Briefly, the Uighurs are Muslims from Xinjiang province in north-western China, an area subjected to persecution by the Chinese government. The 22 Uighurs who ended up at Guantánamo were, for the most part, refugees who had been thwarted in their attempts to reach Turkey or Europe in search of work, or who, in some instances, nursed futile hopes of rising up against their oppressors. None had any involvement with al-Qaeda, terrorism or militancy against the United States, and they only ended up in Guantánamo because the rundown settlement in which they had been living in the mountains of Afghanistan was bombed by US forces, and, after they fled to Pakistan, they were sold to US forces by Pakistani villagers.

It was clear from the beginning that prisoners whose only enemy was the Chinese government should never have been held at Guantánamo, but they were used as pawns in negotiations with the Chinese government prior to the invasion of Iraq, and although five of the Uighurs were found a new home in Albania in May 2006, it took until 2008 — and a humiliating court defeat — for the Bush administration to give up its claim that the other 17 were “enemy combatants.” As a result, their habeas corpus petitions were granted in October 2008, but although a judge ordered them to be released in the United States, the Bush administration, and then the Obama administration disagreed, and appealed the ruling, securing a favorable response in February 2009 from the right wing judges in the D.C. Circuit Court.

President Obama, fearing Republican criticism, then turned down a plan by White House Counsel Greg Craig, which involved bringing a handful of the Uighurs to live in the US, not only because it was the right thing to do, but also because it would help to persuade other countries to take cleared prisoners who, like the Uighurs, could not be repatriated safely. That was in May 2009, and there was then an unseemly scramble — largely hidden form public view — to find new homes for the Uighurs in case the Supreme Court decided to take their side (although in the end the Supreme Court refused to do so).

Four of the Uighurs were rehoused in Bermuda in June 2009, six others in Palau in October 2009, and two others were given new homes in Switzerland in March 2010. Five others remain, having refused any of the new homes offered to them, and their cases will be discussed soon in prisoner profiles on the recently established “Close Guantánamo” website.

For now, however, I’m cross-posting below an article written for Der Spiegel by Seema Saifee, an attorney in New York who represents four of the 22 Uighurs who have been held in Guantánamo. One of her clients — Abdulrazaq — is still in Guantánamo, and his case will be profiled soon on the “Close Guantánamo” website. However, Seema also represents three of the six Uighurs released in Palau in October 2009 — Ahmad Tourson, Abdulghappar Abdulrahman and Adel Noori — and it is their story, and particularly that of Ahmad Tourson, that was publicized through the article in Der Spiegel.

As she explains, both the governments of the US and Palau “acknowledged that the remote island was not durable as a long-term refuge,” and was only “intended as a way station, a means to leave Guantánamo, a temporary solution until another country offered …sustainable resettlement.” However, “That hope has shrivelled,” because, even though Palau “is far from paradise,” and the Uighurs “cannot find work that provides a living wage,” there is “no reasonable prospect of future resettlement” for the men.

Exchanging One Prison for Another
By Seema Saifee, Der Spiegel, January 19, 2012

On her sixth birthday, Muslima had one wish: to see her dada. On that day, Ahmad Tourson, her father, was trying to sleep. But slumber was a luxury in the windowless metal box to which he was consigned for 22 hours a day, sometimes 24. On Muslima’s sixth birthday, Ahmad was imprisoned in Guantánamo Bay, Cuba. He had been there for her last five birthdays as well.

But in June 2008, after Muslima turned six, sunlight shone on the steel vault to which Ahmad was confined. Over six years of courtroom battles and cruel conditions of confinement later, the hundreds of men the US executive claimed the power to hold indefinitely won the right to petition for a writ of habeas corpus to challenge the lawfulness of their detention. Ahmad’s case was to be heard by a US federal judge.

In consequence, the US government withdrew any pretense that Ahmad was an “enemy combatant,” admitting it had no basis to hold the man and his 16 Uighur countrymen, all from China. With the case thus abandoned, remedy was the sole question remaining. The Uighurs sought their only possible remedy: freedom in the United States.

On the day of the hearing, US District Judge Ricardo Urbina decried assertions by then-President George W. Bush’s top lawyers that executive discretion was almighty. He invited the president’s lawyers — several times — to explain what the security risk would be to the nation should the Uighurs be freed in the US. “You’ve had seven years to study this issue,” the judge admonished. The US government could not produce one single example.

At Liberty’s Doorstep

Judge Urbina concluded that the detention of the Uighurs was illegal. Understanding that the men could not be returned to their native China, which would likely have tortured, or even executed, the members of the minority ethnic group, and that diplomatic efforts to lobby (and re-lobby) nearly 100 countries for their humanitarian resettlement had failed, Judge Urbina ordered the 17 men freed to the United States. Release was mandated within 72 hours.

The prospect of freedom, once outside his reach, was now within Ahmad’s grasp. The Uighurs, whose young faces had developed wrinkles from years of indefinite detention, imagined boarding a plane to freedom. A contingent of US marshals flew to Guantánamo to escort the men to their new home. Ahmad was at liberty’s doorstep.

But 42 hours before Ahmad’s scheduled release, the US government won an emergency stay to shelve the Uighurs’ release until the case could be reviewed by a higher court. On appeal, the D.C. Circuit Court of Appeals ruled that US federal courts exercising habeas jurisdiction were impotent to release men at Guantánamo whose confinement was admittedly unlawful. The Great Writ was defiled. Liberty, said the D.C. Circuit, had no guardian.

Ahmad embarked on his eighth year of indefinite detention because US judges concluded they did not have the power to end it. And two presidents agreed. In Guantánamo’s Orwellian land of doublespeak, Ahmad was not detained, said Bush; the US military was “harboring” him (inside a chain-link fence surrounded by barbed wire) because he “chose” not to return to China (a country whose government would have put a bullet in his head), and the president would honor this choice out of executive grace (as the US claimed it had no legal obligation not to refoule him to a country that tortures), until a safe nation granted him refuge (so long as that nation’s president did not reside on Pennsylvania Avenue). And, once he entered office, President Barack Obama spun the same tale.

Not a Durable Refuge

In the summer of 2009, the US State Department negotiated Ahmad’s resettlement with the Republic of Palau, an isolated, impoverished island in the middle of the South Pacific. After multiple years of shopping Ahmad to foreign sovereigns, the US found a remote island, the only nation, it said, to offer him refuge. (Any nation that previously considered granting Ahmad asylum quickly reneged when Chinese diplomats threatened cessation of economic ties. Palau, however, is one of a small contingent of countries that maintains diplomatic relations with Taiwan.)

The US and Palauan governments acknowledged that the remote island was not durable as a long-term refuge. Ahmad’s relocation there, they said, was intended as a way station, a means to leave Guantánamo, a temporary solution until another country offered him sustainable resettlement. Ahmad thus accepted his only opportunity to leave Guantánamo, with the hope, one day, of finding a permanent refuge.

That hope has shriveled. Today, two years since his release and 10 years since he was sold into US custody, Ahmad remains in limbo in Palau. Despite his and the US State Department’s assiduous efforts, he has no reasonable prospect of future resettlement. And the remote island is far from paradise.

Ahmad holds a diploma from a technical college in China. He has experience as a management technician at an oil refinery and as a restaurant owner. He has advanced English language skills. But, in Palau, Ahmad cannot find work that provides a living wage. He is excluded, under Palauan law, from access to the same job opportunities available to Palauan citizens. What is more, he is not covered by Palau’s minimum wage law, which is, itself, a trifling $2.50 an hour. Ahmad has no path to citizenship; under Palau’s constitution, citizenship is conferred only to individuals with native Palauan ancestry. Even if Ahmad could access gainful employment, Palauan employers have refused to hire him. Many raise concerns about losing customers; others call the men terrorists. With a population of just 20,000, the entire island knows the Uighurs. The men cannot blend in; they suffer a unique prominence they would not face in most nations.

Seeking Refuge in Kabul

The scale tips further. Ahmad is a transtibial amputee. Before he was sent to Guantanamo, Ahmad had been living as a refugee in Kabul. Like many Uighurs, he had suffered persecution under China’s control. Ahmad was lashed with electric sticks and his wife was threatened with a forced abortion by Chinese authorities. With modest resources, Ahmad sought asylum in neighboring countries, but most Central Asian nations had deals to deport Uighur refugees to China.

But Afghanistan did not forcibly repatriate Uighurs to China. The nation was (at that time) a safe and accessible shelter for Uighurs. Thus, in 2000, Ahmad took refuge in Kabul. Over a year later, the US and NATO began combat operations in Afghanistan. US cargo planes dropped leaflets from the skies offering significant rewards to locals for catching “enemies.” Ahmad, who was searching for safety for his two-year-old son and pregnant wife, was traded to US forces for $5,000. He was taken to an Afghan prison where his left leg was shattered in a bombing. Once in Guantánamo, his leg was amputated below the knee. In the prison, Ahmad, a young man in his early 30s, was consigned to a walker.

Amputees require lifetime prosthetic care, routinely available in many nations. But no level of prosthetic care exists in Palau. Indeed health care is so limited that Palauan nationals must travel overseas to obtain specialized or emergency care. But Ahmad is unable to travel outside Palau — even for medical care. He has no reasonable means of procuring travel documents or permission to enter another nation. According to orthopedists, without access to this essential prosthetic care, Ahmad will not achieve full mobility. Life on the island is, and will remain, untenable.

Stranded in Palau

According to the United Nations High Commissioner for Refugees (UNHCR) Handbook, resettlement as a durable solution must be accompanied by a meaningful prospect of local integration, which involves more than safety from refoulement [being forcibly returned to torture]. Local integration includes the enjoyment of legal, economic, medical, and social rights, none of which are available to Ahmad in Palau. Indeed, the limitations of the conditions in Palau are precisely the reason the island was not proposed as a durable solution and why relocation there was intended to be temporary only.

Ahmad wants to forget the years he spent without charge at Guantánamo, but he can’t. The sheer isolation of Palau, which has no Uighur or refugee population of any kind, reminds him hauntingly of Guantánamo. And one memory he can never forget is that of the 171 men who remain at Guantánamo, including five of his countrymen.

Ahmad’s only ray of dawn during this dark decade came in 2010, when he was reunited with his family. Muslima, who was born after Ahmad’s capture, embraced her dada for the first time shortly before she turned nine. But the rosy-cheeked girl, whose radiant smile hardship has not obscured, is stateless. She has been mandated as a refugee by the UNHCR. But with no reasonable prospects of resettlement in another nation, she may remain stranded in Palau for the rest of her life.

Note: To listen to Seema Saifee discussing Ahmad Tourson’s story, please listen to the interview here on Canada’s CBC Radio.

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.

That all changed when the Bush administration threw out the Geneva Conventions, equated the Taliban with al-Qaeda, and decided to hold both soldiers and terror suspects as “illegal enemy combatants,” who could be imprisoned indefinitely without charge or trial, and with no rights whatsoever.

The Bush administration’s legal black hole lasted for two and a half years at Guantánamo, until, in Rasul v. Bush in June 2004, the Supreme Court took the unprecedented step of granting habeas corpus rights to prisoners seized in wartime, recognizing — and being appalled by — the fact that the administration had created a system of arbitrary, indefinite detention, and that there was no way out for anyone who, like many of the prisoners, said that they had been seized by mistake.

This was not the end of the story, as the Bush administration fought back, Congress attempted to strip the prisoners of their habeas rights in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 (PDF), and the Supreme Court had to revisit the prisoners’ cases in June 2008, in Boumediene v. Bush, reiterating that they had habeas corpus rights, and that those rights were constitutionally guaranteed.

Unfortunately, although this ruling enabled some of the Guantánamo prisoners to secure their release via the US courts, by having their habeas corpus petitions granted, the appeals court in Washington D.C. (the D.C. Circuit Court) has been fighting back, gutting habeas corpus as a remedy by insisting, ludicrously, that the government’s evidence, however obviously unreliable, should be given the presumption of accuracy.

While this continues to be fought over, the bigger problem is that the entire rationale for Guantánamo has never been adequately challenged. The basis for holding prisoners is the Authorization for Use of Military Force, passed the week after the 9/11 attacks, which authorizes the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

in June 2004, while granting the Guantánamo prisoners habeas rights, the Supreme Court also confirmed, in Hamdi v. Rumsfeld, that the AUMF allows prisoners to be detained until the end of hostilities, thereby confirming the AUMF as an alternative to the Geneva Conventions, without anyone in a position of authority being required to explain why the Geneva Conventions no longer apply to soldiers, and why terror suspects are being held as “warriors,” rather than as criminals.

With this fundamental misconception — or this warped reshaping of the rules governing detention — which was at the heart of the Bush administration’s “war on terror,” and is confirmed in the continued reliance on the AUMF by all three branches of the government, it is no wonder that it has become impossible to even mention the fact that wartime detentions used to accord with the Geneva Conventions, and it has also become impossible for advocates of federal court trials for criminals to win out over those calling for military commission trials instead, even though hundreds of terror suspects have been successfully prosecuted in federal courts in the last ten years, as opposed to just six in military commission trials.

The result of this unilateral rewriting of the rules governing wartime detentions is that soldiers remain held at Guantánamo where they are lazily, but dangerously regarded as terrorists, and the wartime prisoners held in actual combat zones — at Bagram, for example — are not held according to the Geneva Conventions, but are detained arbitrarily, and are then subjected to invented review boards so that the military can decide what to do with them. This ought to be a cause for alarm, but it is apparently taken for granted.

In addition, the result of the insistence that terror suspects must not be tried in federal courts has had far-reaching effects that, in the last few weeks, have been causing great consternation to libertarians and liberals alike.

On the face of it, this consternation is well-founded. In provisions inserted by Congress into the 2012 National Defense Authorization Act, lawmakers insisted on creating legislation that makes it mandatory for terror suspects to be held in military custody, without charge or trial, and not to be allowed anywhere near the federal court system.

The mere fact that lawmakers could have worked themselves up into enough of a frenzy to pass this legislation is profoundly depressing, of course, but as Marty Lederman and Steve Vladeck explained in an article for the Lawfare blog on December 31, intense negotiations between the administration and Congress, with input from numerous deeply concerned groups and individuals, succeeded in watering down the intent behind this provisions so that it is not really appropriate for critics to wail that the NDAA will allow Americans to be held indefinitely in military custody. As they explained:

[S]ection 1022 purports to establish a presumption in favor of indefinite military detention, rather than criminal arrest and prosecution, for some future foreign al-Qaeda suspects. In the President’s words, it is in this respect “ill-conceived and will do nothing to improve the security of the United States,” and “is unnecessary and has the potential to create uncertainty.” Fortunately, amendments adopted late in the legislative process … will, we think, ensure that section 1022 is mostly hortatory, and will in practice allow the President to adhere to his commitments that “suspected terrorists arrested inside the United States will — in keeping with long-standing tradition — be processed through our Article III courts, as they should be”; that “our military does not patrol our streets or enforce our laws — nor should it”; and that “when it comes to US citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.”

Even so, as Marty Lederman and Steve Vladeck also explained, drawing on comments made by Raha Wala of Human Rights First, “the very existence of section 1022 might give a future Administration a slight measure of political cover if it decides to reverse President Obama’s policy and begin to detain in military custody persons such as another Abdulmutallab, who are captured in the United States.”

This is a reference to Umar Farouk Abdulmutallab, the failed Christmas 2009 plane bomber, whose recent trial and successful conviction confirmed that the advocates for military custody are driven not by common sense but by irrational fears — or cynical fearmongering. The courts are perfectly capable of safely and effectively prosecuting terror suspects, and lawmakers’ attempts to insist otherwise, if left unchallenged, were likely to have been dangerously counterproductive rather than helpful.

Nevertheless, while obvious disaster appears to have been averted, the huge outpouring of alarm regarding the perceived plan to imprison Americans indefinitely without charge or trial ignores two fundamental issues that still need addressing: firstly, that President Obama has shown himself more than willing to dispose of US citizens he regards as troublesome not by imprisoning them, but by assassinating them in drone strikes; and, secondly, that the foreign victims of the indefinite detention that lawmakers have shown themselves so desperate to revive still need Americans to care about their plight, to bring to an end the unjust situation that has existed for the last ten years, and to cut off the possibility that lawmakers, or the executive branch, can decide in future to revisit these dreadful policies and to revive them again.

As Marty Lederman and Steve Vladeck noted, drawing on an article in the New York Review of Books by David Cole:

David Cole is surely correct that Subtitle D (“Counterterrorism”) [PDF] of the NDAA contains some very troubling provisions — especially sections 1026 and 1027, which continue the deeply unfortunate and counterproductive authorities in current law prohibiting the use of funds to build a facility in the US to house GTMO detainees and to transfer any such detainees to the US for any reason, including criminal trial; and section 1028, which continues the current statutory requirement that the Secretary of Defense must make onerous certifications regarding the receiving nation’s security measures before any GTMO detainee can be transferred to another country. These provisions will continue to prevent the closure of the detention facility at Guantánamo, notwithstanding the President’s view, which we share, that “the prison at Guantánamo Bay undermines our national security, and our nation will be more secure the day when that prison is finally and responsibly closed.”

These are valid points indeed, and with the 10th anniversary of the opening of Guantánamo taking place next week, it is important for US citizens to recall that the fount of the recent hysteria directed, initially, at Americans as well as foreigners, is the enduring legacy of the Bush administration at Guantánamo, where these dark desires have been inflicted on foreign Muslims for the last ten years, and where the will to close this dangerous aberration is lacking in both the administration and in Congress.

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 the website of the Future of Freedom Foundation.

As I explained in that article, and in a series of articles over the last year and a half, the promise that habeas corpus held for the prisoners in June 2008, when the Supreme Court granted them constitutionally guaranteed habeas corpus rights, in Boumediene v. Bush, has, since July 2010, been killed off by judges in the D.C. Circuit Court, led by Senior Judge A. Raymond Randolph, a right-wing ideologue notorious for endorsing every piece of legislation relating to the Guantánamo prisoners that, under George W. Bush, was subsequently overturned by the Supreme Court.

The case that first shut down habeas corpus was Adahi v. Obama, involving a Yemeni, Mohammed al-Adahi, whose habeas corpus petition was granted in August 2009, on the correct basis that, although al-Adahi had accompanied his sister to Afghanistan for her marriage to a man with purported connections to al-Qaeda and the Taliban, he himself had no connection to either group, and was just a chaperone.

For Judge Randolph, however, ideology is more important than facts, when it comes to the Guantánamo prisoners, and, as a result, he granted the government’s appeal in Adahi, and, essentially, ordered the lower court judges to give more credence to the government’s claims than they had been doing. As a result, every habeas petition since July 2010 has been denied, and other successful petitions have been either reversed like Adahi (three in total) or vacated, and sent back to the lower court to reconsider (two in total).

The latest monstrous ruling delivered by Circuit Court judges (Judge Janice Rogers Brown and Judge Karen LeCraft Henderson, who share Judge Randolph’s ideological bent) came in October in the case of Adnan Farhan Abdul Latif, a Yemeni, with undisputed mental health problems, and a viable explanation for being in Afghanistan for medical reasons, who was the last prisoner to have his habeas petition granted before Judge Randolph’s new rules in Adahi took effect.

The ruling in Latif was not made available until last month, and, disturbingly, the judges took their endorsement of the government’s position one step further, declaring that the habeas judges must now regard the government’s own intelligence reports as reliable. This not only appalled the dissenting judge, David Tatel, but also appalled lawyers for the prisoners, who have long been aware of the unreliability of the intelligence reports relating to the prisoners. Anyone doubting this is directed to my ongoing series, “The Complete Guantánamo Files,” in which I analyze the chronic and repeated failures of intelligence revealed in the classified military files released by WikiLeaks last April.

In the hope of keeping this story alive, I’m cross-posting below a response to the dreadful ruling in Latif that was written by Sabin Willett, the attorney for Uighur prisoners in Guantánamo, who eloquently explained why Latif is such a disaster for anyone who believes in justice.

Please note that his reference to Kiyemba is a reference to a case involving the Uighurs (Muslims from China’s oppressed Xinjiang province, who won their habeas petitions in October 2008, but cannot be safely repatriated), and Parhat refers to the first Uighur victory in June 2008. Lawyers (Willett included) fought a long battle to allow these men to be rehoused in the US (as their judge intended) and also to prevent the government from claiming the right to dispose of them as it sees fit (even if the prisoners themselves do not agree), but lost in the Circuit Court, and also in the Supreme Court, where, after Latif, the prisoners’ cases may once more be headed — even though, alarmingly, the court as a whole is now more biased in favor of government overreach than it was under George W. Bush. For Bismullah (the case of an Afghan released in January 2009), see here.

Sabin Willett on Latif

It is not hyperventilation to say, as so many have said, that Latif guts Boumediene, because — trust me — every prisoner has an intelligence report. Now the prisoner hasn’t just lost his judicial remedy to Kiyemba; if those reports control, factfinding is over, too.

But Latif, and before it Adahi, are not just law-of-war cases. They may raise the eyebrow of civil procedure sachems as well.

Because despite the gnashing of teeth over Boumediene’s failure to issue a manual, the Guantanamo habeas cases have mainly been about facts. Wedding guest or soldier? By the time review finally got on its legs in 2008, the President had had years to winnow away the silly and outrageous detentions (and Congress hadn’t yet taken up the blood sport of preventing him from doing so). Logically, we would have expected the government to have good facts in cases that remained, and to win most of them.

Something like that was happening in the district court, but then something else quite illogical began happening. On appeal, the government began to run the table. No habeas win could survive.

The district court was finding facts from old, cold and unreliable records, and so uniform results would have been a little surprising, but still possible, given the trial court’s broad factfinding discretion. You’d expect regular affirmance on appeal of both wins and losses, because in civil practice, the trial court‘s fact-finding is rarely disturbed. So where district court results are non-uniform, it is surprising — one might even say, conditionally improbable — that appellate results should make them so.

What’s going on here? The circuit is making up a new standard of appellate review.

Take Adahi. To a first approximation, Adahi is an “Oh, come on!” case: al-Farouq, bin Laden at Sister’s wedding, shady characters on the bus, the Casio insignia — come on! But Judge Kessler wasn’t asking whether Adahi had thuggy associates. She was after the legally-relevant nut: has the government shown he is an enemy soldier? If General Petraeus attends my sister’s wedding, am I therefore a soldier?  Suppose I go to Quantico and after ten days, they throw me out. Am I a Marine? (In doing this work I met a number of Marines. Each — I am quite sure of this — would declare ten days insufficient to make a Marine of me.)

As a matter of appellate procedure, the problem was this: Adahi testified. Judge Kessler found that testimony credible (leaving Farouq, denying he trained troops there). Adahi’s entire testimony is, “I wasn’t a soldier.” So if we have witness testimony the court deems credible, and it refutes enemy status, how does the circuit flip the judgment on appeal?

By not believing him, and crediting other evidence. That used to be for the trial court — remember?

My guess is that Judge Randolph saw the appellate review problem, for in addition to his famous innovation, he noted Judge Kessler’s failure to make an express credibility determination. Well, okay. But she did find facts for which the only record evidence was Adahi’s testimony, so she must have found him credible. If we’re not sure about that, why not remand for clarification?

Latif presents none of these distractions. Even the government agrees that the circumstantial evidence is down to one document, on which everything turns.

I tried Parhat. He had an intelligence report too. We picked it apart, as I’m sure Latif’s lawyers must have done with their report, and as Judge Garland did in the classified Parhat opinion. No one could make a straight-faced argument for a presumption after that was done. You have to — I can’t say this any other way, because Parhat’s documents remain classified — but you have to see an “intelligence report” to appreciate just how surreal the proposition is.

The trial lawyer would think this way: if this tissue of hearsay, speculation, and gossip comes in as evidence at all, the trial court must at least be allowed to weigh it. But when the circuit lays the thumb of presumption on the scale, there’s no more judicial review — not even in the court of appeals. “Review” is in the anonymous DoD analyst who wrote the report.

Review was Judge Kennedy’s job, and he did his job. Whether we agree or disagree with his weighing, the scale had always been his before. This idea, I think, lies at the bottom of Judge Tatel’s thoughtful dissent. Can the jailer’s report trump the judicial officer, in civil cases that are supposed to be a check on the jailer itself? There’s not much evidence that anybody up at SCOTUS cares about the GTMO prisoners any more (whose imprisonments now treble WW2 detentions), but there may still be four of them who worry about trial judges.

Latif should worry the Law Faithful, too. If my client were stuck with this presumption, the first thing I’d bawl for is discovery of every scrivener, interpreter, interrogator — every scrap, jot and tittle behind the document. Last time we did that, in Bismullah, CIA averred the republic would be shaken to its knees.

*  *  *

Pause a moment. A man sits in government prison for ten years and counting, on the strength of a secret document created by the jailer, in haste, from hearsay, which didn’t persuade an experienced trial judge. Does that sound like the stuff of regimes we are prone to condemn?

Even Odysseus headed for home after ten years.

The other evening I saw an old friend whose client was, in 2001, an enemy belligerent under any definition. He was released from Guantanamo many years ago. He has a job, a family, a peaceful outlook on life; he’s grown up. Why is he out, and Latif in? Because he hails from the west. After ten years, it’s not about security any more. It’s all about politics: the politics of the 2012 elections, the politics of where you’re from.

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.

In June 2004, for a brief moment, George W. Bush’s excesses were checked by the Supreme Court, which, in Rasul v. Bush, took the unprecedented move of granting habeas corpus rights to prisoners seized in wartime, after recognizing that the Bush administration had shunted aside the Geneva Conventions in favor of a unprecedented system of arbitrary detention.

In this system, the US government decided that all its actions relating to terrorism and the perceived threat from al-Qaeda and the Taliban (essentially regarded as interchangeable with al-Qaeda because they had “hosted” Osama bin Laden in Afghanistan) constituted part of a “war on terror,” and decided that everyone seized could be held, without anyone bothering to ascertain whether they had been seized by mistake, as “illegal enemy combatants,” who literally had no rights whatsoever, either as human beings or as prisoners.

For the Bush administration and for Congress, however, although the Supreme Court’s ruling was inconvenient, as it allowed lawyers to take on prisoners as clients, and to meet with them, it was not the end of their adherence to arbitrary detention, and they largely fought back against it. The President introduced a hastily invented review process for the prisoners (the Combatant Status Review Tribunals), which was heavily weighted in favor of the presumption that they had been correctly designated as “enemy combatants” on capture, and Congress went further, passing laws in 2005 and 2006 — the Detainee Treatment Act and the Military Commissions Act — that purported to strip the prisoners of their habeas corpus rights.

It was not until June 2008 that the Supreme Court once more took the opportunity to reassert its authority (in Boumediene v. Bush), arguing that the habeas-stripping provisions of the DTA and MCA were unconstitutional, and reiterating that the prisoners had habeas corpus rights, and that, this time around, they were constitutionally guaranteed.

For opponents of Guantánamo and the “war on terror,” what followed was a golden period for accountability, as, between October 2008 to July 2010, 38 out of 52 prisoners won their habeas corpus petitions, as judge after judge in the District Court in Washington D.C. concluded that the government had failed to meet its spectacularly low burden of establishing, “by a preponderance of the evidence,” that the prisoners were involved with al-Qaeda and/or the Taliban.

In the majority of cases, the government accepted defeat, releasing — or not opposing the release — of 31 of these men, and 26 were subsequently released. The other five are Uighurs (Muslims from China’s oppressed Xinjiang province), who are at risk of torture if repatriated, and who are still seeking a new home.

Beginning in January 2010, however, judges in the D.C. Circuit Court started pushing back against the lower court’s rulings, at first by advocating for unfettered executive power in wartime (which the Obama administration had not even asked for), and then by whittling away at the requirements for ongoing detention decided by the District Court judges (who largely agreed that prisoners had to be demonstrably part of a chain of command).

The Circuit Court judges, led by Senior Judge A. Raymond Randolph, who was notorious, under George W. Bush, for supporting every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court, also pushed to reduce, if not to eliminate entirely, the burden on the government to establish that its evidence was trustworthy, and the result, from July 2010 onwards, has been that five successful habeas petitions have either been reversed (three cases) or vacated, and sent back to the lower court to reconsider (two cases). In addition, the District Court judges, who were, essentially, ordered to lower the burden of proof and regard the government’s alleged evidence as reliable, have, since July 2010, turned down the last eleven habeas petitions submitted by the prisoners. Details and links are in my article, Guantánamo Habeas Results: The Definitive List.

Fadel Hentif, a Yemeni, loses his habeas petition for having a watch and staying in a guesthouse

I have, previously, written about eight of these rulings, but have not provided any updates since summer, when I wrote about how Khairullah Khairkhwa, a former Taliban minister, lost his habeas petition in June. The next prisoner to lose was Fadel Hentif (also identified as Fadil Hintif), a Yemeni whose habeas petition was refused by Judge Henry H. Kennedy Jr. on August 1, 2011, although a heavily redacted version of the opinion was not made available until mid-September (PDF).

Hentif claimed to have traveled to Afghanistan to perform humanitarian aid work, which he said, “would be a chance to do something good in memory of his deceased father.” After staying briefly in a guesthouse in Kandahar, he said that he was directed by the owner of the guesthouse to stay with a Yemeni in Kabul, who provided medical supplies to Afghans in need. Hentif said that he worked with this man for a while, and then traveled to Logar province and the city of Jalalabad before leaving for Pakistan, where he was seized and transferred to US custody.

In challenging his story, the US government claimed, primarily, that the guesthouse was affiliated with al-Qaeda, that Hentif had attended a training camp, that two men he met in Kabul were also affiliated with al-Qaeda, and that he had been present at the battle of Tora Bora at the end of 2001, which was a showdown between al-Qaeda and the Taliban, on the one hand, and US forces and their Afghan proxies on the other.

However, while Judge Kennedy found no evidence that Hentif had attended a training camp or had been at Tora Bora, and also found no evidence confirming his connection with suspicious individuals in Kabul, he was required, by a Circuit Court precedent, to conclude that “staying at an al-Qaeda guesthouse is ‘overwhelming’ evidence of an affiliation with al-Qaeda.”

Shockingly, in reaching his conclusion that the respondents (the government) had “carried their burden by a preponderance of the evidence,” he was also convinced by a piece of alleged evidence that, throughout Guantánamo’s history, has been mocked by commentators; namely, his possession of a model of Casio watch allegedly linked to the detonation of IEDs (improvised explosive devices). Influenced, again, by the Circuit Court, which declared that “evidence that a detainee had a Casio watch on his person at the time of his capture was a ‘telling fact,’” Judge Kennedy noted, “Although Casio watches of this model are not unique, the fact that Hentif possessed one is further support for respondents’ contention that Hentif was part of al-Qaeda or the Taliban.”

What made the ruling particularly depressing was that, in January 2007, as was revealed in the classified military files released by WikiLeaks in April this year, Rear Adm. Harry B. Harris, Jr., the commander of Guantánamo at the time, recommended Hentif’s release, based on assessments made by the Joint Task Force at Guantánamo. Nevertheless, he was not released by President Bush, was not released by President Obama, and, moreover, appeared to be a victim of the Justice Department’s general indifference to the fate of the prisoners, as government lawyers could easily have been instructed not to challenge the habeas corpus petitions of any of the prisoners cleared for release by President Bush, or by President Obama’s Guantánamo Review Task Force.

Abdul Qader Ahmed Hussein, a Yemeni, loses his habeas corpus petition for handling a gun in Afghanistan

On October 12, Judge Reggie B. Walton denied the habeas corpus petition of Abdul Qader Ahmed Hussein (also identified as Ahmed Abdul Qader), another Yemeni (PDF). Just 18 years old at the time of his capture, he was one of 15 prisoners seized in a guesthouse in Faisalabad, Pakistan, on the same night — March 28, 2002 — that a supposed “high-value detainee,” Abu Zubaydah (actually the mentally damaged gatekeeper of a training camp that was not associated with al-Qaeda), and a handful of other allegedly significant prisoners were also seized from another completely different location.

Hussein was one of the few prisoners in the guesthouse to explain that he had spent time in Afghanistan, as most of the others said that they had traveled to Pakistan to study, or, in a few cases, to receive medical treatment. Whether under Bush or Obama, the administration has never been happy to accept this argument, claiming that everyone in the house had been in Afghanistan in some sort of military capacity, but officials do not have a good track record when it comes to establishing their story.

Of the 15, for example, although one died in Guantánamo in June 2006, in a disputed triple suicide, five of the remaining 14 have been released. Two of these men — Alla Ali Bin Ali Ahmed and Mohammed Hassan Odaini — were freed after convincingly winning their habeas corpus petitions, and the others were freed after administrative reviews. In addition, a sixth man, a Russian named Ravil Mingazov, won his habeas corpus petition in May 2010, only to have the ruling challenged by the government. See here for a report by his attorney on his 18-month wait for what will almost certainly be a successful appeal on the part of the government, because of the Circuit Court’s bias.

In Hussein’s case, he said that he went to Afghanistan “to help the needy and the poor,” and tried unsuccessfully to establish a charity organization. He admitted that he visited the “back line,” encouraged by friends connected to the Taliban, but insisted that he “never participated in any kind of military activities.” After leaving Afghanistan before the US-led invasion began, he said that he ended up in the house in Faisalabad, where he became friends with Fahmi Ahmed, another Yemeni, who is still held. “We shared the same vision and he has the same opinions,” Ahmed said of him, adding, “He used to use hashish with me,” whereas the other students in the house “were trying to inspire me to do the religious things, like look at my religion, because most of the students were studying the Koran and all things related to religious studies.”

Reviewing his case, in light of the Circuit Court’s rulings, Judge Walton denied Hussein’s habeas petition for a variety of reasons that do not exactly encourage overwhelming support for the direction the habeas hearings have taken. Following a previous Circuit Court ruling (in the case of a Yemeni called Hussein Almerfedi), it was considered significant that Abdul Qader Ahmed Hussein had stayed at two mosques in Pakistan run by the vast and apolitical missionary organization Jamaat al-Tablighi, which is regarded, by Justice Department lawyers and the Circuit Court, as a front for terrorism, even though it has millions of non-terrorist members worldwide, and using it to justify detention is akin to imprisoning Catholics for the actions of the IRA.

It was also considered significant that, while in Afghanistan, he was handed a Kalashnikov rifle “from three Taliban guards in an area near the lines of battle between the Taliban and Northern Alliance,” and was shown how to use the gun by one of the Taliban guards. Judge Walton was also not impressed that it took him so long to leave Afghanistan, despite professing a desire to return home, and that he failed to enrol in university while staying in Faisalabad, despite claiming that he intended to do so.

Judge Walton concluded, “These facts, when viewed together, are more than sufficient to constitute the level of ‘damning’ circumstantial evidence that is needed to satisfy the government’s burden of proof in this case,” which, to my mind, only demonstrates that the Circuit Court’s tampering with the burden of proof has had disastrous results, as Hussein now finds himself consigned to permanent imprisonment at Guantánamo, possibly for the rest of his life, based on little more than innuendo.

Karim Bostan, an Afghan, loses his habeas petition for alleged insurgent activities in summer 2002

On the same day as he delivered his ruling in Hussein’s case, Judge Walton also denied the habeas petition of Karim Bostan (also identified as Bostan Karim), an Afghan whose case demonstrates another peculiarity of Guantánamo — the desire, on the part of successive US administrations, to hold, in a prison supposedly associated with terrorism, Afghans allegedly involved in minor acts of insurgency against the US occupation of their country (PDF).

In Bostan’s case, the evidence has always been thin, to put it charitably. A preacher and a shopkeeper, he was seized on a bus that traveled regularly between Afghanistan and Pakistan, and was reportedly “apprehended because he matched the description of an al-Qaeda bomb cell leader and had a [satellite] phone,” which he had apparently been asked to hold by a fellow passenger, Abdullah Wazir (who was released from Guantánamo in December 2007). Other allegations were made by another Afghan, a young man named Obaidullah, who said in Guantánamo that he had made false allegations (and had also falsely incriminated Bostan), while he was being abused by US soldiers in Khost and Bagram. As he explained:

The first time when they [US soldiers] captured me and brought me to Khost they put a knife to my throat and said if you don’t tell us the truth and you lie to us we are going to slaughter you … They tied my hands and put a heavy bag of sand on my hands and made me walk all night in the Khost airport … In Bagram they gave me more trouble and would not let me sleep. They were standing me on the wall and my hands were hanging above my head. There were a lot of things they made me say.

Despite this, Obaidullah lost his habeas corpus petition in October 2010, and is also a candidate for a trial by military commission, for which both the Bush and Obama administrations have decided that it is somehow appropriate to stretch the meaning of “war crimes” to include a young Afghan who allegedly stored and concealed explosives that could have been used to attack US forces, but never were.

In Bostan’s case, Judge Walton’s ruling revealed, shockingly, that his ongoing detention, possibly forever, was justified because he “was a member of the Jamaat al-Tablighi,” and “met Obaidullah and Wazir through the Jamaat al-Tablighi,” and because he took Abdullah Wazir’s phone on the bus and apparently attempted to hide it and the “most likely explanation” for doing so “was his knowledge that the telephone could be used to detonate explosive devices.”

Judge Walton decided that “these facts, when viewed collectively, demonstrate that the petitioner was more likely than not a ‘part of’ al-Qaeda,” and just to reiterate how far the Circuit Court has drifted from any notions of fairness and proportion, it is worth noting that he specifically stated, “As the Circuit found in Almerfedi, a detainee’s membership in Jamaat al-Tablighi, together with other ‘damning’ circumstantial evidence, is sufficient as a matter of law to justify the detainee’s detention.”

The Circuit Court’s overreach, in reversing the successful habeas petition of Adnan Farhan Abdul Latif

If these rulings should have reduced anyone who believed in US justice to some sort of state of despair, worse was to come on October 14, when the D.C. Circuit Court delivered its ruling in the government’s appeal against the successful habeas corpus petition of Adnan Farhan Abdul Latif, a Yemeni who won his petition in July 2010, reversing his successful petition in a shocking ruling that has finally seen the Circuit Court’s scandalous destruction of habeas corpus picked up on by the mainstream media (PDF).

As the New York Times noted in an editorial last Sunday, the Supreme Court’s 2008 habeas ruling in Boumediene v. Bush “has been eviscerated by the Court of Appeals for the District of Columbia Circuit,” whose “wrongheaded rulings and analyses, which have been followed by federal district judges, have reduced to zero the number of habeas petitions granted in the past year and a half.”

The Times followed up by urging the Supreme Court, which has refused to consider any significant Guantánamo appeals filed since Boumediene, to “reject this willful disregard of its decision in Boumediene v. Bush, which, the editors added, “it can do so by reviewing” Latif’s case.

In analyzing that ruling, the Times lamented that the Circuit Court had shamefully dismissed the considered opinion of the District Court judge in Latif’s case, who, ironically, was Judge Kennedy. As the Times explained, it is “undisputed” that Latif “was in a car accident in Yemen in 1994 and sustained head injuries,” and, in 2001, “went to Pakistan to seek free medical treatment, and eventually traveled to Kabul to find a Yemeni man who had promised to help him.” Moreover, although the government contended that he “was recruited by an al-Qaeda operative and fought with the Taliban,” Judge Kennedy “found that the government’s evidence did not sufficiently support its contention, that incriminating evidence was not corroborated and that Mr. Latif had a plausible alternative explanation for his travels.”

Crucially, however, in reversing Judge Kennedy’s decision, the majority judges in the Circuit Court ruling, Judge Janice Rogers Brown and Judge Karen LeCraft Henderson (who have a history of extreme decisions in Guantánamo cases), “improperly replaced the trial court’s factual findings with its own factual judgments,” as the Times explained, noting also that the court “unfairly placed the burden on Mr. Latif to rebut the presumption that the government’s main evidence was accurate,” because “the government should bear the burden of proving by a preponderance of the evidence that his detention is warranted.”

What this means, in practical terms, is not only that the Circuit Court has stepped way beyond its mandate, but, specifically, that the majority judges argued that “the government’s intelligence report on the Latif case should have been given ‘a presumption of regularity’ and that unless there is ‘clear evidence to the contrary,’ trial judges must presume that this kind of report is accurate.”

By this rationale, of course, the already severely lowered bar for detention would disappear completely, effectively making it impossible for the prisoners to argue against anything the government alleged against them. The irony, of course, is that the court had already gutted habeas of all meaning, but with this particular overreach may finally provoke a much needed and long overdue backlash. As Judge David Tatel, the third judge in the panel, noted in a strongly worded dissent, there was no reason whatsoever for his colleagues to make such an assumption about the intelligence report, which was “produced in the fog of war, by a clandestine method that we know almost nothing about.”

In addition, Judge Tatel noted that it was “hard to see what is left of the Supreme Court’s command” that the habeas review process be “meaningful,” and the Times concluded by stating that “the appeals court has gone off on the wrong track,” and reiterating that the justices of the Supreme Court “need to reaffirm the right of prisoners in Guantánamo to seek justice in federal court and to explain firmly and clearly what that entails.”

It is to be hoped that the Circuit Court’s shameful overreach will finally prompt the justices to act, and to restore the meaningful remedy that habeas was for the Guantánamo prisoners until 16 months ago.

In addition, there should be justice for Adnan Farhan Abdul Latif in particular, in part because he has well-documented mental health issues, as I explained when he won his petition, but also because he, like Fadel Hentif, was also cleared for release under George W. Bush, in December 2006, in a recommendation that was cited in an updated recommendation in January 2008 released by WikiLeaks, and issued by Rear Adm. Mark H. Buzby, who was the commander of Guantánamo at the time.

As with Hentif, the Bush administration’s failure to release him has been compounded under President Obama, who has failed to instruct the Justice Department to stop challenging the petitions of prisoners cleared for release, and, it seems clear, has been content to use the Yemeni prisoners as part of his political maneuvering.

With Yemen off-limits since January 2010, when Obama issued a moratorium on any further prisoner releases to Yemen following a hysterical response to the news that the failed Christmas plane bomber, Umar Farouk Abdulmutallab, had been trained there, it has suited the administration — with one notable exception — to prevent any political difficulties by appealing every successful habeas petition won by a Yemeni, regardless of whether there was any genuine reason for doing so, or whether, as in the cases of Fadel Hentif, Adnan Farhan Abdul Latif and the other 17 Yemenis cleared for release between 2004 and 2007 but still held, they are nothing but pawns in a political game.

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 the website of the Future of Freedom Foundation.

Ten years ago, Congress launched this “war,” approving the Authorization for Use of Military Force, a sweeping and overbroad piece of legislation which allowed the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” or those who harbored them.

The AUMF led to the equation of al-Qaeda (a terrorist group) with the Taliban (the government of Afghanistan), and the fallout from this decision to regard soldiers and terrorists as one and the same, and to hold both as “enemy combatants” without rights, continues to resonate in the corridors of power, and in US courtrooms.

In tackling the predicament of the Guantánamo prisoners — held, initially, without any rights whatsoever — the Supreme Court granted them habeas corpus rights in June 2004, and, after Congress tried to take those rights away (in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006), the Supreme Court was obliged to reassert the prisoners’ habeas rights in June 2008, and to rule that Congress’s interference was unconstitutional.

This was a great success for those seeking to resist the Bush administration’s intention to enshrine arbitrary detention as a replacement for trials and the Geneva Conventions. However, although initially the Supreme Court’s ruling, and the lower courts’ involvement, led to 36 victories for the prisoners, and the release of 26 of these men, the Supreme Court did not attempt to define what an “enemy combatant” was. The lower courts worked hard to define what kind of involvement in al-Qaeda and/or the Taliban was required to justify detention, but they too refused to tackle whether or not it was appropriate to equate al-Qaeda with the Taliban.

As a result, over time — as the right-wing D.C. Circuit Court has become involved in appeals, whittling away at the lower court’s analysis — the government has discovered that, because it is only required to establish by a “preponderance of the evidence” that the prisoners submitting habeas corpus petitions were involved with al-Qaeda and/or the Taliban, and because the Circuit Court is prepared to consider the vaguest of hearsay allegations as evidence, it has been winning case after case, both in the lower court and on appeal.

Because of this, habeas corpus for those held at Guantánamo has been gutted of all meaning, and all that has happened, because of the Circuit Court’s unchallenged interventions, is that indefinite detention (approved by the courts) has replaced arbitrary detention (approved by Congress).

The problem, as it was ten years ago, concerns the definition of those detained in George W. Bush’s “War on Terror,” and the current predicament has come about because no one challenged the Bush administration’s failure to distinguish between al-Qaeda and the Taliban, and President Obama failed to recognize (or chose to ignore) that, in order to close Guantánamo and bring to an end the Bush administration’s excesses, he needed to separate the soldiers from the terror suspects, and to hold the former as prisoners of war.

While 36 of the 171 men still held at Guantánamo were recommended to face trials by the President’s Guantánamo Review Task Force, which examined all their cases in Obama’s first year in office, the soldiers have largely been abandoned, left to file habeas petitions that, even if they succeed, will be overturned by the Circuit Court. consigning them to ongoing detention at Guantánamo on an apparently legal basis that may, as far as they know, last forever.

A case in point is Shawali Khan, an Afghan who lost his habeas petition last September, after the Circuit Court’s instructions to demand little in the way of evidence had filtered down to the lower court. As I explained at the time, Khan, a former farmer, in his 40s, who had traveled with his brother to the city of Kandahar after a drought, and had set up a shop selling kerosene and gasoline, was seized by Afghan forces in November 2002 while riding a motorbike from his home to the market.

On occasion, before his capture, Khan had been a driver for forces loyal to President Hamid Karzai, but he was subsequently accused of being an insurgent with Hezb-e-Islami Gulbuddin (HIG), the anti-US militia headed by Afghan warlord Gulbuddin Hekmatyar, even though there was no actual evidence that this was the case.

As one of his lawyers, Len Goodman, explained, “around the time of his capture, one or more Afghan informants told US intelligence officials in Kandahar that Khan was an active member of a local insurgent group that was plotting to bomb Americans in and around the Kandahar region.” However, “The US intelligence officer did not bother to record the informant’s name or whether he was paid a bounty. Nor did he inquire how the informant acquired his information or whether the informant is a credible person or a criminal. Nor did the official attempt to corroborate the allegations against Khan before sending him off to … Guantánamo.”

It also transpired that Khan had been cleared for release by an Administrative Review Board at Guantánamo under the Bush administration, and had also been approved for release by the Guantánamo Review Task Force, but, when it came to his habeas petition, Judge John D. Bates refused to follow suit, allowing the Circuit Court’s instructions to persuade him that Khan’s appeal should be denied. This was in spite of the fact that the three Afghan informants relied on by the government to prove its case were no more reliable than they had ever been, and their claims were included in reports compiled by Army intelligence collectors, one of which, in Judge Bates’ words, was “perhaps the most redacted report in history.”

However, in the surreal world of Guantánamo, nearly three years after President Obama took office, the habeas litigation, which has become an absurd charade, continues unabated. The Supreme Court has washed its hands of it, and the Justice Department, under Attorney General Eric Holder, has never been instructed to behave as though George W. Bush is not still in power, and has never cross-referenced the cases it prosecutes with the Guantánamo Review Task Force’s findings, which would obviously make sense.

Instead, a meaningless ballet takes place, in which the semblance of justice is still played out by the straitjacketed judges of the District Court, while the paranoid and vengeful judges of the Circuit Court make all the decisions, keeping everyone still in Guantánamo whose case comes before them locked up forever.

Last week, the Circuit Court dealt with an appeal submitted by Shawali Khan, although it was a foregone conclusion that they would turn down his appeal (PDF). Just as predictable was the silence in the mainstream media, which doesn’t even bother to report the habeas litigation anymore, even though it has become a bitter joke — of the kind that damages the credibility of the US justice system.

As for Shawali Khan, Kent Spriggs, one of his lawyers, explained to me almost a year ago, after Khan’s petition was denied, why justice had so thoroughly failed him, when I asked if there were any compelling reasons to doubt the government’s case. “Yes,” he said. “Shawali Khan’s defense team had nine affidavits from his rural village and from Kandahar where he drove for the Karzai government before he supposedly started an HIG cell in an area hundreds of miles from any HIG cells.”

One of the few people to write about Khan’s failed appeal last week was Steven D. Schwinn, an Associate Professor of Law at John Marshall Law School in Chicago, who writes for the Constitutional Law Prof Blog. Explaining what will happen to Khan now, he stated that he “will presumably receive periodic review” under the Executive Order issued by President Obama in March this year, establishing his intention to continue holding 46 prisoners without charge or trial, but to grant them periodic reviews of their cases.

As Professor Schwinn noted, the review process does not favor the prisoners. “Khan,” he wrote, “will have to show, with little help and against the weight of the government, that his detention is not ‘necessary to protect against a significant threat to the security of the United States.’ If he can’t so show, he’ll apparently be subject to detention as long as US forces are fighting al-Qaeda and the Taliban — potentially indefinitely.”

For a man who should never have been held as “a significant threat to the security of the United States” in the first place — either because he was innocent, or, at worst, a minor insurgent in a war zone — that’s a truly depressing conclusion, and a sign that America, at every level — the executive, Congress, the judiciary, the media and the public — has failed to understand how thoroughly Guantánamo continues to erode its moral authority.

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

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, 700,000-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.

Last year, however, the D.C. Circuit Court — dominated by right-wingers, including Senior Judge A. Raymond Randolph, notorious for supporting every piece of Guantánamo-related legislation that was later overturned by the Supreme Court — began to fight back, pushing the lower courts to accept that very little in the way of evidence was required to justify detentions.

I have long railed against the inability of the executive, lawmakers or the judiciary to address the built-in problems of detention policies in the “War on Terror” — the Bush administration’s dreadful decision to equate the Taliban with al-Qaeda, thereby ensuring that both soldiers and terror suspects were held as interchangeable “detainees” at Guantánamo, and continue to be held as such.

This remains a huge problem, almost entirely ignored by the mainstream media in the US, although it is matched by the media’s lack of interest in what has happened since the D.C. Circuit Court began to dictate detainee policy, even though that has led to success for the government on every appeal, with the Circuit Court reversing or vacating the lower courts’ rulings in six habeas petitions, and has also led to the last eight habeas petitions (since July last year) being refused (see here, here, here, here and here for the evidence).

One of the prisoners who won his petition, but remains held while the government appeals, is Ravil Mingazov, a citizen of the former Soviet Union, whose story I told in detail when his habeas petition was granted by Judge Henry H. Kennedy Jr, in May 2010, in an article entitled, “Judge Orders Release from Guantánamo of Russian Caught in Abu Zubaydah’s Web.”

One of Ravil’s lawyers, Allison M. Lefrak, who is the litigation director at Human Rights USA, described as “a nonprofit organization in Washington working to bring US laws in line with universal human rights standards,” recently wrote an article for the National Law Journal, describing the lack of progress in Ravil’s case, and her most recent visit to see him in Guantánamo.

This is a fascinating insight into the man behind the government’s propaganda, and also into the shocking delays and manipulation in his case, with, as Lefrak reports, the government’s appeal “now stayed in light of the government’s motion to present the lower court with ‘new’ evidence — evidence the government purportedly only located recently, eight years after Ravil was arrested in Faisalabad,” and which, according to the government, “would persuade Kennedy to reverse his decision and deny Ravil the writ of habeas corpus.”

That, I think, is the injustice of Guantánamo in a nutshell, and I hope you have time to read Allison Lefrak’s article in full.

Justice denied at Guantánamo
By Allison M. Lefrak, National Law Journal, September 19, 2011

As we always do at the onset of our meeting with Ravil Mingazov, my interpreter and I spread a variety of food items on the table in front of us — crusty bread, cheese and an array of sweets. We’ve gone through this same ritual every three months for five years now. And while things change for us in the outside world — marriages occur, babies are born, holidays are celebrated — for Ravil, there is very little that has changed from our first meeting back in January 2006.

Ravil remains in Guantánamo Bay, Cuba — [nine and a half] years after the night he was arrested at a house for refugees in Faisal­abad, Pakistan. He remains in Guantánamo more than three years after the US Supreme Court issued its opinion in Boumediene v. Bush extending the writ of habeas corpus to Guantánamo detainees and giving the lower courts great discretion in how to handle these cases.

He remains in Guantánamo, 18 months after a week-long trial at the US District Court for the District of Columbia before Judge Henry Kennedy Jr., in which the facts of his case were presented in a closed courtroom. He remains in Guantánamo more than a year after Kennedy issued a comprehensive 42-page opinion [PDF] methodically analyzing each piece of evidence presented by the government, and concluding that, after eight years of detention, the government failed to prove by a preponderance of the evidence that Mingazov was “a part of or substantially supported” al-Qaeda or the Taliban.

Ravil Mingazov remains in Guantánamo three and a half years after newly elected President Obama issued an executive order providing for the closure of the detention center at Guantánamo Bay within one year.

Ravil tears off a piece of bread, spreads a generous portion of cheese on it and looks up with eyes surprisingly full of light. “So,” he says slowly, “what should we talk about today?”

I look down at the agenda that I prepared for the meeting and begin, just as I have many times before, to explain why he still remains locked up in Guantánamo and why all of our efforts to date have been essentially futile. As I launch into my detailed explanation of the basis of the government’s appeal of Kennedy’s order granting him the writ of habeas corpus, I pause after every few sentences and stare closely at his face as he registers my words while they are spoken in Russian by the interpreter. His expression does not change — though his eyes continue to have a light in them, as if he is smiling when in fact he’s not.

I hear myself saying these words, “The US court of appeals has not affirmed a single decision ordering the release of a detainee.” I explain to my client that the government’s appeal to the US Court of Appeals for the D.C. Circuit is now stayed in light of the government’s motion to present the lower court with “new” evidence — evidence the government purportedly only located recently, eight years after Ravil was arrested in Faisalabad. I tell him that the government argues that this evidence would persuade Kennedy to reverse his decision and deny Ravil the writ of habeas of corpus. At the end of this lengthy update on the legal status of his case, I pause for the last time and ask Ravil if he has any questions.

“No,” he says. And then he smiles. “But you forgot to mention the good news.” I know him well enough to realize that he is setting me up for a one-liner. “We will all see each other again in three months.”

Some may argue that this glacial speed with which the Guantánamo detainees’ cases move one step forward and two steps back in the courts is unfortunate yet necessary to ensure that a potential terrorist is not mistakenly released. It is true that district court judges are entrusted with a great responsibility when they are considering the habeas cases of Guantánamo detainees and that there is much at stake in each of these cases.

Kennedy’s thorough and thoughtful opinion, like many of the other opinions both granting and denying the habeas petitions of Guantánamo detainees, speaks for itself. District court judges are doing what they are supposed to do, and they are doing it well. It is true, this takes time. But there are limits.

The longer Ravil Mingazov and other detainees sit languishing in Guantánamo as their cases gradually make their way through the courts (only to face near inevitable denial of the writ from the D.C. Circuit), the more credibility the US judicial system loses. As Chief Justice Warren Burger noted, “A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people … Delay will drain even a just judgment of its value.”

I wonder how many more times I will have to explain to Ravil that, despite the Supreme Court’s mandate to promptly process detainees’ habeas claims, the president’s promise to close the prison and his own victory in federal court, it is more likely than not that we will meet again in three months in this overly air-conditioned cell on a steamy island very far away from his elderly mother, his loving wife and his growing son that Ravil last saw eight years ago when he was a baby.

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, 700,000-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.

I should note that my interest in the article is not entirely objective, as I was involved in it as a consultant, and I have also added links that were not included in the original article.

The 9/11 Decade and the Decline of US Democracy
By Vince Warren, Executive Director, Center for Constitutional Rights

In response to the terrorist attacks on September 11, 2001, George W. Bush shredded the US Constitution, trampled on the Bill of Rights, discarded the Geneva Conventions, and heaped scorn on the domestic torture statute and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

As we mark the 10th anniversary of the terrible events of September 11, 2001, none of us has any desire to play down the horrors of that day, but two wrongs do not make a right, and, in response to the attacks, the Bush administration engineered and presided over the most sustained period of constitutional decay in our history.

Moreover, although George W. Bush entered the first decade of the 21st century by dismantling the rights that are fundamental to the identity of the United States and the security of its people, Barack Obama ended the decade by failing to fully reinstate those rights. Through his own indecision, or through ferocious opposition in Congress, he has been unable to close the infamous prison at Guantánamo Bay, as promised, and has also refused to even contemplate holding anyone in the Bush administration accountable for their crimes.

As a result, the democratic principles which we hold dear have suffered a massive blow in the first ten years of the 21st century, although that is not the main problem. The deep erosion of our civil liberties is to be lamented, and should be resisted, however difficult the political climate, but the most painful truth about the last decade is that it marks an undoing of democracy so severe that without concerted and deliberate action by the people in this country — and, one hopes, by their elected leaders — the values which defined us, before the events of 9/11 allowed the Bush administration to reshape our perception of executive power, may never be regained.

This decade of constitutional decay didn’t happen overnight, although much of it was hidden from view. We were kept largely in the dark about how the government took steps to dismantle our rights, which were undertaken in a fog of secrecy, subterfuge and, in some cases, outright lies.

A well functioning democracy in this country relies on the three branches of government — the executive, Congress and the judiciary — checking each other to prevent overreach or constitutional misdeeds.

In this system, which has prevailed throughout most of our history, the executive is responsible for executing (and therefore abiding by) the laws of the republic. Congress creates laws, which, in some circumstances, circumscribe the power of the executive branch, and when Congress doesn’t approve of what the president is doing, it can change the laws, conduct inquires and hearings, and in certain circumstances, investigate potential wrong doing. The judiciary reviews the laws and presidential actions to ensure that they comport with the Constitution and justice.

In this system, no one is above the law. Illegal action initiated by the president can be stopped by the courts and congress; unjust laws initiated by Congress can be stopped by the president and the courts; and the Constitution prohibits the courts from making new law or policies or otherwise undertaking the powers of “the political branches” — Congress and the executive. Thus, regardless of the threat, the checks and balances we’ve built into our democracy are supposed to uphold the power of the fourth branch of government — that made up of the people who live in this country.

However, as we now know, a decade into the 21st century, the system upon which we all stake our liberty and democratic power as people has operated more like a scientific hypothesis than a bedrock of democratic principles. And just like any hypothesis, its true test is determined by the way it functions under pressure, and not how it works in theory. One need look no further than the last ten years to understand that the constitutional hypothesis has failed under the last two administrations. Our constitutional and democratic principles collapsed as breathtakingly as those same principles rose in the context of North Africa earlier this year.

The overarching development over the last ten years is that we have witnessed perhaps the single most demonstrable destruction of our democracy in US history. The rights that used to belong solely to US as people living in this country have been severely curtailed. We have fewer rights — and the president more power — in September 2011 than in September 2001. And any diminution of our rights, regardless of the justification of the day, is an elimination of our ability to define the country that we want to live in and shape it around the values that are crucial to our survival as a society run by and accountable to the people.

The undoing of Democracy — The “War” Paradigm

Ask a high school freshman in the US who the most powerful person in the world is and she will most likely say the president of the United States. That is not a change since 9/11, certainly. However, ask that same student who is more powerful in the US government, the president, Congress or the Supreme Court, and she’ll still say it’s the president. That reflects a significant change in the American psyche over the last decade with respect to the balance of powers in our government as outlined by the United States Constitution, which will turn 224 on September 17, 2011.

Most people now recognize that President Bush claimed more power than any previous president. He claimed the power to kill, capture or detain anyone, anywhere in the world. The Justice Department, under George W. Bush, said that the law simply doesn’t apply to the president when he’s acting as commander in chief. So the lawyers gathered around him, and around Vice President Dick Cheney, counseled him that he could ignore the fact that Congress had passed a law saying that torture was illegal or that the government can’t wiretap without a warrant.

Going further, the Bush administration claimed the power to send citizens to third countries to be tortured, to create secret “black sites” run by the CIA to detain and torture people, and of course, to detain men at Guantánamo Bay. Bush also claimed the authority to declare unilaterally that people it captured and placed in these prisons were neither subject to the Geneva Conventions nor the protections of the US Constitution.

The Bush Administration created the “war on terror” paradigm not to protect US from future attack, although that was what they claimed, but rather to put in place a radical expansion of power that sought to place the president outside domestic and international law. According to a leaked Justice Department memo from December 2001, Guantánamo Bay was specifically chosen for the purpose of detaining the prisoners of the US military because the Bush administration believed it would be beyond the reach of US courts. Existing outside the law and in complete secrecy, it was an ideal place to conduct interrogations of a significant number of prisoners in isolation from all outside human contact. Its selection demonstrates that, from the very beginning, the Bush administration planned to engage in activities that are illegal under domestic law and in violation of international treaties. And that is precisely what they did.

The US government and the highest levels of the Bush administration constructed a secret international network for arbitrary and extrajudicial detention for the purpose of using torture as an interrogation method, and engaged in a program of extraordinary rendition that outsourced torture when the US didn’t want to do it itself. The Bush administration set into place a framework that attempted to justify an unjustifiable act: torture. A high level Executive Branch group called the “Principals Committee,” which included Vice President Dick Cheney, Attorney General John Ashcroft, Secretary of State Colin Powell, CIA Director George Tenet and national security advisor Condoleezza Rice, authorized the use of torture, including waterboarding. Secretary of Defense Donald Rumsfeld also signed off on similar techniques for use in Guantánamo in December 2002, which later migrated to Iraq, and to Abu Ghraib. Moreover, administration lawyers, such as David Addington, John Yoo, Alberto Gonzales and Jim Haynes, constructed fallacious legal rationales to support and justify the torture and abuse program.

Despite the rampant and brazen illegality put into place in the last 10 years, the courts have rarely called the administration to account for the crimes. The separation of powers concept used to function to circumscribe governmental power. In the last ten years, however, it has functioned to enable the amassing of presidential power. The courts have largely deferred to the president by uncritically accepting the wartime paradigm and giving him free rein to do as he sees fit — even though what he seeks to do is illegal. As a result, no torture victim has ever received a court ruling that the torture they suffered was illegal and most have been denied their day in court. Not one has received a dime in compensation for their injuries or even so much as an apology from either administration. To date, 171 men remain in Guantánamo and, after a decade of the “worst of the worst” rhetoric, more detainees have died in that prison than have been charged with a crime.

On three occasions, in 2004, 2006 and 2008, the Supreme Court issued serious, but not mortal, blows to the overreach and illegality of the Bush administration. The rulings in 2004 and 2008 granted the Guantánamo prisoners habeas corpus rights; in other words, the right not to be held in a legal black hole, and to ask an impartial judge why they were being held, if, as many of them claimed, they had been seized by mistake. The 2006 ruling, Hamdan v. Rumsfeld, involved the Court not only ruling that the trials at Guantánamo (the military commissions) were illegal, but also telling the government that all its prisoners have the protection of Common Article 3 of the Geneva Conventions, which prohibits cruel treatment, torture, and humiliating and degrading treatment.

Sadly, Congress has also played a major part in allowing the president to do whatever he says is necessary, even if it is illegal. Congress passed the dangerously open-ended Authorization for Use of Military Force (AUMF) the week after the 9/11 attacks, which has been used by both Bush and Obama to justify the detention of “war on terror” prisoners, and to hold them neither as prisoners of war nor as criminal suspects, but as what the Bush administration called “enemy combatants.” Moreover, Congress pulled the rug out from under the landmark Supreme Court decisions, seeking to repeal the prisoners’ habeas corpus rights, and reviving the military commissions.

Under Obama, all three branches of government — the executive, Congress and the courts — have largely refused to tackle Bush’s dreadful legacy. Obama has dedicated himself to looking forward and not back when it comes to the accountability of Bush administration officials and lawyers for authorizing the use of torture, and courts throughout the land have endorsed his position, and he has also revived the military commissions, in the face of opposition to federal court trials for terrorists, despite the latter being the appropriate venue for terrorist trials. He has also endorsed indefinite detention for 46 of the 171 men still held at Guantánamo, and has, in some cases, expanded Bush’s programs, declaring, for example, that he has the right to assassinate U.S. citizens abroad, without any form of legal process.

In addition, the Supreme Court has failed to act as the court of appeals in Washington D.C. has undermined the Guantánamo prisoners’ habeas corpus rights, effectively gutting habeas of all meaning, and Congress has launched an all-out assault on the president’s ability to close Guantánamo, preventing him from bringing prisoners to the U.S. mainland, and interfering in his right to release prisoners as he sees fit.

Beyond pure policy and legal considerations, the results have been devastating for the victims and survivors of these practices and policies. The men in Guantánamo, and the “black sites” have endured a decade of arbitrary detention without charge or trial, and suffered torture, abuse and cruel, degrading treatment as alleged “enemy combatants.” The “black sites” may now be part of the past, along with Abu Ghraib, but the US under Obama maintains prisons in Afghanistan, including Bagram, where there have been allegations of the use of secret prisons, and where, in addition, the Geneva Conventions have not been reinstated.

Moreover, those that have been released continue to face mental anguish, suspicion and stigma, as well as the loss, in some cases, of family ties. These social costs will continue to extend far beyond the immediate victims. They affect entire families, communities, societies and even nations that have been subjected to forced engagement with the effects of the “war on terror” paradigm.

Illegal Surveillance … Again

The government used to need a warrant before spying on us, but those days are long gone. Thirty years ago, President Nixon’s warrantless wiretapping scandalized the nation. And although that administration used “national security” as a justification for the illegal acts, Congress and the Supreme Court insisted that the law had to govern all intelligence and counterintelligence gathering by the government, even when it was undertaken to protect against terrorism.

The Bush Administration discarded the US Constitution, again using the war and national security paradigms as justification. Bush and his advisors simply ignored the rules and wiretapped Americans and others without warrants or judicial oversight. Restoring the constitutional protections against government spying, uncovering the full extent of illegal surveillance programs, ending immunity for telecommunications companies and prosecuting those responsible for violating the law are essential to reclaiming our democratic power — our rights to be free from unreasonable searches and seizures, and our expectation that the constitutional system will function to protect those rights, are essential elements of restoring democracy.

The Foreign Intelligence Surveillance Act (FISA) had been the fundamental tool to regulate government surveillance. It properly involved Congress and the courts in issues deemed to be of concern to national security and established accountability frameworks for surveillance programs. That all changed radically after September 11, 2001. Congress joined forces to pass new laws, justified on “national security” grounds, that granted more power to surveillance and intelligence agencies. The Bush administration, however, not only pushed for these laws, but made up its own secret plan, through an executive order to the NSA, for reviving the kinds of programs explicitly deemed unconstitutional by the Supreme Court (in a 1972 Center for Constitutional Rights case) and prohibited by FISA. These Bush programs existed outside of the law and included wiretapping US and foreign individuals without a warrant from any court and subject to no judicial oversight. The details were largely kept secret from Congress and the public until exposed, years later, by whistleblowers and the press.

In 2001, when the Authorization for the Use of Military Force and the PATRIOT Act were passed, the Bush administration never asked Congress for expanded surveillance authority including the right to spy on attorney-client communications, or to amend FISA to accommodate wiretapping unchecked by the FISA Court. As Attorney General Alberto Gonzales would admit years later, the administration did not try to amend FISA to authorize the NSA spying program because “it was not something we could likely get.”

In November 2001, following the Bush administration’s call for an all-out “war on terror,” the USA PATRIOT Act was passed by wide margins in both houses of Congress. The PATRIOT Act included unprecedented expansions of government surveillance powers, including spying and government involvement in political and associational activity. It made extensive changes to FISA, eliminating many of the safeguards against surveillance abuse, and ramped up existing legislation such as the 1996 Anti-terrorism and Effective Death Penalty Act, which created new “material support” laws that defined political activity as criminal.

Although the current program of warrantless wiretapping and surveillance of Americans’ telephone calls that blatantly violated FISA began in the Bush Administration, the Obama administration has not renounced the power that Bush claimed. Moreover, the Obama administration has fought relentlessly in court to preserve these abuses of power.

Repression of Dissent

“Terrorism” is a word that has been used by the executive branch repeatedly since 9/11 to provide rationale for going to war, maintaining those wars, and cracking down on protest and dissent domestically in violation of the Constitution and international law. In doing so, Bush and Obama have ushered in a new era of repression, enabling law enforcement agencies to abuse their powers by targeting, detaining and silencing political activists. While this type of repression is far from a new exercise for the government, given the capitulation of Congress and the courts to the president, the people of this country will once again find themselves nose to nose with government crackdown on their protest of unjust government action.

A key question for us to ask is what effect will US war-making foreign policy continue to have on our protest of that policy? Unless and until the United States stops its current policy of declaring war on anyone in the world in the name of combating terrorism, people will continue to organize themselves to oppose it. And as long as people oppose “war on terrorism” policies, the government will use its power to label the dissenters themselves as terrorists.

While the stakes for defending dissent couldn’t be higher today, the obstacles are more difficult and more complicated than they were even ten years ago. Much of the organizing these days occurs online and by mobile phone and computer. This makes organizing more effective for the activists, but it also makes it easier for law enforcement to spy on and disrupt the activists’ plans. For example, law enforcement has established “Joint Terrorism Task Forces,” which bring together federal, state and local law enforcement and other agencies into “fusion centers.” State governments are even contracting out their illegal surveillance to private companies, as was done recently in Pennsylvania, when state homeland security director, James Powers, hired a private company to research and distribute information about groups engaged in lawful activity.

The nature of whistleblowing has changed in the last decade as well. In the current digital age, evidence of government wrongdoing is likely to come in the form of data dumps which can be distributed widely and quickly as in the case of WikiLeaks. And when the government pushes corporations to shut down public access to that information, the counter activism can take the form of hacking, as with Anonymous. In addition, an enormous change has occurred in how whistleblowers are treated. Despite a move prior to 2001 to protect whistleblowers, the Obama administration has taken on the mantle of prosecuting them — as terrorists.

In the last decade, the truth has become either a state secret or treason. With respect to WikiLeaks and its founder, Julian Assange, Sarah Palin calls Assange an “anti-American operative with blood on his hands” and wants him hunted down like an Al-Qaeda chief, Rick Santorum and Peter King want him prosecuted as a “terrorist,” and Joe Lieberman suggests that the five news outlets that published the leaked State Department cables should be investigated for espionage. Exposing the facts — especially those concerning illegal government conduct and abuse — has become a serious crime.

Moreover, activists today run the very real risk of being arrested and prosecuted for their First Amendment activity. A ruling in a recent CCR case, Holder v. Humanitarian Law Project (HLP), highlights why dissent must be defended at all costs, even while the Supreme Court turns the First Amendment and “material support for terrorism” on its head. CCR argued HLP in the Supreme Court and challenged the “material support” statues, including a portion of the USA PATRIOT Act, which makes it a crime to provide support, including humanitarian aid, literature distribution and peaceful political advocacy, to any entity that the government has designated as a “terrorist” group. The Court ruled that human rights advocates, providing training and assistance in the nonviolent resolution of disputes, can be prosecuted as terrorists. As a result, the Court has criminalized speech and polished the hammer with which the Obama government can now prosecute peace activists and human rights organizations who engage with groups on the government’s terrorist list even to support lawful goals.

Endless War

Finally, it is unacceptable that George Bush marched us into Iraq and Afghanistan illegally and under false pretenses, while Barack Obama has almost tripled the number of wars we are fighting. Hundreds of thousands of civilians have been killed in Afghanistan, Iraq and Pakistan alone, and millions have been displaced. Over 6,000 US military service members have been killed, and more than 50,000 wounded in wars that have cost the American people trillions of dollars.

It’s not just where these wars are happening, but it’s also how. We are conducting drone strikes in Pakistan, Libya, and Yemen, countries on which Congress has not declared war. To the extent that Bush and his advisors ignored the law to justify torture, Obama and his advisors ignore the law to justify warfare. Currently, his advisors are going so far as argue that the President can bypass the War Powers Resolution’s restrictions on unilateral, executive warmaking simply by using high-tech weaponry like drones, which don’t require the presence of troops on the ground.

Conclusion — bringing power back to the people

Ten years on from the terrorist attacks of September 11, 2001, at the end of the distressing decade defined by those attacks, we find ourselves in a position where the president has claimed more power than ever and the people have conceded more power than ever. Ten years ago, federal trials were the norm for alleged criminal terroristic activity; now, the default method is military show trials that include the death penalty or indefinite or preventive detention. Ten years on from 9/11, more illegal wars are being fought today than under Bush, more laws are subverted in the name of national security, more people are being deported than at any point in our history, and the executive branch has seized or accrued more power than it has ever had.

In the end, the test of our democracy is to look at the actions that have been done in our name and under our watch — the wars, the repression, the extra-judicial detention and killings, the torture, the profiling — and ask ourselves: are we in a better position now to stop the acts that continue, to ensure that they don’t happen in the future, to ensure that the officials are held accountable, and to put the presidency back in the constitutional box than we were 10 years ago?

The answer to that is yes, to the extent that we are able to demand that our government end the lawlessness, stop stockpiling constitutional power and move back towards a path of lawful, democratic action, but the restoration of the values that we hold dear requires concerted action by many people.

The 10th anniversary of the 9/11 attacks is a painful anniversary, but let us also make it the occasion when, en masse, we say to the government, “Enough is enough,” and demand an end to the ongoing injustices, and the return of our values.

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.

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, 700,000-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.

Through a combination of cowardice on the part of President Obama and ferocious opposition in Congress to his plans to close Guantánamo, 171 men remain at the prison, even though the President initially promised to close it within a year of taking office, and even though a Task Force he convened to review the prisoners’ cases, comprising career officials and lawyers in government departments and the intelligence agencies, recommended that only 36 of those men should be tried, and 89 others should be released.

With a Congress-imposed ban on bringing prisoners to the US mainland for any reason, and lawmakers insisting that they have the right to interfere in any plans to release prisoners, those campaigning to close Guantánamo have been obliged to seek out new angles in the effort to reawaken awareness about the ongoing injustice of Guantánamo.

To this end, a recent feature on CNN, dealing with the two remaining Kuwaiti prisoners in Guantánamo, highlighted some of the problems outlined above, as well as casting a baleful eye on the failure of the US judiciary to secure the release of prisoners. Importantly, however, it also provided a possible route out of the current paralysis regarding the closure of the prison, if the Obama administration can locate any political backbone.

The two remaining Kuwaitis in Guantánamo, Fayiz al-Kandari and Fawzi al-Odah, lost their habeas corpus petitions in September 2010 and August 2009, despite there being no actual evidence that they were involved in any activities against US or coalition forces. I covered the judges’ rulings on their petitions at the time, and also covered al-Kandari’s story in depth in October 2009, and I was pleased to note that CNN’s coverage dealt thoroughly with the supposed evidence and the problems with it, and why that ought to provide an impetus for the closure of Guantánamo to be back on the agenda as the tenth anniversary of the prison’s opening approaches.

The story of Fayiz al-Kandari

As CNN described al-Kandari’s story, the young man, who was “the eldest son of a large family,” traveled to Pakistan in June 2001, and on to Afghanistan in August 2001. His “stated purpose” was “to do charitable work, assisting with the reconstruction of two wells and the repair of a mosque,” and he had undertaken charitable work before — in Bosnia in 1994, and in Afghanistan in 1997. In addition, a member of his family stated that his visit was “for the sake of his mother who had cancer,” so that there would be “more blessings from God on her behalf.”

In Afghanistan, after the 9/11 attacks, as was noted by Lt. Col. Barry Wingard, a military attorney assigned to defend al-Kandari in the trial by military commission for which he was put forward in the dying days of the Bush administration, al-Kandari “remembers leaflets falling all around him,” on which “there was a picture of an Afghan man, who was holding a bag of money.” The leaflets, prepared by a US PsyOps team and dropped from planes, stated, “You turn in your Arabs and we will give you money.” Lt. Col. Wingard explained that, as a result, Afghan officials advised al-Kandari to leave, but, instead, he was seized by Northern Alliance soldiers and sold to the US.

To prosecutors, al-Kandari’s story is unconvincing, but their own version of events is thoroughly outlandish. As was claimed in September 2004, during his Combatant Status Review Tribunal (a military review board convened to assess whether he had been correctly designated on capture as an “enemy combatant”), he was supposed to have “recruited personnel to participate in jihad in Afghanistan,” and to have “received weapons training at the Khaldan training camp,” where “Osama bin Laden personally provided religious instruction and trainee [sic].” The tribunal concluded that he was a member of al-Qaeda, who, in their option, had been present in Afghanistan’s Tora Bora mountains during a showdown between al-Qaeda forces and the US military (and its proxy Afghan army) between mid-November and mid-December 2001.

In response, al-Kandari, who has “always denied the accusations,” and has avoided incriminating himself (or others) like so many other prisoners subjected to unbearable pressure, is on record as stating, “I looked at all the unclassified accusations; I was laughing so hard.”

Despite only arriving in Afghanistan in August 2001, he was accused not only of visiting the al-Farouq training camp (the main training camp for Arabs in the years before 9/11), but it was also stated that he “provided instruction to al-Qaeda members and trainees,” that he “served as an adviser to Osama bin Laden,” and that he “produced recruitment audio and video tapes which encouraged membership in al-Qaeda and participation in jihad.”

Over the years, he has faced other claims — that he attended two training camps, fought on the Taliban front lines against the Northern Alliance, was with Osama bin Laden in Tora Bora, and was a religious leader for al-Qaeda and the Taliban — even though the government was unable to explain how he “provided instruction to al-Qaeda members and trainees” at al-Farouq, when the camp closed less than a month after his arrival in Afghanistan, and, more importantly, how he was supposed to have undertaken all this training, provided all this instruction and advice, and produced videos and audiotapes during the small amount of time that he actually spent in Afghanistan. As he stated during a military review in 2005:

At the end of this exciting story and after all these various accusations, when I spent most of my time alongside bin Laden as his advisor and his religious leader … All this happened in a period of three months, which is the period of time I stayed in Afghanistan? I ask, are these accusations against Fayiz or against Superman? It seems to me that whoever wrote these accusations he must [have] been drinking and he must have been drunk when he wrote it.

Adding new information to what was already known, Moazzam Begg, a former Guantánamo prisoner and British citizen, told CNN he remembered al-Kandari from his own brief detention in Kandahar, Afghanistan, before his transfer to Bagram and then Guantánamo, “because the Americans would bring him from cell to cell to collect trash.” He recalled that other prisoners “told him al-Kandari was knowledgeable about Islamic issues,” but never heard any of his fellow prisoners mention that he was “associated with known terrorists or terrorist activities.”

Lt. Col. Wingard pointed out that al-Kandari had “maintained his innocence” throughout nearly ten years in detention, and friends and relatives also insisted that he “never had any affiliation with terrorist organisations.” His mother, Fatima Yusuf, explained in a letter supporting his son’s habeas petition, “I have lost my son for years and I am longing for him.” She added that his piety was apparent from when he was a child, because he “used to divide his daily pocket expenses into two halves, one for him and he used to distribute the other half to the poor. Sometimes, he spent his whole pocket expenses to the needy, without withholding anything for him.”

Although al-Kandari has recently been allowed to make phone calls to his family every few months, he is not currently doing so, because, as Lt. Col. Wingard explained, “he has been locked in solitary confinement for going on a hunger strike after his personal belongings, including his mail, was taken.”

The story of Fawzi al-Odah

The case against the other Kuwaiti, Fawzi al-Odah, is hardly any more convincing. As I explained in an article for the BBC in 2007, he was a primary school teacher who “took a short holiday from work and traveled to Afghanistan in August 2001 to teach the Koran and provide humanitarian aid. This was something he had done before, in other countries, and his family had a history of providing humanitarian aid, establishing libraries and wells in various countries in Africa.”

Furthermore, as I explained when he lost his habeas petition:

Judge Kollar-Kotelly’s ruling was based on a dubious assemblage of information that relied more on inconsistencies in al-Odah’s account of his activities than it did on anything resembling concrete evidence, as she herself admitted, when she wrote that there were “significant reasons why the Government’s proffered evidence may not be accurate or authentic.”

This supposed evidence, which even the judge had reason to doubt, consisted primarily of claims that he had undertaken military training for one day, and had “admit[ted] carrying an AK-47 through the Tora Bora mountains for 10 to 11 days during the US air campaign in that region.”

Like al-Kandari, al-Odah has “maintained his innocence throughout his detention,” and his father Khalid, a former pilot who worked with US forces during the war against Saddam Hussein in 1991, and now works with the Kuwait Family Committee, which lobbies on behalf of the Kuwaiti prisoners, told CNN that, although his son was carrying a weapon when he was detained, it was only for self-defense.

Even if the US case is true, it is hardly appropriate, nearly ten years after the 9/11 attacks, that, as I explained when al-Odah lost his habeas petition:

[T]he United States is still asserting that it has the right to hold a young man who spent just one day at a training camp, who did not flee Afghanistan after the 9/11 attacks (perhaps because he feared reprisals if he was found escaping), who traveled with other men to Kabul, and then to Logar and then to Tora Bora and his eventual capture, with no evidence that he ever used the weapon he was given, and no evidence that his training involved anything more than firing a few rounds from an AK-47 in a practice session.

Why Fayiz al-Kandari and Fawzi al-Odah should be released rather then being held for the rest of their lives at Guantánamo

The problems facing al-Kandari and al-Odah strike to the heart of the problems confronting those calling for the closure of Guantánamo, and relate to the failures of their habeas corpus petitions to guarantee that their cases are judged fairly, and President Obama’s failure to recognize that prisoners should either be tried or released.

In March this year, confirming the recommendations of his Task Force, the President issued an executive order approving the indefinite detention of 46 of the remaining prisoners, with periodic reviews of their status, on the basis that they are too dangerous to release, but that not enough evidence exists to put them on trial.

This executive order has, understandably, been widely criticized by human rights groups and concerned lawyers, and although the Obama administration has not announced which of the remaining prisoners have been designated for indefinite detention, al-Kandari’s lawyers believe he “is likely to be indefinitely detained,” as CNN described it. It also seems likely that al-Odah, along with other prisoners who have lost their habeas petitions, is also in this category.

Speaking of those designated for indefinite detention, Lt. Col. Wingard told CNN that they were “unfortunate souls” who “will never get a trial, will be presumed guilty and will die in Guantánamo without ever having stepped into a courtroom.”

An appeal by al-Kandari has been submitted to the Court of Appeals in Washington D.C. (the D.C. Circuit Court), but as I have explained in several articles this year (see here, here and here, for example), that court, which includes several judges whose worldview matches that of the Bush administration officials and lawyers who dreamt up the abomination that is Guantánamo in the first place, have effectively gutted habeas corpus of all meaning for the Guantánamo prisoners, vacating or reversing every successful habeas petition that has come before them.

It is therefore almost certain that al-Kandari’s appeal will fail, as, indeed, did al-Odah’s appeal, which was rejected by the Circuit Court in June 2010. As a result, David Cynamon, the lead attorney for the Kuwaitis in Guantánamo, was speaking accurately when he told CNN that the court was a “black hole” for the detainees. Cynamon proceeded to explain that, as CNN put it, “[t]he difficulty with the Guantánamo cases is the government relies on hearsay.” Elaborating, he explained that there was no way of “testing the truthfulness of the people making the allegations.”

In addition, the Supreme Court has also refused to reexamine the cases. Eight appeals had been submitted by the start of this year, but all were dismissed, including al-Odah’s, which was one of three rejected on April 4 this year.

With the legal avenues cut off as effectively as they were under President Bush, and no sign that the American public is interested, the fate of Fayiz al-Kandari and Fawzi al-Odah — and, by extension, of other prisoners trapped in Guantánamo — may, therefore, be in the hands of the Kuwaiti government. As CNN noted, Kuwait “is an important US ally in the Gulf,” rescued from an invasion by Saddam Hussein in 1991, and an important base for the US-led invasion of Iraq in March 2003.

This ought to count for something, and it clearly did in 2005 and 2006, when eight of the 12 Kuwaitis held in Guantánamo were released, and in 2009, when two others were released after winning their habeas petitions. Khalid al-Odah told CNN that nine of the men had “reintegrated well.” He said, “They are productive. Some have children, they are working and we are in contact with them all the time.”

However, as was revealed in diplomatic cables from the US embassy in 2009, which were released by WikiLeaks last November, the US Ambassador in Kuwait alleged that Kuwait’s record had been tarnished by the example of the tenth ex-prisoner, Abdullah al-Ajmi, released in November 2005, who had blown himself up as a suicide bomber in Mosul, Iraq following his release.

The Ambassador dismissed all the Kuwaiti prisoners as “nasty, unrepentant individuals,” and secured support from Kuwait’s Minister of Interior Sheikh Jaber al-Khalid al-Sabah, who said of the prisoners, “If they are rotten, they are rotten and the best thing to do is get rid of them. You picked them up in Afghanistan; you should drop them off in Afghanistan, in the middle of the war zone.”

This was deeply shocking to Adel Abdul Hadi, one of al-Kandari’s lawyers in Kuwait, who said, in response to Sheikh al-Sabah’s comments, “Those charged with having Fayiz and Fawzi returned were actually suggesting they be murdered instead of being returned to Kuwait.”

Specifically, the problems with al-Ajmi ought to have been overcome following the return of the two other Kuwaitis who won their habeas petitions and were subsequently freed in 2009. One, Khalid al-Mutairi, was found to be a charity worker, as he had claimed all along, and the other, Fouad al-Rabiah, won his petition after a judge concluded that his confessions about working for Osama bin Laden and working with al-Qaeda during the showdown in Tora Bora, were false confessions, learned and repeated as a result of torture and the threat of torture.

Judge Colleen Kollar-Kotelly ruled that his confessions were “not credible or reliable, and that the Government has failed to provide the Court with sufficiently credible and reliable evidence to meet its burden of persuasion. If there exists a basis for al-Rabiah’s indefinite detention, it most certainly has not been presented to this Court.”

On his repatriation, according to David Cynamon, he was briefly held in a rehabilitation center in Kuwait’s central prison, which was built at great expense by the Kuwaiti government. However, the government almost immediately realized that there was no case against him and released him.

Khalid al-Odah told CNN that, if the US government has more significant doubts about Fayiz al-Kandari and Fawzi al-Odah, then they should be assuaged by the plans for their return. Both men, he said, would be sent to the rehabilitation center. In addition, “They would not be allowed to leave the country and they would be under surveillance.”

He added that, although his son “may have lost his legal battle,” he was secure that  “Kuwait has other cards to play with.” Those cards involve notions of justice that run deep in the Gulf nation, even if they are also capable of inspiring internal conflict.

On May 18 this year, a fight broke out while parliament was debating the fate of the two Kuwaitis still in Guantánamo, as a Shiite MP and a Muslim Brotherhood MP exchanged blows. However, most Kuwaiti MPs, and over 16,000 other people, have signed a petition urging the US government to “release Fayiz al-Kandari immediately and ensure his return home to Kuwait since the Kuwait government has fulfilled all conditions stipulated by the US administration for the release of detainees from Guantánamo Bay. Kuwait has enhanced the monitoring system of returned citizens and built a multi-million dollar rehabilitation center to facilitate their return.”

Crucially, Kuwaiti MP Rola al-Dashti told CNN that it was “impossible” to know if al-Kandari was guilty or innocent. “I don’t see a fair trial,” she said. Referring to both al-Kandari and Fawzi al-Odah, she added, “Nobody knows why the US is keeping them. It is very important to the people of Kuwait and to the families of the detainees that the US abide by democratic principles. It doesn’t look good to look into the US and see this kind of practice.”

Lawmakers who have tried to tie President Obama’s hands when it comes to closing Guantánamo have interfered to prevent prisoners from being returned to countries they regard as a threat — Yemen, for example, and Afghanistan. The example of Abdullah al-Ajmi still hovers darkly over the releases of the Kuwaiti prisoners, but otherwise the government, as a staunch ally of America, and a beacon of stability in the Middle East, is ideally placed to push for the release of its final two citizens in Guantánamo.

This, moreover, would break the deadlock that has paralyzed President Obama and that leaves Guantánamo still beaming out its bleak message to the rest of the world that, when it comes to foreign Muslims, the US government remains content to imprison them without charge or trial in an experimental prison that ought to be a source of shame and disgust.

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, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), 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 the website of the Future of Freedom Foundation.

The courts’ failure has come about largely because a number of judges in the D.C. Circuit Court, where appeals against the habeas rungs are filed, have revealed themselves to be at least as right-wing as the architects of the “War on Terror” in the Bush administration. Led by Judge A. Raymond Randolph, whose previous claim to fame on national security issues was that he supported every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court, the Circuit Court has, in the last year, succeeded in gutting habeas corpus of all meaning, when its relief is sought by any of the 171 men still held at Guantánamo.

Throughout this year, I have followed, with despair, the Circuit Court’s rulings, which are distressing on two fronts: firstly, because judges have whittled away at the lower courts’ demands that the government establish its case “by a preponderance of the evidence,” which is a very low standard in the first place; and secondly, because the Circuit Court has reinforced the misconception at the heart of the “War on Terror,” almost delighting, it seems, in failing to acknowledge that soldiers are different from terrorists.

In fact, despite the Supreme Court’s attempt to grant rights to the prisoners, both soldiers and terrorists are still, essentially, held at Guantánamo as a category of human being with almost no rights at all — what George W. Bush notoriously referred to as “unlawful enemy combatants.”

Last month, just after the Boumediene anniversary, on June 23, Judge Ricardo Urbina delivered the 60th Guantánamo habeas ruling, turning down the habeas petition of Khairullah Khairkhwa, an Afghan prisoner (PDF). This was unsurprising, as Khairkhwa was the governor of the western province of Herat under the Taliban, and had also served as the Taliban’s Minister of the Interior. Crucially, Khairkhwa’s defense turned on his claim that he did not have a military role, but Judge Urbina agreed with the Justice Department that there was evidence indicating that “he served as a member of a Taliban envoy that met clandestinely with senior Iranian officials to discuss Iran’s offer to provide the Taliban with weapons and other military support in anticipation of imminent hostilities with US coalition forces.”

This may well be the case, although it does not detract from the ongoing, and largely unchallenged absurdity of holding prisoners at Guantánamo who were involved in military activity, rather than those who were involved with acts of international terrorism. Unless Khairkhwa was involved in the planning and execution of the 9/11 attacks, he should, I contend, have been held as a prisoner of war, and not as an “enemy combatant,” and, very possibly, tried in Afghanistan for the war crimes of which he has been accused. These took place in 1998, when he was in charge as the Taliban took the northern Afghan city of Mazar-e-Sharif, and proceeded to massacre thousands of its inhabitants, the Hazara and the Uzbeks, who, along with Tajiks and Pashtuns, make up the four main ethnic groups in Afghanistan.

It is to no one’s credit that, nearly ten years after the 9/11 attacks, the deliberate confusion at the heart of the “War on Terror” — designed by senior Bush administration officials to allow them to set up an illegal interrogation camp at Guantánamo, and to coercively interrogate those it held, and even to torture them — still exists, imprisoning soldiers, and even military commanders like Khairkhwa, in an experimental prison associated with terrorism, possibly for the rest of their lives.

Last Friday, July 22, the Circuit Court reinforced its position, denying the appeal of Muaz al-Alawi (known to the authorities as Moath al-Alwi), who lost his habeas petition 18 months ago, in January 2009. Al-Alawi was one of the first prisoners to lose his habeas petition, and his case was emblematic of the distortions required to equate soldiers with terrorists.

At the time Judge Richard Leon turned down his habeas petition, the Court first had to establish that, in order to be detained, prisoners were required to be “part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the US or its coalition partners,” which included “any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.” As I explained at the time:

By Leon’s own account of the evidence, al-Alawi was in Afghanistan before the 9/11 attacks, and was fighting with the Taliban against the Northern Alliance. To counter this, he endorsed the government’s additional claim that, “rather than leave his Taliban unit in the aftermath of September 11, 2001,” al-Alawi “stayed with it until after the United States initiated Operation Enduring Freedom on October 7, 2001; fleeing to Khowst and then to Pakistan only after his unit was subjected to two-to-three US bombing runs.”

In other words, Judge Leon ruled that Muaz al-Alawi can be held indefinitely without charge or trial because, despite traveling to Afghanistan to fight other Muslims before September 11, 2001, “contend[ing] that he had no association with al-Qaeda,” and stating that “his support for and association with the Taliban was minimal and not directed at US or coalition forces,” he was still in Afghanistan when that conflict morphed into a different war following the US-led invasion in October 2001. As Leon admitted in his ruling, “Although there is no evidence of petitioner actually using arms against US or coalition forces, the Government does not need to prove such facts in order for petitioner to be classified as an enemy combatant under the definition adopted by the Court.”

Given the confused definition of who can legitimately be detained at Guantánamo, and the impact, in the last year, of the Circuit Court’s repeated assaults on the lower courts’ rulings, it was obvious that al-Alawi’s appeal would fail (PDF), but that is no cause for celebration.

As with the case of Khairullah Khairkhwa, the wrong questions are still being asked. Rather than asking whether these men can legitimately be held, what those who are disturbed by the ongoing existence of Guantánamo need to be asking instead is why the courts are justifying the ongoing — and possibly indefinite — detention of the Guantánamo prisoners, when that is inappropriate.

The majority of those still held were soldiers, who should be able to argue now that the conflict in which they were seized was finite, and cannot be an endless “War on Terror,” and the rest, accused of involvement with terrorism, should be tried for their alleged involvement in criminal activities.

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, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), 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 the website of the Future of Freedom Foundation.

A bulwark against arbitrary imprisonment, habeas corpus was essential for the prisoners at Guantánamo, who, for the previous two and a half years, had been held in what Lord Steyn, a British law lord, described as a “legal black hole” in a speech in November 2003, unable to seek any redress whatsoever if, as many of them claimed, they had been seized by mistake.

With breathtaking arrogance, the Bush administration had refused to screen those it captured through Article 5 competent tribunals. Also known as battlefield tribunals, these are part of the Geneva Conventions, designed to screen prisoners who, like those in the “War on terror,” were not part of a regular army. The US military had used them since Vietnam, and in the first Gulf War, for example, had held 1196 tribunals, and, in 886 cases (74 percent), found it had detained civilians instead of combatants, and released them (PDF, p.663).

In Afghanistan, the Bush administration refused to allow the military to hold competent tribunals, and this, combined with the appalling incentives for dishonesty produced by offering substantial bounty payments for anyone who could be dressed up as al-Qaeda or the Taliban by America’s allies in Afghanistan and Pakistan, meant that Guantánamo, rather than holding “the worst of the worst,” actually held a large number of what Maj. Gen. Michael Dunlavey, a commander of the prison in 2002, described as “Mickey Mouse” prisoners.

Rasul v. Bush punctured the essential secrecy of Guantánamo, bringing the torture program at the prison to an end, and allowing lawyers access to the prisoners for the first time, but the Bush administration fought back, persuading Congress to pass two pieces of legislation that purported to remove the prisoners’ habeas rights — the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 (PDF) — and it was not until June 2008 that the Supreme Court ruled for a second time on the prisoners’ rights, establishing, in Boumediene v. Bush, on June 12, 2008, that Congress had acted unconstitutionally when it purported to strip the prisoners of their habeas rights, and ensuring that the prisoners’ habeas rights were constitutionally guaranteed.

Since then, judges in the District Court in Washington D.C. have examined the habeas petitions of 59 prisoners, and have concluded, in 38 of those cases, that the government failed to establish, “by a preponderance of the evidence” — a much lower standard than would apply in criminal cases — that the men in question were connected with either al-Qaeda and/or the Taliban.

Until a year ago, this was a resounding vindication for those like myself, and researchers at the Seton Hall Law School in New Jersey (PDF), who had highlighted how Guantánamo had come to hold so many innocent men or thoroughly insignificant foot soldiers, and how exaggerations, distortions and lies extracted through torture and coercion (or bribery) permeated what the government purported to present as evidence.

In case after case, judges — even Conservative appointees of George W. Bush, like Judge Richard Leon — exposed the government’s supposed evidence as being based on statements made by the prisoners themselves or by their fellow prisoners, either under torture or other forms of coercion, or, in some cases, as a means of securing more favourable treatment, or even release from Guantánamo.

However, this run of justice came to an end last July, when the full impact of a series of rulings in the appeals court (the D.C. Circuit Court) came into effect. Under the guidance of a handful of deeply Conservative judges — and in particular, Senior Judge A. Raymond Randolph, who had endorsed every piece of Guantánamo-related legislation under George W. Bush that was subsequently overturned by the Supreme Court — the Circuit Court has indicated that the government does not need to present much in the way of evidence, has reversed or vacated a number of successful habeas petitions, and has led to a situation in which the last seven petitions have all been won by the government.

The Circuit Court’s obstruction — unchallenged by the Supreme Court — is such that, just a month ago, two Yemeni prisoners — Fahmi Al-Assani and Suleiman Al-Nahdi, who lost their habeas petitions last February — gave up their appeals rather than proceeding. Their lawyer, Richard Murphy, explained that “appeals were futile.” He added:

Under the detention standard that has been developed by the D.C. Circuit (which the Supreme Court has refused to review), it is clear that the courts provide no hope for the men remaining at Guantánamo.

That is a bleak but appropriate conclusion, and not just because another prisoner, Musa’ab al-Madhwani, who lost his habeas petition in December 2009, lost his appeal a month ago, through a ruling in which the Circuit Court decided that prisoners can continue to be held not on the basis of “substantial support” for al-Qaeda or the Taliban (as endorsed by the Obama administration), but on “support” that is far less than substantial.

That ruling was also notable for the Circuit Court’s reiteration of an opinion from an earlier ruling (by Judge Randolph) that, “if a person stays in an al-Qaeda guesthouse or attends an al-Qaeda training camp, this constitutes ‘overwhelming’ evidence that the United States had authority to detain that person.”

However, the most distressing example recently is the case of Hussein Almerfedi, another Yemeni, who won his habeas petition last July but had that successful opinion reversed on June 10 (PDF). One of ten men seized in Iran and transferred to Afghan custody as part of a prisoner swap, Almerfedi and the other men were then transferred to US custody, held in secret prisons run by the CIA, and then moved to Guantánamo.

In granting Almerfedi’s habeas petition last July, Judge Paul Friedman accepted that he had been attempting to travel to Europe via Iran, when he was captured, and also refused to be swayed by unprincipled claims, on the government’s part, that it was appropriate to describe Jamaat-al-Tablighi, the vast missionary organisation with whom he stayed in Pakistan for two and a half months, as an organisation used “as cover to mask travel and activities of terrorists including members of al-Qaeda.”

This argument was used repeatedly at Guantánamo for many years, even though it is akin to designating the Catholic Church as a terrorist organisation because of the activities of the IRA. However, it was not until WikiLeaks recently released the military’s classified assessments of the Guantánamo prisoners that it was revealed that, according to the National Intelligence Priorities Framework used by the US intelligence agencies (see, for example, PDF, p. 2), Jamaat-al-Tablighi is a “Priority 3 Terrorist Support Entity (TSE),” and that “Priority 3 TSE have demonstrated intent and willingness to provide financial support to terrorist organisations willing to attack US persons or interests, or provide witting operational support to Priority 1-2 terrorist groups.”

In an explanatory note, it was stated that Jamaat-al-Tablighi “is a proselytizing organisation and has been supporting Islamic terrorist groups in South and Southeast Asia under the cover of conducting religious activities. Affiliation with the JT … has been identified as an al-Qaeda cover story. Al-Qaeda used the JT to facilitate and fund the international travels of its members.”

This is, to be blunt, a horribly sweeping generalization, but it is clearly accepted without criticism not only by the military, but also by the Circuit Court, as the judges in Almerfedi’s appeal — Senior Judge Silberman, and Judges Kavanaugh and Rogers — almost repeated verbatim what had, until WikiLeaks’ recent revelations, been unknown to the general public: that Jama’at Tablighi was

an Islamic missionary organization, which US intelligence has designated a Terrorist Support Entity. That is a category of organizations that has “demonstrated intent and willingness to provide financial support to terrorist organizations,” or to provide “witting operational support” to terrorist groups.

Beyond this, there were doubts about Almerfedi’s travels — why he had travelled east, from Tehran to Meshad, when he professed to be trying to travel west to reach Europe, but that — plus the $2000 that he had in his possession — was hardly sufficient to reverse his petition.

The only other supposed evidence on the government’s part should also have been regarded as worthless — a claim by a Saudi prisoner, Humoud al-Jadani, who was freed from Guantánamo in July 2007, that Almerfedi “told him that [he] was housed in a guesthouse in Tehran maintained by al-Qaeda in 2002 or 2003,” and that “other, unnamed detainees had said that a ‘Hussain al-Adeni’ [from Aden, like Almerfedi] was an al-Qaeda facilitator who resided at a guesthouse in Tehran.”

As the judges reported, but failed to accept:

Although Almerfedi does not contest much of the government’s narrative, he disputes that he ever stayed at an al-Qaeda-affiliated guesthouse in Tehran. He points out that the dates al-Jadani reports Almerfedi having been at a guesthouse in Tehran are obviously incorrect — because it is undisputed that Almerfedi was captured by the Iranians in December 2001 or January 2002, Almerfedi could not have been at a guesthouse in 2002 or 2003.

I’m not sure I can explain how disappointing it is that, with nothing resembling evidence, and with little more than distortions about Jamaat-al-Tablighi, and credence given to dubious testimony from a fellow prisoner of Hussein Almerfedi’s in Guantánamo, the Circuit Court has smugly, even triumphantly asserted yet again that, when it comes to Guantánamo, it has gutted habeas corpus of all meaning.

To be honest, the best I can do is return to the lament of Richard Murphy, the attorney for two men who recently gave up rather than appeal. It is indeed clear, as he said, that “the courts provide no hope for the men remaining at Guantánamo,” and that is a profound disappointment, as the courts were supposed to do what they did so admirably until about a year ago — provide some objective analysis of the propaganda and untested allegations used to detain the Guantánamo prisoners.

Now, however, in the hands of the D.C. Circuit Court, it is all worthless, and the barest of suspicions of involvement with al-Qaeda or the Taliban is regarded as sufficient to consign men to imprisonment for the rest of their lives at Guantánamo. Senior officials in the Obama administration — not to mention the Supreme Court — ought to be ashamed.

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, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), 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 the website of the Future of Freedom Foundation.