On Monday, when the Supreme Court decided to turn down seven appeals submitted by prisoners held at Guantánamo, without providing any explanation, a particularly low point was reached in the prison’s history.
The decision came just one day before the fourth anniversary of Boumediene v. Bush, the hugely significant 2008 ruling granting the prisoners constitutionally guaranteed habeas corpus rights.
That ruling reaffirmed a previous Supreme Court ruling, Rasul v. Bush, in June 2004, granting the prisoners habeas rights, and involved the Court establishing that Congressional attempts to strip habeas rights from the prisoners — in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 — had been unconstitutional.
Boumediene led to a flurry of activity, as long-frozen cases were revived. District Court judges in Washington D.C. then decided the evidentiary standards required, assessing that the government needed only to establish its case by a preponderance of the evidence, and not beyond a reasonable doubt, as is required in criminal cases.
Even so, the weaknesses in the government’s cases were such that, between October 2008 and July 2010, 38 of the prisoners had their habeas corpus petitions granted, and just 14 had their petitions denied. For reasons that have never been explained, prosecutors in the Justice Department continued to work on the Guantánamo cases as aggressively under Barack Obama as they had under George W. Bush, without either President Obama or Attorney General Eric Holder calling for a rethink in the way they were operating, even though the District Court judges repeatedly poured scorn on the government’s lawyers.
Vindicating the work of investigative journalists like myself and researchers at the Seton Hall Law School, who had produced a series of reports debunking exaggerated claims about the prisoners’ significance, the judges ascertained that many of the witnesses relied upon by the government had mental health issues, actually identified in reports by government officials, which made their statements untrustworthy, and they also took apart flimsy claims made by intelligence analysts, military officials and Justice Department prosecutors. Even so, they were careful to follow the rules, denying petitions when evidence of involvement with the Taliban was produced, even though, in most cases, that demonstrated only that they had been involved in the Taliban’s long-standing military campaign against the Northern Alliance, which pre-dated — and had nothing to do with — the 9/11 attacks.
28 of these prisoners were released — the only ones, out of 602 prisoners released in total, who were freed through legal means — but in 2010 the D.C. Circuit Court began dealing with appeals submitted by the government, and decided to rewrite the rules in the government’s favor. In successive rulings, the Circuit Court judges have insisted that the barest association with either al-Qaeda or the Taliban is sufficient to justify detention (whereas the lower court judges had determined that prisoners had to be demonstrably part of the command structure of either organization), and, most recently, have demanded that intelligence reports submitted by the government should be regarded as accurate, even though, objectively, there are perfectly sound reasons for believing that field reports, produced under pressure, should be subjected to rigorous scrutiny. As a result, the last eleven habeas petitions, over the last two years, have all been denied, and other previously successful petitions have been reversed or vacated.
The most vociferous of the dissenting judges, Senior Judge A. Raymond Randolph, who is notorious for having endorsed every piece of Guantánamo-related legislation under President Bush that was subsequently overturned by the Supreme Court, went so far as to show open contempt for the Court and its Boumediene ruling in a speech at the Heritage Foundation, in October 2010, which was entitled, "The Guantánamo Mess." In that speech, he compared the justices to characters in The Great Gatsby by F. Scott Fitzgerald. "They were careless people," he read. "They smashed things up … and let other people clean up the mess they had made."
Another judge, Senior Judge Laurence Silberman, indulged in a disturbing outburst while turning down an appeal by Yasein Esmail, a Yemeni, in April 2011. Noting that, in a "typical criminal case," judges will "overturn a conviction if the prosecutor lacked sufficient evidence, even when the judge is virtually certain that the defendant committed the crime," he added, "That can mean that a thoroughly bad person is released onto our streets, but I need not explain why our criminal justice system treats that risk as one we all believe, or should believe, is justified." However, he claimed that, in the case of the Guantánamo prisoners, "candour obliges me to admit that one cannot help but be conscious of the infinitely greater downside risk to our country, and its people, of an order releasing a detainee who is likely to return to terrorism."
As was noted in a report in January by the Center for Constitutional Rights (PDF), on which I worked:
This outburst was particularly troubling — but also revealing. First, Judge Silberman undermined the fundamental principle that the accused must be released if there is insufficient evidence to secure a conviction. Thus, for Judge Silberman, the men held at Guantánamo are somehow exempted from rights afforded to the rest of the human race. Second, Judge Silberman talked about detainees being "likely to return to terrorism," when most were never involved in terrorism in the first place.
In refusing to accept any of the Guantánamo appeals, the justices of the Supreme Court have allowed Judge Randolph — on his fourth attempt — to dictate detainee policy, and have failed one particular prisoner, Adnan Farhan Abdul Latif, a Yemeni whose case is emblematic of the problems with the Supreme Court’s refusal to engage with the Circuit Court’s hijacking of Boumediene.
Latif, who has always maintained that he traveled to Pakistan for treatment on a severe head wound he received in a car crash in Yemen, and ended up being advised to seek help in Afghanistan, has had well-chronicled mental health problems in Guantánamo, including a number of suicide attempts, and, as a result, should have been freed after he was cleared for release in December 2006 by a military review board under President Bush. However, like dozens of other cleared prisoners, he was still held when Bush left office. He was then almost certainly cleared by the interagency Guantánamo Review Task Force that President Obama established to review all the prisoners’ cases in 2009, and he then had his habeas petition granted in July 2010.
When that successful appeal was overturned last November by the D.C. Circuit Court, the New York Times lamented, in an editorial, that the majority judges in the Circuit Court ruling, Judge Janice Rogers Brown and Judge Karen LeCraft Henderson, who had ordered that the government’s intelligence report be given "a presumption of regularity," had "improperly replaced the trial court’s factual findings with [their] own factual judgments," and that the court "unfairly placed the burden on Mr. Latif to rebut the presumption that the government’s main evidence was accurate," because "the government should bear the burden of proving by a preponderance of the evidence that his detention is warranted."
In a dissenting opinion, Judge David Tatel, the third judge in the panel, noted that there was no reason whatsoever for his colleagues to give "a presumption of regularity" to an intelligence report, which was "produced in the fog of war, by a clandestine method that we know almost nothing about."
Judge Tatel also noted that it was "hard to see what is left of the Supreme Court’s command" that the habeas review process be "meaningful," in light of his colleagues’ ruling, and it is to the Supreme Court’s shame that the justices refused to follow Judge Tatel in recognizing that the Circuit Court has gutted habeas corpus of all meaning when it comes to the Guantánamo prisoners, and has rendered Boumediene meaningless.
This is disgraceful in and of itself, but with President Obama having failed to close Guantánamo as promised, and with Congress having imposed such severe restrictions on his ability to release prisoners that only two men — who had their habeas corpus petitions granted in October 2008 — have been freed in the last eighteen months, the bleak truth, in light of Monday’s decision by the Supreme Court, is that all three branches of the US government have now definitively acted to prevent the closure of Guantánamo, and to make the release of any of the remaining 169 prisoners almost impossible.
This is in spite of the fact over half of these men — 87 in total — were cleared for release in 2009 by President Obama’s Guantánamo Review Task Force. Moreover, as I demonstrated in a recent report, "Guantánamo Scandal: The 40 Prisoners Still Held But Cleared for Release At Least Five Years Ago," 40 of those men were previously cleared for release, between 2004 and 2007, by military review boards, and in other military assessments, under President Bush.
These statistics demonstrate that the last thing that should be happening now is for Guantánamo to be sealed shut except for those who accept plea deals in their trials by military commission, or those who die at the prison, but that is indeed what is happening. As a result, June 11, 2012 will go down in history as the day that the Supreme Court hurled the remaining Guantánamo prisoners back into the legal black hole from which they had first been given the hope of rescue in the habeas rulings in June 2004 and June 2008. It turns out, however, that those rulings were made by a Court that remembered that arbitrary and indefinite detention is a crime against decency, and against the ideals on which the United States was founded.
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 April 2012, "The Complete Guantánamo Files," a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, "Outside the Law: Stories from Guantánamo" (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new "Close Guantánamo campaign," and, if you appreciate my work, feel free to make a donation.
As published exclusively on the website of the Future of Freedom Foundation.