After “Guantánamo Habeas Week,” Analysis of Successes and Failures Continues

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My thanks to everyone who supported my recent “Guantánamo Habeas Week” project, which, due to the scale of the project and some scheduling difficulties, actually ran for three weeks, with an introduction here, an interactive list of all 47 cases to date, and six detailed articles examining the unclassified opinions in seven recent habeas cases: “With Regrets, Judge Allows Indefinite Detention at Guantánamo of a Medic,” “Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims,” “Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture,” “Why Judges Can’t Free Torture Victims from Guantánamo” and “How Binyam Mohamed’s Torture Was Revealed in a US Court,” and “Guantánamo and Habeas Corpus: Consigning Soldiers to Oblivion.”

Despite the slow progress of the habeas petitions — largely through Justice Department obstruction, as I have explained before — time does not stand still, and new rulings continue to be made. On Monday, I published another article — “Judge Denies Habeas Petition of an Ill and Abused Libyan in Guantánamo” — about the 48th case to be decided, that of a Libyan prisoner, Omar Mohammed Khalifh, whose habeas petition was denied on April 20, but was not reported anywhere, except on the website of the Center for Constitutional Rights.

As a result, I have just added a new page, “Guantánamo Habeas Results: The Definitive List,” which I will use from now on to provide up-to-date information about all the rulings, with links to my ongoing articles.

I remain impressed that the judges involved have ruled in the prisoners’ favor in 34 of the 48 cases (that’s 70 percent of the total), because, as I explained in my original introduction to “Guantánamo Habeas Week,” they have “revealed the alarming flimsiness of most of the material presented by the government as evidence. Primarily, the judges have exposed that the government has been relying, to an extraordinary extent, on confessions extracted through the torture or coercion of the prisoners themselves, or through the torture, coercion or bribery of other prisoners, either in Guantánamo, the CIA’s secret prisons, or proxy prisons run on behalf of the CIA in other countries.”

However, as I analyzed the judges’ unclassified opinions in the eight cases above (four won by the prisoners, and four by the government), I had reason to sharpen my critique of those who lost their habeas petitions. In my introduction, I stated that I was “troubl[ed by] the justifications for continuing to hold the majority of the prisoners who lost their habeas petitions, as they reveal that the basis for doing so — the Authorization for Use of Military Force, passed by Congress in the wake of the 9/11 attacks and maintained as a justification by President Obama — was, and is a deeply flawed document, which fails to distinguish between a small group of genuine terrorists (al-Qaeda) and a considerably larger group of men (and boys) associated with the Taliban. The result is that men continue to be consigned to indefinite detention, on an apparently sound legal basis, even though they were only peripherally involved with the military conflict in Afghanistan to secure the fall of the Taliban, and should, all along, have been held (if at all) as prisoners of war, and protected by the Geneva Conventions.”

The painful repercussions of this fundamental misconception at the heart of the “War on Terror” (as maintained by President Obama) were particularly apparent in the case of Mukhtar al-Warafi (a medic excluded by Congress from the protections traditionally granted to medics in wartime) but in my article summing up the project, I concluded that the cases of Suleiman al-Nahdi and Fahmi al-Assani were actually the most emblematic, as both men were clearly soldiers, but, just as obviously, were not terrorists at all.

In the most recent ruling — that of Omar Mohammed Khalifh — it seems probable (although the unclassified opinion has not yet been issued) that this misconception was at work yet again, this time on a peripheral refugee who cleared mines for the Taliban. In addition, another recurrent theme — that of the torture or coercion of other prisoners or of the prisoners themselves to produce false confessions — also seems to have played a significant role, and as my coverage continues, I will continue to expose both of these crucial elements that undermine the validity of the habeas petitions denied by the judges.

The bitter truth, after 48 rulings, is that, although the 34 successful petitions accurately reflect the paucity of the government’s supposed evidence, and the frequency with which what little exists is undermined by revelations of its extraction through torture, coercion or bribery, the 14 petitions denied do not, for the most part, appear to justify the indefinite detention of the men in question. Eleven of those cases involved soldiers in wartime (or those supporting soldiers in wartime) and of the other three — Belkacem Bensayah, Hisham Sliti and Sufyian Barhoumi — only Barhoumi’s case seems to bear any resemblance to what might be legitimately defined as terrorism.

As the hunt for justice at Guantánamo continues, it is important to bear in mind that just 35 of the 181 prisoners still held, according to the Obama administration’s interagency Task Force, which reviewed their cases last year, will be put forward for a trial of any kind. Disgracefully, the Task Force also approved holding another 47 prisoners indefinitely without charge or trial, because they were judged to be a threat to the US, despite fundamental weaknesses in the supposed evidence against them.

The Task Force’s decisions were a direct snub to the authority of the District Court judges, as mandated by the Supreme Court, but as the habeas rulings continue, the position taken by the Task Force (and, by extension, by the President) is evidently being tested by the judges, who are not always convinced that the executive branch has reached the right decision.

A final showdown on these issues will not presumably happen until all the habeas cases have been dealt with, but in the meantime those who care about handing out something resembling justice to the Guantánamo prisoners already need to work out whose side they are on, choosing either a Supreme Court-approved process in which judges have demonstrated their ability to impartially assess the government’s supposed evidence, or an administrative review process, initiated by the executive branch, which justifies the prisoners’ ongoing detention behind closed doors.

For those anxious to bring to an end the Bush administration’s arrogant disregard for the law, and its love of unassailable executive power, the only valid conclusion is that the judges must be allowed to continue their work, and that the only area that needs fundamental questioning is the basis for detention as enshrined in the Authorization for Use of Military Force, which should be abandoned after the habeas cases conclude, and replaced by the rules that existed before 9/11 and that worked perfectly well: hold soldiers as prisoners of war, protected by the Geneva Conventions, and prosecute terror suspects in federal courts.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and currently on tour in the UK), and, if you appreciate my work, feel free to make a donation.

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), 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), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (September 2009), 75 Guantánamo Prisoners Cleared For Release; 31 Could Leave Today (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Justice Department Pointlessly Gags Guantánamo Lawyer (November 2009), Judge Orders Release Of Algerian From Guantánamo (But He’s Not Going Anywhere) (November 2009), Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait (December 2009), What Does It Take To Get Out Of Obama’s Guantánamo? (December 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Judge Orders Release From Guantánamo Of Unwilling Yemeni Recruit (December 2009), Serious Problems With Obama’s Plan To Move Guantánamo To Illinois (December 2009), Appeals Court Extends President’s Wartime Powers, Limits Guantánamo Prisoners’ Rights (January 2010), Fear and Paranoia as Guantánamo Marks its Eighth Anniversary (January 2010), Rubbing Salt in Guantánamo’s Wounds: Task Force Announces Indefinite Detention (January 2010), The Black Hole of Guantánamo (March 2010), Guantánamo Uighurs Back in Legal Limbo (March 2010).

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), Bagram Isn’t The New Guantánamo, It’s The Old Guantánamo (August 2009), Obama Brings Guantánamo And Rendition To Bagram (And Not The Geneva Conventions) and Is Bagram Obama’s New Secret Prison? (both September 2009), Dark Revelations in the Bagram Prisoner List (January 2010), Bagram: Graveyard of the Geneva Conventions (February 2010).