Shutting the Door on Habeas at Guantanamo

Andy Worthington was on RT TV yesterday (June 11) talking about the recent Supreme Court decision not to review seven lower court rulings denying habeas release to Guantanamo prisoners. (The Court also declined review of a lawsuit by US prisoner, and Jose Padilla, who was tortured in a US Navy brig as an "enemy combatant" and later sentenced to prison for "material support" to terrorism.)

Back in June 2008, then-Presidential candidate told election crowds, "That's why we're going to close down Guantanamo and restore habeas corpus." But as Lyle Denniston, at SCOTUSblog noted in an article yesterday -- "Court bypasses all new detainee cases (FINAL UPDATE)" -- that's not what actually happened.

The [2008] Boumediene case was the last major terrorism case that went against the government. There, while establishing a constitutional right for Guantanamo prisoners to file habeas challenges to their detention, the Crt left it to lower courts to sort out just how that judicial process would work, case by case. More than a dozen District Court judges in Washington then took on the initial review task and, for a time, found in a majority of cases that the government had not justified further detention of the individual involved. But, when the government appealed release orders, the D.C. Circuit ruled against the detainee, or else ordered the District judge to reconsider.

In a string of decisions, not one of which the Supreme Court has been willing to review, the D.C. Circuit fashioned its own legal rules for Guantanamo cases, including at least two review methods that strongly favored the government’s evidence. Along the way, three judges on the D.C. Circuit — Senior Judges A. Raymond Randolph and Laurence H. Silberman, and Circuit Judge Janice Rogers Brown — have publicly and sharply criticized the Boumediene decision. The Supreme Court, turning its judicial cheek, has never responded to any of those criticisms, other than to leave the D.C. Circuit with virtually sole control of continuing litigation by Guantanamo prisoners and their volunteer lawyers.

Denniston made the point, as well, that Obama appointee Elena Kagan was probably involved in the decision not to review. Even more to the point, though, the Obama administration argued against SCOTUS review of the detainees' appeals.

The implicit instigators of this decision are the liberals who have sold out any semblance of belief in civil rights and civil liberties, unless such pertains to their own favorite group. Instead, for the sake of electoral "lesser-evil" politics, human beings held in solitary confinement, in indefinite detention, many if not most innocent of any crimes, and subjected to brutal medical treatments like forced feedings, or violent cell extractions, and God knows what else, are reduced to merely chips in the poker game of US election politics. This attitude goes hand-in-hand with the bizarre cheerleading for Obama's drone killings, and his policies of military intervention from Afghanistan to Libya to Mexico, and (barely) covert warfare against Iran.

As Andy Worthington said at his blog, introducing the RT video, "On the fourth anniversary of Boumediene v. Bush, this is a truly depressing state of affairs, and one made all the more depressing because of the general indifference of the US media and the American people, and I hope my contribution, and RT’s interest in the story, will help people to understand how depressing it is that the men in Guantánamo have been so shamefully failed by all three branches of the US government."



Other important discussions of the recent SCOTUS decision are taking place at Emptywheel and Lawfare. Adam Serwer at Mother Jones also wrote a good story. The best review of all the coverage on this was by Jason Leopold at Truthout, who also talked to some of the Guantanamo attorneys affected by the decision:

Brent Mickum, an attorney who has spent nearly a decade working on the habeas cases of several Guantanamo detainees and currently represents the high-value prisoner, Abu Zubaydah, said, "For those of us who have been working in the trenches for years and years this is a really sad and disappointing day."

"All of our work has essentially been for naught," Mickum said. "This leaves open a glaring question, what is the next step? All of the habeas attorneys will be getting together for a major meeting to discuss that."

In an interview, Mark Denbeaux, the director of the Seton Hall Law Center for Policy and Research who has represented several Guantanamo detainees and is also a member of Zubaydah's legal team, said the Supreme Court's landmark decision in Boumediene is now as "legally effective as a law review article."

Boumediene Talks; Obama Greases Skids for Gitmo Executions

ABC's Jake Tapper interviews Lakhdar Boumediene, tortured and imprisoned for eight years by the U.S. government at Guantanamo, freed after a conservative, Bush-appointed judge found there was zero credible evidence to hold him. H/T Glenn Greenwald.

From the Tapper interview article:

Boumediene said the interrogations began within one week of his arrival at the facility in Cuba. But he thought that his cooperation, and trust in the United States, would serve him well and quicken his release.

"I thought America, the big country, they have CIA, FBI. Maybe one week, two weeks, they know I am innocent. I can go back to my home, to my home," he said.

But instead, Boumediene said he endured harsh treatment for more than seven years. He said he was kept awake for 16 days straight, and physically abused repeatedly....

Boumediene described being pulled up from under his arms while sitting in a chair with his legs shackled, stretching him. He said that he was forced to run with the camp's guards and if he could not keep up, he was dragged, bloody and bruised....

"You think that's not torture? What's this? What can you call this? Torture or what?" he said, indicating the scars he bears from tight shackles. "I'm an animal? I'm not a human?"

The article notes that only last week, the infamous Dick Cheney praised Guantanamo, saying of its prisoners, "These people are very well treated."

Not noted in Greenwald's otherwise excellent piece is the fact that Boumediene was pushed to give false confessions, and Lakhdar describes how the system itself was fashioned to promote them.

Oddly, Boumediene said no one at Gitmo ever asked him about the alleged plot to blow up the embassies in Sarajevo [the original charges against him]. They wanted to know what he knew about al Qaeda and Osama bin Laden, he recounted, which was nothing.

Boumediene said it was in his interest to lie to the interrogators, who would reward the detainees if they admitted guilt.

"If I tell my interrogator, I am from Al Qaeda, I saw Osama bin Laden, he was my boss, I help him, they will tell me, 'Oh you are a good man,'" he said. "But if I refuse ? I tell them I'm innocent, never was I terrorist, never never, they tell me. 'You are, you are not cooperating, I have to punch you.'"

Andy Worthington also commented on Boumediene's release, reporting on the first interview the former Gitmo prisoner gave to the Washington Post and Le Monde:

Boumediene also explained that, at Christmas in 2006, he began a hunger strike, which lasted until his release, “in an effort to get someone to listen to his pleas of innocence,” and was force-fed twice a day through a tube inserted through his nose and into his stomach, a horribly painful experience that it is difficult to imagine enduring for nearly two and a half years. He added that he only broke his fast on two occasions: “once when he learned of President Obama’s election and again when the judge ordered his release.”

It's too bad Boumediene's faith in Obama was so misplaced. Two recent events speak to this fact. One is the current administration attacks against the very idea of judicial review that led to Boumediene's case being a Supreme Court precedent a few years back. As Glenn Greenwald notes:

If Boumediene has been shipped from Bosnia to Bagram rather than to Guantanamo, then -- according to the Obama administration -- he would not have had any rights at all to any judicial review. As disgraceful as his plight is -- 7 1/2 years in a cage for no reason -- his case is actually one of the better ones when compared to those who have been shipped from far away places to be imprisoned in Afghanistan, where the Obama administration continues to argue they have no habeas rights of any kind.

The other instance of a particularly Obama-style bad faith is the proposal to grease the skids for executions as part of the new, revamped military commissions proposal coming out of the White House. The proposal, "circulated to officials under restrictions requiring secrecy," was leaked to the New York Times:

The provision could permit military prosecutors to avoid airing the details of brutal interrogation techniques [i.e., torture]. It could also allow the five detainees who have been charged with the Sept. 11 attacks to achieve their stated goal of pleading guilty to gain what they have called martyrdom....

The proposal would ease what has come to be recognized as the government’s difficult task of prosecuting men who have confessed to terrorism but whose cases present challenges. Much of the evidence against the men accused in the Sept. 11 case, as well as against other detainees, is believed to have come from confessions they gave during intense interrogations [i.e., torture] at secret C.I.A. prisons. In any proceeding, the reliability of those statements would be challenged, making trials difficult and drawing new political pressure over detainee treatment.

The story got a very good working over by Greenwald, Worthington, and Cynthia Kouril at Firedoglake. Kouril notes that the proposal represents a complete undoing of the protections in the Uniformed Code of Military Justice regarding capital cases, put in place largely to protect against coerced confessions!

The new proposal is said to come from Obama's own task force on detentions. As I noted when the task force was first set up, it's head, Brad Weigmann, is led by deputy chief of staff in the National Security Division of the Department of Justice (or was in the Bush administration). This appears to be more than a mere trial balloon. Nor is anonymous leaking of a possible policy. It's the leak of a definite recommendation by the panel Obama himself set up to determine policy.

This particular effort by the Obama administration is so transparent, so unnecessary, and therefore, so pernicious, as to boggle one’s mind. It shows that despite all the glorious talk from Obama, he is not above changing the laws and protections set down in US law if it suits the political purposes of the executive branch.

Of course this is to hide the coerced confessions, and with small extension, further examination of the intelligence induced thereby to produce the false intel for the criminal invasion of Iraq.

War criminals ran the government, and now those that rule seek to protect the war criminals. Why? So they may feel free to conduct war crimes themselves? That’s the logical extension of these actions. It may be an incorrect extrapolation. It may only be to prevent prosecutions and dampen the call for investigations into torture. In any case, it is an abomination.