Updated: My Definitive List of the Guant�namo Habeas Corpus Results
February 6, 2014Sometimes life takes us down unexpected routes, and yesterday, while looking for links for my last article, a transcript of a talk I gave in Los Angeles during my recent US tour calling for the closure of the prison at Guant�namo Bay on the 12th anniversary of its opening, I found myself visiting a page I first created in May 2010, entitled, "Guant�namo Habeas Results: The Definitive List."
The page is a list of all the prisoners whose habeas corpus petitions were ruled on by judges in the District Court in Washington D.C. following the Supreme Court�s important ruling, in June 2008, in Boumediene v. Bush, granting the prisoners constitutionally guaranteed habeas corpus rights. At the time I created the list, there had been 47 rulings, and in 34 of those cases, after reviewing all the evidence, the judges concluded that the government had failed to demonstrate that they were connected in any meaningful manner with either al-Qaeda or the Taliban, an ordered their release.
This was humiliating for those who sought to defend Guant�namo, especially as the habeas hearings involved a low evidentiary hurdle � requiring the government to establish its case through a preponderance of the evidence rather than beyond any reasonable doubt. It was, moreover, a vindication for those like myself and some other journalists, as well as lawyers for the men, NGOs and others concerned by the existence of Guant�namo, like Lt. Col. Stephen Abraham, who had worked on the tribunals at Guant�namo, who had long maintained that the supposed evidence against the men was flimsy and untrustworthy, in large part because it was gathered using torture or other forms of coercion, or, in some cases at Guant�namo, because certain prisoners were bribed with better living conditions if they told lies about their fellow prisoners.
From the high point for the Guant�namo habeas process, which I marked with a series of articles under the heading, "Guant�namo Habeas Week," a backlash soon began, engineered by conservative judges in the D.C. Circuit Court who, beginning in January 2010, issued rulings, following appeals by the government, designed to prevent the lower court from evaluating the evidence objectively, and ordering the release of dozens of prisoners.
I recorded these generally baleful decisions, in which the D.C. Circuit Court, as I put it, "demonstrated [a] commitment to eroding the District Court�s independence � and, for the most part, its fairness and impartiality � with increasingly aggressive assertions that have less to do with due process than with a kind of overreaching, authoritarian, right-wing ideology," in two articles in the summer of 2010, "Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals," Part One and Part Two.
I then watched aghast as, under the new rules, no more prisoners were able to have their habeas petitions granted. Since July 2010, all the habeas petitions ruled on � eleven in total � have been won by the government, as have around two dozen appeals. In addition, lawyers� efforts to deal with this by appealing to the Supreme Court have been in vain, as case after case has been turned down, with the Supreme Court refusing to revisit Boumediene, and, effectively, allowing prisoner detention policies to be dictated by a handful of conservative, ideologically driven appeals court judges, whose intention has been to destroy habeas corpus as a meaningful remedy for the men held at Guant�namo.
This process culminated in a thoroughly depressing ruling in October 2011, in which the D.C. Circuit Court overturned the successful habeas petition of Adnan Farhan Abdul Latif, a Yemeni with mental health issues, who had his habeas petition granted in July 2010, and had also been cleared for release by a military review board under President Bush, and by President Obama�s high-level, inter-agency Guant�namo Review Task Force in January 2010. See also this analysis by Sabin Willett, one of the Guant�namo lawyers.
In that ruling, the D.C. Circuit Court told the lower court that everything the government came up with � however risible � had to be given the presumption of accuracy unless the prisoners themselves could prove otherwise, even though, in Guant�namo, they are largely deprived of the means to do so.
In September 2012, Latif died at Guant�namo, reportedly by committing suicide, but no one in authority has had to answer for the failure to release him, and the D.C. Circuit Court has continued to set policy and turn down appeals, largely unnoticed by the mainstream media.
In revisiting my Guant�namo habeas page, I realized that I had largely failed to update it for some time, and set about remedying that, checking out appeal after appeal that was lost, and often finding that only a few specialist legal blogs had dealt with this procession of dismal rulings, even though the gutting of habeas corpus for the Guant�namo prisoners ought to be a matter of national concern.
The only glimmer of hope has come in the last few months, with dissenting opinions submitted by Circuit Judge Harry T. Edwards last June, in the case of Abdul al-Qader Ahmed Hussain (which I wrote about in an article entitled, "Judge Calls for An End to Unjust Provisions Governing Guant�namo Prisoners� Habeas Corpus Petitions"), and, in December, in the case of Abdul Razak Ali, an Algerian, which I have not yet written about, although I wholeheartedly recommend a detailed article about the case by Linda Greenhouse in the New York Times.
I hope that Judge Edwards� dissent signifies that the tide is turning against the decision by a handful of judges to eradicate habeas corpus for the Guant�namo prisoners, but I�m not holding my breath. Guant�namo has, in general, been a place where, from the moment the prison opened, the law was sent to be butchered, and, apart from that honeymoon period after Boumediene when dozens of prisoners were having their habeas petitions granted and were being freed, the only sure way out of Guant�namo is through political maneuvering � or in a coffin.
Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the "Close Guant�namo" campaign, and the author of The Guant�namo 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. He is also the co-director (with Polly Nash) of the documentary film, "Outside the Law: Stories from Guant�namo" (available on DVD here � or here for the US).
To receive new articles in your inbox, please subscribe to Andy�s RSS feed � and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the four-part definitive Guant�namo prisoner list, and "The Complete Guant�namo Files," an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guant�namo habeas list and the chronological list of all Andy�s articles.
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