What’s Happening with the Guantánamo cases?

You may well ask. A month ago, the Supreme Court ruled, in Boumediene v. Bush, that the Guantánamo prisoners have constitutional habeas corpus rights; in other words, the right to ask why, after six and a half years’ imprisonment without charge or trial, they are being held. The highest judges in the land ruled four years ago, in Rasul v. Bush, that the prisoners had habeas corpus rights, but only granted them statutory rights, and the executive responded by persuading Congress to change the law.

With Boumediene, therefore, the Supreme Court sent a clear message to both the executive and the politicians in Congress that passing new laws — 2005’s Detainee Treatment Act and 2006’s Military Commissions Act — to deprive the prisoners of the right to hear why they are being held was actually unconstitutional.

The Supreme Court had been stirred to this apparently unusual ruling — granting habeas rights to foreigners detained in wartime — because of its grave concerns that the prisoners, held neither as Prisoners of War, protected by the Geneva Conventions, nor as criminals, who could face a trial in the US court system, had never been adequately screened through the administrative process that the government had established in response to Rasul, and had, literally, no recourse to justice whatsoever.

In this they were undoubtedly correct. The administrative hearings — the Combatant Status Review Tribunals — were savaged last year by a former insider, Lt, Col. Stephen Abraham, who derided them for drawing on appallingly weak, generalized and unsubstantiated information masquerading as “evidence,” and for being designed, essentially, to rubber-stamp the government’s unchecked assertions that the prisoners were “enemy combatants,” who could be held without charge or trial.

Two weeks after Boumediene, the Court of Appeals was finally allowed to scrutinize the government’s case against one of these “enemy combatants.” The case, Parhat v. Gates, had, like the prisoners themselves, been held in a legal limbo pending the Supreme Court’s decision, but once the judges were free to act they duly ruled that the four-year old designation of Huzaifa Parhat, a Chinese Muslim, as an “enemy combatant” was “invalid,” and lambasted the quality of the government’s evidence as being akin to a nonsense poem by Lewis Carroll, author of Alice’s Adventures in Wonderland.

Since then, however, the headline writers have moved on, because most of the response to Boumediene and Parhat is now taking place behind the scenes. After some grumbling from the President, who told a Republican party meeting, “With this decision, hardened terrorists, hardened foreign terrorists, now enjoy certain legal rights previously reserved for American citizens,” and an extraordinary tirade from John McCain, the administration was forced to concede that it had no chance of amending the Constitution any time soon, and resorted, instead, to delaying tactics.

As the US District Court moved swiftly, and Chief Judge Royce C. Lamberth announced, on July 2, that Senior Judge Thomas F. Hogan had been assigned “to coordinate and manage proceedings in all Guantánamo Bay cases so that these cases can be addressed as expeditiously as possible,” the Department of Justice began dragging its heels.

When lawyers for the prisoners and DoJ representatives met Judge Hogan last week, Assistant Attorney General Gregory Katsas “asked for two months to recruit lawyers and at least another two months to amend the existing returns [roughly 100 in total] and file 100 new ones.” He claimed, additionally, that the effort would strain the Justice Department’s resources “almost to the breaking point.”

“To its credit,” as the Miami Herald explained in a pointed editorial, “the court was skeptical, to say the least. Judge Hogan said he could not fathom why evidence would suddenly have to be changed if it had been considered strong enough to warrant holding the detainees for periods of up to six years.” In Hogan’s own words, “If it wasn’t sufficient, then they shouldn’t have been picked up.”

As the Legal Times blog put it, Judge Hogan added that he “wanted the returns filed sooner,” said he had “misgivings about granting the government ‘carte blanche’ to augment its evidence ‘without saying why,’” and reminded the government of what the Supreme Court had stated in Boumediene: “The cost of delay can no longer be borne by those who are held in custody.” With a final flourish, he told the DoJ in no uncertain terms, “The time has come to move these forward. Set aside every other case that’s pending in the division and address this case first.”

The government was no more fortunate when it came up against District Judge Richard Leon, who had decided not to transfer his cases — 12 in total, involving 35 prisoners — to Judge Hogan. “This is going to be moved as fast as possible,” Judge Leon told a similar gathering of Guantánamo lawyers and DoJ representatives. “These men have waited long enough to get a decision. The Supreme Court has spoken. They want this done. By God, we’ll get this done.”

Judge Leon also explained, as Reuters described it, that he “would not allow the Department of Defense or the CIA to delay the cases while reviewing classified information used to hold the prisoners as enemy combatants.” “Let there be no doubt that the Department of Defense and the CIA must be prepared to come to the courtroom and defend their decisions if we get any sense that there is an effort by those agencies to slow down the proceedings,” he said, adding, in a comment that echoed Judge Hogan’s doubts about the government’s delaying tactics, “that he probably would require the government to show why it wants to file new evidence to justify holding a detainee.” He then “ordered both sides to provide status reports by July 18, addressing issues including when and where the detainee had been taken into custody” and “scheduled closed meetings with both sides for July 23 and 24,” adding that he wanted to decide the cases before the next President takes office in January 2009.

Lawyers for the prisoners are now working overtime preparing their cases, in the hope that the elusive justice that their clients have been seeking for so many years is almost within reach.

Problems remain, however. Even with rulings comparable to Parhat v. Gates, the difficulty of finding new homes for many of these men has not been resolved. Huzaifa Parhat remains in Guantánamo, despite his success in the Court of Appeals, because he cannot be returned to China, as a result of treaties preventing the return of foreign nationals to countries where they face the risk of torture.

The government recently announced that 54 prisoners in total (20 percent of Guantánamo’s current population) are awaiting release from Guantánamo if suitable homes can be found. As I have reported before, many of these men are from countries including Algeria, Libya, Tunisia and Uzbekistan, where they too would face torture — or worse — if repatriated, and there are fears that, even if many of the other prisoners are finally vindicated by a US court, many of them will also be unable to return home.

As the Miami Herald editorial concluded, accurately, “In cases where the government’s evidence is either weak or nonexistent, judges will be able to order suspects released, but they lack authority to bring detainees into the United States. That’s why the Bush administration should be working overtime to find countries that will take them back.”

Few are mentioning it, but it should also be asked if now is not the time for serious discussions to take place regarding finding homes for these men in the country whose government was responsible for their wrongful imprisonment in the first place.

Andy is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

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