Psyche, Science, and Society

Glenn Greenwald on today’s habeas decision

Glenn Greenwald on today’s habeas decision:

Five detainees ordered released “forthwith” after seven years at Guantanamo

By Glenn Greenwald

(updated below)
A federal district judge, Richard Leon, today ordered the Bush administration “forthwith” to release five Algerian detainees who have been held in Guantanamo without charges since January, 2002 — almost seven full years. The decision was based on the court’s finding that there was no credible evidence that the 5 detainees intended to take up arms against the U.S. The court found sufficient evidence to justify the ongoing detention of a sixth Algerian detainee.

When they were detained in 2001 in Bosnia, the Bush administration claimed that they were plotting to bomb the U.S. embassy in Sarajevo. But once they were shipped to Guantanamo, the U.S. backed off that accusation and instead claimed they intended to travel to Afghanistan to fight against the U.S.

I don’t want to say too much about the legal reasoning behind the decision because it was just issued via an oral ruling from the bench, and I haven’t yet been able to obtain a copy of the judge’s decision. For now, then, the following can be noted about this landmark ruling — the first time a court has ruled that the Government’s evidence is insufficient to justify ongoing imprisonment of a detainee as an “enemy combatant”:

(1) These 5 detainees were able to be heard in federal court only because the U.S. Supreme Court in the Boumediene case last June — in a ruling John McCain called “one of the worst decisions in the history of this country” — struck down as unconstitutional Section 7 of the Military Commissions Act, which had purported to abolish habeas corpus for Guantanamo detainees and prohibit them from challenging their detention in a federal court. The release order today resulted from the habeas corpus right which the Military Commissions Act purported to abolish but which the Boumediene Court restored. Appropriately enough, one of the 5 detainees who won his freedom today was the named plaintiff in that case, Lakhdar Boumediene.

(2) The five men ordered released today have been imprisoned in a cage by the Bush administration for 7 straight years without being charged with any crimes and without there being any credible evidence that they did anything wrong. If the members of Congress who voted for the Military Commissions Act had their way (see them here and here), or if the four Supreme Court Justices in the Boumediene minority had theirs, the Bush administration would nonetheless have been empowered to keep them encaged indefinitely, for the rest of their lives if desired, without ever having to charge them with any crime or allow them to step foot into a courtroom to petition for habeas corpus.

In addition to every Republican Senator (except Chafee), those voting to authorize that repellent power include Jay Rockefeller, Ken Salazar, Tom Carper, Ben and Bill Nelson, Debbie Stabenow, and Joe Lieberman.

(3) Judge Leon is a Bush-43 appointed Judge known as a right-wing ideologue and known for ruling in favor of the Government and for expansive executive power. He was Deputy Chief counsel for the Republicans on the Iran-Contra Committee in 1987, was Special Counsel to the Senate Banking Committee for the Whitewater investigation, and worked for both the Reagan and Bush 41 Justice Departments. That Judge Leon — of all judges — ruled that there was no credible evidence to suggest that these detainees are “enemy combatants” is as compelling a sign as one can imagine that there is no such evidence.

Simply juxtapose that finding with the fact that these men have been imprisoned for seven straight years with no meaningful due process, and one can vividly see the grotesque injustices we have wrought with Guantanamo and our denial of basic due process to detainees. That is a stain — one of many — that will never be fully expunged.

UPDATE: Here is a gut-wrenching account of what these detainees have endured (h/t Ondelette). The Bosnian Prosecutor who investigated their initial detention back in 2001 (which was effectuated at the behest of the U.S.) concluded they ought to be released, but the Bosnian Government succumbed to the pressure of the Bush administration and turned them over to the U.S. as they were being released (“hooded, shackled, and packed into waiting cars while their horrified families watched”), after which they were shipped to Guantanamo.

One of the detainees ordered released today had a wife who was pregnant at the time he was shipped to Guantanamo, who then gave birth to a daughter, now 6, whom he has never met. Another of the Bosnian-Algerians had an infant daughter at the time he was put in Guantanamo who died last year of congenital heart disease at the age of 6. Another of them “suffered months of facial paralysis from a brutal beating inflicted by Guantanamo camp soldiers.” And then there’s this, about one of the other detainees, Saber Lahmer:

When we last saw Saber in November, he was in his sixth month of solitary confinement. Since August, he has seen us, his legal team, twice and a psychiatrist on three brief occasions. For a few minutes each day, he sees the camp guards who bring his meals. He has had no other human contact. The glaring lights in his cell are on 24 hours a day, seven days a week. When we left the cell, we could hear Saber shouting — brief, truncated cries. We could not understand what he was saying.

According to Human Rights Watch, that detainee — “a university-educated father of two who once taught at the Islamic Cultural Center in Bosnia” — “continues to be housed 22 hours a day in a single cell, with nothing to occupy his time other than his Koran” and “now reports that he is going blind in his left eye, a result that he attributes to being housed in cells with fluorescent lights on 24 hours a day.”

We haven’t just imprisoned people with no evidence in cages for years. We’ve kept them encaged under often brutal and extreme conditions, many in unbroken solitary confinement for years. Today, a federal court ruled that for 5 of these men, there is no credible evidence that they did anything wrong, and if most of our political class — which supported the Military Commissions Act– had its way, they wouldn’t have even had this hearing at all.

November 20th, 2008

Today’s landmark habeas decision for download

Here is today’s landmark Boumediene  habeas decision ordering the release of five Guantanamo detainees.

November 20th, 2008

More on ordered release of five Guantanamo detainees

I just posted on the habeas hearing in which the judge has ordered the release of five of six Algerian detainees. The New York Times now has a more detailed account:

Judge Orders Five Detainees Freed From Guantánamo

By William Glaberson

After the first hearing on the government’s evidence for holding detainees at the Guantánamo Bay detention camp, a federal judge ruled on Thursday that five of the prisoners are not being lawfully held and ordered their release.

The case, involving six Algerians detained in Bosnia in 2001, was an important test of the Bush administration’s detention policies, which critics have long argued swept up innocent men and low-level foot soldiers along with high-level and hardened terrorists.

The hearings for the Algerian men, in which all evidence was heard in proceedings closed to the public, were the first in which the Department of Justice presented its full justification for holding specific detainees since the Supreme Court ruled in June that Guantánamo detainees have a constitutional right to contest their imprisonment in habeas corpus suits.

Ruling from the bench, Judge Richard J. Leon of Federal District Court in Washington said that the information gathered on the men had been sufficient to hold them for intelligence purposes, but was not strong enough in court.

“To rest on so thin a reed would be inconsistent with this court’s obligation,” he said. He directed that the five men be released “forthwith” and urged the government not to appeal.

Judge Leon, an appointee of the first President Bush, had been expected to be sympathetic to the government.

The decision, lawyers said, is likely to be seen as a major judicial repudiation of the Bush administration’s effort to use the detention center at the American naval base at Guantánamo Bay, Cuba, as a way to avoid scrutiny by American judges. President-elect Obama has said he will close the prison.

Detainees’ lawyers said it was a vindication of their arguments for years. “The decision by Judge Leon lays bare the scandalous basis on which Guantánamo has been based — slim evidence of dubious quality,” Said Zachary Katznelson, legal director at Reprieve, a British legal group that represents many Guantánamo detainees. “This is a tough, no-nonsense judge.”

Because of the Bush administration’s claims that most of the evidence against the men was classified, Judge Leon ordered that, after brief opening statements on Nov. 5, the entire case was to be heard in a closed courtroom.

The government argued that the six Algerians, who were residents of Bosnia when they were first detained in 2001, were planning to go to Afghanistan to fight the United States and that one of them was a member of Al Qaeda.

The five other men include Lakhdar Boumediene, for whom the landmark Supreme Court ruling in June was named.

It was not immediately clear whether the government would appeal, but some lawyers said they considered an appeal likely.

The one detainee Judge Leon found was lawfully held was Bensayah Belkacem, who has been described by intelligence agencies as a leading Al Qaeda operative in Bosnia.

The case has become an example of the Bush administration’s pattern of changing legal strategy in its long legal war over Guantánamo, as the courts have scrutinized its justifications for its detention policies in general and its reasons for holding individual detainees.

In 2002, President Bush made the government’s allegations against the men a showcase of his administration’s anti-terrorism approach. He said in his state of the union address that the six men had been planning a bomb attack on the United States Embassy in Sarajevo, Bosnia. Last month, though, Department of Justice lawyers said they were no longer relying on those accusations to justify the men’s detention.

The habeas corpus cases have moved slowly despite the Supreme Court’s decision in June that directed federal judges in Washington to act quickly on the cases, after nearly seven years of detention for many of the 250 men still held in Guantánamo.

Another district court judge in Washington, Ricardo M. Urbina, ordered the release of 17 other detainees last month, all ethnic Uighurs from western China. But in that case, he did not hold a hearing on the evidence, because the government conceded that the men were not enemy combatants.

The Justice Department won a stay of Judge Urbina’ release order and is appealing it. Arguments in that case are scheduled for Monday in the Untied States Courts of Appeals in Washington.

Separately, this week the Justice Department filed legal motions seeking to stop more than 100 of the other Guantánamo habeas corpus cases from proceeding now, in a move that detainees lawyers said was a government effort to avoid further court scrutiny.

Department of Justice lawyers argued in motions filed Tuesday that there were flaws in the ground rules of other judges for the Guantánamo cases that would require the government, among other things, to reveal classified evidence.

Detainees’ lawyers said the ruling on Thursday by Judge Leon would indicate to other judges that they should be skeptical of the government’s efforts to delay hearings.

P. Sabin Willett, one of the lawyers for the Uighurs, said that Judge Leon’s decision “sends a powerful message to all the other judges to get these cases moving.”

J. Wells Dixon, a detainees’ lawyer at the Center for Constitutional Rights, said the ruling made clear that Guantánamo Bay had failed. But, he said, “Justice comes too late for these five men.”

November 20th, 2008

Guantanamo trials: Habeas releases and war crimes charges reinstated

There is a lot of Guantanamo news today. First, in a major development in one of the first (the first?) habeas hearings, the judge has ordered five of six Algerians to be released, Reuters reports:

WASHINGTON (Reuters) – Five of six Algerians must be released after nearly seven years of captivity at the U.S. military prison at Guantanamo Bay in Cuba, a federal judge ruled on Thursday.

U.S. District Judge Richard Leon ruled from the bench after holding the first hearings under a landmark Supreme Court ruling in June that gave Guantanamo prisoners the legal right to challenge their continued confinement.

U.S. President-elect Barack Obama has promised to close the prison camp after he takes office in January. Meanwhile, U.S. judges in Washington are moving ahead with case-by-case reviews of detainee legal challenges.

I hear that the judge recommended that the Government not appeal, due to lack of evidence for an appeal.

Word also comes that the war crimes charges against Mohammed al-Qahtani, the alleged “20th hijacker” and well-known torture victim, are to be reinstated. Charges against al-Qahtani had earlier been dropped. It was believed this was because of the well-publicized abuse to which he was subjected (abuse involving consultation by Behavioral Science Consulting Team psychologist Maj. John Leso). Reinstating the charges may be a way of binding the hands of the incoming Obama administration, as the New York Times discusses:

Detainee Will Face New War-Crimes Charges

By William Glaberson

Military prosecutors have decided to file new war-crimes charges against a Guantánamo detainee who has been called the 20th hijacker in the Sept. 11 terror plot, discounting claims that his harsh interrogation would make a prosecution impossible.

Earlier charges against the detainee, Mohammed al-Qahtani, were dismissed without explanation by a military official in May and there had been speculation that the Pentagon had accepted the argument that coercive techniques used in questioning him would undermine any trial.

The decision will put additional pressure on the incoming Obama administration to announce whether it will abandon the Bush administration’s military commission system for prosecuting terror suspects. Mr. Qahtani’s well-documented interrogation at the detention camp in Guantánamo Bay, Cuba, has made his case a focal point in debates about Guantánamo and interrogation methods that critics say amount to torture.

In response to questions about the military commissions on Tuesday, Brooke Anderson, the chief national security spokeswoman for the transition, said, “President-elect Obama has repeatedly said that he believes that the legal framework at Guantánamo has failed to successfully and swiftly prosecute terrorists.”

Mr. Obama has said he intends to close Guantánamo.

In an interview, the chief military prosecutor for Guantánamo, Col. Lawrence J. Morris of the Army, said he would file new charges against Mr. Qahtani, a Saudi who was denied entry into the United States at the Orlando, Fla., airport in August 2001.

The interrogation of Mr. Qahtani, public military documents show, included prolonged isolation, sleep deprivation, forced nudity, exposure to cold, involuntary grooming as well as requiring him to dance with a male interrogator and to obey dog commands, including “stay,” “come” and “bark.”

A Pentagon inquiry in 2005 found that the methods, some of which were personally approved by Defense Secretary Donald H. Rumsfeld, were “degrading and abusive.”

Colonel Morris said prosecutors had decided there was “independent and reliable evidence” that Mr. Qahtani had been plotting with the Sept. 11 hijackers.

“His conduct is significant enough,” Colonel Morris added, “that he falls into the category of people who ought to be held accountable by being brought to trial.” The 9/11 Commission concluded that Mr. Qahtani was to have been one of the “muscle hijackers” and that the lead hijacker, Mohamed Atta, went to the Orlando airport to meet him, on Aug. 4, 2001.

Mr. Qahtani’s military defense lawyer, Lt. Col. Bryan T. Broyles of the Army, said new charges would be troubling.

Colonel Broyles said, “It speaks about the moral bankruptcy of this whole process; that there’s nothing we can do to these people that is too much, that there are no consequences for our own misconduct.”

The new charges, people involved with the prosecution said, are unlikely to include a request for execution. The charges dismissed in May sought the death penalty.

Under the military commission system, the official who dismissed the earlier charges, Susan J. Crawford, is not required to explain her decisions. Mrs. Crawford, whose title is convening authority, would again review the case before deciding whether to refer it to a military judge.

Some officials have argued that in dismissing the charges in May she may have been simply assuring that the case of Mr. Qahtani would be separated from the cases against five other detainees with whom he was originally charged last winter. Those five, including the self-described terror mastermind Khalid Shaikh Mohammed, are accused of being the top planners of the Sept. 11, 2001, attacks.

Since the election, people involved with the military commissions have been uncertain about when or whether their work might end. Mr. Obama indicated as a candidate that Guantánamo detainees should be prosecuted in existing American courts.

The commissions have been criticized as favoring military prosecutors and for permitting the use of evidence that would not be allowed in American courts, including certain types of hearsay and confessions obtained through coercion.

But Pentagon officials have pressed ahead since the election with commission cases. Colonel Morris said he also planned to file new charges soon against five other detainees that he had asked be withdrawn in October. One of those cases was against a detainee who is a former British resident, Binyam Mohamed, who also claims he was tortured.

Colonel Morris has said the charges in those cases were dismissed so that he could review the work of a military prosecutor who stepped down in September criticizing the fairness of the prosecution efforts at Guantánamo.

But some military lawyers said it appeared officials were pushing commission prosecutions ahead to complicate efforts by the Obama administration to abandon the system. “They’re trying to tie the new administration’s hands,” said Michael J. Berrigan, the deputy chief of the Pentagon’s office of Guantánamo military defense lawyers.

Colonel Morris denied that there was any political agenda. “There is not a soul who applies any kind of pressure,” he said.

Seventeen of the 250 detainees at Guantánamo are currently facing charges. Two trials have been completed, both ending with convictions.

Some defense lawyers said they were concerned that Pentagon officials would lobby Mr. Obama’s aides. Several lawyers said a high-ranking Pentagon official at the Office of Military Commissions, Brig. Gen. Thomas W. Hartmann, had recently held a session to practice a briefing that he hoped to present to Obama aides, arguing that the new administration should continue the commissions.

General Hartmann did not respond to questions about whether he had prepared such a presentation. He provided a statement: “The Office of Military Commissions stands ready to support any and all of President-elect Obama’s transition team requests.”

Military defense lawyers said they were exploring ways of asking for a suspension of further military commission proceedings until the new president made decisions about how prosecutions were to proceed.

One option, several of the lawyers said, would be for teams of defense lawyers to file briefs in military commission cases arguing that it would be an injustice for detainees to be tried in what could be the last months of a system that has provoked legal disputes for nearly seven years.

“There is a heightened level of unfairness,” said one of the military lawyers, Maj. David J. R. Frakt, “because we’re so close.”

Finally, there is a story appearing in Xinhuanet that Austria has expresseed willingness to take up to 50 Guantanamo detainees. Alas, two sources inform me that the story is completely baseless.

November 20th, 2008