Published on Friday, April 1, 2011 by CommonDreams.org
If I was an American lawyer who had fought for many years to secure habeas corpus rights for the prisoners held at Guanta'namo 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 Guanta'namo.
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 Guanta'namo are still treated with scorn by the administration of Barack Obama, the standard bearer of "hope" and "change," who promised to close Guanta'namo and to do away with "the dark halls of Abu Ghraib and the detention cells of Guanta'namo, [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 Guanta'namo 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 Guanta'namo.
The fact that this moratorium was unjustifiable, consigning prisoners cleared for release by a US court, or by Obama's own interagency Guanta'namo 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 Guanta'namo for the rest of his life.
The reason I state this with such confidence is that, since they first began considering Guanta'namo 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 Guanta'namo prisoners in June 2008.
Of these, Judge Randolph is the most notorious, having endorsed every piece of Guanta'namo legislation that came his way under the Bush administration, even though all his rulings were subsequently reveresed 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, Guanta'namo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part One), Guanta'namo 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 Guanta'namo.
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."