It’s Ten Years Since the Supreme Court Granted Habeas Corpus Rights to the Guantánamo Prisoners, a Legal Triumph Until a Lower Court Took Them Away

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Exactly ten years ago, I was briefly working for the human rights organization Reprieve, when a wonderful ruling came out of the US Supreme Court. In Boumediene v. Bush, the Court held that efforts by Congress to quash the habeas corpus rights that they had granted the prisoners in 2004, in Rasul v. Bush, had been unconstitutional, and asserted that the prisoners had constitutionally guaranteed habeas corpus rights.

We were overjoyed with the result, and for good reason. Although the Rasul ruling had allowed lawyers into Guantánamo, a derisory response by the Bush administration — the Combatant Status Review Tribunals, administrative military reviews designed to rubber-stamp the prisoners’ blanket designation, on capture, as “enemy combatants” — and Congress’s obstructions, via the Detainee Treatment Act of 2005, and the Military Commissions Act of 2006, had prevented habeas cases from proceeding to the courts, as I explained at the time in my article, The Supreme Court’s Guantánamo ruling: what does it mean?

In the ruling, Justice Anthony Kennedy, delivering the Court’s majority opinion, ruled that the “procedures for review of the detainees’ status” in the DTA “are not an adequate and effective substitute for habeas corpus,” and that therefore the habeas-stripping component of the MCA “operates as an unconstitutional suspension of the writ.”

Boumediene finally allowed District Court judges to rule on whether or not the government had managed to make a case that the men it had detained were involved in any meaningful way with al-Qaeda or the Taliban, and for the next two years, judges ruled in 38 cases that the government had failed to establish its case.

The prisoners’ victories began with the case of 17 Uighurs (an oppressed minority in China) in October 2008, and were followed by victories, in November, for five out of six men kidnapped in Bosnia-Herzegovina and flown to Guantánamo in connection with a non-existent bomb plot, and, throughout 2009, for other cases including those of two abused child prisoners, Mohammed El-Gharani and Mohamed Jawed, as well as Alla Ali Bin Ali Ahmed, one of over a dozen men seized in a university dorm in Pakistan on the same night that another raid captured Abu Zubaydah, for whom the US’s post-9/11 torture program was developed in the mistaken belief that he was a member of al-Qaeda. I wrote further about the ramifications of the Ali Ahmed ruling in an article entitled, Guantánamo: A Prison Built On Lies, and later in 2009 I wrote about the extraordinary case of Fouad al-Rabiah, in an article entitled, A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions.

While these results were taking place, providing compelling vindication of what myself and other commentators and analysts had been describing for many years — of a chaotic system of incompetent US intelligence, of prisoners (often civilians or insignificant foot soldiers) unscrupulously sold for bounty payments to the US by their Afghan and Pakistani allies, and of torture and abuse that produced countless false confessions — some judges sided with the government, turning down prisoners’ habeas petitions as well as granting them their freedom.

However, for conservative and ideologically driven judges in the appeals court in Washington, D.C. (the D.C. Circuit Court), this was not enough, and as they began reviewing cases referred to them by the Justice Department (which, under President Obama, kept defending the detention of all prisoners as though the catalog of incompetence and torture outlined above didn’t exist), they reversed or vacated a number of rulings, incrementally changing the rules regarding the habeas litigation so that, eventually, they succeeded, as they intended, in gutting habeas corpus of all meaning for the prisoners, by insisting that District Court judges had to regard every piece of supposed evidence provided by the government as presumptively accurate, regardless of how ridiculous that was.

For men held in Guantánamo, it was, of course, absurd to think that they would, in general, be able to meaningfully challenge the government’s claims while held in something close to total isolation, and so, from July 2010, every habeas petition was turned down, so that, by October 2011, the prisoners and their lawyers gave up trying, and Boumediene was, effectively, dead.

Along the way, the appeals court judges had vacated the successful habeas petition of the Mauritanian torture victim Mohamedou Ould Slahi, who wasn’t released until October 2016, via the Periodic Review Board process established by Obama as a kind of parole-type system, nearly two years after his searing account of his imprisonment and torture, Guantánamo Diary, was published to international acclaim. The D.C. Circuit Court also reversed the successful habeas petition of Adnan Farhan Abdul Latif, a mentally troubled Yemeni, who died in Guantánamo in September 2012, reportedly by committing suicide.

The ruling that reversed Latif’s successful petition, in October 2011, was the last in the sequence of negative rulings designed to destroy habeas for the Guantánamo prisoners, and I wrote about it in an article entitled, As Judges Kill Off Habeas Corpus for the Guantánamo Prisoners, Will the Supreme Court Act? I also cross-posted a powerful and eloquent analysis by Guantánamo lawyer Sabin Willett, entitled, Lawyer Laments the Death of Habeas Corpus for the Guantánamo Prisoners.

Sadly, however — and to what should be their eternal shame — the Supreme Court has persistently failed to take back legal control of the Guantánamo cases from the D.C. Circuit Court, as I explained in two articles in June 2012, The Supreme Court Abandons the Guantánamo Prisoners and Meet the Seven Guantánamo Prisoners Whose Appeals Were Turned Down by the Supreme Court. Three months later, Latif was dead, and I stand by the article I wrote at the time, which was pointedly entitled, Obama, the Courts and Congress Are All Responsible for the Latest Death at Guantánamo.

With the Supreme Court continuing to bat away all efforts to get them to reconsider Boumediene, and how it has been gutted, the only way forward is for the D.C. Circuit Court to reconsider its rulings. A legal challenge is currently underway, which I hope to write about soon, but in the meantime, as we near 6,000 days of Guantánamo’s existence this Friday (June 15), it is thoroughly depressing to reflect on how Boumediene, which was so full of promise, and so illuminatingly led to justice briefly shining at Guantánamo, has fallen victim to the persistent tendency of the darker parts on the US establishment to go the extra mile in keeping Guantánamo open, rather than doing what all decent people should do; namely, to close down this legal, moral and ethical abomination without further delay.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (click on the following for Amazon in 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), and for his photo project ‘The State of London’ he publishes a photo a day from six years of bike rides around the 120 postcodes of the capital.

In 2017, Andy became very involved in housing issues. He is the narrator of a new documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London.

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