Following up on the SCOTUS Habeus Decision

People have been asking what are the long-term implications for detainees still at Gitmo. Emptywheel addresses that question:

I’m just getting off a conference call with the Center for Constitutional Rights, one of the organizations that has been pushing for Habeas at Gitmo for years. Gita Gutierrez, one of the CCR lawyers that’s been fighting this fight the longest, said of the ruling that “unambiguously, the rule of law prevailed.”

Here is a summary of Emptywheel’s summary:

  • Forty to 60 Gitmo detainees have had their status review hearings, and have been found to be noncombatants. “One of the key issues for these men is that they often come from countries like Syria where, if they were to return, they would be tortured. A number of them have petitioned to be released to third countries, in some cases where they have family. DOD has refused to consider this up until now. This ruling gives courts the ability to provide for relief to those being held even after they were determined not to be enemy combatants.”
  • Of the roughly 260 Gitmo detainees who have not yet had hearings, about 100 have pending habeus petitions. Those must now go forward or be re-started (in cases where the petitions were stayed pending the SCOTUS ruling).
  • CCR believes that in many of these cases there is either no evidence to justify holding the individual, or the evidence is tainted. So many of these detainees will also have to be released.
  • The implications of Thursday’s decision for detainees held in U.S. custody elsewhere (such as Bagram in Afghanistan or the floating prisons the government has set up) are not yet clear.

A news analysis in the New York Times speaks to the larger issue of the camp’s reason for continuing to exist at all:

… the Supreme Court’s decision Thursday stripped away the legal premise for the remote prison camp that officials opened six years ago in the belief that American law would not reach across the Caribbean to a United States naval station in Cuba.

“To the extent that Guantánamo exists to hold detainees beyond the reach of U.S. courts, this blows a hole in its reason for being,” said Matthew Waxman, a former detainee affairs official at the Defense Department.

And without that, much will change.

McClatchy reporters Michael Doyle and Carol Rosenberg make the point that the embarrassment factor alone might influence the Bush administration to release detainees:

These habeas corpus hearings before federal judges will force the Bush administration to reveal its evidence and expose publicly how the detainees have been treated. Some attorneys think that the administration simply will start releasing detainees to avoid the potentially embarrassing hearings altogether.

“Frankly, I don’t think the government is going to want to continue to hold these detainees,” predicted Matthew MacLean, co-counsel for a detainee named Fawzi Khalid Abdullah Fahad al Odah.

Eugene Fidell, the president of the National Institute of Military Justice, agreed that the court ruling would provide “additional incentive for the administration to repatriate as many people as possible.”

Sen. Lindsey Graham (R-SC), a key architect of the Military Commissions Act, wants to pass a constitutional amendment to overturn the SCOTUS decision, although it’s highly unlikely he will be able to make that happen, given that Pres. Bush will be out of office in seven months.

Meanwhile, the right continues to react in the most apocalyptic terms to the restoration of habeus rights. Glenn Greenwald offered a typical example in the Friday edition of his blog at Salon:

While British conservatives rally to defeat the Government’s attempt to increase its detention powers, the U.S Right is plagued by — defined by — a truly warped, deeply authoritarian and profoundly un-American mentality. That mentality is exemplified by this characteristically deranged reaction to yesterday’s Supreme Court ruling by National Review‘s in-house legal expert, former prosecutor Andrew McCarthy:

A Courtroom, er, Battlefield We Can Win On [Andy McCarthy]An old government friend emails with a practical response to the Supreme Court:

Let’s free all Gitmo detainees…on a vast, deserted, open and contested Afghan battlefield. C-130 gunship circling overhead for security. Give them all a two minute running head start.

To our country’s pseudo-tough-guy “conservatives,” the very idea of merely requiring the Government to prove the guilt of the people it wants to imprison for life or execute is so intolerable, so offensive, that they want instead to release them all — including detainees who are indisputably innocent — onto a battlefield so that they can be slaughtered by our planes with no trial at all. Moments earlier, McCarthy declared the Supreme Court ruling to mean that “the American people had lost to radical Islam, 5 to 4” — in the authoritarian eyes of the American Right, the American people “lose” when our Government is required to prove the guilt of people before it can imprison them for life or kill them.

Fred Thompson went on This Week with George Stephanopoulos and did the same thing:

This is what aggravates me so much about the Sunday “news” shows. There is so much lying and muddying of the waters so that the average American–who doesn’t have the time to read judicial decisions–doesn’t understand that the Supreme Court basically told the Bush administration that they are operating outside of the established laws of the country for the third time in the way that they are prosecuting their War on Terror™. Former Senator and indolent presidential contender Fred Thompson appeared on This Week with George Stephanopoulos to provide his “Law & Order“-honed gravitas to the false assertion (and GOP platform) that the recent Supreme Court decision saying that Guantanamo detainees have a right to habeas corpus is somehow destroying this country.

After years of trying to make the unitary executive a more powerful branch of the government, the GOP seems upset that the Court would remind them that new laws enacted would be subject to review by the judicial branch…that whole Constitution thing being more of a suggestion than a system of government, apparently. Thompson claims that our laws are more liberal as they ever have been, which is odd, considering that the ones they sought to strike have been in place since the founding of the country. In fact, referencing Marbury v. Madison (1803), Justice Kennedy wrote: *

(T)he writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.

But I guess it’s too much to ask for a Republican to actually respect the Constitution.

One of the most heinous things the far right likes to do when discussing the detainees at Guantanamo is refer to them as “terrorists” or “Al Qaeda” or “Taliban.” They are “dangerous men” who want to harm Americans; they are the “worst of the worst.”

This always angers me because most of the Gitmo detainees have not been charged with any offense and the government has not produced any evidence to prove that they are guilty of any offense. To refer to these men as “terrorists,” as if they had been charged, tried, and convicted, when in fact they have been imprisoned for years without any formal charges or evidence of any illegal acts, is so wrong and so profoundly un-American, that it makes my head spin.

And as Tom Lasseter at McClatchy points out, an examination of the cases of former Gitmo detainees, who spent many months or years at the prison camp but have been released, shows that the U.S. government quite frequently captured and imprisoned men who had done nothing wrong — men like Mohammed Akhtiar:

The militants crept up behind Mohammed Akhtiar as he squatted at the spigot to wash his hands before evening prayers at the Guantanamo Bay detention camp.

They shouted “Allahu Akbar” — God is great — as one of them hefted a metal mop squeezer into the air, slammed it into Akhtiar’s head and sent thick streams of blood running down his face.

Akhtiar was among the more than 770 terrorism suspects imprisoned at the U.S. naval base at Guantanamo Bay, Cuba, after the Sept. 11, 2001, terrorist attacks. They are the men the Bush administration described as “the worst of the worst.”

But Akhtiar was no terrorist. American troops had dragged him out of his Afghanistan home in 2003 and held him in Guantanamo for three years in the belief that he was an insurgent involved in rocket attacks on U.S. forces. The Islamic radicals in Guantanamo’s Camp Four who hissed “infidel” and spat at Akhtiar, however, knew something his captors didn’t: The U.S. government had the wrong guy.

“He was not an enemy of the government, he was a friend of the government,” a senior Afghan intelligence officer told McClatchy. Akhtiar was imprisoned at Guantanamo on the basis of false information that local anti-government insurgents fed to U.S. troops, he said.

An eight-month McClatchy investigation in 11 countries on three continents has found that Akhtiar was one of dozens of men — and, according to several officials, perhaps hundreds — whom the U.S. has wrongfully imprisoned in Afghanistan, Cuba and elsewhere on the basis of flimsy or fabricated evidence, old personal scores or bounty payments. [emphasis added].

This, of course, is exactly the wrong that habeus corpus was intended to right.

2 Responses to “Following up on the SCOTUS Habeus Decision”

  1. Chief says:


    Another great post. I love reading what you write. You tie it up in a coherent package.

  2. Your analysis is bogus says:

    The “far right” happens to be correct. You clearly haven’t read Chief Justice Roberts’ dissent — ignore Scalia — because it totaly eviscerates the LOGIC of Justice Kennedy’s opinion, which is nonsensical. Kennedy even admits that he had NO PRECEDENT to hang his opinion on when he writes, “Under these circumstances the lack of a precedent on point is no barrier to our holding. We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay”.


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