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 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, 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.