Abandoning Guantánamo: The Supreme Court’s Shame as a Military Commission Appeal Is Turned Down

Protestors against rh existence of Guantanamo outside the US Supreme Court on January 11, 2012, the 10th anniversary of the opening of the prison (Photo: Andy Worthington).Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

On Tuesday (October 10), when the Supreme Court turned down an appeal submitted by Ali Hamza al-Bahlul, a Guantánamo prisoner convicted of terrorism charges in October 2008 in a military commission trial, the justices demonstrated that, for over nine years now, they have proved incapable of fulfilling their role of upholding the law when it comes to issues relating to terrorism.

This is a profound disappointment, because, four months before al-Bahlul’s conviction, on June 12, 2008, those who respect the law — and basic human decency — were thrilled when the Supreme Court delivered a major ruling in favor of the prisoners at Guantánamo. In Boumediene v. Bush, the justices ruled that the prisoners had constitutionally guaranteed habeas corpus rights; in other words, that they could ask an impartial judge to rule on whether or not their imprisonment was justified.

The ruling was the third major ruling by the Supreme Court regarding Guantánamo. In June 2006, in Hamdan v. Rumsfeld, the court had ruled that the military commission trial system at Guantánamo did not have “the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.” The court also ruled that Common Article 3 of the Geneva Conventions, prohibiting torture and “humiliating and degrading treatment,” had been violated. Read the rest of this entry »

What Should Trump Do With the US Citizen Seized in Syria and Held in Iraq as an “Enemy Combatant”?

"Detainee Holding Cell": a US military sign, origin unknown.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

It’s nearly a month since my curiosity was first piqued by an article in the Daily Beast by Betsy Woodruff and Spencer Ackerman, reporting that a US citizen fighting for ISIS had been captured in Syria and was now in US custody. Ackerman followed up on September 20, when “leading national security lawyers” told him that the case of the man, who was being held by the US military as an “enemy combatant,” after surrendering to US-allied Kurdish forces fighting ISIS in Syria around September 12, “could spark a far-reaching legal challenge that could have a catastrophic effect on the entire war against ISIS.”

At the time, neither the Defense Department nor the Justice Department would discuss what would happen to the unnamed individual, although, as Ackerman noted, “Should the Justice Department ultimately take custody of the American and charge him with a terrorism-related crime, further legal controversy is unlikely, at least beyond the specifics of his case.” However, if Donald Trump wanted to send him to Guantánamo (as he has claimed he wants to be able to do), that would be a different matter.

A Pentagon spokesman, Maj. Ben Sakrisson, told Ackerman that, according to George W. Bush’s executive order about “war on terror” detentions, issued on November 13, 2001, and authorizing the establishment of military commissions, “United States citizens are excluded from being tried by Military Commissions, but nothing in that document prohibits detaining US citizens who have been identified as unlawful enemy combatants.” Read the rest of this entry »

Two Guantánamo Cases Make It to the Supreme Court; Experts Urge Justices to Pay Attention

Ali Hamza al-Bahlul and Abd al-Rahim al-Nashiri, Guantanamo prisoners who have submitted petitions to the Supreme Court.Please support my work! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Even before the Bush administration set up its “war on terror” prison at Guantánamo Bay, Cuba, legal experts were profoundly alarmed by proposals for how those seized as alleged terrorists would be tried. On November 13, 2001, President Bush signed a military order prepared by Vice President Dick Cheney and his senior lawyer, David Addington, which authorized the use of military commissions to try prisoners seized in the “war on terror,” preventing any prisoner from having access to the US courts, and authorized indefinite detention without due process.

Under the leadership of Michael Ratner at the New York-based Center for Constitutional Rights, lawyers prepared to challenge the proposals in the military order in the courts. The stripping of the prisoners’ habeas corpus rights and the prevention of their access to the courts eventually made it to the Supreme Court in June 2004, when, in Rasul v. Bush, the Court, for the first time ever in wartime, ruled against the government, granting the prisoners habeas corpus rights.

Lawyers were allowed into Guantánamo, piercing the veil of secrecy that had allowed a regime of torture and abuse to thrive unmonitored, although President Bush immediately persuaded Congress to pass new legislation that again stripped the prisoners of their habeas rights. Further legal struggles then led to habeas rights being reintroduced in another Supreme Court case, Boumediene v. Bush, in June 2008. Read the rest of this entry »

In Contentious Split Decision, Appeals Court Upholds Guantánamo Prisoner Ali Hamza Al-Bahlul’s Conspiracy Conviction

Ali Hamza al-Bahlul, in a photo included in the classified military files released by WikiLeaks in April 2011.I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Last week, in the latest development in a long-running court case related to Guantánamo, the court of appeals in Washington, D.C. (the D.C. Circuit) upheld Ali Hamza al-Bahlul’s November 2008 conviction for conspiracy in his trial by military commission, but in a divided decision that means the case will almost certainly now make its way to the Supreme Court.

Al-Bahlul, a Yemeni, was seized in Afghanistan in December 2001, and taken to Guantánamo, where, in June 2004, he was charged in the first version of the military commissions that were ill-advisedly dragged out of the history books by the Bush administration in November 2001, primarily on the basis that he had made a promotional video for al-Qaeda.

Two years later, the commissions were scrapped after the Supreme Court ruled that they were illegal, but they were subsequently revived by Congress, and in February 2008 he was charged again, and convicted in November 2008, after a trial in which he refused to mount a defense, on “17 counts of conspiracy, eight counts of solicitation to commit murder and 10 counts of providing material support for terrorism,” as I described it at the time. Read the rest of this entry »

Eroding Hyperbole: The Steady Reclassification of Guantánamo’s “Forever Prisoners”

Mansoor-al-Zahari at Guantanamo, in a photo included in the classified military files released by WikiLeaks in 2011.I wrote the following article for the “Close Guantánamo” website, which I established in January 2012 with US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Despite the relentless fearmongering of Republican supporters of Guantánamo, claims that the prison holds a significant number of people who pose a threat to the US continue to be eroded; primarily, in recent years, through the deliberations of Periodic Review Boards — panels consisting of representatives of the Departments of State, Defense, Justice and Homeland Security, as well as the office of the Director of National Intelligence and the Office of the Joint Chiefs of Staff, who hear from the prisoners, their lawyers and their military representatives via video-link from Guantánamo, where the men are able to make a case for why they should be approved for release.

The men in question have, with some accuracy, been dubbed “forever prisoners” by the media. Originally numbering 71 men, they comprised two groups: 46 men assessed to be “too dangerous to release” by the high-level, inter-agency Guantánamo Review Task Force that President Obama established shortly after taking office in January 2009 to recommend whether the men he inherited from George W. Bush should be released or prosecuted. This third alarming option — “too dangerous to release” — was, as far as we know, dreamt up by the task force itself, for prisoners regarded as a threat but against whom insufficient evidence existed to put them on trial.

Reading between the lines, this meant tainted evidence — in other words, men regarded as unprovably dangerous because the evidence against them was derived through the use of torture or other forms of abuse, making it fundamentally untrustworthy — or, in some (perhaps many) cases, a perceived attitude problem: prisoners who, though perhaps understandably aggrieved at being held without charge or trial for over a decade in abusive conditions, had threatened retaliation, however hollow those threats may have been, that were taken seriously by the authorities. Read the rest of this entry »

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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