A former gang member and a convert to Islam, Padilla was arrested at Chicago’s O’Hare Airport, in connection with an alleged “dirty bomb plot” that never existed, on May 8, 2002, as he returned from Pakistan. Held for a month as a material witness, he was then designated an “enemy combatant” by President George W. Bush, and held in complete isolation in a military brig for the next three and half years — a process that also involved prolonged sensory deprivation. According to the psychiatrist Dr. Angela Hegarty, who spent 22 hours with Padilla in 2006, “What happened at the brig was essentially the destruction of a human being’s mind.”

In November 2005, fearing that Padilla might successfully challenge the government’s argument that it had the right to hold a US citizen indefinitely without charge or trial on the US mainland, and subject him to torture, the Bush administration suddenly indicted Padilla on charges of conspiracy “to murder, kidnap and maim people overseas,” and transferred him out of the brig. However, the injustice did not come to an end, as the courts then took over.

The charges against Padilla were based on the Bush administration’s claim that, along with alleged facilitators Adham Amin Hassoun and Kifah Wael Jayyousi, he was part of a Florida-based plot to aid Islamic extremists in holy wars abroad, and his trial took place in the summer of 2007. However, the judge, Marcia Cooke, refused to allow Padilla or his lawyers to make any mention of what had happened in the three and a half years that he was held in a legal black hole.

On August 16, 2007, the jury found him guilty, and on January 22, 2008, he received a sentence of 17 years and 4 months. This was in spite of the fact that the conspiracy in which he was reportedly involved had not taken place, and he had been involved in only seven of the hundreds of phone calls monitored by the FBI between his two co-defendants (who also received prison sentences). It also came about in spite of the fact that all that could be confirmed of his intent, in physical terms, was his signature on an application form for a military training camp in Afghanistan that he may or may not have actually attended.

Padilla appealed against his sentence, and so did the Bush administration, whose position — that his sentence was too lenient — was adopted by the Obama administration, which has repeatedly clung to the same position maintained by its predecessor when it comes to “national security” issues involving terrorism.

Two weeks ago, the latest phase in this alarming saga of paranoia, torture and injustice took place in Florida, when the Court of Appeals for the Eleventh Circuit not only backed the government against Padilla, but went so far as to vacate the original sentence (PDF), in effect telling the judge that she had been too lenient, and that she should revisit her ruling and hand down a much longer sentence.

The majority judges in the three-judge panel — the notoriously right-wing judges Joel F. Dubina and William Prior — claimed that Padilla’s original sentence was “substantively unreasonable because it does not adequately reflect his criminal history, does not adequately account for his risk of recidivism, was based partly on an impermissible comparison to sentences imposed in other terrorism cases, and was based in part on inappropriate factors.”

The dissenting judge, Rosemary Barkett, was thoroughly critical of her colleagues’ actions, specifically noting that:

In reversing Padilla’s sentence, the majority fails to adhere to the principles articulated by the Supreme Court and this Circuit requiring appellate courts to accord the trial judge the “considerable discretion” granted district courts in sentencing and to guard against substituting its judgment for that of the trial judge.

Continuing, she referred to a precedent from the Eleventh Circuit, in which, in a case in 2009, it was noted:

We may vacate a sentence because of the variance only if we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the … factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case. However, that we might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal.

Judge Barkett also took exception to her colleagues’ arguments that the trial judge had erred when she refused to give Padilla a sentence that was a minimum of 30 years, as they thought appropriate according to sentencing guidelines. Spelling out what judicial discretion means, she again referred to the precedent from the Eleventh Circuit in 2009, in which it was noted:

The district court must evaluate all of the … factors when arriving at a sentence, but is permitted to attach great weight to one factor over others. In assessing the factors, the sentencing court should remember that each convicted person is an individual and every case is a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.

Primarily, however, Judge Barkett was concerned to point out that a sentence less than the full maximum could be justified when, as in Padilla’s case, “the trial judge correctly concluded that a sentence reduction is available to offenders who have been subjected to extraordinarily harsh conditions of pre-trial confinement.”

Judge Cooke may have refused to allow any discussion of Padilla’s torture in his trial, but she did note that the conditions in which he was held “were so harsh that they warrant consideration,” and, as Judge Barkett noted, Padilla had been able to highlight his torture when he was being sentenced which was so harrowing that it was not easy to ignore, As she wrote in her dissenting opinion:

Padilla presented substantial, detailed, and compelling evidence about the inhumane, cruel, and physically, emotionally, and mentally painful conditions in which he had already been detained for a period of almost four years. For example, he presented evidence at sentencing of being kept in extreme isolation at the military brig in South Carolina where he was subjected to cruel interrogations, prolonged physical and mental pain, extreme environmental stresses, noise and temperature variations, and deprivation of sensory stimuli and sleep.

Judge Barkett also highlighted one more area in which her Eleventh Circuit colleagues had crossed a line, which concerned their allegations about his perceived susceptibility to recidivism. Even though, after serving his sentence, Padilla would be “in his mid-fifties,” and “subject to a twenty-year term of supervised release,” her fellow judges nevertheless concluded that Judge Cooke “erred in determining that Padilla will not pose a high risk of recidivism.”

Even though there was no evidence to support the judges’ fears, and even though they explicitly stated in their opinion that a trial judge is allowed to “find that recidivism generally decreases with age,” she noted that the majority “not only rejects that presumption for Padilla, but goes one step further and decides that trial judges may no longer consider, for anyone convicted of a terrorism-related offense, the likelihood that the risk of recidivism will decrease with age.”

Judge Barkett’s dissenting opinion was important, but unfortunately it did nothing to stem the institutionalized paranoia and injustice that has plagued Jose Padilla since he was imprisoned as an “enemy combatant” in May 2002.

I have never understood how far too many Americans accepted the torture of Jose Padilla — an American citizen on US soil, and not even a foreigner held at Guantánamo — without recognizing that, although a Latino Muslim convert was today’s “enemy combatant,” tomorrow it might be some other demonized American.

I was also astonished when no one cared that Padilla’s torture was not mentioned in his trial, and he received a sentence of seventeen years and four months for little more than a thought crime.

The ruling by the Court of Appeals for the Eleventh Circuit two weeks ago only adds to the bitter legacy of Jose Padilla’s brutalization at the hands of his own government, revealing how, for terror suspects held as “enemy combatants” — like Padilla, or, again, the prisoners at Guantánamo — all sense of proportion can be dismissed, even by those who should know better.

For these scaremongers, who are found in Congress as well as the courts, the end result of their sustained hysteria about terrorism is a twisted version of reality in which it is legitimate to complain that sentences are not long enough, and that the crime of terrorism is so unique and dangerous that judges can argue that there is no possibility of being reformed — even when, as in Jose Padilla’s case, the US government actually spent three years destroying his mind through torture, rendering him largely incapable of anything, and without anyone responsible for that being held accountable.

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, “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, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout.

Manning, whose 23rd birthday was on Friday, has been held in solitary confinement for seven months since he was seized in Kuwait, where he was held for the first two months prior to his transfer to a military prison in Quantico, Virginia.  According to David House, a computer researcher from Boston who visits him twice a month, his “prolonged confinement in a solitary holding cell … is unquestionably taking its toll on his intellect.” House explained how Manning “was no longer the characteristically brilliant man he had been, despite efforts to keep him intellectually engaged.”

However, what was particularly revealing about House’s comments was his denial of the authorities’ statement that Manning “was being kept in solitary for his own good,” based on a claim that he was initially held on suicide watch. As he explained, “I initially believed that his time in solitary confinement was a decision made in the interests of his safety. As time passed and his suicide watch was lifted, to no effect, it became clear that his time in solitary — and his lack of a pillow, sheets, the freedom to exercise, or the ability to view televised current events — were enacted as a means of punishment rather than a means of safety.”

The key elements here are the elements of profound isolation and suffering identified by House — not just the solitary confinement, with no other human being for company, but also the refusal to allow Manning to have a pillow, sheets, or any access to the outside world through the reporting of current affairs.

It is these factors that mark out his conditions of detention as sharing some key elements with the conditions endured by the three “enemy combatants” held on the US mainland under the Bush administration — the US citizens Yasser Hamdi and Jose Padilla, and the US legal resident Ali al-Marri.

Hamdi, initally held at Guantanamo, was kept in isolation from May 2002 until he won a case before the Supreme Court on June 28, 2004, leading to his release in Saudi Arabia three months later. Padilla, held from May 2002 until he was transferred into federal custody on January 3, 2006 (and subsequently tried and convicted in August 2007, and given a sentence of 17 years and four months in January 2008 for conspiring to kill people in an overseas jihad and to fund and support overseas terrorism), was held for 21 months in total isolation. Al-Marri, who was initially arrested in December 2001, was held alone for five years and eight months (including 16 months in total solitary confinement) before President Obama moved him into the federal court system in February 2009, leading to a trial and an eight-year sentence after a plea deal eight months later.

As I explained in an article two years ago:

As was recently revealed through the disclosure of military documents following a Freedom of Information request (PDF), al-Marri, along with two American citizens also held as “enemy combatants” — Yaser Hamdi and Jose Padilla — was subjected to the same “Standard Operating Procedure” that was applied to prisoners at Guantánamo during its most brutal phase, from mid-2002 to mid-2004. This involved the use of “enhanced interrogation techniques,” including prolonged isolation, painful stress positions, exposure to extreme temperature, sleep deprivation, extreme sensory deprivation, and threats of violence and death.

Although the treatment of prisoners at Guantánamo was disturbingly harsh, it can be argued — with some confidence, I believe — that the treatment of al-Marri, Hamdi and Padilla was worse than that endured by the majority of the Guantánamo prisoners, as all three suffered in total isolation … Held alone in cellblocks that were otherwise unoccupied, al-Marri, Hamdi and Padilla had to survive without even the small comforts available to most of the Guantánamo prisoners, who, when not held in isolation as a punishment or as a prelude to interrogation, could at least communicate with the prisoners in the cells adjacent to them, and could take advantage of what lawyer Clive Stafford Smith has called the “incredible prisoner bush telegraph,” through which information is conveyed around the prison.

In the case of Hamdi (who was picked up in Afghanistan in November 2001 and initially held in Guantánamo until it was discovered that, although he had lived in Saudi Arabia since he was a child, he was born in Baton Rouge and was an American citizen), the effects of this near-total isolation were already apparent in June 2002, just a month after his transfer from Guantánamo. As one of the officers responsible for him explained in an email to his superiors, “with no potential end in sight and no encouraging news and isolated from his countrymen, I can understand how he feels … I will continue to do what I can to help this individual maintain his sanity, but in my opinion we’re working with borrowed time.”

In the case of Jose Padilla, who was held in strict solitary confinement for 21 months, the effects of his isolation were so intense that it has been reported that he literally lost his mind (his warders described him as “so docile and inactive that he could be mistaken for ‘a piece of furniture’”) [Further details of Padilla's harrowing mental collapse can be found here].

Al-Marri’s experience was similar. As his lawyers explained in May [2008], in court documents protesting his treatment (PDF), for the 16 months that he was held incommunicado, “He was denied any contact with the world outside, including his family, his lawyers, and the Red Cross. All requests to see, speak to, or communicate with Mr. al-Marri were ignored or refused. Mr. al-Marri’s only regular human contact during that period was with government officials during interrogation sessions, or with guards when they delivered trays of food through a slot in his cell door, escorted him to the shower, or took him to a concrete cage for ‘recreation.’ The guards had duct tape over their name badges and did not speak to Mr. al-Marri except to give him orders.”

There is, at present, no suggestion that Bradley Manning has been subjected to a wide range of “enhanced interrogation techniques,” but prolonged isolation is confirmed, and depriving him of a pillow, sheets, or any access to the outside world through the reporting of current affairs are all elements of discomfort and further isolation that were key to the program of belittling and punishing “enemy combatants,” and, crucially, “softening them up” or “breaking” them for interrogation. It is, sadly, all too easy to imagine that other techniques designed to disorientate Manning and to further erode his will — involving elements of sleep deprivation, threats and sensory deprivation — could also be applied, or are, perhaps, already being apllied, especially if, as has been suggested by the Independent, the authorities are hoping to cut a plea deal with him, reducing a 52-year sentence in exchange for a confession that Julian Assange of WikiLeaks, whom the US is seeking to extradite to the US, was not just a passive recipient of the information leaked by Manning, but was instead a conspirator.

Assange, who was released on bail in the UK on Thursday, after being imprisoned for nine days following an extradition request from Sweden relating to rape charges, denies knowing Manning at all. After his release from Wandsworth prison, he said, “I had never heard of the name Bradley Manning before it was published in the press. WikiLeaks technology [was] designed from the very beginning to make sure that we never know the identities or names of people submitting us material.”

In contrast, however, as the Independent explained, “Adrian Lamo, a former hacker who had been in contact with Pte. Manning and eventually turned him in to the government, has told the FBI that Mr. Assange had given the young soldier an encrypted internet conferencing service as he was downloading government files and a dedicated server for uploading them to WikiLeaks. Mr. Lamo claims that Pte. Manning had ‘bragged’ about this to him. In one email, now in the possession of the Justice Department, the soldier allegedly wrote: ‘I can’t believe what I’m confessing to you … I’m a source, not quite a volunteer, I mean, I’m a high-profile source … and I’ve developed a relationship with Assange.’”

As this story continues to develop, further clues about the kinds of pressure exerted on Manning can be gleaned from David House’s description of the lengths to which the authorities are going to harass those who know Manning. House told the Guardian that “many people were reluctant to talk about Manning’s condition because of government harassment, including surveillance, warrantless computer seizures, and even bribes,” stating, “This has had such an intimidating effect that many are afraid to speak out on his behalf”

The Guardian added, “Some friends report being followed extensively. Another computer expert said the army offered him cash to — in his words — ‘infiltrate’ the WikiLeaks website.” He said, “I turned them down. I don’t want anything to do with this cloak and dagger stuff.”

House also explained how, on November 3, he “found customs agents waiting for him when he and his girlfriend returned to the US after a short holiday in Mexico. His bags were searched and two men identifying themselves as Homeland Security officials said they were being detained for questioning and would miss their connecting flight. The men seized all his electronic items and he was told to hand over all passwords and encryption keys — which he refused. The items have yet to be returned.”

In conclusion, then, anyone concerned with justice needs to keep a close eye on Bradley Manning’s case, not just because any pressure exerted on Manning to implicate Julian Assange in his decision to leak classified US documents would have a disastrous impact on freedom of speech, and would, possibly, pave the way for an unprecedented assault on the freedom of the Internet, where alternative voices to the mainstream are needed more than ever, but also because of the suspicion that, in exerting pressure on Manning, the Obama administration has crossed a line and is drawing inspiration from the discredited — if not thoroughly repudiated — practices of the Bush administration.

Note: Anyone interested in supporting Bradley Manning — and contributing to his legal fund — should visit the website of the Bradley Manning Support Network.

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 and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), 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.

Cross-posted on The Public Record, The Smirking Chimp, Uruknet, Ron Paul Forums and Dandelion Salad.

I have been covering al-Marri’s story in depth since June 2007, writing up the painful details of his torture and noting, with incredulity, the rulings of the courts who backed the Bush administration’s policies, but it was not until President Obama issued a Presidential memorandum on his second day in office, stating that it was “in the interests of the United States that the executive branch undertake a prompt and thorough review of the factual and legal basis for al-Marri’s continued detention, and identify and thoroughly evaluate alternative dispositions,” that his long and unjust isolation came to an end, and he was reintroduced to the justice system that had been prepared to try him back in June 2003.

It was at that point that President Bush declared him an “enemy combatant” and moved him to the US Naval Consolidated Brig in Charleston, South Carolina, where he was held until February this year, and where, in his first 16 months of chronic isolation, he was subjected to the type of “enhanced interrogation techniques” that were prevalent at the time in Guantánamo (as I explained at length in an article last December, “The Last US Enemy Combatant: The Shocking Story of Ali al-Marri”).

Al-Marri’s long years of extra-legal detention and torture — like those endured by two other Americans, Yasser Hamdi and Jose Padilla — are a black mark on America’s recent history, and it has always amazed me that even Americans who were — and are — content to let foreigners suffer in Guantánamo and other “War on Terror” prisons did not feel a shiver of apprehension when fellow Americans were subjected to the same treatment on US soil. Putting aside the ”terrorist” rhetoric, it should have been abundantly clear all along that this was the kind of tyranny that the Founding Fathers of the United States expressly set out to prevent.

In court on Thursday, al-Marri’s lawyers also urged the judge to reduce their client’s sentence because “he no longer harbored a desire to attack the United States,” and this is clear from a statement that al-Marri made in court (reproduced in full here). In what the New York Times described as “eight minutes of tearful testimony,” al-Marri told the judge, “I am sorry for providing assistance for those who would do this country harm,” and stated that he was “a changed person from the 2001 al-Marri,” explaining:

My religious beliefs — refined through years of thoughtful prayer and study during my incarceration — I realize prohibit me from engaging in violence toward any man. I forcefully reject any sort of violence for religious, political or other reasons. I say this to the court and I also state this to the representatives of my country who are present with us today. I know that the news people are here so I know my word will be received by those with whom I associated with in 2001. You have my word.

Al-Marri also spoke about the punishment of missing his children growing up, but it was the words about how he has changed that, for me, rang out most noticeably from the proceedings, overshadowing the prosecution’s claims that a psychologist claimed that al-Marri was “likely to engage in hostile acts towards the United States,” and setting a seal on this long and deeply unpleasant story of how, in response to a terrorist attack, the Bush administration sank to the level of those it sought to defeat, in the most appropriate setting for this conclusion: a federal court.

As President Obama prepares once more to revive the tainted Military Commissions at Guantánamo, I hope he has paid attention to the proceedings in Peoria on October 29, 2009, and has realized how hollow are the words of David B. Rivkin Jr., a lawyer who served in the Reagan and Bush Sr. administrations, who, as the Times described it, “questioned the Obama administration’s decision to try Mr. Marri in criminal court instead of the military commissions favored by the administration of President George W. Bush.”

Stating that the sentence “underscores how ‘ill suited’ conventional courts are for dealing with these issues,” Mr. Rivkin proceeded to complain that criminal courts are “a crapshoot,” with wildly varying sentences, and claimed that the Military Commissions “arrive at a better judgment, being comprised of warriors, as to what level of danger the person poses.”

With federal courts having a proven track record of dealing effectively with terrorist cases, and with just three results after eight years of the Military Commissions — each of which, in various ways, was regarded as compromised or inadequate — it is, frankly, difficult to perceive the logic in the world of “warriors” inhabited by Mr. Rivkin, and far more comprehensible to acknowledge the words of Jonathan Hafetz, a staff attorney at the ACLU. For many years, Mr. Hafetz led the challenge to al-Marri’s detention as an “enemy combatant,” and, as the Times noted, he called the sentence “a powerful reminder that America’s civilian courts can deliver justice even in the most challenging circumstances.”

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). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation, as “Ali al-Marri’s Eight Year Sentence.” Cross-posted on The Public Record.

For a sequence of articles on Ali al-Marri’s case, see The Ordeal of Ali al-Marri (June 2007), The torture of Ali al-Marri, the last “enemy combatant” on the US mainland (November 2007), Court Confirms President’s Dictatorial Powers in Case of US “Enemy Combatant” Ali al-Marri (July 2008), The Last US Enemy Combatant: The Shocking Story of Ali al-Marri (December 2008), Ending The Cruel Isolation Of Ali al-Marri, The Last US “Enemy Combatant” and Why The US Under Obama Is Still A Dictatorship (both March 2009), Dictatorial Powers Unchallenged As US “Enemy Combatant” Pleads Guilty (May 2009).

Also see related articles on Jose Padilla: Jose Padilla: More Sinned Against Than Sinning (August 2007), Why Jose Padilla’s 17-year prison sentence should shock and disgust all Americans (January 2008), US Justice Department drops “dirty bomb plot” allegation against Binyam Mohamed (October 2008), Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (April 2009).

Ali al-Marri’s statement

In the name of Allah, all praise to Allah, end peace and prayers of Allah be upon his last messenger Muhammad, the messenger of mercy.

Judge Mihm, peace be upon those who follow the guidance. I would like to start by saying that I have been waiting for this day for the last 2,880 days or the last 8 years.

Judge Mihm, I am glad I have no blood on my hand and my assistance did not cause any bloodshed or lead to that either, nor would I have ever agreed to that and I will never agree to that in the future, but I am sorry for providing assistance for those who would do this country harm.

Judge Mihm, all of my captors know that I speak my mind be it in religion, politics or personal issues. And you have heard [from] some of the American people who were responsible for detaining me that I was never violent or expressed a desire to harm them or any American people.

My religious beliefs — refined through years of thoughtful prayer and study during my incarceration — I realize prohibit me from engaging in violence toward any man. I forcefully reject any sort of violence for religious, political or other reasons. I say this to the court and I also state this to the representatives of my country who are present with us today. I know that the news people are here so I know my word will be received by those with whom I associated with in 2001. You have my word.

I had to make my position clear when I spoke to [US Attorney David] Risley and the FBI before entering my guilty plea. At that time I was not under threat or abuse and I spoke the truth about my activities.

As you have seen pictures of my kids when I left them eight years ago and their recent pictures, missing all of those years, missing hearing the first words of my youngest child, missing the crying of not wanting to go to school, missing solving their problems with kids in the schools or in the neighborhood, missing their smile and laughter of buying them toys, or new things, missing not being there to take care, protect, and provide as fathers do. Missing all of that and all of the father-kids’ activities is more than enough punishment. My 80-year-old mother, 5 kids, wife, 7 brothers, 4 sisters, more than 70 nephews and nieces and about 12 grandchildren (from my nephews and nieces) are being punished too of no fault of theirs, rather mine. And I said more than and about because it has been 8 years since I have been away from them.

Even though I am a changed person from the 2001 al-Marri, I hope you would look with an eye of mercy on me today, but if not, Judge Mihm, have mercy on the 80-year-old who tells me her wish is to see me before she passes away. I have already lost my father during my incarceration, it will be unimaginable to lose both of my parents without being there for them or saying good bye. Judge Mihm, have mercy on the wife who chose to wait for her 8 years imprisoned husband rather than going on with her life even after I asked her to but [she] refused and chose to wait. Judge Mihm, have mercy on the suckling infants who have never seen me, they only know me by name. Judge Mihm, have mercy on my American family, my brother and sister Andy and Cheryl Savage who cried yesterday when they read this letter which was one of the hardest things because I am causing pain and hurt to my family whom I would give my life for but it is out of my hand to alleviate their pain, Judge Mihm, I am helpless to alleviate their pain, but you are not. Judge Mihm, have mercy on all of them by sending me home to my Arabian family accompanied by my American family by giving me a time served sentence.

Before I finish my statement, I would like to give all praise and thanks to my Lord Allah, the Lord of all Lords for the support he gave me, and still giving and hope will continue. And I would like to thank my government who stood by me and my family during this ordeal. And I would like to thank all of the American people who dealt with me humanely and kindly during my incarceration, and Judge Mihm, as Allah and this court are my witness, I forgive all who harmed and caused me pain. And I would like to [add to] that my legal team (Larry, Mark, John, Lee, and the behind the scene heroes Jenny, Eileen, Alex, Bobby, and Heather) who I believe has done an excellent job. And remember what I said in our first meeting, my opinion of you will not be affected by the ruling of the court as it is not in your hands as long as you prepare well for the case. And it is beyond any doubt that you have done [so] with an utmost excellence.

Last but not least, I would like to thank my American family where it is an honor to call them my brother and sister, Andy and Cheryl Savage, who are also part of my legal team. You have changed my perception of the American people’s generosity, kindness and their culture fundamentally, to the better of course. I will never do anything to harm the American people. And I will still name my future son and daughter after you — as I promised before — if Allah blesses me with more children. I pray to Allah to assist me in showing you how much I appreciate your help, and I say show you my appreciation and not repay you, because I do not believe it is possible to repay you – monetary or otherwise — for what you have done for me, it is as trying to reach the stars with my hands. However I will pray — and always will — to the one who can, may Allah reward you as best as he rewarded any of his servants and make you, I and our loved ones to follow the right path that will lead us all to an eternity of life together in paradise in the afterlife. Amen.

I would like to remind myself first, then my love on that if today’s Judgment is favorable, it is from the generosity of all Generous and Merciful Allah, then the fairness of Judge Mihm, and the excellence of my legal team led by Mr. Andy Savage and Mr. Larry Lustberg, and if not, it is due only to my sins. I advise myself and my loved ones to accept Allah’s Judgment and be patient. As Allah has said in the Quran, “It may be that you dislike a thing which is good for you and that you like a thing which is bad for you, Allah knows but you do not know.”

Finally, glorified is your Lord, the Lord of Honor and power he is free from what they attribute unto him. And peace be on the messengers. And all praise and thanks are to Allah, lord of the mankind and all that exist. (37:180 -182)

Note: This statement was originally published in the Peoria Star.

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). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

For a sequence of articles on Ali al-Marri’s case, see The Ordeal of Ali al-Marri (June 2007), The torture of Ali al-Marri, the last “enemy combatant” on the US mainland (November 2007), Court Confirms President’s Dictatorial Powers in Case of US “Enemy Combatant” Ali al-Marri (July 2008), The Last US Enemy Combatant: The Shocking Story of Ali al-Marri (December 2008), Ending The Cruel Isolation Of Ali al-Marri, The Last US “Enemy Combatant” and Why The US Under Obama Is Still A Dictatorship (both March 2009), Dictatorial Powers Unchallenged As US “Enemy Combatant” Pleads Guilty (May 2009).

Also see related articles on Jose Padilla: Jose Padilla: More Sinned Against Than Sinning (August 2007), Why Jose Padilla’s 17-year prison sentence should shock and disgust all Americans (January 2008), US Justice Department drops “dirty bomb plot” allegation against Binyam Mohamed (October 2008), Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (April 2009).

Discussing what would happen to the remaining 241 prisoners, Gates announced that the question was “still open” as to what the government should do with “the 50 to 100 — probably in that ballpark — who we cannot release and cannot try.” He also announced that the much-criticized Military Commission trial system, suspended for four months by Barack Obama on his first day in office, was “still very much on the table.”

Both admissions indicate that, when it comes to Guantánamo, it is beginning to appear that the much-vaunted change promised by Barack Obama on the campaign trail has actually involved nothing more than imposing a closing date on Guantánamo, but maintaining the Bush administration’s approach to the men still held there.

Back in Bush’s day, for example, those “who we cannot release and cannot try” were sometimes referred to as those who were “too dangerous to release but not guilty enough to prosecute” — essentially because the supposed evidence against them was the fruit of torture or other abuse.

As someone who has studied the story of Guantánamo and its prisoners in detail over the last three years, I’m aware that much of the information compiled by the Bush administration for use against the prisoners at Guantánamo was obtained through torture or coercion, and is therefore unreliable, and that other, equally unreliable information was secured through the bribery of other prisoners.

As a National Journal investigation revealed in 2006, one prisoner, described by the FBI as a notorious liar, made false allegations against 60 prisoners in Guantánamo in exchange for more favorable treatment, and in February this year the Washington Post published the sobering tale of another informant, whose copious confessions should have set alarm bells ringing. In both cases, however, there is no indication that the officials responsible for compiling the information examined by the President’s review team have acknowledged that a substantial number of allegations against the prisoners are actually worthless.

Moreover, the defense secretary’s talk of 50 to 100 suspicious prisoners (above and beyond those regarded as demonstrably dangerous) is at odds with repeated intelligence assessments reported over the years, which have indicated that the total number of prisoners with any meaningful connection to international terrorism is between 35 and 50. To this should be added the recent revelation by Lawrence Wilkerson, Colin Powell’s Chief of Staff, that “no more than a dozen or two of the detainees” held in Guantánamo ever had any worthwhile intelligence.

In addition, the defense secretary’s talk of reviving the Military Commissions is a distressing development for the many critics of the novel trial system invented by Dick Cheney and David Addington, who hoped that the administration would resist all calls to reinstate them, and would, instead, move the relatively few prisoners regarded as genuinely dangerous to the mainland to face trials in federal court.

However, on Saturday, after speaking to Obama administration officials, the New York Times reported that, despite declaring that, as President, he would “reject the Military Commissions Act,” and stating that, “by any measure our system of trying detainees has been an enormous failure,” President Obama was indeed considering reviving the Commissions.

As the Times described it, “administration lawyers have become concerned that they would face significant obstacles to trying some terrorism suspects in federal courts. Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies.” As a result, they said, decision-makers were considering whether to tinker with the rules regarding the use of coercive interrogations and hearsay, in what the Times described as “walk[ing] a tightrope of granting the suspects more rights yet stopping short of affording them the rights available to defendants in American courts.”

The “tightrope” analogy, though apt, is also something of an understatement. Almost universally derided in their seven-year history, the Commissions demonstrated, above all, that inventing a legal system from scratch was a poor substitute for respecting the laws which have served the Republic well for over 200 years.

Nor can it be claimed that the federal court system is incapable of dealing with terrorism cases. As was explained in a 2008 report by Human Rights First, “In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts” (PDF), over 100 terrorism cases have been prosecuted successfully in the federal courts in the last 15 years.

Moreover, last Thursday, as Robert Gates was telling the Senate that the Military Commissions were still “on the table,” the Justice Department was taking a very different line in the case of Ali al-Marri, a legal US resident who was held in extreme isolation for nearly six years without charge or trial as an “enemy combatant” in a US naval brig, until he was returned to the federal justice system by the Obama administration.

As al-Marri accepted a plea agreement, and admitted that he had been sent to the US as an al-Qaeda “sleeper agent,” Attorney General Eric Holder announced that the result “reflects what we can achieve when we have faith in our criminal justice system and are unwavering in our commitment to the values upon which this nation was founded and the rule of law.”

To remove the stain that Guantánamo has left on the reputation of the United States as a nation founded on the rule of law, Mr. Holder’s words should be repeated to him every time that the administration attempts to turn back the clock to the days of George W. Bush, with its dangerous talk of finding new ways to justify holding prisoners without charge or trial, and its willingness to revive a trial system despised as nothing more than a “kangaroo court.”

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). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published exclusively on the website of the Future of Freedom Foundation.

For a more detailed review of President Obama’s progress — or lack of it — regarding the closure of Guantánamo, please see Obama’s First 100 Days: A Start On Guantánamo, But Not Enough, which looks in more detail at Robert Gates’s proposal to hold 50 to100 prisoners without charge or trial in some form of preventive detention, but only mentions in passing the New York Times story about the administration’s plans to revive the Military Commissions.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Four more charged, including Binyam Mohamed (June 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).

In the last months of his confinement, before the Obama administration swiftly reviewed his case and moved him into the federal court system, al-Marri had been allowed a modicum of personal freedom — such as watching TV and making calls to his family — although he was still held in isolation in a cell block in which all the other cells were unoccupied.

These small kindnesses were, however, not enough to make up for the long years in which his isolation was absolute, and he had, moreover, been subjected to the kind of “enhanced interrogation techniques” authorized by the Office of Legal Counsel in memos released by the Obama administration two weeks ago, which, as confirmed in a Senate Armed Services Committee report (PDF) published last week, migrated to Guantánamo and to Bagram in Afghanistan, and were then adopted in Iraq.

In al-Marri’s case, after a year and a half awaiting a trial in a federal court, following his arrest in December 2001, the first 16 months that he spent as an “enemy combatant” took place in a state of almost unprecedented isolation, which, outside of the horrors endured by the “high-value detainees” in CIA custody, was shared only by the other two US “enemy combatants,” Yasser Hamdi and Jose Padilla, and a handful of prisoners in Guantánamo. His isolation was such that, according to a psychiatric assessment conducted on behalf of his lawyers, he began suffering from “severe damage to his mental and emotional well-being, including hypersensitivity to external stimuli, manic behavior, difficulty concentrating and thinking, obsessional thinking, difficulties with impulse control, difficulty sleeping, difficulty keeping track of time, and agitation.”

As his lawyers also explained in court documents filed last May, during this period interrogators told him that “they would send him to Egypt or to Saudi Arabia to be tortured and sodomized and forced to watch as his wife was raped in front of him,” and threatened to make him “disappear so that no one would know where he was.” They also explained,

He was denied any contact with the world outside, including his family, his lawyers, and the Red Cross. All requests to see, speak to, or communicate with Mr. al-Marri were ignored or refused. Mr. al-Marri’s only regular human contact during that period was with government officials during interrogation sessions, or with guards when they delivered trays of food through a slot in his cell door, escorted him to the shower, or took him to a concrete cage for “recreation.” The guards had duct tape over their name badges and did not speak to Mr. al-Marri except to give him orders.

As a result of this treatment, it was understandable that many commentators — myself included — wondered how much truth there was to the government’s allegations against al-Marri, especially as it was claimed that he had connections to Khalid Sheikh Mohammed, the self-confessed architect of the 9/11 attacks, who had been seized in the months before al-Marri was declared an “enemy combatant,” and who, we now know from the OLC’s torture memos, was subjected to waterboarding (an ancient torture technique that involves controlled drowning) 183 times in March 2003.

Nevertheless, on Thursday, in a federal courtroom in Peoria, Ali al-Marri accepted a plea agreement entered before District Judge Michael Mihm, and “admitted to one count of conspiring to provide material support or resources to a foreign terrorist organization,” as the Los Angeles Times described it, adding, “He spoke softly and smiled occasionally as Mihm read aloud a timeline that described Marri’s attendance at terrorist training camps in Pakistan and his research into cyanide compounds and other chemical agents.”

Under the terms of the plea agreement, al-Marri admitted associating with Khalid Sheikh Mohammed and Mustafa al-Hawsawi, the alleged financier of the 9/11 attacks (including collecting $10,000 from al-Hawsawi in the UAE), before arriving in the US on Sept. 10, 2001. The agreement also stated that, while attending several training camps in Pakistan, “he became an expert with military weapons, he learned to conceal his identity online and he used his computer to research chemical agents that could be used in an attack,” and that a search of his house led to the discovery of “an almanac with pages bookmarked showing US bridges, roads and waterways,” although the Wall Street Journal noted that, in his statement, he “didn’t reveal orders to carry out any specific attacks.”

Al-Marri is due to be sentenced on June 30, and, by all accounts, will receive a sentence of up to 15 years as a result of the plea arrangement, which is half of what he could have been expected to receive had he decided not to negotiate. As news of the agreement was announced, Marjorie Cohen, the President of the National Lawyers Guild, told the Los Angeles Times, “It was done for expediency’s sake.” She explained that by reaching a plea agreement “the Obama administration avoids a lengthy trial where invariably evidence of torture would come out, and that would put even more pressure on the administration to have investigations and prosecutions.”

This, I think, is undoubtedly true, although Matthew Waxman, a Columbia University law professor who was also the Bush administration’s deputy assistant secretary of defense for detainee affairs in 2004-05, nailed another uncomfortable truth when he told the Times, “The Obama administration inherited a tough dilemma: On the one hand, it wants to distance itself from controversial Bush administration positions. But on the other hand it wants to preserve options and executive powers. Given the history of this case, the administration didn’t want to litigate it, and courts will be happy to be rid of it.”

The key phrases here are Waxman’s opinions that the Obama administration “didn’t want to litigate” the case, and that it “wants to preserve options and executive powers.” As I explained in an article in March, “Why The US Under Obama Is Still A Dictatorship,” the new government’s decision to move al-Marri into the federal court system, although just, also enabled it to prevent the Supreme Court from reviewing a terrible 4th Circuit ruling last July, when, as I described it, “a majority of the judges decided that the President was indeed entitled to subject Americans to arbitrary imprisonment, despite the complaints of the dissenting judges, led by Judge Diana Gribbon Motz, who argued that, if the ruling were allowed to stand, it “would effectively undermine all of the freedoms guaranteed by the Constitution,” and despite the valid complaints, made by al-Marri’s lawyers, that

the President lacked the legal authority to designate and hold al-Marri as an “enemy combatant” for two particular reasons: firstly, because the Constitution “prohibits the military imprisonment of civilians arrested in the United States and outside an active battlefield,” and secondly, because, although a district court had previously held that the President was authorized to detain al-Marri under the Authorization for Use of Military Force (the September 2001 law authorizing the President to use “all necessary and appropriate force” against those involved in any way with the 9/11 attacks), Congress explicitly prohibited “the indefinite detention without charge of suspected alien terrorists in the United States” in the Patriot Act, which followed five weeks later.

In March, when the Supreme Court challenge was halted, al-Marri’s lawyers succeeded in persuading the justices to vacate the 4th Circuit ruling, but another ruling supporting the government’s self-proclaimed right to imprison Americans as ”enemy combatants” stills stands in the case of Jose Padilla. In an echo of al-Marri’s case, an appeals court ruled in the government’s favor in September 2005, and Padilla was taken out of the brig and put into the federal court system (where he was later tried, convicted and sentenced) before the Supreme Court could challenge the ruling.

Justice may finally have come knocking in the case of Ali al-Marri — although I believe that his sentence should reflect not just the 18 months he spent in federal prison, as proposed by the government, but also the five years and eight months that he spent in an illegal hellhole of the Bush administration’s own devising — but it remains unacceptable that, as the Justice Department stated when moving him out of the brig in March, “Any future detention — were that hypothetical possibility ever to occur — would require new consideration under then-existing circumstances and procedure.”

With a Presidential license to seize and hold Americans as “enemy combatants” still on the books, this reference to “then-existing circumstances and procedure” suggested — and still suggests — that the Obama administration, in its quest for “flexibility,” would rather keep open a profoundly disturbing loophole inherited from its lawless predecessors, instead of confirming, as Barack Obama stated in a speech in August 2007, that under his watch “We will again set an example to the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.”

POSTSCRIPT: The full plea agreement is available here (it’s a 20-page PDF).

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). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on the Huffington Post, Antiwar.com and CounterPunch.

For a sequence of articles on Ali al-Marri’s case, see The Ordeal of Ali al-Marri (June 2007), The torture of Ali al-Marri, the last “enemy combatant” on the US mainland (November 2007), Court Confirms President’s Dictatorial Powers in Case of US “Enemy Combatant” Ali al-Marri (July 2008), The Last US Enemy Combatant: The Shocking Story of Ali al-Marri (December 2008), Ending The Cruel Isolation Of Ali al-Marri, The Last US “Enemy Combatant” and Why The US Under Obama Is Still A Dictatorship (both March 2009).

Also see related articles on Jose Padilla: Jose Padilla: More Sinned Against Than Sinning (August 2007), Why Jose Padilla’s 17-year prison sentence should shock and disgust all Americans (January 2008), US Justice Department drops “dirty bomb plot” allegation against Binyam Mohamed (October 2008), Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (April 2009).

President Obama clearly regarded al-Marri’s imprisonment as significant, as he issued a Presidential memorandum on his second day in office ordering the Justice Department to review the Qatari national’s case, and the announcement that al-Marri was to be moved out of his seemingly endless legal limbo and into the federal court system demonstrated that, in this specific case at least, the President was sticking to his word.

However, what worried al-Marri’s lawyers — and those, like myself, who have been following his case closely — was that the President’s decision would also bring to an end al-Marri’s pending Supreme Court challenge, in which the nation’s most powerful judges were scheduled to review whether or not the President — any President, not just a member of the Bush family — had the right to designate as an “enemy combatant” any American, whether a citizen or a resident, and to imprison them indefinitely without charge or trial.

This was not merely an academic exercise. When al-Marri’s case was reviewed by the 4th Circuit Appeal Court last July, a majority of the judges decided that the President was indeed entitled to subject Americans to arbitrary imprisonment, despite the complaints of the dissenting judges, led by Judge Diana Gribbon Motz, who argued that, if the ruling were allowed to stand, it “would effectively undermine all of the freedoms guaranteed by the Constitution.”

The 4th Circuit majority also ignored the complaints of al-Marri’s lawyers, even though they were clearly more aware of the restraints on executive power that had been enforced by Congress in the wake of the 9/11 attacks than most of the judges. In a brief to the court, the lawyers pointed out that the President lacked the legal authority to designate and hold al-Marri as an “enemy combatant” for two particular reasons: firstly, because the Constitution “prohibits the military imprisonment of civilians arrested in the United States and outside an active battlefield,” and secondly, because, although a district court had previously held that the President was authorized to detain al-Marri under the Authorization for Use of Military Force (the September 2001 law authorizing the President to use “all necessary and appropriate force” against those involved in any way with the 9/11 attacks), Congress explicitly prohibited “the indefinite detention without charge of suspected alien terrorists in the United States” in the Patriot Act, which followed five weeks later.

When the Obama administration announced its decision to move al-Marri to the federal court system, Justice Department officials also asked the Supreme Court to dismiss the pending case as “moot,” and on Friday the justices agreed, although, to their great credit, they also made a point of overruling (“vacating”) the horrendous decision made by the 4th Circuit Appeals Court last summer.

As a result, you may be thinking that the President no longer has the power to hold Americans without charge or trial as “enemy combatants,” but if this is the case then you may be — and should be — dismayed to learn that a previous ruling to this effect still stands, which was not addressed by the Supreme Court, and which has not been addressed by the Obama administration either.

In February 2005, in the case of Jose Padilla, an American citizen who was also held in prolonged solitary confinement as an “enemy combatant,” District Court Judge Henry F. Floyd ruled against the government, and ordered Padilla’s release. Noting that the power to suspend the writ of habeas corpus “belongs solely to Congress” under the Constitution, Judge Floyd declared, “Since Congress has not acted to suspend the writ, and neither the President nor this Court have the authority to do so,” Padilla had to be released. “It is true,” he added, “that there may be times during which it is necessary to give the Executive Branch greater power than at other times. Such a granting of power, however, is in the province of the legislature and no one else — not the Court and not the President … Simply stated, this is a law enforcement matter, not a military matter.” Echoing the decision taken by President Obama’s Justice Department in the case of Ali al-Marri, Judge Floyd added that the government could avoid releasing Padilla if it filed criminal charges against him, or acted to hold him as “a material witness.”

However, Judge Floyd’s ruling only stood for seven months. On September 9, 2005, three 4th Circuit judges — J. Michael Luttig, M. Blane Michael and William B. Traxler Jr. — overturned it (PDF), based on their belief (contested by Padilla’s lawyers, and also, as noted above, by al-Marri’s) that Congress had granted these sweeping and otherwise unconstitutional powers to the President as part of his wartime prerogative under the Authorization for Use of Military Force.

As with al-Marri, this ruling was never tested in the Supreme Court. Just before a review was scheduled to begin, the Bush administration got cold feet, and moved Padilla into the federal court system, where, in August 2007, he was convicted of providing material support for terrorism in a lop-sided trial — in which all mention of his long years of torture in solitary confinement were excluded by the judge — and, in January 2008, received a sentence of 17 years and three months.

In many ways, of course, history is repeating itself with al-Marri, even though the man at the top has changed, but what is most worrying is that the Padilla ruling still stands. Without the Supreme Court being given the opportunity to rule decisively on this question, what is needed is a clear repudiation of the policy by the Obama administration.

Instead, the Justice Department explained, in a brief filed with the Supreme Court last Wednesday, that, while the government “did not defend its power to detain Mr. Marri at present” (as Glenn Greenwald described it for Salon), “it left open the possibility that he or others might be subject to military detention as enemy combatants in the future.” In the Justice Department’s exact words, “Any future detention — were that hypothetical possibility ever to occur — would require new consideration under then-existing circumstances and procedure.”

It’s one thing, I suppose, to keep your options open, but quite another to defend the indefensible. Instead of fudging, in anticipation of future emergencies, President Obama and Attorney General Holder need to spell our clearly that no President will ever again imprison Americans as terror suspects beyond the law. Otherwise, Barack Obama’s fine words, in August 2007, when he declared, “We will again set an example to the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary,” will be meaningless, and Judge Rogers’ opinion — that the very constitutional foundations of the Republic had been fatally undermined — will be as applicable to the Obama administration as it was to that of George W. Bush.

Note: The photo at the top of the article, which was taken recently, is the first photo of an “enemy combatant” that the US administration has allowed to be released publicly. Taken by a representative of the International Committee of the Red Cross, it was released to al-Marri’s family, and was then published in the New Yorker. Jane Mayer noted that a source had indicated that “This change in policy regarding the release of detainee photos may soon extend to Guantánamo.”

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). To receive new articles in your inbox, please subscribe to my RSS feed.

As published exclusively on the website of the Future of Freedom Foundation.

For a sequence of articles on Ali al-Marri’s case, see The Ordeal of Ali al-Marri (June 2007), The torture of Ali al-Marri, the last “enemy combatant” on the US mainland (November 2007), Court Confirms President’s Dictatorial Powers in Case of US “Enemy Combatant” Ali al-Marri (July 2008), The Last US Enemy Combatant: The Shocking Story of Ali al-Marri (December 2008), Ending The Cruel Isolation Of Ali al-Marri, The Last US “Enemy Combatant” (March 2009), Dictatorial Powers Unchallenged As US “Enemy Combatant” Pleads Guilty (May 2009).

Also see related articles on Jose Padilla: Jose Padilla: More Sinned Against Than Sinning (August 2007), Why Jose Padilla’s 17-year prison sentence should shock and disgust all Americans (January 2008), US Justice Department drops “dirty bomb plot” allegation against Binyam Mohamed (October 2008), Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (April 2009).

Al-Marri — whose story I reported at length here — arrived in the US on September 10, 2001 to pursue post-graduate studies in Peoria, and was initially seized by the FBI in December 2001, based on suspicions that he was involved in credit card fraud. In June 2003, just before he was due to stand trial, he was declared an “enemy combatant” by President Bush, and was moved to the US Naval Consolidated Brig in Charleston, South Carolina, where he has been held ever since. He spent the first 16 months without access to anyone outside the US military or the intelligence services, and his isolation has been so severe that, as his lawyers have explained, he is suffering from “severe damage to his mental and emotional well-being, including hypersensitivity to external stimuli, manic behavior, difficulty concentrating and thinking, obsessional thinking, difficulties with impulse control, difficulty sleeping, difficulty keeping track of time, and agitation.”

Moreover, as Jane Mayer reported in an article for last week’s New Yorker, Lawrence Lustberg, one of al-Marri’s earliest defense lawyers, was at pains to emphasize that last year’s revelation that officials at the brig were ordered to follow the same Standard Operating Procedure used at Guantánamo underplays the exceptional isolation to which al-Marri was subjected. “I’ve been to Guantánamo,” Lustberg said. “Marri was far more isolated. He had no contact with any other detainees. Most days, he had no human contact at all.”

So extreme was his treatment that Andrew Savage, his local counsel in Charleston, who is now allowed to speak to him by phone, and to visit him every other week, told Mayer that he “believes that nothing has been tougher on his client than the uncertainty of not knowing if he would ever be released.” He explained, “He would have preferred beatings. He’d say, ‘Andy, it’s worse than beating.’ He wanted to be sent to Egypt to be renditioned. He’d say, ‘Torture me — but end it!’”

Al-Marri also developed allies in the brig who shared the lawyers’ concerns about his treatment. As Mayer described it, “Their mission, as they saw it, was to run a safe, professional, and humane prison, regardless of who was held there. It was the political appointees in Washington, at the Pentagon and the Department of Justice, who wanted Marri to be kept in prolonged isolation.” In 2005, Andrew Savage discovered that Air Force Major Chris Ferry, the head of security at the brig, “would stay all night with Marri. He’d go down to the brig and sit with him, and tell him to hold on. Chris was there at three in the morning, on the darkest nights.” And in December, when John Pucciarelli, the commander of the brig, was moving on to a new assignment, he made a point of arranging for al-Marri to be brought to the brig’s visitors’ center, where he “said that he was sorry that he had been unable to do more for Marri, but he had treated him as well as he could,” and also left him a parting gift: a television.

These are glimpses of humanity after the long years of al-Marri’s almost unbroken isolation, but he still spends most of his time alone in an otherwise empty cell block, and the Obama administration is, therefore, to be congratulated for ending his novel and unjustifiable ordeal and transferring him into the federal court system, where we will now, perhaps, discover whether there is any truth to the Bush administration’s claims that he was sent to the US as part of an al-Qaeda sleeper cell.

It may be that the government has evidence that this is the case, but the worry is that the main source for this claim is Khalid Sheikh Mohammed, the self-confessed mastermind of the 9/11 attacks, who made his “confession” in the first few months after his capture, when, as has been made abundantly clear in the last few years, he was subjected to horrendous torture in CIA custody. In her book The Dark Side, Jane Mayer explained how, according to sources who had read a classified Red Cross report about the detention and interrogation of Mohammed and the 13 other “high-value detainees” in CIA custody, based on interviews with the men about their treatment in the years before their transfer to Guantánamo in September 2006, “Mohammed was subjected not just to waterboarding but to hundreds of different techniques in just a two-week period soon after his capture,” and a former CIA official told Mayer, “There were some horrible moments. Things went too far. It was awful. Awful.” I have previously reported my suspicions about other cases in which Mohammed may have falsely implicated other people as a result of his torture — as he himself attempted to explain during his Combatant Status Review Tribunal at Guantánamo in March 2007 (PDF) — and it may be that al-Marri is another victim of Mohammed’s lies.

Certainly, nothing about al-Marri’s response to his imprisonment follows what the Bush administration came to regard as the modus operandi of al-Qaeda operatives, which, as well as apparently including an instruction to allege that they were tortured, if given the opportunity, also included an instruction to tell deliberate lies to frustrate their captors and to send them on worthless missions that would consume time, resources and energy. Instead, al-Marri has persistently refused to concede that he had anything to do with Mohammed or al-Qaeda, to the extent that Jane Mayer concluded in her article that, although the Bush administration could have prosecuted him using conventional means, the real motive for designating him an “enemy combatant,” transferring him to the brig and torturing him was “frustration on the part of the Justice Department at being unable to make Marri confess.” Mayer noted that David Kelley, a former Attorney for the Southern District of New York, who supervised the early stages of his case, “was told to push him hard, which he did, but Marri kept professing his innocence.” She also noted that Attorney General John Ashcroft wrote in his 2006 book Never Again, “Al-Marri rejected numerous offers to improve his lot by cooperating with the FBI investigators and providing information. He insisted on becoming a ‘hard case.’”

Perhaps, however, instead of becoming a “hard case,” al-Marri was not a “hard case” at all, and everything about his treatment was based on projection and presumption from an administration that had opened the door to torture, and, as Mark Berman, another of al-Marri’s early lawyers, explained, “really just wanted to interrogate him” in a rough manner. Andrew Savage has no doubt that al-Marri is not who the government thinks he is. “I don’t fear him, not personally and not for the United States,” he told Mayer. “Is he putting me on? Scamming me? Putting it over on me? I really don’t think so. I’m not naïve. I’ve defended multi-murderers, child murderers, child molesters, and all sorts of violent criminals. But I really don’t think Ali’s a terrorist.”

Quite where this leaves al-Marri’s existing court case, based on his long imprisonment without charge or trial, is difficult to say. The American Civil Liberties Union (ACLU) represents him in his case challenging his designation as an “enemy combatant,” which was taken up by the Supreme Court in December, and in a statement issued just before the indictment was announced, pointed out that a criminal indictment “would not automatically resolve the issues that are pending before the Supreme Court.”

Jonathan Hafetz, a staff attorney at the ACLU who has represented al-Marri for many years, added, “The decision to charge al-Marri is an important step in restoring the rule of law and is what should have happened seven years ago when he was first arrested. But it is vital that the Supreme Court case go forward because it must be made clear once and for all that indefinite military detention of persons arrested in the US is illegal and that this will never happen again.”

I couldn’t agree more. Unless the Supreme Court is allowed to review al-Marri’s case, a particularly disturbing ruling that was delivered last summer by the 4th Circuit Appeals Court will stand as a defense of unfettered executive power — and unconscionable cruelty — that demonstrates complete disdain for the Constitution. The divided court ruled, by a majority of one, that the President is entitled to seize any American — not just a resident like al-Marri, but any citizen — and imprison them indefinitely without charge or trial, even if, as was noted by the principal dissenting judge, Diana Gribbon Motz, “unlike [Yaser] Hamdi and [Jose] Padilla [the other two Americans held as “enemy combatants” between 2002 and 2005], al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict, and not alleged to have engaged in combat with United States forces anywhere in the world.”

She added: “To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President call them ‘enemy combatants,’ would have disastrous consequences for the Constitution — and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power — were a court to recognize it — that could lead all our laws ‘to go unexecuted, and the government itself to go to pieces.’ We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.”

With that, it’s clear to me that there is more on trial at the end of this shameful period in US history than just one man, Ali al-Marri. Also on trial, though it will not be addressed in Peoria, is the Bush administration’s claim, as Judge Motz put it, that it was entitled to “alter the constitutional foundations of our Republic.”

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). To receive new articles in your inbox, please subscribe to my RSS feed.

As published exclusively on the website of the Future of Freedom Foundation.

For a sequence of articles on Ali al-Marri’s case, see The Ordeal of Ali al-Marri (June 2007), The torture of Ali al-Marri, the last “enemy combatant” on the US mainland (November 2007), Court Confirms President’s Dictatorial Powers in Case of US “Enemy Combatant” Ali al-Marri (July 2008), The Last US Enemy Combatant: The Shocking Story of Ali al-Marri (December 2008), Why The US Under Obama Is Still A Dictatorship (March 2009), Dictatorial Powers Unchallenged As US “Enemy Combatant” Pleads Guilty (May 2009).

Also see related articles on Jose Padilla: Jose Padilla: More Sinned Against Than Sinning (August 2007), Why Jose Padilla’s 17-year prison sentence should shock and disgust all Americans (January 2008), US Justice Department drops “dirty bomb plot” allegation against Binyam Mohamed (October 2008), Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (April 2009).

Executive Order on the Closure of Guantánamo

The first of yesterday’s four important documents orders Guantánamo to be closed “as soon as practicable, and no later than one year from the date of this order.” The Order also establishes an immediate review of the cases of the remaining 242 prisoners to work out whether they can be released, to be “conducted with the full cooperation and participation” of the Attorney General, the Secretaries of Defense, State and Homeland Security, the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff, and instructs the Secretary of State to negotiate repatriation, or transfer to third countries, in the cases of those who can be released.

If the review establishes that prisoners are not to be released, the Order states that the participants “shall identify and consider legal, logistical and security issues relating to the potential transfer of individuals currently detained at Guantánamo to facilities within the United States,” adding that they “shall work with Congress on any legislation that may be appropriate.” When it comes to trials, the Order states that the options for those who are not approved for release or transfer include investigating “whether it is feasible” to pursue prosecutions in federal courts on the US mainland.

Following President Obama’s request on Tuesday for the judges in the Military Commission trial system to suspend all proceedings, the Order also directs defense secretary Robert Gates to halt the proceedings pending a four-month review, and requires him to ensure that prisoners are held in conditions that comply with the Geneva Conventions regarding the humane treatment of prisoners, adding, “Such review shall be completed within 30 days and any necessary corrections implemented immediately thereafter.”

The verdict

As human rights groups have already pointed out, a year is a long time to bring an end to Guantánamo, especially as judges in the habeas corpus reviews (which followed the Supreme Court’s ruling last June that the prisoners have habeas rights) have already established that the Bush administration failed to establish a case against 23 of the 26 prisoners whose cases have been reviewed to date (see From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs, After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims, and Judge Orders Release of Guantánamo’s Forgotten Child). In my opinion, based on three years of detailed research, the majority of the prisoners could be released within a far shorter timescale.

The other outstanding problem — the 60 or so prisoners who were cleared for release by the Bush administration, but who cannot be repatriated because of treaties preventing the return of foreign national to countries where they face the risk of torture — is not specifically addressed. I anticipate that other countries may be willing to accept some of these cleared prisoners, but am disappointed that Obama did not mention the Uighurs, as he can send an extraordinarily positive message to the rest of the world by accepting these 17 innocent men into the United States, as Judge Ricardo Urbina ordered in October, before he was overruled by an appeals court.

The resuscitation of the Geneva Conventions is, of course, long overdue and gratefully received, and should — and must — lead to an improvement in the living conditions of those still detained, who are held, for the most part, in conditions of isolation more severe than those endured by convicted criminals on the US mainland. However, the refusal to commit explicitly to transferring those regarded as genuinely dangerous (somewhere between 35 and 50 of those still held) to trials in a federal court leaves the option open that a revised version of the Military Commissions, or a brand-new legal system, will be proposed instead. This is deeply troubling, as the long and bitter lessons of the last seven years should have established that novel trial systems are an inadequate and dangerous substitute for established laws, as the President well knows. In August 2007, he stated explicitly, “Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists.”

Executive Orders on Interrogations and Detention Policy Options

The second Order establishes that the questioning of prisoners by any US government agency must follow the interrogation guidelines laid down in the Army Field Manual, which guarantees humane treatment under the Geneva Conventions, and, of course, prohibits the use of torture. Reverting to the “requirements” of the Federal torture statute, the UN Convention Against Torture, Common Article 3 of the Geneva Conventions and other legislation and treaties, the Order states that “in all circumstances” prisoners will be “treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment).”

As a result, the Order states, “All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intelligence Agency (CIA) from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order.” The Order also specifically revokes President Bush’s Executive Order 13440 of July 20, 2007, which “reaffirm[ed]” his “determination,” on February 7, 2002, that “members of al-Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war,” sought to grant himself the right to “interpret the meaning and application of the Geneva Conventions” as he saw fit, and also sought to exclude the CIA from any oversight whatsoever.

It also orders the CIA to “close as expeditiously as possible any detention facilities that it currently operates,” adding that the agency “shall not operate any such detention facility in the future,” and orders all departments and agencies of the government to allow representatives of the International Committee of the Red Cross to have “timely access” to all prisoners.

And finally, the Order establishes a Special Interagency Task Force on Interrogation and Transfer Policies, to evaluate “whether the interrogation practices and techniques in the Army Field manual, when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidelines for other departments or agencies.” The Task Force is also required to evaluate “the practices of transferring individuals to other nations,” to ensure that they do not face torture.

Related to this is a third Order, establishing another Special Interagency Task Force to provide an overview of detention policy options, which is charged with “conducting a comprehensive review of the lawful options available to the Federal Government with respect to the apprehension, detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations, and to identify such options as are consistent with the national security and foreign policy interests of the United States and the interests of justice.” Both Task Forces are to report their findings in the next six months.

The verdict

The majority of the Order regarding interrogations is a triumphant return to the rule of law, achieved by revoking all the “executive directives, orders, and regulations” that manifested the Bush administration’s slippery zeal for allowing torture, by insisting on adherence to the Army Field Manual, which prohibits the use of physical violence, and, as above, by returning to the Geneva Conventions, with their prohibitions on “cruel and inhumane treatment” and coerced interrogations. However, although a sweeping repudiation of these documents is a start, I look forward to further detailed analysis from the White House regarding the secret memos and presidential orders that purported to justify the Bush administration’s flight from the law and its attempts to justify torture.

And while it is wonderful to read that the CIA is obliged to close all secret prisons, it is absolutely imperative that this announcement is swiftly followed by the establishment of a robust means of accounting for the unknown number of prisoners (PDF) subjected to “extraordinary rendition” and torture, either in prisons run by the CIA or by other governments prepared to lend their torturers to the United States.

In addition, while the Order establishing a Task Force to overview detention policy insists that only “lawful options” are pursued, the Task Force on interrogation and transfer policies seems to be set up to find ways in which “extraordinary rendition” can be justified — though not, admittedly, on an industrial scale — and also seems designed to “recommend … additional or different guidance” for agencies outside the military, which is troubling, of course, as this, in essence, is exactly what has been happening for the last seven years, with such dire results. The President should resist all calls for exceptions to lawful procedures, and confirm, categorically, his absolute commitment to non-coercive methods of interrogation, which have a proven track record. See, for example, the Human Rights First report (PDF) examining 107 terror trials on the US mainland, and Jane Mayer’s article on the FBI’s interrogation of an-Qaeda informant.

I should also note that, just two weeks ago, psychologist and anti-torture activist Jeffrey S. Kaye explained, in an article for AlterNet, that, though widely praised by everyone in the new administration, including President Obama, the revised version of the Army Field Manual contains an Appendix that apparently keeps the door open for the use of the same torture techniques taught in US military schools to train US personnel to resist interrogation that were implemented by the Bush administration and that led directly to the widespread abuse of prisoners in Guantánamo, Afghanistan and Iraq, as a Senate Armed Services Committee report (PDF) explained last month.

Presidential Memorandum on the Detention of Ali al-Marri

In the memorandum, President Obama ordered the Justice Department to conduct a review of the status of Ali al-Marri, a legal US resident, who has been held for five years and eight months in total isolation as an “enemy combatant” in the US Naval Brig in Charleston, South Carolina. As he noted, “Al-Marri is the only individual the Department of Defense is currently holding as an enemy combatant within the United States.” Explaining why he ordered the review, he wrote, “Because he is not held at Guantánamo Bay, al-Marri is not covered by the review mandated in the Review and Disposition Order [the Presidential Order relating to Guantánamo]. Yet it is equally in the interests of the United States that the executive branch undertake a prompt and thorough review of the factual and legal basis for al-Marri’s continued detention, and identify and thoroughly evaluate alternative dispositions.”

The verdict

Unlike the executive orders, which had been signposted well in advance, the memo was unexpected, but is long overdue. As I explained in a detailed article last month, the torture of al-Marri and his long isolation, which is more severe than any other “War on Terror” prisoner that I know of, is a disgrace, and should be deeply troubling to all Americans, especially as the 4th Circuit Appeals Court ruled last summer that the President not only had the right to indefinitely detain al-Marri as an “enemy combatant” without charge or trial, but that the principle extended to any American.

My hope, therefore, is not only that Obama brings al-Marri’s confinement to an end, but also that he acts to reverse the decisions that have enabled prisoners to be held as “enemy combatants” on the US mainland. Slightly complicating matters is the fact that, last month, the Supreme Court agreed to hear al-Marri’s case, but as his lawyer, Jonathan Hafetz, explained to the Associated Press yesterday, he “had already agreed earlier this week to the government’s request for a one-month delay,” but didn’t want the case “pushed back so far that it is not heard before the Supreme Court finishes its work in the summer.” He added, however, “Any objective review will necessarily show that al-Marri’s current detention as an enemy combatant is illegal. It’s inconceivable that the Obama administration could defend this detention while proclaiming fidelity to the rule of law.”

In conclusion, then, these three Orders and the memo are a bold start — and they would, of course, have been unthinkable just a few days ago — but more detail is required, dangerous loopholes must be shut off permanently, and other parts of the Bush administration’s dark legacy need to be swiftly addressed; in particular, the Authorization for Use of Military Force, passed by Congress in September 2001, which was used by the administration as a green light for the exercise of unfettered executive power; the military order of November 2001, which established the President’s right to seize and hold indefinitely anyone he regarded as an “enemy combatant,” and which also established the Military Commissions; and the Military Commissions Act of 2006 (PDF), which resuscitated Dick Cheney and David Addington’s reviled trial system after the Supreme Court ruled it illegal in June 2006.

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). To receive new articles in your inbox, please subscribe to my RSS feed.

As published on the Huffington Post, CounterPunch, Antiwar.com and ZNet.

A Talking Dog/Andy Worthington co-production

Andy suggested that he and I team up on a top ten list of what we felt after at least seven years of winter in the American judicial system, when we now have some semblance of the sun breaking through. And so, we have nominated ten cracks in the judicial ceiling last year, from all levels of the judiciary, and, in one case, from a foreign court.

So I’m going to start with my own nominees. Andy’s list may be different, or overlap, or he may have different rationales. The judgments are entirely subjective, and are entirely mine, from the perspective of an attorney making his living in the American legal system here in New York, and his, from the perspective of a historian and journalist looking at this from London. Maybe we’ll let commenters or others suggest their favorites, or their preferences. Who knows? My five are below.

The Talking Dog’s Top Five Judges of 2008

1. The US Supreme Court. The Supremes’ nomination covers two cases this year. One is from the start of December, for accepting review in the case of Ali al-Marri, better called “The Case of the Executive Override of the Rest of the Constitution,” and the second most important case of our life-times after the eerily similar Jose Padilla case. The other is for their courageous, albeit 5-4, holding in June, in Boumediene v. Bush, that habeas corpus is actually still a Constitutional first principle even if terrorists get lucky and George W. Bush happens to be the President. And on the basis of Boumediene, we immediately garner two more nominations, both for judges on the District of Columbia federal district court.

2. The first of these is Judge Ricardo Urbina, who ruled that 17 Uighur detainees from China were not “enemy combatants” at all. Urbina ordered their release to human rights groups within the United States, cutting through the red tape that “legislation is needed” to enforce a remedy that the Supreme Court says is required by the Constitution. The government has appealed and obtained a stay from the D.C. Circuit Court of Appeals. However, the government is not going to return them to China (where they would almost certainly be tortured and/or killed), and unless they join their fellow Uighur former detainees in Albania (who were sent there in May 2006), it is not clear where they will go, as the Bush administration refuses to permit them to be admitted to the United States and insists they rot in solitary confinement in GTMO. In addition, it has, of course, become difficult to get other countries to take the political risk of accepting the Uighurs, when the Bush administration insists (against all facts, btw) that they are terrorists.

3. The second of these D.C. District Court judge heroes is, oddly enough, Judge Richard Leon, a habeas judge, who found that five of the six Boumediene plaintiffs themselves — Algerian/Bosnian detainees — were not “enemy combatants,” despite the government’s contesting this fact. Leon, a judicial conservative appointed by George W. Bush himself, had famously found that the detainees had no rights of legal redress in an earlier, pre-Boumediene round of legal proceedings.

And now I’m going to go to the two most courageous judges of all, IMHO, those being military judges who, like military defense attorney Lt. Cmdr. Charlie Swift and others, have put their military careers at risk by trying to do the right thing by Guantánamo detainees, even those charged in the Military Commissions (aka the worst of the worst of the worst).

4. The first is Captain Keith Allred of the US Navy, for courageously sticking to his guns despite pressure (unlawful pressure, as our next entrant will show) from the Bush administration to do what it wanted. Specifically, after managing the show trial of Salim Hamdan, at which angels dancing on the head of a pin were parsed to establish that carrying a weapon potentially used against American military forces (i.e. being part of a force that opposes the United States military) is now defined as a war crime. Despite the ludicrousness of the conviction, the military jury imposed a five and a half year sentence, sustained by Judge Allred, who concluded that, less the nearly five years Hamdan had already served, he would be released on December 26.

Notwithstanding the fact that its own kangaroo court had adjudicated an outcome and determinate sentence, the Bush administration insisted that it could still nonetheless hold Mr. Hamdan — just as it can hold Mr. al-Marri, Mr. Padilla, or, if it felt like it, Mr. Worthington or Mr. Talking Dog — as long as it feels like, up to and including for the rest of our lives. Fortunately, Judge Allred held the line and would not alter the sentence.

5. The second, rounding out my top five, is Air Force Col. Steve Henley, who, in the prosecution of a detainee named Mohamed Jawad, held that Brig. Gen. Thomas Hartmann, chief legal advisor to “the convening authority” (the official in charge of the entire Guantánamo military commissions process, Cheney/ Addington protégé Susan Crawford) was intrinsically biased, insisting on the use of coerced evidence and demanding that all cases end in conviction. Hartmann also outraged former chief prosecutor Col. Morris Davis, who resigned in October 2007, and confronted skeptical prosecutors (such as Lt. Col. Darrel Vandeveld, who resigned in September 2008) by demanding that they comply with the program.

Andy Worthington’s Top Five Judges of 2008

1. I’m with the Talking Dog on the importance of the Supreme Court’s ruling in Boumediene v. Bush, reinforcing the habeas rights the justices first granted in June 2004, only to watch as Congress then passed legislation purporting to strip the prisoners of these rights. By making the prisoners’ habeas rights constitutional, and by ruling that parts of the legislation passed by Congress were unconstitutional, five of the nine highest judges in the land asserted their powers in an ongoing struggle with a compliant Congress and an executive branch besotted with claims of unfettered Presidential authority. For the record, Justices Anthony Kennedy, John P. Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer ruled in favor of the prisoners, while Chief Justice John G. Roberts, and Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented.

Just as significant, however, is what happened shortly after Boumediene, when Parhat v. Gates, a case that had been frozen during three years of wrangling over the prisoners’ rights, was heard in a Washington D.C. Appeals Court. My first nomination, therefore, is for Chief Judge David B. Sentelle (left), Judge Merrick B. Garland, and Judge Thomas B. Griffith (two Conservatives and a Liberal), who, after looking at the government’s material to support its claim that Huzaifa Parhat (one of the Uighurs) was connected in any way with terrorist activity, concluded that the material supposedly proving that he was an “enemy combatant” who could be held without charge or trial was in fact groundless, and resembled the reasoning used in “The Hunting of the Snark,” a nonsense poem by Lewis Carroll, the author of Alice’s Adventures in Wonderland.

The Parhat verdict was an enormous blow to the administration. Within months, the government gave up trying to prove that any of the other 16 Uighurs were “enemy combatants,” which led, as the Talking Dog has pointed out, to Judge Urbina’s eloquent assertion of constitutional rights in the Uighurs’ case in October.

2. My second nomination follows swiftly on from the first. When the government appealed Judge Urbina’s ruling to release the Uighurs into the care of communities in the United States, and the court accepted the government’s appeal, one of the three judges, Judge Judith W. Rogers, made a sweeping defense of the Uighurs’ rights — and the government’s lies — that earns her this nomination. The full story is available here, but what was particularly striking about her dissent was the way in which she repeatedly attacked the government for failing to demonstrate that the Uighurs were a danger to anyone, and also condemned the government’s lawyers for attempting to undermine the court’s powers as endorsed in Boumediene.

3. My third nomination is Judge Diana Gribbon Motz, the valiant dissenting judge in the 4th Circuit Appeals Court review of the case of US “enemy combatant” Ali al-Marri in July. With the support of three other dissenting judges, M. Blane Michael, Robert B. King and Roger L. Gregory, Judge Motz comprehensively demolished the other judges’ assertions that an American — whether a citizen or a resident — could be seized and held indefinitely as an “enemy combatant.” The full story is here (and an update on al-Marri is here), but Judge Motz’s most critical passages are worth reproducing in full.

In the first, Judge Motz wrote,

With regret, we recognize that this [dissenting] view does not command a majority of the court. Our colleagues hold that the President can order the military to seize from his home and indefinitely detain anyone — including an American citizen — even though he has never affiliated with an enemy nation, fought alongside any nation’s armed forces, or borne arms against the United States anywhere in the world. We cannot agree that in a broad and general statute, Congress silently authorized a detention power that so vastly exceeds all traditional bounds. No existing law permits this extraordinary exercise of executive power.

And this is Judge Motz’s conclusion:

To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President call them ‘enemy combatants,’ would have disastrous consequences for the Constitution — and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power — were a court to recognize it — that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.

4. My fourth nomination is for a number of judges in the case of Binyam Mohamed, a British resident and a victim of “extraordinary rendition” and torture. Seized in Pakistan in April 2002, Mohamed was rendered by the CIA to Morocco, where he was tortured for 18 months, and was then rendered to the CIA’s “Dark Prison” near Kabul, where his torture continued for another five months, at the end of which he falsely confessed to being involved with al-Qaeda and being part of the spectral “dirty bomb” plot in which Jose Padilla had also become entangled.

For most of the year, Mohamed’s lawyers, at the London-based legal action charity Reprieve, have been engaged in reviews of his case on both sides of the Atlantic. In the UK, this took place when a judicial review was granted after Mohamed’s lawyers sued the British government for refusing to provide exculpatory evidence in its possession regarding British knowledge his rendition and torture.

In the British High Court, Lord Justice Thomas (left) and Mr. Justice Lloyd Jones earned this nomination for their handling of Mohamed’s judicial review, in which they were clearly appalled by the behavior of the British intelligence services, and were also shocked by the lawlessness of the Bush administration’s Military Commissions trial system, even though it was outside their remit to comment directly on its shortcomings.

When they delivered a judgment at the end of August, they condemned the British intelligence services for sending agents to interrogate Mohamed in May 2002, while he was being held illegally in Pakistan, and also for providing and receiving intelligence about him from July 2002 until February 2003, when they knew that he was being held incommunicado, and should not have been involved without receiving cast-iron assurances about his welfare. “[T]he relationship between the United Kingdom Government and the United States authorities,” they wrote, “went far beyond that of a bystander or witness to the alleged wrongdoing.”

Also in August, as a result of Boumediene, Mohamed’s habeas review began in the United States, when Judge Emmet G. Sullivan pressed the US government to reveal all exculpatory evidence in the case. Sullivan shares the nomination for asking, when the Justice Department suddenly dropped the allegation about the “dirty bomb” plot, “That raises a question as to whether or not the allegations were ever true,” and for then ordering defense secretary Robert Gates to testify that all exculpatory evidence had been provided. As I pointed out in a recent article, although Gates complied, his assertion that all the required evidence had been handed over was patently untrue, as the government has never once acknowledged that Mohammed was rendered and tortured in Morocco and Afghanistan, and cannot conceivably defend its allegations without providing an opportunity for Mohamed’s lawyers — or Judge Sullivan — to ascertain the circumstances in which his “confession” was produced.

5. My final nomination, with a nod to Col. Henley and especially Capt. Allred, who appeared to steer Salim Hamdan’s trial towards a just conclusion that was then endorsed by the military jury, is Col. Peter Brownback, the judge in the case of Omar Khadr, the Canadian who was just 15 when he was seized in Afghanistan in July 2002. Brownback’s finest hour actually came in June 2007, when, with Capt. Allred, he temporarily derailed the entire Commission process by ruling that the Military Commissions Act, which revived the Commissions after the Supreme Court ruled them illegal in June 2006, had empowered them to try “illegal enemy combatants,” whereas the Combatant Status Review Tribunals (the military review boards that had authorized the prisoners to be put forward for trial) had only decided that they were “enemy combatants.”

After the government hastily convened an appeals court to indicate that the judges could overrule themselves, Brownback continued to cause trouble by publicly lambasting the prosecution for not handing over evidence that was necessary for Khadr’s defense. The high point came in May last year, when, noting that the prosecution, led by Maj. Jeffrey Groharing, had failed to provide Khadr’s lawyers with records of his interrogations at Guantánamo, despite repeated requests to do so, Brownback declared, “I have been badgered, beaten and bruised by Maj. Groharing since the 7th of November to set a trial date. To get a trial date, I need to get discovery done.”

Three weeks later, Brownback was gone, and although there may be an innocent explanation — involving Brownback coming out of retirement to serve as a Commission judge, and reaching the end of his contract — the timing struck many observers as suspicious. Whatever the truth is, Col. Brownback’s “badgered, beaten and bruised” speech concludes my review of liberty’s judicial defenders in 2008.

The New Year, as the Talking Dog explained, brings some semblance of the sun breaking through, but it is clear that much work needs to be done to do away with the abominations of the Bush years. This time next year, both TD and I hope that the Supreme Court will once more be nominated, this time for ruling, in Ali al-Marri’s case, that the President has no right to seize and indefinitely detain Americans as “enemy combatants” on the US mainland, but we also both wonder whether any of the administration’s other crimes — approving the use of torture by US forces, implementing “extraordinary rendition” on an industrial scale, holding foreign prisoners neither as criminals nor as prisoners of war, but as “enemy combatants” without rights — will also have been addressed. We sincerely hope so, as, without some sort of accountability, the message that the new President will send to America and the wider world is that you can break whatever laws you feel like, and get away with it, so long as you get voted out of office at the end.

The Talking Dog is a New York attorney, and a perceptive commentator on the crimes and follies of the Bush administration. 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). To receive new articles in your inbox, please subscribe to my RSS feed.

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009). Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009).