Clive Stafford Smith
A decade into the sad experiment that is Guantanamo Bay, it is discovered that the US, supposedly a nation of laws, isn’t simply holding prisoners year after year without charge, but is rejecting their habeas corpus petitions almost out of hand.
A new study out of Seton Hall University’s law school finds that the federal district courts in Washington, DC, granted 56 per cent of the habeas petitions filed by detainees after the Supreme Court permitted the petitions in 2008. But since July 2010, the courts have rejected all but one. The turning point was a case called Al Adahi v. Obama, decided by the Circuit Court of Appeals. The study’s authors, two law professors, say this shows that the circuit court, generally considered the most powerful in the country outside the Supreme Court, has made up its mind that henceforth nobody in Guantanamo should be considered innocent. In Al Adahi, the court essentially said that an error rate of 56 per cent is intolerable, but rather than eliminating errors by actually eliminating them, it simply decided they didn’t exist.
Normally, when someone in America is charged with a crime, the first question the judicial system seeks to answer is not how to kill him.
Rather, it is whether he has, in fact, committed the crime the gay eminent alleges. Back in 2003, Donald Rumsfeld purportedly said that the prisoners in Guantanamo were all captured on the Afghanistan battlefield, and were the “worst of the worst” terrorists in the world. In a totalitarian dictatorship, we might accept this as true without question; in the US, we generally require evidence. Over the months and years, the US military started making its own assessment. To date, they have released 610 of the 779 prisoners from Guantanamo in other words, almost 78 per cent were no threat to the United States.
Only a very small number of the Gitmo prisoners have ever resorted to the courts for a writ of habeas corpus, a legal remedy that tests the legality of some one’s detention.
In the first 34 cases, a district court judge ruled for the prisoner 56 per cent of the time. In effect, the judges were saying that, even after several years spent trying to sort the terrorist wheat from the bystander chaff, and after winnowing out hundreds of the more obviously innocent, the probability that military intelligence had identified an enemy correctly was still less than a coin-toss.
So in Al Adahi, the court set an impossible standard. Now, district courts routinely deny habeas petitions, and when they do grant them, the circuit reverses them. The professors’ theory is that this ruling was intended to intimidate lower court judges into curtailing their liberal nonsense. That is, the Guantanamo prisoners were getting too much justice.
It is important to understand that the habeas hearings are not deciding anything as mundane as whether the men in Guantanamo actually committed a crime. Indeed, only five out of the 779 Guantanamo detainees have been convicted of a criminal offence. Rather, the question in a habeas proceeding is whether a prisoner has done anything that might under a minimal burden of proof with what is essentially a presumption of guilt supported by secret evidence – indicate an association with those who the government tars as terrorists. In this light it is astounding that federal district court judges find anyone wholly innocent, as has happened so often.
The same government that fights to prevent judges from embarrassing the military in court has, in a separate administrative proceeding in Guantanamo, ‘cleared” 87 of 169 prisoners who remain for release. In other words, the military has itself decided that slightly more than half of the remaining prisoners are no threat to the US. Some were cleared seven years ago, yet they remain incarcerated in a maximum security prison, essentially unreachable by US courts.
I am no expert on Soviet-era gulags, but I can’t think of another prison certainly not in the modem world – where most of the prisoners remained in indefinite detention after being affirmatively cleared for release. If the courts refuse to do their job, and if President Obama reneges on his 2009 promise to close Guantanamo, what hope does an innocent detainee have?