Andy Worthington, who has conscientiously and effectively documented the fates of hundreds of prisoners held at the U.S. prison at Guantanamo (see his book The Guantanamo Files), has posted a "Habeas Corpus Scorecard" at his website.
Surely it is a scandal that the government has been shown not to have a reason to hold 34 of the 47 Guantánamo cases brought before Federal judges with habeas petitions. In other words, the courts have refused to accept the U.S. government's claim that these people are dangerous, the "worst of the worst," in almost three-quarters of the cases that have come before them. As Worthington describes it, the explanation for this incredible statistic lies in the flimsiness of the cases. And even more:
Primarily, the judges have exposed that the government has been relying, to an extraordinary extent, on confessions extracted through the torture or coercion of the prisoners themselves, or through the torture, coercion or bribery of other prisoners, either in Guantánamo, the CIA’s secret prisons, or proxy prisons run on behalf of the CIA in other countries.
This week, Worthington plans to dedicate his postings to covering these 47 cases decided to date, in what he calls "Guantánamo Habeas Week". His first entry in the series considers the case of Yasin Qasem Muhammad Ismail, a Yemeni who was captured (or sold to U.S. forces) in Afghanistan in 2001. He was either 19 or 22 at the time (as his age is uncertain). There is plausible evidence, from his testimony and witnesses, that Ismail, a small-time jihadist at best (despite claims from the government that he was "Emir" of the Bagram front), was tortured at Guantanamo. Despite that, his habeas petition was denied by Judge Henry H. Kennedy, Jr. of the U.S. District Court, Washington, DC. His unclassified opinion in the case has not yet been released.
Worthington writes of the plight of prisoners like Ismail:
If anything, Ismail — and other prisoners who have lost their habeas petitions, like Ghaleb al-Bihani, who served as a cook for Arab forces supporting the Taliban — should have been held as prisoners of war and protected from ill-treatment according to the Geneva Conventions. On this basis, they could be held until the end of hostilities, and we would now be arguing about whether it is conceivable that an invasion to overthrow the Taliban, which began eight and a half years ago, and which met its immediate aims, leading to the fall of the Taliban as Afghanistan’s government and the election of Hamid Karzai as the Afghan President, is legitimately part of a “War on Terror” that might last forever, and that, as a result, even the most minor players in that initial conflict can be detained indefinitely.
As it stands, however, Yasin Ismail — a man who, by all accounts, never took up arms against anyone — remains imprisoned in Guantánamo on an apparently legal basis, and those of us who regard his continued detention as an overreaction, to put it mildly, must also reflect on the fact that, far from being treated humanely for the last eight years, he has been subjected to physical abuse and sexual humiliation for no justifiable reason, but that this is considered irrelevant to the case against him.
This kind of injustice is even more galling in the light, as Worthington points out, of revelations in a sworn statement by Colonel Lawrence Wilkerson, former Chief of Staff to Secretary of State Colin Powell, that the vast majority of the prisoners at Guantanamo were not dangerous at all. In fact, they were never even properly vetted, but sucked up by U.S. forces for political reasons, and neither Bush, nor Cheney, nor Rumsfeld cared a whit about the innocence of any of these people. Wilkerson says former Vice President Cheney, for instance, "had absolutely no concern that the vast majority of Guantánamo detainees were innocent, or that there was a lack of any useable evidence for the great majority of them."
From Mr. Wilkerson's filing (PDF):
With respect to the assertions by Mr. Hamad that he was wrongfully seized and detained, it became apparent to me as early as August 2002, and probably earlier to other State Department personnel who were focused on these issues, that many of the prisoners detained at Guantánamo had been taken into custody without regard to whether they were truly enemy combatants, or in fact whether many of them were enemies at all. I soon realized from my conversations with military colleagues as well as foreign service officers in the field that many of the detainees were, in fact, victims of incompetent battlefield vetting. There was no meaningful way to determine whether they were terrorists, Taliban, or simply innocent civilians picked up on a very confused battlefield or in the territory of another state such as Pakistan....
It was clear to me that, as I learned about how the majority of the Guantánamo prisoners had been detained, the initial group of 742 detainees had not been detained under the processes I was used to as a military officer. It was also becoming more and more clear that many of the men were innocent, or at a minimum their guilt was impossible to determine let alone prove in any court of law, civilian or military. If there were any evidence, the chain protecting it had been completely ignored.
So it comes as no surprise that the majority of the habeas cases have been granted by the courts. Yet still, many of these prisoners formally freed remain in Guantanamo, and others, unable to obtain a lawyer, or too depressed or ignorant to defend themselves, remain in the limbo of indefinite detention, while the Obama administration debates how to keep some of them in prison for the rest of their lives, feeding the Cheneyesque lie that these people are the worst criminals on the planet.
If some of them are criminals, then let that be decided in a court of law. Hundreds of thousands have died over the decades to make that principle stand. Let us not unceremoniously bury it because of fear-mongering.
I applaud Andy Worthington's work in telling us these prisoners' stories, and hope readers will follow his new series, and show him support. I hope readers will also look carefully at his excellent analysis behind issues such as the resuscitated military commissions, the trials of the terrorist suspects, and the continuing obeisance to the deeply flawed Authorization for the Use of Military Force passed after 9/11.
I also applaud those other news sources who are keeping track of the habeas decisions, such as The Washington Independent, Center for Constitutional Rights, and the Miami Herald. They're all worth looking at.