Mocking the Law, Judges Rule that Evidence Is Not Necessary to Hold Insignificant Guantánamo Prisoners for the Rest of Their Lives


If I was an American lawyer who had fought for many years to secure habeas corpus rights for the prisoners held at Guantánamo Bay, Cuba — in other words, the right to ask an impartial judge to rule on my captors’ reasons for slinging me in a legal black hole and leaving me to rot there forever — the latest news from the Court of Appeals in Washington D.C. (also known as the D.C. Circuit Court) would make me sick in a bucket rather than believing any longer that the law — the revered law on which the United States was founded — can bring any meaningful remedy for the prisoners at Guantánamo.

Treated as punchbags without rights when first picked up, mostly in Afghanistan and Pakistan in the wake of the 9/11 attacks and the US-led invasion of Afghanistan, the 172 men still held at Guantánamo are still treated with scorn by the administration of Barack Obama, the standard bearer of “hope” and “change,” who promised to close Guantánamo and to do away with “the dark halls of Abu Ghraib and the detention cells of Guantánamo, [where] we have compromised our most precious values.” Instead, however, Obama has revealed himself to be nothing more than a hollow man whose ability to read from an autocue made him look caring, clever and capable when that was exactly the antidote we needed to eight years of Bush and Cheney.

Today, the reason for despair is that on Tuesday the D.C. Circuit Court reversed a ruling made last February by Judge Henry H. Kennedy Jr. of the District Court, in the case of Uthman Abdul Rahim Mohammed Uthman, a Yemeni held at Guantánamo without charge or trial since the prison opened in January 2002. Last February, after examining all the government’s supposed evidence against Uthman, Judge Kennedy ruled that, although the government had presented what appeared to be a coherent timeline of events that was typical for young men from the Gulf, recruited to visit a training camp in Afghanistan to learn to fight for the Taliban against the Northern Alliance, none of the government’s supposed evidence proving Uthman’s presence in guest houses, at a training camp, and in the Tora Bora mountains (where a showdown took place in December 2001 between remnants of al-Qaeda and the Taliban, and Afghan forces recruited to fight for the Americans) was reliable.

The reason for this, Judge Kennedy concluded, was because the government’s supposed evidence consisted of statements produced by other prisoners who had been tortured, and whose testimony was therefore unreliable, as well as other witnesses whose statements were also considered to be untrustworthy.

This could have been the end of the story, and Uthman could have been released, were it not for the fact that he is a Yemeni, and the month before he won his petition, President Obama bowed to hysteria following the announcement that Umar Farouk Abdulmutallab, the failed Christmas Day plane bomber, had been recruited in Yemen by announcing an immediate, open-ended moratorium on releasing any Yemenis from Guantánamo.

The fact that this moratorium was unjustifiable, consigning prisoners cleared for release by a US court, or by Obama’s own interagency Guantánamo Review Task Force, to indefinite detention on the basis of “guilt by nationality,” appeared to trouble no one, and, similarly, no one blinked when every Yemeni who won his habeas corpus petition — with one heroic exception — subsequently had his successful petition appealed.

This was in spite of the fact that it was obvious to anyone who was reasonably sentient that the main reason for doing so was to avoid having to try to persuade Congress that an exception should be made to the moratorium, which, very clearly, was actually intended to function as a permanent obstacle to the release of any Yemeni, the kind of legally and morally dubious device that President Bush also favored, although his chosen vehicle was the executive order.

The noble exception, by the way, was Mohammed Hassan Odaini, a student who had been seized while staying the night wth other students at their universtiy dorm in Faisalabad, Pakistan, in March 2002. Many of the other students staying in the dorm are still held, but Odaini was lucky because a judge reached the point where he was satisfied that he could make a ruling on his habeas petition, and forcefully explained that the US government had no reason for having deprived Odaini of eight years of his life, when intelligence officials knew, almost from the moment of his capture, that he was an innocent man.

It also helped that his case was picked up by the Washington Post, which ran an editorial entitled, Meet one Gitmo inmate who can’t be described as ‘the worst of the worst.’ At this point, he became a kind of minor celebrity victim, and the administration conceded that it wouldn’t dare appeal, although officials still made a concession to outrageousness by explaining, straight-faced, that they still would have challenged his release if they hadn’t discovered that he was from a good family. “People [in the administration] were comfortable with this,” an anonymous official told the Washington Post, “because of the guy’s background, his family and where he comes from in Yemen.”

For Uthman Abdul Rahim Mohammed Uthman — not as well-connected as Mohammed Hassan Odaini — all that awaited him was a date with the D.C. Circuit Court that was bound to result in Judge Kennedy’s ruling being reversed, and Uthman himself being consigned to indefinite detention at Guantánamo for the rest of his life.

The reason I state this with such confidence is that, since they first began considering Guantánamo habeas appeals last January, the judges of the D.C. Circuit Court — and, in particular, Judges A. Raymond Randolph, Brett M. Kavanaugh and Janice Rogers Brown — have generally functioned as though possessed by the spirit of George W. Bush and Dick Cheney, sedating the spirit of justice and taking revenge on the Supreme Court, which granted constitutionally guaranteed habeas corpus rights to the Guantánamo prisoners in June 2008.

Of these, Judge Randolph is the most notorious, having endorsed every piece of Guantánamo legislation that came his way under the Bush administration, even though all his rulings were subsequently reversed by the Supreme Court, but all of them (plus others, in various combinations) have almost entirely guaranteed success for the government’s appeals in the habeas legislation, as I explained in my articles, Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part One), Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part Two) and Habeas Hell: How the Great Writ Was Gutted at Guantánamo.

In challenging, reversing and vacating the District Court opinions, the D.C.Circuit Court has issued a contentious opinion about unfettered executive power, which claimed greater wartime powers for the government than senior officials wanted, wondered — in an opinion by Judge Randolph — why any kind of test was required for the quality of the government’s evidence in cases related to terrorism, and, most damagingly for the prisoners, decided that the involvement with al-Qaeda and/or the Taliban that is required to justify detention is not, as the District Court judges decided, limited to some sort of involvement in the command structure of the organizations (intended to demonstrate important indicators like the requirement to take orders), but is, instead, the much more open-ended requirement that those under consideration are “part of” al-Qaeda and/or the Taliban.

On Tuesday, demonstrating quite how open-ended this description is, Judge Kavanaugh, who wrote the judges’ opinion, declared, as ProPublica stated, “that the government doesn’t need direct evidence that a detainee fought for or was a member of al-Qaeda in order to justify a detention.” ProPublica added that the court “determined that circumstantial evidence, such as a detainee being in the same location as other al-Qaeda members, is enough to meet the standard to hold a prisoner without charge.”

In the ruling (PDF), the judges wrote, “Uthman’s account piles coincidence upon coincidence upon coincidence … it remains possible that Uthman was innocently going about his business and just happened to show up in a variety of extraordinary places — a kind of Forrest Gump in the war against al-Qaeda. But Uthman’s account at best strains credulity, and the far more likely explanation for the plethora of damning circumstantial evidence is that he was part of al-Qaeda.”

Jonathan Hafetz, a professor at Seton Hall Law School, who has represented several Guantánamo prisoners including Mohamedou Ould Salahi, who, last November, had his successful petition vacated and sent back to the District Court to reconsider, complained that the Circuit Court’s ruling “significantly favors the government in ways the Supreme Court did not intend when it granted detainees the right to challenge detentions.”

“The Uthman case cements the trend in the D.C. Circuit’s decisions toward a broad and malleable definition of who can be considered ‘part of’ al-Qaeda, combined with a highly deferential view of the government’s interpretation of the facts,” Hafetz said. “In many cases, the result is indefinite detention based on suspicion or assumptions about a detainee’s behavior.”

He added that the ruling is not only dismissive of the considered approach taken by the District Court, but is also dismissive of the intent of the Supreme Court. The Supreme Court, he said, “mandated a meaningful judicial process in which the government would be called to account; Uthman says judges should not require much in the way of an answer.”

The other problem for Uthman, and for the majoriity of the other prisoners who have lost their habeas petitions (22 out of 59 cases in total), is that all this legal maneuvering fails to address a fundamental problem with the habeas petitions that no one has ever wanted to deal with — the fact that the habeas petitions are specifically to decide whether the government is able to demonstrate, by a preponderance of the evidence, that the prisoners in question were involved with al-Qaeda and/or the Taliban, without making any distinction between them, even though one is a terrorist group, and the other was the government of Afghanistan at the time of the 9/11 attacks.

This refusal to distinguish between two decidedly different groups — despite the limited crossover between them, which also extended to a failure to realize that those who trained in camps associated wth al-Qaeda were generally only involved in what might be called al-Qaeda’s military wing, rather than its involvement with international terrorism — is enshrined in the founding document of the “War on Terror,” the Authorization for Use of Military Force. Passed by Congress the week after the 9/11 attacks, the AUMF 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 those who harbored them.

Interpreted by the Supreme Court, in Hamdi v. Rumsfeld, in June 2004, as “clearly and unmistakably” authorizing the detention of individuals, the AUMF therefore provides the rationale for holding prisoners neither as criminal suspects, to be put forward for trials, nor as prisoners of war protected by the Geneva Conventions, but as what Bush called “illegal enemy combatants,” and it crafts the fiction, maintained ever since, that terrorists and soldiers are somehow one and the same, when, if those involved in the habeas legislation were allowed to express an honest and  unguarded opinion about many of the cases, I’m sure that many of them would concede that terrorists are criminals, whereas those involved in the Taliban’s military conflict with the Northern Alliance, which morphed, after 9/11, into a global war against the US, were nothing more than soldiers, and should have been held as such according to the Geneva Conventions.

Time and again, however — and Uthman is just the latest example — these foot soldiers have been losing petitions and being slung back into Guantánamo as though they were convicted terrorists, even when they are no such thing, and, in two cases, were not even foot soldiers but a cook and a medic. Sadly, few people realize that this is what has been happening, as the mainstream media in the US has done little to interest the American public in the prisoners’ habeas corpus petitions.

However, as with my imaginary scenario with the judges, if it were possible to make a cross-section of the American public sit down for a few hours and have spelled out to them the stories of those who have been losing their habeas petitions and who may now spend the rest of their lives in Guantánamo, I’m sure that they too would realize that there’s an enormous difference between someone involved in a plot to kill hundreds or thousands of civilians on the US mainland or anywhere else in the world, and someone who attended a training camp, and may, in some way or another, have engaged in military conflict with the Northern Alliance and/or the US military in Afghanistan.

Nearly ten years after the 9/11 attacks, the time to sort out the difference between terrorists and soldiers is surely long overdue, so that people like Uthman are treated with justice, rather than the lingering effects of the hyperbole that typefied the Bush administration’s “War on Terror.” Moroever, it is also important for America itself to stop pretending that there is a magical third category of prisoner on whose heads can be poured all the pain and loss of 9/11. Prisoners are either criminal suspects, to be put on trial, or soldiers, seized in wartime, to be held as prisoners of war and protected by the Geneva Conventions.

Note: For details of all the habeas cases ruled on in the US courts, see the dedicated page, Guantánamo Habeas Results: The Definitive List, which is regularly updated when new developments are announced.

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 July 2010, 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 Cageprisoners.

83 Responses

  1. Norwegian Shooter says...

    Bravo! Excellent summary.

    I’m sorry for your loss and hope you start feeling better, too. Oh, and congrats on giving up the fags. (is that still used across the pond?)

  2. the talking dog says...


    Glad to see your wit is as energetic and your writing as poignant and hard-hitting as usual; I hope you are otherwise feeling a little better.

    The ultimate problem with the D.C. Circuit running amok, as they are clearly doing, is that the Obama Administration has managed to stack the deck at the Supreme Court level, because (“progressive liberal champion”) Justice Kagan is all but certain to recuse herself in virtually every one of these cases (as these cases were all likely kicking around in one form or another in her previous office as Solicitor General…), leading at best to 4-4 ties if the other justices vote as expected… and since ties result in affirmance, this makes Judges Randoph, Rogers Brown, etc. the last word.

    And, of course, the District Judges are bound by stare decisis to follow the rules ordained by their “superior” court, and extend the perversion of “evidence” as far as the Bush/Obama Continuum wants to take it… which, I can tell you, and you know anyway, is remarkably far. The judges of the Reich might have recognized some of the “inferences” and “presumptions” being made… which leads me to ask…

    One wonders if the Men [and Women] in Black, as appellate judges, supposing themselves in the position of presiding over what they fancy to be latter-day Nuremberg proceedings, have any recollection of the Nuremberg Judges cases e.g. Not that any of them care, of course… thinking that American invincibility for all time (or at least the rest of their natural lives) is a foregone conclusion, while they merrily ensure that men that they know for sure have done nothing and pose no threat to anyone nonetheless remain mercilessly incarcerated for presumably the rest of their natural lives.

    Still… things sometimes have a funny way of changing quickly.

  3. Andy Worthington says...

    Thanks, Norwegian Shooter. Feeling much better, although the toes are still — shall we say, unsettled?

    Not being particularly mobile AND having given up the fags (and we do still call them that) seems to have given me even more time than ever to write!

  4. Andy Worthington says...

    Great to hear from you, TD. It’s early days yet, but alongside the odd moment of wondering what the hell to do now that I no longer smoke, I’m enjoying the lack of distraction that comes with a nicotine-free life, plus occasional giddiness, and, I’ve noticed, a slightly different approach to language.

    Glad you liked the latest Circuit Court analysis, as a result of this ever so slightly tweaked worldview. Not much to add to your gloomy but accurate prognosis, although I’m curious about your closing line, “things sometimes have a funny way of changing quickly,” as though you know something the rest of us don’t …

  5. Andy Worthington says...

    On Facebook, Ciudadano Kane Kane wrote:


  6. Andy Worthington says...

    Paul Millar wrote:

    Americains…do as we say!! no wonder no one trusts them any more..kidnapping is ok if you say he might (know or seen a terrorist on TV) start locking up Americains abroad and say they were spying…don’t need proof just need gun and jail cell…

  7. Andy Worthington says...

    Paul Millar wrote:

    but make sure you don’t have oil in your trunk or Americain military will liberate your Car!!

  8. Andy Worthington says...

    Betty Molchany wrote:

    Thanks, again, Andy. I have clicked on “digg it,” which I encourage others to do to support you and have shared the above.

  9. Andy Worthington says...

    Jamie Mayerfeld wrote:

    Thanks for your clear and eloquent coverage of this continuing nightmare.

  10. Andy Worthington says...

    Mezentian Gate wrote:

    A statist is a statist no matter left or right: the authority of the government is not to be questioned.
    It’s Like being a counter-revolutionary to a Marxist that the Bush-ites arrested them & Obama minions continue the game shows there is liitle difference: we Who value individual freedom over tyranny thank you, Mr Worthington

  11. Andy Worthington says...

    Pamela Allee wrote:

    The so-called “supreme court” (sic) is illegitimate DC’s handmaiden. I’d like to say the whole mess is irrelevant – unfortunately, until we rise collectively they remain in power over us.

  12. Andy Worthington says...

    Roland Jesperson wrote:


  13. Andy Worthington says...

    Roland Jesperson wrote:

    We, here in the us of a, really need to come up with another word for “justice,” as in, our system of …. that word is downright propagandistic … “oppression,” maybe?

  14. Andy Worthington says...

    Aaron Henry wrote:

    Depressing indeed, Mr. Worthington. Thank you for shining a light once again.

  15. Andy Worthington says...

    Thanks, everyone. The big freeze at Guantanamo — with nothing happening because of Republican opposition to any plans for its closure, Obama’s cowardice and the D.C. Circuit Court’s determination to undermine the Supreme Court and gut habeas corpus of all meaning and remedy — is so depressing that I’ve severely reduced my writing about the prison, branching out into topics that might be slightly less like banging my head relentlessly on a brick wall.

    However, when something happens that needs to be noticed, like this multi-layered travesty of justice in the Circuit Court, then I’m hoping that, with a little distance, I’ll be fresh enough to nail what’s wrong and help people to understand why it’s important not to allow the undying injustice of Guantanamo to be brushed under the carpet.

  16. Andy Worthington says...

    George Kenneth Berger wrote:

    I’m sharing this now, Andy. There’s a seruious typo in the text, in the paragraph beginning with “It also helped.” What is the intended spelling of “had’t,” which is in that paragraph? BTW, I RTed your tweet about this. Despairing indeed.

  17. Andy Worthington says...

    Monique D’hooghe wrote:

    thank you for all the hard work and for alla the banging your head against a brick wall… really much appreciated, kudos… have shared the article and your comment…

  18. Andy Worthington says...

    George Kenneth Berger wrote:

    ‎”Obama’s cowardice” gets it just right. I’m quite pissed off and, frankly, glad I left the States in 72, two months before my 30 th.

  19. Andy Worthington says...

    Maria Allison wrote:

    Dugg and shared, Andy. Whatever the appropriate word for this is, justice it ain’t.

  20. Andy Worthington says...

    Thanks, George, Monique and Maria. Your support is much appreciated, as is spreading the message far and wide via your good selves and the 82 people in total who’ve shared this so far. It will also be up on Common Dreams and The Public Record tomorrow, and hopefully cross-posted elsewhere as well.

    I also hope it will make a difference, although I should know better by now. I guess it means that I attach even more importance to hope than I believed I did, because I should really have understood by now that there is no appetite in the United States for holding senior officials in the Bush administration — and the lawyers who advised them — accountable for their crimes.

    As it is, however, I refuse to be complicit in this cover-up, and I know that there are many of you out there who refuse to do so as well. Moreover, we must continue to believe that we will eventually prevail, for justice and for truth, and to demonstrate, as is desperately needed, that those who respond to savagery with equal savagery or worse, discarding values of decency and fairness that they purportedly hold dear, and which others struggled for long, long years to establish, cannot be allowed to win.

    If they do, civilization and civil society — fragile constructs that require mutual trust — will themselves be severely endangered, and if they fall there will be no place of safety from the dog-eat-dog barbarism that has prevailed for so much of human existence, and that was one of the most pernicious legacies of the Bush administration, which notoriously went over to the “dark side,” taking torture into the mainstream, and infecting society as a whole.

  21. Andy Worthington says...

    George Kenneth Berger wrote:

    This article brought to mind your piece on the CMUs of several weeks ago:

    Now, I realise that I know next to nothing about the legalities of Guantanamo or the American criminal justice laws. But it seems to me that the prisoners at the CMUs are in a legally similar position to those in Guantanamo. The first question is, are their rights or lack thereof comparable and as illegal at both places. If the answer is anywhere near yes, then here is a possibility. That someday Guantanamo will be closed and its prisoners and any future captives from anywhere at all-e.g. Bagram-shall be placed in a CMU. Can this be ruled out?

    Around 1992 or 93 a friend told me about a new sort of prison in the USA. He mentioned the tight control and restrictions. But he also told me that some or all cells were designed for sensory desensitisation. When I asked why, he said he did not know. I knew nothing then about the torture development programmes. Now that it seems likely that compliance, not only confession, is one aim of the torture (see the Truthout article), I fear that the CMUs might be the places where all sorts of innocent captives will be dumped, perhaps beyond the reach of lawyers. Guantanamo in the USA indeed. I don’t think I’m overly suspicious, given tonight’s article.

  22. Andy Worthington says...

    Hi George,
    Well, there are differences, Guantanamo being essentially a legacy problem, and one for foreign prisoners, whose long-term effect is more likely to be on wartime prisoners than domestic ones, in that it is the unilateral reworking — or discarding — of the Geneva Conventions that resonates beyond Guantanamo, rather than the specific detention of prisoners according to the AUMF.

    That said, you’re right to note that the CMUs, which are domestic prisons, and which specialize in isolation, have also held prisoners brought to justice in the US from other countries, and that this could indeed happen in future with other prisoners.

    However, I think the bigger problem, which you touched upon in your second paragraph, is the more brutal isolation practiced in Supermax prisons, which is particularly comparable to isolation in the “War on Terror.” These prisons also hold foreign nationals, but to be honest, all that is stopping them being used in future as you suggested is that to be imprisoned in a Supermax prison or a CMU, you have to have lost a trial in a federal court, and the Republicans are so fixated on making the Guantanamo prisoners — and, if possible, all future terror suspects — into “warriors” rather than criminals, that they don’t want them to have federal court trials, and want military trials instead — preferably, it seems, after they’ve been waterboarded, and refused their Miranda rights!

    I don’t even want to begin addressing the idiocy of those last suggestions …

  23. Andy Worthington says...

    George Kenneth Berger wrote:

    Andy, I’m a retired philosopher, used to making distinctions. One is between optimism and hope. The former is where one believes that one *knows* that something will turn out for the best in the end. Hope is sometimes almost an act of desperation, based on little evidence. Right now, it seems that hope, not optimism, is all we’ve got in the matters discussed here.

  24. Andy Worthington says...

    Ah yes. My wife sometimes tells me I’m a pessimist, George, but I’m pretty convinced that I’m more of a realist, although that does involve me thinking that optimism is rather overrated, and less reliant on knowledge, as you indicate, and rather more reliant on a predisposition, a cheery outlook, a “positive” frame of mind — which, of course, often turns out to be wrong!

    That said, I may be being rather harsh on optimism, and separating it unduly and unfairly from hope, which I have a lot of time for. I believe that hope is not only appropriate, but has always been appropriate in these kinds of situations, where the injustice appears to be impenetrable.

    However, I’m not sure if I can entirely justify accepting hope but being suspicious of optimism simply because I regard the former as being essentially faith-based and involving long-term endurance and dismiss the latter as being rather lightweight.

    This being the English language, however, it should be noted that, before you answer, we could, pretty legitimately, argue about it forever!

  25. Andy Worthington says...

    George Kenneth Berger wrote (in response to 22, I think):

    Thanks Andy. It was putting three thoughts together to make a possible scenario, that scared me. My friend did say something like, “To make them like zombies”. About your last paragraph, laws can always be changed, abolished, or plain neglected. I have little faith in legal stability anywhere.

  26. Andy Worthington says...

    George Kenneth Berger also wrote:

    That we can. In fact, being an optimist paid off for me two days ago. I’m sure you remember the piece on Dutch healthcare I wrote. Two days ago I got my complete medical dossier, and as far as science knows now, I’ll most likely survive. Good enough. But it can be deduced from that dossier that my analysis of what happened to me was spot on. The Dutch doctor behaved quite wrongly. Had I remained I would most likely have died. The doc does not say anything accusatory, but the comparison follows logically. So I won out by being an optimist, based on my knowledge that the science here is cutting-edge, and that of Amsterdam was not. I did not hope, but was pretty sure.

  27. Andy Worthington says...

    A very clear explanation indeed, George — and I’m glad you were right!

  28. Andy Worthington says...

    Kevin M Benderman wrote:

    If this doesn’t show the people of this country, the people in the government is doing what ever they want instead of following established law, nothing will. This nation has a constitutional responsibility to follow the law and we are not doing it. This is because far too many for far too long have laid back and let the politiicians ruin our system. The only reason this happened is because the people gave away their responsibilites of being active participants in the running of this nation. We are as responsible for this as anyone else would be.

    I know many think voting is doing all they should do, but it takes more than turning over your responsibilities to someone else and expecting them to do everything for you.

  29. Andy Worthington says...

    Thanks, Kevin, for that perfect explanation of the eternal vigilance that is required to prevent the executive and lawmakers from failing to fulfill any of their required duties!

  30. Andy Worthington says...

    Ghaliyaa Haq wrote:

    Saw a version of the story earlier – yours is better!

  31. Andy Worthington says...

    Thanks, Ghaliyaa. You know how to brighten up a journalist’s morning!

  32. Norwegian Shooter says...

    You should have written a headline “Gitmo is Closing! Gitmo is Closing” … April’s Fool. Humor being sometimes better than hope and always better than optimism.

    Ever heard of El Fasteny v. Obama?

  33. Andy Worthington says...

    Ha, yes! Although on second thoughts, so many people think that Guantanamo’s already closed because Obama said he’d close it that it might just have caused problems, with people asking me how he could close it twice!

    El Falesteny may be this case that was before Judge Reggie Walton last spring, in which, as SCOTUSblog put it, “lawyers for more than three dozen Guantanamo Bay detainees … urged a federal judge to rule that they are entitled to humane treatment under the Geneva Conventions, but have not been getting it.”

  34. Andy Worthington says...

    Anne Elliott wrote:

    Shared Andy. Thank God for your work.

  35. Andy Worthington says...

    Esther Angel wrote:

    Circuit Court? Circus Court, more likely! The US midterm elections have done much to further bad judges and make Obama even more cowardly. He should just use his remaining time in government to make the difference he promised and not hold back in (unfounded) hope of re-election.

  36. Andy Worthington says...

    Sylvia P. Coley wrote:


  37. Andy Worthington says...

    Thanks, Anne, Esther and Sylvia. Much appreciated.
    It was a hard day today. Blood check this morning, and then a three hour journey out of town for an important meeting (and a three hour journey back), which was great, but hell on my poorly foot, which is still not up for major jaunts, sadly. I aim to take it easy over the weekend.

  38. Andy Worthington says...

    On Common Dreams, whocares wrote:

    wow … Worthington’s work/webpage is amazing!

    All this unjust USA behavior, there is no leadership, or responsibility, to the wrong actions carried out in the name of the USA.

  39. Andy Worthington says...

    Michael F wrote:

    The DC Circuit is the only circuit authorized to hear the habeas cases. That means another circuit cannot raise a conflict with the DC Circuit, and the only way to the Supreme Court is by certiorari. All the Supreme Court has to do to set Uthmani in concrete as the law is to deny certiorari. If Kagan votes with the current majority (as many of us suspect she will), then the vote is 6-3 to deny, and that is the end of that.
    It’s a virtually unfixable situation.

  40. Andy Worthington says...

    lyfeform wrote:

    Question is, is Amerika an unfixable country? Probably, IMHO.

  41. Andy Worthington says...

    Paranoid Pessimist wrote:

    If the United States isn’t fixable, it will go down and take the rest of the “developed” world with it. I think it probably is indeed unfixable, but I refuse to completely give up the microscopic shred of hope I have that some genius will find a way to lead us all out of this mess. It’s a long shot, to be sure.

    People tell me to stop waiting for someone to lead the way, that we all just have to get in there and do it ourselves. To them I ask, do exactly what?

  42. Andy Worthington says...

    Old Guy wrote:

    Why aren’t the law schools weighing in more aggressively against the corruption at all levels of our legal system? These judges, including the Supreme Court justices, are making an absolute mockery of the rule of law, and the law schools seem to accept it as business as usual.

    The deans of our nation’s law schools need to rise up as one and condemn the way the law is being abused/ignored/subverted at the state and national levels.

    Otherwise, they should close their schools and acknowledge that Lady Justice has her blindfold off and is pushing down hard on the scales with her right hand.

  43. Andy Worthington says...

    mustbefree wrote:

    There is no justice, there is no law for the many; there is only privilege for the few.

  44. Andy Worthington says...

    socialist wrote:

    The Law? Please.

    Habeas corpus suspended. War criminals not prosecuted, but rewarded; Bankster criminals not prosectuted, rewarded with billions etc.

    The world’s most destructive and blood-soaked criminals are lauded as wise statesmen (Kissinger, Blair, Bush, Cheney, Obama, Clinton, Gates et al.) The world’s most destructive financial terrorists (Moynihan, Dimon, Blankfein, Masters et al.) making billions and with a pocket-full of “get out of jail free” cards and owning the entire country.

    Anyone who can speak of the “rule of law” is either in the depths of Stockholm Syndrome or woefully ignorant.

  45. Andy Worthington says...

    metal wrote:

    “Force without judgment will fall of its own weight.” – Horace

    What this Kafka-esque fascist nightmare all boils down to is an anti-Constitutional, anti-Geneva Conventions promulgation of the Bush Doctrine war trigger as applied to individual human beings–U.S. citizens or not.

    The Bush Doctrine shifted the war trigger of “Amurka” from “EVIDENCE of a clear and present danger” to national security to “SUSPICION of a threat” to national security (“national security” itself being a vast grey umbrella term applied in far too many circumstances that are meritless).

    This Judge’s rule shifts the government’s burden of proof necessary to indefinitely detain an individual from hard evidence of, to suspicion of a threat to national security. This basically obviates any true “burden of PROOF” for the government in such cases and amounts to the equivalent of an automatic autocratic Bastille system to wantonly convert any political undesirable into a permanent political prisoner who never faces true charges and never sees the light of day.

    It’s looking more and more like French Revolution time for Amurka every day.

  46. Andy Worthington says...

    ezeflyer wrote:

    Conservatism is a contagious disease

  47. Andy Worthington says...

    Paranoid Pessimist wrote:

    And, unfortunately, probably incurable.

  48. Andy Worthington says...

    NC-Tom wrote:

    “We hold these truths to be SELF-EVIDENT, that ALL men are created EQUAL, that they are endowed by their Creator with certain UNALIENABLE RIGHTS, that among these are LIFE, LIBERTY, and the PURSUIT OF HAPPINESS”.

    Yea, tell that to those held without trial at Guantanamo, and may I add, the Japanese Americans held in concentration camps in WWII, the American Slave and the American Indian, to mention a few.

    It always amazes me to see how those who had once considered themselves the oppressed, are willing to become the oppressors, and then to ignore the hypocrisy their own actions.

  49. Andy Worthington says...

    corvo wrote:

    In all fairness, the “Founding Fathers” didn’t believe a word of what they were writing either. The Founding Fathers were our first plutocratic elite, terrified of real democracy, and jealous guards of their economic, social, and political privilege.

  50. Andy Worthington says...

    Jill wrote:


    I think this is the reason why the Constitution is failing so badly at this time. It had fatal flaws from its beginning, ones resulting from what you write about. Still, I think this is the call to every person of conscience to peacefully resist what is wrong and to try and set things right. Part of setting things right will be writing a new Constitution.

    I agree with old guy that the law schools should be sending their professors and students into the street, but most of these people are easily bought off and completely complicit in the govt.’s crimes. However, not everyone believes it is fine to harm others, in fact, I would say quite a few people would think this was wrong if they had a chance to understand what is going on. We must take every peaceful action possible to oppose this govt.’s wrongdoing. There isn’t another way. We will have little chance of success, but taking no action will guarantee the tyranny of the govt. will win out.

  51. Andy Worthington says...

    Tom Joad wrote:

    Yes the founders thought that “ALL men are created equal” as long as they are white, rich, male and of Northern European descent. As Orwell noted in his famous allegory “Animal Farm,” “…some animals are more equal than others.”

  52. Andy Worthington says...

    Dizi wrote:

    When Pres Bush #1 held the crack cocaine on TV and started a new phase in the War on Drugs, ZERO TOLERANCE, the New World Order took a stride forward. So many were illegally arrested for drugs and had their properties seized with no court action – me being one of those. Now Obama beats the drums for the NWO to march forward.

    It’s time to give-up on the government and start trying to make our local lives better and maybe some type of grassroots spirit will work its way up. Individuals no longer matter to the laws of the USA.

  53. Andy Worthington says...

    quickstepper wrote:

    I believe that it was Reagan who started the zero-tolerance policy.

  54. Andy Worthington says...

    Dizi wrote:

    Maybe so, but shortly after the Bush ‘cocaine’ speech, the government went nuts with illegal arrests and seizures. 60 Minutes reported on it in 1990. I was ‘terrorized’ just weeks after the Bush speech, so it really sticks in my mind.

  55. Andy Worthington says...

    Tom Joad wrote:

    “It’s time to give up on the government…”

    I would propose that it’s time to ABOLISH the government. You’re correct that “Individuals no longer matter to the laws of (AmeriKKKa)” unless, of course, the are among the ruling elite. Unless and until We the People make radical changes in the way government operates, laws will only get more repressive, wages will buy less and fewer will prosper.

    General strikes, boycotts and non-violent direct action. NOW!

  56. Andy Worthington says...

    Paranoid Pessimist wrote:

    Be hard to keep things nonviolent in present day America where there are so many Tea Partiers who are touchy about what they see as attempts to deprive them of their “right to bear arms.” The owners and operators certainly deserve to have general strikes and boycotts done at them. Whether they would lead to GOOD changes in the way government operates . . . well, unless those changes are spelled out ahead of time, I have my doubts.

    I hope we can avoid violence. I’m not into it at all. I’ll duck for cover and run.

  57. Andy Worthington says...

    Nietzsche wrote:

    I’m not into violence either, but I suspect most of these tea party clowns are far too queasy at the sight of blood to start anything of the sort. They talk and talk about their guns, but how many of them have actually seen how flesh and bone come off second best to a full metal jacket?

  58. Andy Worthington says...

    quickstepper wrote:

    I’ll paraphrase Stalin’s famous remark about voting. It doesn’t matter how laws are written; what matters is who interprets them.

    Ten judges can read the same law and derive ten different meanings.

  59. Andy Worthington says...

    rat4 wrote:

    The way Obama is acting, 180 degrees from his campaign promises so soon after election, one must believe someone has something on him which would get his election nullified. Or he is the most pathological liar ever to be in the White House.

    Someone may have a birth certificate showing he was born in Kenya.

  60. Andy Worthington says...

    quickstepper wrote:

    I personally believe that he’s just chicken shit.

  61. Andy Worthington says...

    amitola wrote:

    Yeah. I’ve always had the notion that the Powers that Be have threatened him (or maybe his family) with ‘harm’ if he doesn’t tow the corpora-fascist line.

  62. Andy Worthington says...

    Rainborowe wrote:

    I don’t believe that at all. I’m with quickstepper. He’s just chickenshit. And part of the “powers that be.”

  63. Andy Worthington says...

    Jill wrote:


    That idea is propaganda. If it were true Obama should have the courage to put himself in harm’s way by refusing to participate in such consistently evil actions. If you really pay attention, the candidate Obama is not different from the president–this to is propaganda–that candidate Obama was such a good, kindly, wonderful man who would never do anything wrong, like for example vote to fund the wars, vote for FISA, lunch with telecom hotshots while a reporter was arrested legally asking questions on the sidewalk out front of this secret meeting, etc. Obama must be getting very desperate to hold onto his cult members because I see all the old propaganda being resurrected at this time.

  64. Andy Worthington says...

    Tom Joad wrote:

    Judging from events in Stalinist Russia, Hitler’s Germany and now in Bush/Cheney/Obama’s AmeriKKKa, most people do not have the ability to accept that some are willing to commit deeds so monstrous and hideous that millions suffer indescribable torment and death. Instead, they cling to the notion that if only our leaders knew the cruelties that are occurring, they would surely put an end to them.

    God damn AmeriKKKa!

  65. Andy Worthington says...

    rat4 wrote:

    OK, so Obama is a pathological liar doing the work of the corporate ruling elite.

  66. Andy Worthington says...

    Tom Joad wrote:

    Yup, that about sums it up.

  67. Andy Worthington says...

    Reverend_Boomerang wrote:

    There ya go. The rule of law becomes fuzzier and fuzzier with every decision that is made by our corporate judges. Pretty soon, we’ll be imitating Castro’s good days when a “trial” consisted of the judge, the prosecutor, the accused and the witness(es). The state never ever lost a trial. Ha ha!

  68. Andy Worthington says...

    Bodryn wrote:

    I thought that when Dubya left office, surely these cases would be allowed to wind their way through the legal system. But no. What we have here is a type of legal limbo reminiscent of Aleksandr Solzhenitsyn’s stories about the Gulag Archipelago. Guantanamo has become America’s Gulag. Did anybody ever think we’d see it in the USA?

  69. Andy Worthington says...

    And back on Facebook, Esther Angel wrote:

    Sorry to hear about your poor foot, Andy! Wishing you a speedy recovery and thanks so much for continuing your good work.
    I suppose being a realist doesn’t really allow for much optimism when these kind of news roll in. Still, there is plenty of hope because a lot of people are outraged by miscarriages of justice. I bet next march will be well attended again, be in Anti Cuts or Anti War (war and cuts being flip sides of each other….).

  70. Andy Worthington says...

    And here’s a lovely message I received by email, reposted here with permission:

    Dear Andy,

    A lot of us here are sick in a bucket too, because we voted for Obama to change the way Bush ruined our laws. We depend on journalists like you to lead the fight for justice. Thanks so much.

    Clarence Fasgold
    Oklahoma City

  71. Andy Worthington says...

    On The Pubic Record, a reader called John wrote:

    It must be terribly tedious and defeating to have followed all this, all these years, and to see what direction our institutions are now headed.
    In some future time, people can be proud of the ones like you, who tried to hold on to what was, as long as possible.

  72. Andy Worthington says...

    Back on Facebook, Mui J. Steph wrote:

    I’m convinced the DC circuit exists to reinforce brick walls that the peerage put up to protect themselves.

  73. Andy Worthington says...

    You may be right in general, Mui, but on “national security,” with Randolph on record as having defended every scummy bit of “War on Terror” legislation that was subsequently overturned by the Supreme Court (in 2004, 2006 and 2008), there’s enough evidence to conclude that a handful of influential judges in the Court of Appeals are convinced that, in this “war against terrorism,” anything the government says it wants to do should be allowed.

    It really is like having Dick Cheney directing affairs from the court, and especially depressing now that the Supreme Court will, at best, split 4-4 on the issues, with Kagan having to recuse herself, having worked on the cases as Obama’s Solicitor-General, meaning that the final word on these cases now rests with the likes of Judge Randolph …

  74. Andy Worthington says...

    On The Public Record, Mary-Alice Strom wrote:

    If it were not for you, and those who, like you, report on these humanitarian crimes, I, and others like me who are deprived of news by the msm would not even know about them. Knowing about them for me, is difficult. I can only imagine what it is for you. My heart is heavy. I am almost 80 years old, and NEVER did I imagine that these things could come to pass. Thank you for helping me to remain aware and human. You have my undying respect and support.

  75. Andy Worthington says...

    Thank you very much for your supportive comments, Mary-Alice. Believe me, it is feedback like yours that helps writers like me to know that what we’re doing is worthwhile.

  76. Andy Worthington « Antiwar Radio with Scott Horton and Charles Goyette says...

    […] Files, discusses the right-wing judges on the DC Circuit Court who think prisoners can be detained indefinitely with no evidence and who habitually reverse lower court decisions on Guantanamo habeas petitions; why today’s […]

  77. Andy Worthington | ANOMALY RADIO says...

    […] Files, discusses the right-wing judges on the DC Circuit Court who think prisoners can be detained indefinitely with no evidence and who habitually reverse lower court decisions on Guantanamo habeas petitions; why today’s […]

  78. How The US Supreme Court Gave Up On Guantánamo – OpEd « Eurasia Review says...

    […] be nothing more than “some evidence” — and that in a very open-ended way, as I explained in my last broadside directed at the Circuit Court. If they could, one suspects that the Circuit Court judges would simply return to the Combatant […]

  79. No War No Torture » Blog Archive » Omar al-Dayi Refused to Participate in the US Kangaroo Courts in Guantanamo says...

    […] Andy Worthington remarks on his blog that no one is addressing a fundamental issue about many of the remaining men in the US torture camp at Guantanamo and that is evident here. No distinction is made, remarks Worthington between al-Qaeda and the Taliban, though the first is a terrorist organization and the second was the government of Afghanistan on 9/11. […]

  80. No War No Torture » Blog Archive » “strains credulity”: The Story of Uthman Abdul Rahim Mohammed Uthman says...

    […] “On March 29, 2011, [Uthman Abdul Rahim Mohammed Uthman’s February 24, 2010 habeas corpus ruling declaring his imprisonment illegal] was overturned in a United States federal appeals court. [The Obama regime had appealed immediately upon the original decision.]  The three judge panel stated that Uthman’s explanation of his activities ’strains credulity’.”  Read the rest here of the statement here. Also, read Andy Worthington’s response to this shameful decision here. […]

  81. US Justice Department Finally Allows Attorneys to See Leaked Guantánamo Files, But Not To Download, Save Or Print Them - OpEd says...

    […] has been rendered largely irrelevant. The appeal court judges have decided that the government doesn’t even need to present credible allegations in order to continue detaining prisoners, very possibly for the rest of their lives, even though […]

  82. TheAZCowBoy says...

    Ahhhh, the Great Satan approches its final dayze with that lack of dignity since he turned into a V5.0 of Pol Plot.
    Hey, don’t feel so tough – The Taliban has been eating your lunch with its old Vietnam era AK-47’s and RPG-7 rocket launchers for 10+ years now, LOL!.
    Yup, you shouldn’t be.
    But, of couse, a fool rarely sees that last KO punch coming.

  83. Clergy Gitmo Justice Fast. | Speaking of... says...

    […] Uthman was derived from torture and therefore unreliable.  But the government appealed, and the decision was reversed in March 2011. He is still in […]

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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 and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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