has had well-chronicled mental health problems in Guantánamo, including a number of suicide attempts, and, as a result, should have been freed after he was cleared for release in December 2006 by a military review board under President Bush. However, like dozens of other cleared prisoners, he was still held when Bush left office. He was then almost certainly cleared by the interagency Guantánamo Review Task Force that President Obama established to review all the prisoners’ cases in 2009, and he then had his habeas petition granted in July 2010.
When that successful appeal was overturned last November by the D.C. Circuit Court, the New York Times lamented, in an editorial, that the majority judges in the Circuit Court ruling, Judge Janice Rogers Brown and Judge Karen LeCraft Henderson, who had ordered that the government’s intelligence report be given “a presumption of regularity,” had “improperly replaced the trial court’s factual findings with [their] own factual judgments,” and that the court “unfairly placed the burden on Mr. Latif to rebut the presumption that the government’s main evidence was accurate,” because “the government should bear the burden of proving by a preponderance of the evidence that his detention is warranted.”
In a dissenting opinion, Judge David Tatel, the third judge in the panel, noted that there was no reason whatsoever for his colleagues to give “a presumption of regularity” to an intelligence report, which was “produced in the fog of war, by a clandestine method that we know almost nothing about.”
Judge Tatel also noted that it was “hard to see what is left of the Supreme Court’s command” that the habeas review process be “meaningful,” in light of his colleagues’ ruling, and it is to the Supreme Court’s shame that the justices refused to follow Judge Tatel in recognizing that the Circuit Court has gutted habeas corpus of all meaning when it comes to the Guantánamo prisoners, and has rendered Boumediene meaningless.
This is disgraceful in and of itself, but with President Obama having failed to close Guantánamo as promised, and with Congress having imposed such severe restrictions on his ability to release prisoners that only two men — who had their habeas corpus petitions granted in October 2008 — have been freed in the last eighteen months, the bleak truth, in light of Monday’s decision by the Supreme Court, is that all three branches of the US government have now definitively acted to prevent the closure of Guantánamo, and to make the release of any of the remaining 169 prisoners almost impossible.
This is in spite of the fact over half of these men — 87 in total — were cleared for release in 2009 by President Obama’s Guantánamo Review Task Force. Moreover, as I demonstrated in a recent report, “Guantánamo Scandal: The 40 Prisoners Still Held But Cleared for Release At Least Five Years Ago,” 40 of those men were previously cleared for release, between 2004 and 2007, by military review boards, and in other military assessments, under President Bush.
These statistics demonstrate that the last thing that should be happening now is for Guantánamo to be sealed shut except for those who accept plea deals in their trials by military commission, or those who die at the prison, but that is indeed what is happening. As a result, June 11, 2012 will go down in history as the day that the Supreme Court hurled the remaining Guantánamo prisoners back into the legal black hole from which they had first been given the hope of rescue in the habeas rulings in June 2004 and June 2008. It turns out, however, that those rulings were made by a Court that remembered that arbitrary and indefinite detention is a crime against decency, and against the ideals on which the United States was founded.
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 April 2012, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.
As published exclusively on the website of the Future of Freedom Foundation.
On Facebook, Pauline Kiernan wrote:
Thank you once again, Andy. Am sharing.
Juggler Ted wrote:
Not even a bit of improvement for them, despite promises to close Guantanamo altogether! Rather, the US is becoming part of Gitmo.
Chase Madar wrote:
Is the US becoming part of Gitmo? Or was Gitmo already just an extension of everyday “normal” US penal culture? That’s not a defense of “Camp Justice” but an indictment of the US penal system.
EXPORTING HARSHNESS: HOW THE WAR ON CRIME HELPED MAKE THE WAR ON TERROR POSSIBLE
By JAMES FORMAN, JR.
Jennah Solace wrote:
I doubt decency matters anymore (but that may be my cynicism speaking). This alleged ‘war on terror’ has allowed politicians, judges, and the like – the justification to circumvent rights and liberties that we have come to expect as integral institutions of our justice system. And so, we should all fear the removal of such protections — if it can be from one blanket group, it can be just as easily removed from another. We need to move forwards, not backwards. We should really be looking for ways to improve the system, not tear it to shreds when it doesn’t suit our instantaneous desires. Otherwise, what is the purpose of having laws, when we are only playing make-believe.
Jennah Solace wrote:
Oh ya, great article Andy, really enjoyed reading it — enlightening, as always
Thanks, Pauline, Ted, Chase and Jennah – and everyone who has liked and shared this. And you’re right, Jennah. The removal of protections against arbitrary detention ought to alarm people, as today’s scapegoats can easily be replaced by another group of scapegoats, and, as you, say, without this system being brought to an end, the law itself is brought into disrepute.
Remmic Lewis wrote:
Jennah Solace wrote:
Sometimes we believe we are doing something which suits our best interests for the moment, but we really forget about the long term, harmful effects our decisions can manifest.
Yes, and it’s as true with Guantanamo – and the permanently reinforced paranoia and vengeance of the “war on terror” – as it was with the internment of Japanese-Americans in World War II. It must one day be regarded as a national disgrace – or America will find that it has permanently slipped into tyranny.
Jennah Solace wrote:
(Don’t like the tyranny — but do agree with the statement!)
Yeah! Thanks again, Jennah.
Definitive writing as usual. One other angle to the DC Circuit – there are three vacancies, two of which have been open since Obama’s first day in office. One since 2005! Of course, the Senate deserves some blame here, but expecting Obama to appoint – and fight for – a judicial liberal is delusional at this point.
However, in my fantasyland, if the couple of “liberals” currently serving had a couple more join their ranks, there could be the possibility of a 3 judge panel actually not destroying habeas at every opportunity. Obama has just appointed two judges, I don’t know enough to comment, but I can still dream, if not hope.
Thanks, Mark. Thanks also for the thoughts re: the vacancies. Extraordinary to think that, if Obama fails to be reelected in November, he will have failed to fill most of the judicial vacancies he inherited, even though judicial appointments are, in many ways, a mark of a President’s legacy, living on for decades after he has left office – and a mark of his ability to fight in Congress for what he believes.
Leonardo L Larl wrote:
Andy, I don’t think you’re surprised by this outcome.
In one way, Leonardo, I’m not surprised, as the key response to the Obama years, when it comes to “national security” issues, has been disappointment. Repeated disappointment (since the executive orders on his second day in office, in which the closure of Guantanamo was promised), as Obama has failed to take the initiative, or to stand up to critics.
That said, part of me thought the Supreme Court would have to act after the disgraceful ruling in Latif v. Obama last November. After all, Judge Tatel had issued a dissenting opinion that, to my mind, echoed what the Boumediene-era Supreme Court – or, to be honest, any reasonably objective judge – would have thought. So on that basis it is somewhat surprising – shocking – to discover that the Supreme Court has lost its conscience.
The SCOTUS is a stacked deck. They are political appointments for life. At one time, that made sense because the US was growing and the change was rapid – we needed a consistent body of top level thinkers to maintain the intent of the Newly created Constitution and to correct the mistakes, add to the verbiage and discern specific applications.
Unfortunately, in this day of corporate rule and their expansion and desired expansion, into international economies by any means, we have a SCOTUS appointed, not by their honesty, ethics, moral compass, intelligence or even comprehension of the Constitution. They are now appointed to put forth the legal framework justifying that expansion and corporatism.
Nothing showed this more than the decision on Citizens United.
The SCOTUS refects the out-of-touch government that works for the wealthy. They promote the war machine. They will not go up agasinst the plan to silence dissent at any level.
They will not act against those who own them.
To free the detainees is to open Pandora’s Box and allow truth to come out. The abuse, the torture, the morally bankrupt government.
The detainees are left off shore to keep them out of sight and out of mind of the people. It makes detention a concept and not an actuality for we don’t SEE the detention acts. We don’t SEE the people abused. We don’t fear that it CAN happen here because, to our knowledge, it is happening “there.”
Andy, your work at humanizing the humanity caught in the web of Guantanamo and the US ethics-less and criminal foreign policy shows it CAN and IS happening “here”. You and your friends, Jason Leopold, Jeffrey Kaye, CCR, and a few others are working to bombard the American collective psyche. It is up to those of us becoming more aware to spread the story and bombard it until we crack the false paradigm and act to force change.
Thanks, Jan. Great to hear from you, and thanks for placing this dangerous lawlessness – and the compromised Supreme Court – in context. It makes me sad to realize that so much changed – so much respect for the law, objectively – was lost when Justice Stevens retired two years ago.
Leonardo L Larl wrote:
Andy, this is an issue (911 and its the outcome) that touch so profoundly the soul of almost every US citizen that the Supreme Court, no matter how is supposed to act based on reasonable cause on international right of human beings, is bound to go against it, beside the fact the the majority of the judges in the panel are conservative.
Technically, Leonardo, the Supreme Court is split, and could have ruled in the prisoners’ favor. I think it wasn’t a foregone conclusion, and I think the decision not to act is not “business as usual,” and is in fact something that the Justices should be ashamed of.
Leonardo L Larl wrote:
Basically, Andy, the Supreme Court doesn’t care much about the fate of these people and the majority of Americans either, sad but true.
Yes, that’s the situation we’ve ended up in, Leonardo, but it wasn’t the case four years ago. What a terrible difference an Obama makes, rather like what Tony Blair did, shutting down all dissent – after 18 years of opposition to the Tories – with what I describe as his psychic cosh, and prioritising greed above everything else. Under Obama, things that were wrong – and criminally so – under Bush are now miraculously OK. What a disgrace!
Barbara Carroll wrote:
Thank you Andy, sharing.
Leonardo L Larl wrote:
…, yes Andy too bad,…., Obama, Bush, Blair and all, are interchangeable, different names, same goals. There is too much egotism in this world, still.
Thanks, Barbara, and thanks again, Leonardo. Yes, the perils of egotism …
Musa Adams wrote:
lol Andy, are you only just beginning to realize these modern day oppressors have total disregard for their own law system/s too and no concern with peoples’ rights and wellbeing except their own!!!!
Not really, Musa. There was a time when the Supreme Court wasn’t prepared to allow this to happen – in 2004, when Rasul v. Bush led to lawyers being allowed into Guantanamo to meet prisoners, which brought the prison’s rationale – torture, in secret – to an end; in 2006, when Hamdan v. Rumsfeld led to the secret prisons being closed down, and George W. Bush having to accept that minimum standards of humane treatment (common article 3 of the Geneva Conventions) applied to all prisoners; and in 2008, when Boumediene v. Bush led to the release of 28 prisoners through court orders. Those rulings demonstrated that there was still life in America’s institutions. Now, however, the Supreme Court has given up.
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Writer, campaigner, investigative journalist and commentator. 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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