In preventing the release of prisoners from Guantánamo, all three branches of the US government are responsible. President Obama promised to close the prison within a year of taking office, but he lacked a concrete plan, and soon caved in to criticism, blocking a plan by White House counsel Greg Craig to bring some cleared prisoners who couldn’t be safely repatriated — the Uighurs, Muslims from China’s Xinjiang province — to live in the US, and imposing a ban on releasing all Yemenis after it was discovered that a failed plot to blow up a plane bound for the US on Christmas Day 2009 was hatched in Yemen.
Congress, in turn, imposed ban on bringing prisoners to the US mainland, and, in the last two versions of the National Defense Authorization Act, a ban on releasing prisoners to any country where even a single released prisoner has allegedly engaged in recidivism (returning to the battlefield), and a requirement that, if a prisoner were to be released, the Secretary of Defense would have to certify that they would not be able, in future, to engage in any terrorist activities — a requirement that appears to be impossible to fulfill.
Largely overlooked has been the responsibility of the judiciary — and specifically, the Court of Appeals in Washington D.C. (the D.C. Circuit Court), and the Supreme Court, but their role in keeping men at Guantánamo is also crucial.
Nine years ago, in June 2004, in Rasul v. Bush, the Supreme Court granted the prisoners habeas corpus rights, a momentous ruling that pierced the veil of secrecy that had allowed the Bush administration to establish a torture regime at Guantánamo, and also allowed the prisoners to be represented by lawyers, who were allowed to visit them.
However, no habeas corpus petitions proceeded to court, because Congress passed laws that purported to strip the prisoners of their newly granted rights. It was not until June 2008, in Boumediene v. Bush, that the Supreme Court declared that these decisions had been illegal, and restored the prisoners’ habeas corpus rights.
That second momentous decision led to 38 victories for the prisoners between October 2008 and July 2010, as judges in the District Court in Washington D.C. examined the cases against them, and concluded that the government had failed to establish, by a preponderance of the evidence (a lower standard than that used in trials), that the prisoners were involved with al-Qaeda and/or the Taliban.
This was a vindication for those, like myself, who had always maintained that the supposed evidence was profoundly unreliable, consisting largely of witness statements that involved the use of torture, other forms of coercion, or bribery. The decision led to the release of 28 prisoners, but the D.C. Circuit Court soon fought back, on a basis that can only, in all honesty, be attributed to ideology, rather than judicial fairness.
In rulings on appeals, undertaken from January 2010 to October 2011, a handful of judges in this generally very Conservative court redefined the standards used by the lower court, reversing or vacating a number of successful petitions, and pushing the District Court judges to stop doubting the information put forward by the government as evidence.
The bleakest decision of all took place in October 2011, when the D.C. Circuit reversed the successful petition of Adnan Latif, a mentally ill Yemeni who had also been cleared for release under President Bush, and by President Obama’s inter-agency task force, telling the lower court that anything put forward by the government as evidence — even battlefield intelligence reports that were often nothing more than hasty, ad hoc assessments — had to be treated as reliable, unless the prisoners could prove otherwise.
Latif subsequently died at Guantánamo, last September, spurned not only by the D.C. Circuit Court, but by the Supreme Court, which, in June, had been presented with the opportunity to challenge the Circuit Court’s distortions, and its hijacking and annihilation of the prisoners’ habeas rights, in seven cases in total, including Latif’s, but had refused to get involved.
The power of the D.C. Circuit Court to prevent the release of prisoners under any circumstances has been so successful that the eleven habeas petitions that were ruled on between July 2010 and October 2011 were lost, and the prisoners and their lawyers essentially gave up, accepting that habeas corpus, for the men in Guantánamo, had been killed off by the D.C. Circuit Court, and that the Supreme Court didn’t care, and nor did the Justice Department, which had never shown any willingness to drop cases — for prisoners cleared for release by the task force, for example — rather than pursuing them as aggressively as possible.
On June 18, 2013, a judge in the D.C. Circuit Court finally spoke out about this continuing injustice, in a rare appeal by one of the last prisoners to have his habeas petition denied, in October 2011. Abdul al-Qader Ahmed Hussain, a Yemeni, and one of 16 men seized in a house raid in Pakistan in March 2002 — on a house that appears to have largely held students — had his appeal denied, but not before Senior Circuit Judge Harry T. Edwards “called on the president and Congress to consider a different approach to the handling of legal cases of Guantánamo Bay prisoners,” as the Associated Press described it.
Judge Edwards made his comments at the end of a written opinion in which he “reluctantly concurred” with the decision of his two fellow judges, to reject Hussain’s appeal because of the precedent established by the court.
“However,” he wrote, “when I review a record like the one presented in this case, I am disquieted by our jurisprudence.” He added, “I think we have strained to make sense of the applicable law, apply the applicable standards of review, and adhere to the commands of the Supreme Court. The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantánamo detainee cases.”
This is an important call, and one that needs to be heeded by the Obama administration, and by lawmakers.
The case against Hussain is demonstrably thin. He had been in Afghanistan prior to the 9/11 attacks, and had been living near the front lines of the civil war between the Taliban and the Northern Alliance. There, housemates of his, involved with the Taliban, had supplied him with an AK-47, and had trained him to use it.
According to Judge Thomas Griffith, who wrote the majority opinion, and was backed by Judge Karen LeCraft Henderson, this was sufficient to authorize his ongoing imprisonment because it was likely that he was part of an enemy force when he was captured.
Judge Griffith wrote, “Evidence that Hussain carried an assault rifle given him by Taliban forces while living among Taliban forces near a battle line fought over by Taliban forces brings to mind the common sense view in the infamous duck test,” — a reference to the famous saying, “if it looks like a duck, walks like a duck and quacks like a duck, it’s a duck.”
In response, Judge Edwards called the duck test “quite invidious because, arguably, any young, Muslim man traveling or temporarily residing in areas in which terrorists are known to operate would pass the ‘duck test.'”
More importantly, he challenged the basis for assessing whether or not Hussain should continue to be detained. Under the Authorization for Use of Military Force, which Congress passed the week after the 9/11 attacks, the President can detain anyone who “planned, authorized, committed, or aided” the attacks. In the prisoners’ habeas corpus petitions, as noted above, the government is required to show, by a preponderance of the evidence, that the prisoner being detained was part of al Qaeda and/or the Taliban.
However, as Judge Edwards explained, his fellow judges had “implicitly shift[ed] the burden of proof from the Government to Hussain.” He added:
Under the approach adopted by the majority, Hussain’s petition is rejected because he could not offer a coherent story about his whereabouts during the times in question, not because the Government proved by a preponderance of the evidence that he was “part of” al Qaeda, the Taliban, or associated forces. Respectfully, this is not an appropriate application of the preponderance of the evidence standard. It was the Government’s burden to show that Hussain “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” and this burden was not met by Hussain’s failure to explain his whereabouts. Hussain is not presumed to be guilty under the applicable law merely because he was taken into custody and transferred to Guantánamo.
That is not how it should be, but it is a fair summary of the truth: that the mere fact of having been in Afghanistan or Pakistan, with a gun, or staying in a guest house allegedly associated with al-Qaeda or the Taliban, is enough to justify imprisonment for life. So tangential are these claims to the existence of any kind of real threat that it is hardly a great leap to state that many of the men held in Guantánamo are only there because the fact that they ended up in US custody is regarded as proving something significant about the threat they pose.
In an absurd twist, Abdul al-Qader Ahmed Hussain was actually cleared for release by President Obama’s inter-agency Guantánamo Review Task Force nearly two years before he had his habeas corpus petition denied. If there was any sense of logic and justice in the US administration, the Justice Department would not have contested his petition — and if President Obama had not responded with a blanket ban on releasing Yemenis after the failed airline bomb plot on Christmas Day 2009, he would have been freed before his habeas petition was considered in the first place.
It is well beyond time that this dark farce, which ruins the lives of men who are no threat to the US, and which blackens America’s name, costs a fortune and is dangerously counter-productive, is brought to an end. If no one will do anything now, then the withdrawal of troops from Afghanistan next year ought to provide a spur for the prison’s closure, a repeal of the outrageous Authorization for Use of Military Force, and, hopefully, an end to the unjustifiable tyranny of judges who — with the exception of Judge Edwards — confuse being a Muslim in Afghanistan or Pakistan between 2001 and 2003 with being a member of al-Qaeda and/or the Taliban.
Note: Abdul al-Qader Ahmed Hussain is also identified as Abdul Qader Ahmed Hussein or Ahmed Abdul Qader. His ISN number is 690.
Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and 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. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).
To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the four-part definitive Guantánamo prisoner list, “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list and the chronological list of all Andy’s articles.
As published exclusively on the website of the Future of Freedom Foundation.
On Facebook, I introduced this article with the following comment:
Here’s my latest article looking at an important dissent in a recent Guantanamo habeas corpus appeal, in which Judge Harry T. Edwards complained about having to deny the appeal of Abdul al-Qader Ahmed Hussain, a Yemeni prisoner seized in a raid on a guest house in Pakistan in 2002 because the rules have been twisted so horribly by his colleagues. Hussain has ended up presumed guilty “merely because he was taken into custody and transferred to Guantanamo.”
David Knopfler wrote:
Where there’s a will there’a a way… I’ve heard better lines from Pontius Pilate. He could have made a “perverse” ruling in the name of justice… juries do it – why not Judges
Lindis Percy wrote:
Andy I posted this on the CAAB fb page
Cyndy Tyler wrote:
Andy, do have a video explaining how the US was paying LARGE sums of money to the locals to turn in known ‘terrorists’ which resulted in thousands of innocent boys and men being kidnapped and turned in for the cash? I don’t think the majority of Americans understand that these men being held in GITMO were kidnapped and sold to the US Military and the US actually had no reason other then the word of the person being paid to suspect them of a crime, nor did the US bother to investigate or question the payee concerning their proof. If you have a video already, please post it on my page, if not please make one. Thanks Andy for all you do.
Thanks for the comments, David, Lindis and Cyndy, and thanks also to everyone who has liked and shared this. Cyndy, the bounty payments are discussed in the documentary film I co-directed, “Outside the Law: Stories from Guantanamo,” available in the US from the World Can’t Wait for just $10: https://salsa.democracyinaction.org/o/1170/t/11530/shop/item.jsp?storefront_KEY=975&t=&store_item_KEY=4209
And David, it would be nice, wouldn’t it, if decent judges went further in their complaints, as the right-wing ideologues have. One of the worst examples, Judge A. Raymond Randolph of the D.C. Circuit Court, despised what the Supreme Court did in granting habeas rights to the prisoners so much that he gave a talk about it, called “The Guantanamo Mess,” in which he compared the five justices who voted in support of habeas rights for the prisoners to characters in “The Great Gatsby.” and used the following quote: “They were careless people. They smashed things up … and let other people clean up the mess they had made.” To their eternal shame, the Supreme Court has let this stand, and has refused to take back control of legal decisions regarding the Guantanamo prisoners from Randolph and his handful of dangerous right-wing ideologues.
I wrote about it all here: http://www.andyworthington.co.uk/2011/04/13/how-the-supreme-court-gave-up-on-guantanamo/
David Knopfler wrote:
Andy…It’s just fucking breath-taking from start to finish. We went from a planet in 1999 looking to the New Millennium, full of positive hope, for real improvements, to the dark-ages in only a few short years and I’ll not believe we are reversing that course until these men have been released or tried in a court that allows the defense the same advantages the prosecution have.
David, that really is a perfectly succinct analysis of what’s gone so horribly wrong over the last 14 years. Thank you.
Rachel Raub wrote:
This disregard of human rights is not America. We need to cleanse this wound and heal this breach.
Mingma Sherpa wrote:
These People are going through the same inhuman treatment like MR. Mandela Mr. President. Why are You in SA … You should visit Guantanamo, Ur own island of unjust.
Yes indeed, Rachel. And Mingma, yes, it was depressing to see Obama visit Robben Island, and not show any sign of recognizing the hypocrisy of doing so while his own political prisoners are at Guantanamo.
Investigative journalist, author, filmmaker, photographer and Guantanamo expert
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