Sometimes life takes us down unexpected routes, and yesterday, while looking for links for my last article, a transcript of a talk I gave in Los Angeles during my recent US tour calling for the closure of the prison at Guantánamo Bay on the 12th anniversary of its opening, I found myself visiting a page I first created in May 2010, entitled, “Guantánamo Habeas Results: The Definitive List.”
The page is a list of all the prisoners whose habeas corpus petitions were ruled on by judges in the District Court in Washington D.C. following the Supreme Court’s important ruling, in June 2008, in Boumediene v. Bush, granting the prisoners constitutionally guaranteed habeas corpus rights. At the time I created the list, there had been 47 rulings, and in 34 of those cases, after reviewing all the evidence, the judges concluded that the government had failed to demonstrate that they were connected in any meaningful manner with either al-Qaeda or the Taliban, an ordered their release.
This was humiliating for those who sought to defend Guantánamo, especially as the habeas hearings involved a low evidentiary hurdle — requiring the government to establish its case through a preponderance of the evidence rather than beyond any reasonable doubt. It was, moreover, a vindication for those like myself and some other journalists, as well as lawyers for the men, NGOs and others concerned by the existence of Guantánamo, like Lt. Col. Stephen Abraham, who had worked on the tribunals at Guantánamo, who had long maintained that the supposed evidence against the men was flimsy and untrustworthy, in large part because it was gathered using torture or other forms of coercion, or, in some cases at Guantánamo, because certain prisoners were bribed with better living conditions if they told lies about their fellow prisoners.
From the high point for the Guantánamo habeas process, which I marked with a series of articles under the heading, “Guantánamo Habeas Week,” a backlash soon began, engineered by conservative judges in the D.C. Circuit Court who, beginning in January 2010, issued rulings, following appeals by the government, designed to prevent the lower court from evaluating the evidence objectively, and ordering the release of dozens of prisoners.
I recorded these generally baleful decisions, in which the D.C. Circuit Court, as I put it, “demonstrated [a] commitment to eroding the District Court’s independence — and, for the most part, its fairness and impartiality — with increasingly aggressive assertions that have less to do with due process than with a kind of overreaching, authoritarian, right-wing ideology,” in two articles in the summer of 2010, “Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals,” Part One and Part Two.
I then watched aghast as, under the new rules, no more prisoners were able to have their habeas petitions granted. Since July 2010, all the habeas petitions ruled on — eleven in total — have been won by the government, as have around two dozen appeals. In addition, lawyers’ efforts to deal with this by appealing to the Supreme Court have been in vain, as case after case has been turned down, with the Supreme Court refusing to revisit Boumediene, and, effectively, allowing prisoner detention policies to be dictated by a handful of conservative, ideologically driven appeals court judges, whose intention has been to destroy habeas corpus as a meaningful remedy for the men held at Guantánamo.
This process culminated in a thoroughly depressing ruling in October 2011, in which the D.C. Circuit Court overturned the successful habeas petition of Adnan Farhan Abdul Latif, a Yemeni with mental health issues, who had his habeas petition granted in July 2010, and had also been cleared for release by a military review board under President Bush, and by President Obama’s high-level, inter-agency Guantánamo Review Task Force in January 2010. See also this analysis by Sabin Willett, one of the Guantánamo lawyers.
In that ruling, the D.C. Circuit Court told the lower court that everything the government came up with — however risible — had to be given the presumption of accuracy unless the prisoners themselves could prove otherwise, even though, in Guantánamo, they are largely deprived of the means to do so.
In September 2012, Latif died at Guantánamo, reportedly by committing suicide, but no one in authority has had to answer for the failure to release him, and the D.C. Circuit Court has continued to set policy and turn down appeals, largely unnoticed by the mainstream media.
In revisiting my Guantánamo habeas page, I realized that I had largely failed to update it for some time, and set about remedying that, checking out appeal after appeal that was lost, and often finding that only a few specialist legal blogs had dealt with this procession of dismal rulings, even though the gutting of habeas corpus for the Guantánamo prisoners ought to be a matter of national concern.
The only glimmer of hope has come in the last few months, with dissenting opinions submitted by Circuit Judge Harry T. Edwards last June, in the case of Abdul al-Qader Ahmed Hussain (which I wrote about in an article entitled, “Judge Calls for An End to Unjust Provisions Governing Guantánamo Prisoners’ Habeas Corpus Petitions“), and, in December, in the case of Abdul Razak Ali, an Algerian, which I have not yet written about, although I wholeheartedly recommend a detailed article about the case by Linda Greenhouse in the New York Times.
I hope that Judge Edwards’ dissent signifies that the tide is turning against the decision by a handful of judges to eradicate habeas corpus for the Guantánamo prisoners, but I’m not holding my breath. Guantánamo has, in general, been a place where, from the moment the prison opened, the law was sent to be butchered, and, apart from that honeymoon period after Boumediene when dozens of prisoners were having their habeas petitions granted and were being freed, the only sure way out of Guantánamo is through political maneuvering — or in a coffin.
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, and “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.
On Facebook, Beth Bailey-Kingdon wrote:
So glad you’re not giving up, Andy. We are fighting for justice on SO many fronts and your voice is an essential one.
Thanks, Beth. Your support is very much appreciated. Sadly, you are correct that those of us who are conscious are required to fight on many fronts.
After I posted the direct link to the updated habeas list on Facebook, I wrote:
Thanks for reading, and for liking and sharing. It’s such a disgrace how the D.C. Circuit Court has been allowed to take over detention policy, how the Supreme Court has failed to respond, how Obama and Holder have done nothing to rein in the Justice Court lawyers dealing with Guantanamo, and how no one in the administration has ever cross-referenced the task force recommendations about the prisoners with their habeas petitions. What kind of a poor excuse for justice is it when prisoners cleared for release by a Presidential task force have their ongoing detention successfully defended by government lawyers? Or when appeals court judges, motivated by right-wing ideology, tell lower court judges that they must give the presumption of accuracy to whatever nonsense the government contends is evidence, no matter how flimsy or risible that supposed evidence is?
Ajo Muhammad wrote:
Great work Andy. God bless
You’re welcome, Ajo. Thanks. Good to hear from you.
Here is something surprising — an article in the weekly newspaper published for JTF-GTMO personnel entitled “ICRC completes 100th visit”. It was written by employees of the International Committee of the Red Cross. The newspaper’s title page re-titled the article “ICRC celebrates 100th visit”
Thanks for that, arcticredriver. To have had 100 visits by the ICRC is a depressing enough statistic without some idiot trying to spin it into an achievement. The way we’re lied to these days is so depressing. Politicians lie routinely, and Guantanamo is a perfect example of how other aspects of the establishment lie to us all the time as well. When I was with Jason Leopold in California last month, we did two events together, and he began each by telling the audience the words that are used by military personnel to describe the operation of Guantanamo to visitors: “Safe. Humane. Legal. Transparent.”
You see? Satire isn’t even possible with this kind of reality.
…the words that are used by military personnel to describe the operation of Guantanamo…
WRT official DoD spin doctors…
Four months or so ago one of the current spin doctors piped up and tried to admonish you for publishing something from the public record, without seeking clarification from him or his colleagues first. I suggested taking the public affairs officer at face value, and posing a list of questions to him and his colleagues, seeking clarification. I thought asking why no ARB hearings were held for Abdel Malik al Rahabi could be an item to seek clarification.
Commander Gordon, who is currently a freelance professional alarmist, is a former DoD professional alarmist, when he worked for the DoD. WRT satire, it was Commander Gordon who complained that he had “been abused worse than the detainees.”
Another question to pose to the Public Affairs Officers? We know, from the Military Commission of young Mohammed Jawad, that JTF-GTMO continued to subject him to the infamous sleep deprivation technique known as “the frequent flyer program” long after official authorization to use that technique had been withdrawn. Well, how long after authorization had been withdrawn, were JTF-GTMO staff continuing to use the technique? Who was held responsible for the on-going use of this technique, after official authorization for its use had been withdrawn? How widely used was this technique, after official authorization for its use had been withdrawn?
I am going to repeat a point I have made before. When Donald Rumsfeld agreed to take custody of a CIA captive in Iraq, and keep him “off the books” hiding him from representatives of the ICRC the unintended consequence was that not only didn’t the ICRC not know he existed, or was in custody, the CIA lost track of him too, and soon forgot about him. The guards who brought him food, every day, and hopefully took him for showers, exercise, medical checkups, for the next nine months — all “off the books”, gave him the unofficial nickname “triple-X” — from the title of a then current spy-thriller.
Keeping “ghost prisoners” was not only a war crime, but it backfired on the CIA, who might as well have set him loose rather than ask for him to be kept off the books.
I am completely convinced the unofficial yet routine technique of moving captives from one cell to another — to disrupt their sleep schedule — meant that when other guards came to collect prisoners for their medical appointments, meetings with their lawyers, or their interrogations, they routinely collected the wrong guy.
Many of the JTF-GTMO DABs’ only justification for continuing to hold individuals captive was that they had been assessed as “evasive”, or as having offered inconsistent accounts of themselves. I am completely convinced that the simple explanation as to why so many of the captives’ stories seemed inconsistent is that a significant fraction of the time interrogators thought they were interrogating one captive, but due to the confusion of unofficially continuing the frequent flyer program, they were interrogating someone else.
If it were possible to transparently clarify how widely the no longer authorized frequent flyer program was employed it would go a long way to enhancing public safety, as it would help assess how many of the leads the DoD claims came from Guantanamo were wild goose-chases. If the only justification for holding a captive is a vague report that he had been assessed as evasive or inconsistent, with no details as to the date(s) where he was being characterized as evasive or inconsistent, here and now, in 2014, those assessments should simply be discounted. If the records JTF-GTMO kept are detailed enough to name the dates, and other details of the inconsistencies a clean team, authorized to play devil’s advocate, should rewatch the interrogation tapes, with an eye to whether the recording with the inconsistent answers was actually a different captive, delivered to the interrogators in error, due to the unauthorized shuffling of cells, to torture the captives through sleep deprivation.
I think some readers might claim it should have been immediately obvious to interrogators when the wrong captive had been delivered to them for interrogation. I think some readers might think interrogators would recognize their interrogation subjects from previous sessions. But we know that, unprofessionally, JTF-GTMO didn’t bother to make sure captives were consistently assigned to a single interrogator. I think some readers might think an interrogator might realize that they were not interrogating who they were supposed to be interrogating, when the subject would correct them, and say, you got my name wrong. But the transcripts make clear Guantanamo staff routinely ignored what the captives said their name was.
Fascinating. Thanks, arcticredriver. Your comments about the unintended consequence of the sleep deprivation program (the so-called “frequent flier program”) may well be accurate. I recall Omar Deghayes telling me once about how the authorities persistently had the wrong identity for one of the prisoners, and kept taking him to interrogations and delivering him as someone else, over and over again.
Do interrogation tapes still exist? I don’t know, but I do think no one in a position of power and authority would really be interested in pursuing the truth, because the truth is actually unimportant to the authorities, and what the Detainee Assessment Briefs released by WikiLeaks showed was not a coherent program of interrogations, but a chaotic attempt to make it appear that there was some justification for holding the prisoners.
Abu Omar Abdulrazak Jama wrote:
It is really good to see men like you who stand for justice no matter what.
Ajo Muhammad wrote:
Keep up the good work. We are behind you!
Thank you, Abu Omar, for the kind and supportive words. And thanks again, Ajo.
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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