Archive for January, 2009

As Barack Obama arrives in Washington D.C. to prepare for office, Andy Worthington, author of The Guantánamo Files, hopes to put the plight of the Uighurs — innocent men held at Guantánamo in what appears to be a state of perpetual limbo — at the top of the in-tray marked “homeland security.” Without a just resolution, Obama’s pledge to close Guantánamo may be impossible to fulfill.

The omens have never been good for the 17 Uighurs in Guantánamo, even though they have justice on their side. Refugees from Chinese oppression who had sought shelter in Afghanistan, only to be captured and sold to US forces as “terror suspects,” the 17 men were the first Guantánamo prisoners to be cleared of being “enemy combatants,” after an appeals court demolished the supposed evidence against one of the men in June, and the government abandoned its claims against the other 16.

They then secured a resounding victory at the start of October, when District Court Judge Ricardo Urbina ruled that their continued detention in Guantánamo was unconstitutional, and ordered their release into the United States, as they cannot be returned to China because of fears that they will be tortured, and no other country had been found that was prepared to accept them. When the government appealed Judge Urbina’s ruling, however, only one of the three appeal court judges dealing with the case — Judge Judith W. Rogers, a Bill Clinton nominee — understood the lies and distortions that the government had put together to prevent their release.

Judicial nominees do not always ape the opinions of those who appoint them, of course. Their independence — and their desire to follow legal precedents rather than political whims — often infuriates those who appointed them, but it would be fair to say, I think, that judges’ conservative or liberal tendencies often match those of the Presidents who appointed them.

In November, when Judge Richard Leon, a Bush appointee, ordered five Bosnian Algerians to be released from Guantánamo because the government had failed to substantiate its allegations against them, there was genuine surprise, but the decision in the case of these 17 other innocent men at Guantánamo was all too predictable, as two other Bush nominees, Karen LeCraft Henderson and A. Raymond Randolph, proved themselves unable to notice the government’s dissembling, and endorsed whatever nonsense was pushed their way.

And nonsense it was, as Judge Rogers explained, on October 20, in a dissenting opinion (PDF), when her colleagues first approved the government’s request for a stay on the Uighurs’ release pending an appeal. Although the appeal took place on November 24, the verdict has not yet been announced, but is expected to endorse the administration’s self-proclaimed right to extend the Uighurs’ imprisonment in Guantánamo indefinitely.

In her dissenting opinion, Judge Rogers drew on Boumediene v. Bush, the Supreme Court case last June that revived the prisoners’ habeas corpus rights (first granted in June 2004), after Congress had attempted to remove them in two flawed pieces of legislation (the Detainee Treatment Act of 2005, and the Military Commissions Act of 2006). She noted that the Supreme Court not only granted Guantánamo prisoners “the privilege of habeas corpus to challenge the legality of their detention,” but also held that “a court’s power under the writ must include ‘authority to … issue … an order directing the prisoner’s release.’”

Noting that this was “exactly” what Judge Urbina had done, “subject to conditions to be determined by the district court in light of the views of the Department of Homeland Security and proffers regarding housing and supervision made by their counsel,” Judge Rogers pointed out, unambiguously, that “The court’s release order was based on findings that are either uncontested by the government or clearly supported by the record.” She noted that the government “had filed no returns to the writs filed by ten of the petitioners, and the returns in response to the remainder consisted only of the hearing records from the Combatant Status Review Tribunals” (CSRTs) that had been “found wanting” in Parhat v. Gates, the case in June in which an appeals court had derided the government’s supposed evidence against one of the men, Huzaifa Parhat, for being akin to a nonsense poem by Lewis Carroll, the author of Alice’s Adventures in Wonderland.

Dealing a final blow to the government’s unprincipled and two-faced claims that, although cleared of being “enemy combatants,” the men remained a threat to national security because they had received weapons training, Judge Rogers added, “Although expressly offered the opportunity by the district court, the government presented no evidence that the petitioners pose a threat to the national security of the United States or the safety of the community or any person.”

Moving on to the government’s attempts to claim that “under the separation of powers the decision on whether to admit the petitioners into the United States ‘rests solely with the political branches,’” and that “immigration laws preclude a habeas court from ordering the release of an inadmissible alien into the United States,” Judge Rogers stated that the first argument “misstates the law,” because “the Supreme Court has made clear that, in at least some instances, a habeas court can order an alien released with conditions into the country despite the wish of the Executive to detain him indefinitely,” and “It is thus both inadequate and untrue to assert that the political branches have ‘plenary powers over immigration.’”

Dealing with the second argument — that the Uighurs were “inadmissible aliens” either because they had been “engaged in ‘terrorist activity’” or were “members of, or received weapons training from, a terrorist group” — Judge Rogers reiterated that the government was attempting to defy reality, because it “did not proffer evidentiary support for this argument in the district court,” and also explained that, even if this were not the case, the government’s argument was “problematic,” because the Supreme Court “had held that even inadmissible aliens cannot be held indefinitely under the normal immigration detention status,” whereas the Uighurs “have been imprisoned for over six years.”

Judge Rogers also noted that the government had “made no showing” that the Attorney General had “certified” the Uighurs for “special alien-terrorist provision, as required by that statute,” and pointed out that it had, instead, attempted to rely on the same discredited CSRTs that the Parhat judges had found to “lack sufficient indicia of … reliability.”

She also explained that “interpreting the immigration statutes to bar release from Guantánamo robs the petitioners’ habeas right [as granted in Boumediene] of meaning,” and chided the government for misinterpreting a 1953 case, Shaughnessy v. US ex rel. Mezei, in which the Supreme Court ruled that “inadmissible aliens have no constitutional rights because they are outside the territory of the United States,” by explaining that, in Boumediene, the Supreme Court “explicitly recognized that Guantánamo detainees have a constitutional right to habeas,” and adding that “Mezei sought admission to the United States of his own will while these petitioners require admission because they were abducted by bounty hunters, brought by force to Guantánamo, and imprisoned as enemy combatants, which the government has conceded the petitioners were not.”

In a final salvo, Judge Rogers tackled the government’s attempts to claim that allowing the Uighurs to enter the United States would cause “irreparable harm,” by returning to the lack of any evidence against them. Noting that, “Having failed to file returns for many of the petitioners or to proffer evidence to the district court, the government can point to no evidence of dangerousness,” she added that “such record as exists suggests the opposite,” pointed out that the court “found there is no evidence petitioners harbor hostility toward the United States,” and highlighted a significant passage from Boumediene to wrap up her dissent:

[T]he writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.

Judge Rogers’ dissent clearly highlights the government’s shameful attempts to disguise a catalog of grievous errors through tortuous legal maneuvering, to shirk all responsibility for depriving 17 innocent men of their liberty for seven years, and to dream up justifications for continuing to hold them indefinitely. However, the most distressing result of the craven capitulation of Judges Henderson and Randolph to the government’s last-ditch demonstration of executive arrogance was highlighted by Erin Louise Palmer, a member of the International Human Rights Committee of the American Bar Association’s Section of International Law, on a blog maintained by members of the Committee.

Noting that Judge Randolph had written the Court of Appeal’s decisions in Al Odah v. United States, Hamdan v. Rumsfeld, and Boumediene v. Bush, in which the Court of Appeals had deprived Guantánamo prisoners of their habeas rights and had upheld the validity of the Military Commissions as a suitable trial system, Palmer pointed out that the Supreme Court “disagreed with each of these decisions.” From this a clear inference can be drawn that the Uighurs’ case will not only be taken up by the Supreme Court, but will result in another bloody nose for Judges Henderson and Randolph.

The only problem with this scenario, of course, is that it leaves the Uighurs stranded in Guantánamo with no notion of when they will ever be released. As I explained in a recent article, the only other solution is for Barack Obama to step in and order the men’s release. Given the disgraceful propaganda peddled by the outgoing administration, this may not be a popular move, but it is required not only to emphasize that the new government is committed to upholding the US Constitution, but also as an important gesture to America’s allies, to encourage them to accept other prisoners, cleared for release for many years, who, like the Uighurs, cannot be repatriated because of international treaties preventing the return of foreign nationals to countries where they face the risk of torture.

By freeing the Uighurs to the care of the communities in Washington D.C. and Tallahassee, Florida, who have already prepared detailed plans for their welcome, President Obama can show the leadership, respect for the law and moral courage that is demanded by the plight of Uighurs and that is, moreover, necessary for him to fulfill his promise to close Guantánamo, and to begin the long process of addressing the many human rights abuses perpetrated by the Bush administration.

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

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

For a sequence of articles dealing with the Uighurs in Guantánamo, see: The Guantánamo whistleblower, a Libyan shopkeeper, some Chinese Muslims and a desperate government (July 2007), Guantánamo’s Uyghurs: Stranded in Albania (October 2007), Former Guantánamo detainee seeks asylum in Sweden (November 2007), A transcript of Sabin Willett’s speech in Stockholm (November 2007), Support for ex-Guantánamo detainee’s Swedish asylum claim (January 2008), A Chinese Muslim’s desperate plea from Guantánamo (March 2008), Former Guantánamo prisoner denied asylum in Sweden (June 2008), Six Years Late, Court Throws Out Guantánamo Case (June 2008), Guantánamo as Alice in Wonderland (July 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), A Pastor’s Plea for the Guantánamo Uyghurs (October 2008), Guantánamo: Justice Delayed or Justice Denied? (October 2008), Sabin Willett’s letter to the Justice Department (November 2008), Will Europe Take The Cleared Guantánamo Prisoners? (December 2008), Guantanamo’s refugees (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), and the stories in the additional chapters of The Guantánamo Files: Website Extras 1, Website Extras 6 and Website Extras 9.

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), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 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), 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), 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).

The following is a list of the top 30 articles on my website in 2008, based on an analysis of site traffic. For new visitors, I hope it provides a useful starting point for navigating the 300+ articles on the site, which comprehensively cover events at Guantánamo over the last 18 months. I have also included pages providing information about my books, including The Guantánamo Files, and additional online chapters of The Guantánamo Files, which feature stories not included in the book.

To my existing readers, thank you for all your support, and please keep the comments coming. And to both new and old, if you want to keep up-to-date on my work, please subscribe to the RSS feed (here, or in the left-hand column).

Thanks to you all, I had over 630,000 page visits last year, as well as all the other readers who found the articles on other sites on which they were published: primarily, the Huffington Post, the Raw Story, Antiwar.com, CounterPunch, AlterNet, ZNet, Cageprisoners, and the website of the Future of Freedom Foundation, where I have a weekly column. Thanks to all, and to the Guardian, the New York Times, the Daily Star, Lebanon, and many others who have provided support, including Al-Jazeera, Amnesty International, the Encarta Encyclopedia, Fairness and Accuracy in Reporting (FAIR), the London Guantánamo Campaign, Media Workers Against War, Press TV, Scott Horton, and to all who arranged my trip to the United States in March, including Pluto Press, the University of Michigan Press, CCR, Human Rights Watch, the Brennan Center for Justice, the New America Foundation, and Citizens for Global Solutions. Thanks also to some special friends: Cageprisoners, the Talking Dog, Kent, Stephen, Candace at the Guantánamo Blog, David, Michelle, Polly and Mark at Spectacle, Scott at Antiwar Radio, Linda at KBOO, Jackie, Omar, Clive and Em, Connie, Linda, and those nearest and dearest to me at home.

1. Six in Guantánamo Charged with 9/11 Murders: Why Now, and What About the Torture? (February 2008)
Introducing Khalid Sheikh Mohammed and his alleged co-conspirators in the 9/11 attacks. Includes biographies, and also provides an introduction to the vile and counter-productive use of torture. Also see 14 and 25, below.

2. The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison
The first book to tell the story of every man trapped in Guantánamo. Reviews, synopsis and how to buy the book.

3. Sami al-Haj: the banned torture torture pictures of a journalist in Guantánamo (April 2008)
The story of al-Jazeera journalist Sami al-Haj, featuring five powerful drawings by British artist Lewis Peake based on censored drawings by Sami. An archive of articles about Sami is here, and he is on a Cageprisoners tour in the UK with Moazzam Begg and war resister Chris Arendt in January and February.

4. The Guantánamo Files: Andy Worthington’s US tour report (March 2008)
A tribute to America, following my first ever visit.

5. The Battle of the Beanfield
My second book. The State crushes dissent in a largely overlooked quasi-military operation in 1985. Maggie at her worst. Reviews, synopsis and how to buy.

6. Torture allegations dog Guantánamo trials (March 2008)
Part of an ongoing, and uniquely detailed series of articles monitoring the rigged and unjust Military Commission trial system at Guantánamo established by Dick Cheney and David Addington. An archive of articles about the Military Commissions is available here, and comprehensive links to other articles are provided at the end of each article.

7. The Guantánamo Files Website Extras 3: Osama’s bodyguards
The third of 12 additional chapters, looking at the so-called “Dirty 30,” alleged bodyguards for Osama bin Laden.

8. The Last US Enemy Combatant: The Shocking Story of Ali al-Marri (December 2008)
A US resident, tortured and imprisoned in the United States, in complete isolation, for seven years without charge or trial. For a similar story, see 27, below. Also see Court Confirms President’s Dictatorial Powers in Case of US “Enemy Combatant” Ali al-Marri (July 2008).

9. Book review: Road From Ar Ramadi: The Private Rebellion of Staff Sergeant Camilo Mejía (January 2008)
The powerful story of the first deserter from the Iraq war. Mejía captures the camaraderie of the soldiers, the deranged incompetence of many of their leaders, and the encounters with brutality, including his own, that led him to desert. Also see On Veterans Day, my correspondence with Brandon Neely, Iraq war resister and former Guantánamo guard. A few other articles about Iraq are here.

10. The trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007)
He was 15 when seized. Without even mentioning torture, that alone breaches US obligations under the UN convention on the rights of the child. Also see 28, below, “Screwed up” and “abused”: Omar Khadr’s Canadian interrogations at Guantánamo, and Omar Khadr: The Guantánamo Files. For more on juveniles at Guantánamo, see 30, below, and The Pentagon Can’t Count: 22 Juveniles Held at Guantánamo (November 2008)

11. Stonehenge: Celebration and Subversion
My first book: Stonehenge as a counter-cultural icon, and a site of conflict between citizens and the State. Reviews, synopsis and how to buy.

12. Dick Cheney Shreds Secret Documents (September 2008)
From Philip Toledano’s online installation America: The Gift Shop. For more detailed analyses of the Imperial Vice President, see 22, below, and The Ten Lies of Dick Cheney (Part One and Part Two) (December 2008).

13. Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008)
The first open admission of torture. Still no prosecutions.

14. In a Legal Otherworld, 9/11 Defendants Cry Torture at Guantánamo (June 2008)
Follows 1, above, and is followed by 25, below.

15. The Guantánamo Files Website Extras 1: The Qala-i-Janghi Massacre
The first of 12 additional chapters. The stories of survivors of a massacre in northern Afghanistan in November 2001.

16. Guantánamo: Torture victim Binyam Mohamed sues British government for evidence (May 2008)
Detailed biography of British resident in Guantánamo, rendered for torture in Morocco and Afghanistan. Also see: High Court rules against UK and US in case of Guantánamo torture victim Binyam Mohamed (August 2008), and Guilt by torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008). A detailed archive of articles about Binyam is here.

17. A Chinese Muslim’s Desperate Plea from Guantánamo (March 2008)
A poignant letter from Abdulghappar, one of 17 innocent Uighurs (Muslims from China’s Xinjiang province) still held in Guantánamo. Also see: From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs and Guantánamo Uyghurs Resettlement Prospects Skewered by Justice Department Lies (both October 2008)

18. A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008)
A detailed account of a crucial case. The first full US war crimes trial since Nuremberg gave Hamdan, a driver for Osama bin Laden, just five months to serve for providing material support for terrorism. Also see: Bin Laden’s Driver To Be Released From Guantánamo; Government Defeated and The End of Guantánamo (both November 2008)

19. The US military’s shameless propaganda over Guantánamo’s 9/11 trials (April 2008)
Another in the ongoing series of articles monitoring the rigged and unjust Military Commission trial system at Guantánamo.

20. The Guantánamo Files Website Extras 2: Tora Bora
The second of 12 additional chapters, featuring other stories of prisoners captured in Afghanistan in December 2001.

21. The Dark Heart of the Guantánamo Trials (October 2008)
My favorite article of 2008, exposing the toxic chain of command in the system of trials by Military Commission, leading directly from the Pentagon to Dick Cheney and David Addington in the Office of the Vice President. An extraordinary cast includes Convening Authority Susan Crawford, William J Haynes II at the Pentagon, the Commissions’ overreaching legal adviser Brig. Gen. Thomas Hartmann, who meet with resolute resistance from former chief prosecutor Col. Morris Davis and former prosecutor Lt. Col. Darrel Vandeveld.

22. Dick Cheney: More Horrors from the “Vice President for Torture” (June 2007)
See 12, above. For more background, see: Dick Cheney, Invisible Tyrant.

23. Guantánamo’s ghosts and the shame of Diego Garcia (October 2007)
A sordid tale of British and American neo-colonialism in the Indian Ocean. Also see Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008).

24. Guantánamo whistleblowers: Lt. Col. Stephen Abraham is not the first insider to condemn the kangaroo courts (July 2007)
A former insider exposes the rigged system of tribunals at Guantánamo and reveals the inadequacy of the evidence. Also see: An interview with Guantánamo whistleblower Stephen Abraham (Part One and Part Two) (December 2008).

25. Is The 9/11 Trial Confession An Al-Qaeda Propaganda Coup? (December 2008)
Follows 1 and 14, above.

26. Guantánamo’s ridiculous underwear saga: the full correspondence (September 2007)
Lawyer Clive Stafford Smith punctures ludicrous and pompous bureaucracy at Guantánamo.

27. Why Jose Padilla’s 17-year sentence should shock and disgust all Americans (January 2008)
Related to 8, above, the story of US enemy combatant Padilla, tortured and held illegally on the US mainland for three and a half years, then convicted in a dubious trial. Also see: Jose Padilla: More Sinned Against Than Sinning.

28. Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008)
A birthday lament for Omar Khadr.

29. Six years of Guantánamo: enough is enough (January 2008)
Barack Obama has pledged to close Guantánamo. As the prison’s 7th anniversary approaches, these were my comments a year ago. Despite a few court victories, and a reduction in numbers, much still remains the same.

30: The Afghan teenager put forward for trial by Military Commission at Guantánamo (October 2007)
Introducing Mohamed Jawad, the other juvenile put forward for a trial by Military Commission. Watch out for drugged recruitment and coerced confessions.

Bubbling under:
The Shocking Stories of the Sudanese Humanitarian Aid Workers Just Released From Guantánamo (December 2007)
Return to torture: act now for Ahmed Belbacha, a British resident in Guantánamo (August 2007)
Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007)
The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008)
The Guantánamo Files Website Extras 4: Escape to Pakistan (The Saudis)

Also see some recent favorites and others that slipped through the net:
The Insignificance and Insanity of Abu Zubaydah (April 2008)
Guantánamo as Alice in Wonderland (July 2008)
Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (November 2008)
Why Guantánamo Must Be Closed: Advice for Barack Obama (November 2008)
How Guantánamo Can Be Closed: More Advice for Barack Obama (November 2008)
20 Reasons To Shut Down the Guantánamo Trials (November 2008)
Lost in Guantánamo: The Faisalabad 16 (December 2008)
A History of Music Torture in the “War on Terror” (December 2008)

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

For the Guardian’s Comment is free, this is my take on the response of European governments to the proposed resettlement of Guantánamo prisoners who cannot be repatriated because of fears that they will be tortured, and, perhaps, to others who have not yet been cleared for release by the Pentagon, but against whom no case has been established that will lead to a trial.

In it, I look at differing responses throughout the EU countries, France’s call for an EU-wide solution, British wavering, the importance of Lord Goldsmith’s call for support for rehousing former prisoners, and why Barack Obama should take the lead by resettling 17 Uighurs in the United States (Muslims from China’s Xinjiang province, who had been seized and sold to US forces in December 2001).

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, 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.