Judge Calls for An End to Unjust Provisions Governing Guantánamo Prisoners’ Habeas Corpus Petitions

In preventing the release of prisoners from Guantánamo, all three branches of the US government are responsible. President Obama promised to close the prison within a year of taking office, but he lacked a concrete plan, and soon caved in to criticism, blocking a plan by White House counsel Greg Craig to bring some cleared prisoners who couldn’t be safely repatriated — the Uighurs, Muslims from China’s Xinjiang province — to live in the US, and imposing a ban on releasing all Yemenis after it was discovered that a failed plot to blow up a plane bound for the US on Christmas Day 2009 was hatched in Yemen.

Congress, in turn, imposed ban on bringing prisoners to the US mainland, and, in the last two versions of the National Defense Authorization Act, a ban on releasing prisoners to any country where even a single released prisoner has allegedly engaged in recidivism (returning to the battlefield), and a requirement that, if a prisoner were to be released, the Secretary of Defense would have to certify that they would not be able, in future, to engage in any terrorist activities — a requirement that appears to be impossible to fulfill.

Largely overlooked has been the responsibility of the judiciary — and specifically, the Court of Appeals in Washington D.C. (the D.C. Circuit Court), and the Supreme Court, but their role in keeping men at Guantánamo is also crucial.

Nine years ago, in June 2004, in Rasul v. Bush, the Supreme Court granted the prisoners habeas corpus rights, a momentous ruling that pierced the veil of secrecy that had allowed the Bush administration to establish a torture regime at Guantánamo, and also allowed the prisoners to be represented by lawyers, who were allowed to visit them.

However, no habeas corpus petitions proceeded to court, because Congress passed laws that purported to strip the prisoners of their newly granted rights. It was not until June 2008, in Boumediene v. Bush, that the Supreme Court declared that these decisions had been illegal, and restored the prisoners’ habeas corpus rights.

That second momentous decision led to 38 victories for the prisoners between October 2008 and July 2010, as judges in the District Court in Washington D.C. examined the cases against them, and concluded that the government had failed to establish, by a preponderance of the evidence (a lower standard than that used in trials), that the prisoners were involved with al-Qaeda and/or the Taliban.

This was a vindication for those, like myself, who had always maintained that the supposed evidence was profoundly unreliable, consisting largely of witness statements that involved the use of torture, other forms of coercion, or bribery. The decision led to the release of 28 prisoners, but the D.C. Circuit Court soon fought back, on a basis that can only, in all honesty, be attributed to ideology, rather than judicial fairness.

In rulings on appeals, undertaken from January 2010 to October 2011, a handful of judges in this generally very Conservative court redefined the standards used by the lower court, reversing or vacating a number of successful petitions, and pushing the District Court judges to stop doubting the information put forward by the government as evidence.

The bleakest decision of all took place in October 2011, when the D.C. Circuit reversed the successful petition of Adnan Latif, a mentally ill Yemeni who had also been cleared for release under President Bush, and by President Obama’s inter-agency task force, telling the lower court that anything put forward by the government as evidence — even battlefield intelligence reports that were often nothing more than hasty, ad hoc assessments — had to be treated as reliable, unless the prisoners could prove otherwise.

Latif subsequently died at Guantánamo, last September, spurned not only by the D.C. Circuit Court, but by the Supreme Court, which, in June, had been presented with the opportunity to challenge the Circuit Court’s distortions, and its hijacking and annihilation of the prisoners’ habeas rights, in seven cases in total, including Latif’s, but had refused to get involved.

The power of the D.C. Circuit Court to prevent the release of prisoners under any circumstances has been so successful that the eleven habeas petitions that were ruled on between July 2010 and October 2011 were lost, and the prisoners and their lawyers essentially gave up, accepting that habeas corpus, for the men in Guantánamo, had been killed off by the D.C. Circuit Court, and that the Supreme Court didn’t care, and nor did the Justice Department, which had never shown any willingness to drop cases — for prisoners cleared for release by the task force, for example — rather than pursuing them as aggressively as possible.

On June 18, 2013, a judge in the D.C. Circuit Court finally spoke out about this continuing injustice, in a rare appeal by one of the last prisoners to have his habeas petition denied, in October 2011. Abdul al-Qader Ahmed Hussain, a Yemeni, and one of 16 men seized in a house raid in Pakistan in March 2002 — on a house that appears to have largely held students — had his appeal denied, but not before Senior Circuit Judge Harry T. Edwards “called on the president and Congress to consider a different approach to the handling of legal cases of Guantánamo Bay prisoners,” as the Associated Press described it.

Judge Edwards made his comments at the end of a written opinion in which he “reluctantly concurred” with the decision of his two fellow judges, to reject Hussain’s appeal because of the precedent established by the court.

“However,” he wrote, “when I review a record like the one presented in this case, I am disquieted by our jurisprudence.” He added, “I think we have strained to make sense of the applicable law, apply the applicable standards of review, and adhere to the commands of the Supreme Court. The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantánamo detainee cases.”

This is an important call, and one that needs to be heeded by the Obama administration, and by lawmakers.

The case against Hussain is demonstrably thin. He had been in Afghanistan prior to the 9/11 attacks, and had been living near the front lines of the civil war between the Taliban and the Northern Alliance. There, housemates of his, involved with the Taliban, had supplied him with an AK-47, and had trained him to use it.

According to Judge Thomas Griffith, who wrote the majority opinion, and was backed by Judge Karen LeCraft Henderson, this was sufficient to authorize his ongoing imprisonment because it was likely that he was part of an enemy force when he was captured.

Judge Griffith wrote, “Evidence that Hussain carried an assault rifle given him by Taliban forces while living among Taliban forces near a battle line fought over by Taliban forces brings to mind the common sense view in the infamous duck test,” — a reference to the famous saying, “if it looks like a duck, walks like a duck and quacks like a duck, it’s a duck.”

In response, Judge Edwards called the duck test “quite invidious because, arguably, any young, Muslim man traveling or temporarily residing in areas in which terrorists are known to operate would pass the ‘duck test.'”

More importantly, he challenged the basis for assessing whether or not Hussain should continue to be detained. Under the Authorization for Use of Military Force, which Congress passed the week after the 9/11 attacks, the President can detain anyone who “planned, authorized, committed, or aided” the attacks. In the prisoners’ habeas corpus petitions, as noted above, the government is required to show, by a preponderance of the evidence, that the prisoner being detained was part of al Qaeda and/or the Taliban.

However, as Judge Edwards explained, his fellow judges had “implicitly shift[ed] the burden of proof from the Government to Hussain.” He added:

Under the approach adopted by the majority, Hussain’s petition is rejected because he could not offer a coherent story about his whereabouts during the times in question, not because the Government proved by a preponderance of the evidence that he was “part of” al Qaeda, the Taliban, or associated forces. Respectfully, this is not an appropriate application of the preponderance of the evidence standard. It was the Government’s burden to show that Hussain “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” and this burden was not met by Hussain’s failure to explain his whereabouts. Hussain is not presumed to be guilty under the applicable law merely because he was taken into custody and transferred to Guantánamo.

That is not how it should be, but it is a fair summary of the truth: that the mere fact of having been in Afghanistan or Pakistan, with a gun, or staying in a guest house allegedly associated with al-Qaeda or the Taliban, is enough to justify imprisonment for life. So tangential are these claims to the existence of any kind of real threat that it is hardly a great leap to state that many of the men held in Guantánamo are only there because the fact that they ended up in US custody is regarded as proving something significant about the threat they pose.

In an absurd twist, Abdul al-Qader Ahmed Hussain was actually cleared for release by President Obama’s inter-agency Guantánamo Review Task Force nearly two years before he had his habeas corpus petition denied. If there was any sense of logic and justice in the US administration, the Justice Department would not have contested his petition — and if President Obama had not responded with a blanket ban on releasing Yemenis after the failed airline bomb plot on Christmas Day 2009, he would have been freed before his habeas petition was considered in the first place.

It is well beyond time that this dark farce, which ruins the lives of men who are no threat to the US, and which blackens America’s name, costs a fortune and is dangerously counter-productive, is brought to an end. If no one will do anything now, then the withdrawal of troops from Afghanistan next year ought to provide a spur for the prison’s closure, a repeal of the outrageous Authorization for Use of Military Force, and, hopefully, an end to the unjustifiable tyranny of judges who — with the exception of Judge Edwards — confuse being a Muslim in Afghanistan or Pakistan between 2001 and 2003 with being a member of al-Qaeda and/or the Taliban.

Note: Abdul al-Qader Ahmed Hussain is also identified as Abdul Qader Ahmed Hussein or Ahmed Abdul Qader. His ISN number is 690.

Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and 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. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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