Jonathan Hafetz, a professor at Seton Hall Law School, who has represented several Guanta'namo 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 Guanta'namo 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 Guanta'namo, 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,Guanta'namo Habeas Results: The Definitive List, which is regularly updated when new developments are announced.