Their Own Private Guantanamo

Their Own Private Guantanamo

 

by Chisun Lee,

ProPublica - July 22, 2009 11:14 pm EDT

This story was published [1] as an op-ed in the New York Times.

http://www.propublica.org/feature/their-own-private-guantanamo-723

 

The 10 men pictured above have all gone before trial

judges in Washington, D.C., to obtain their freedom.

Each one represents a case study for the Obama

administration as it struggles to craft a legal

framework for detaining suspected terrorists.

As the Obama administration and Congress try to forge a

legal framework for detaining suspected terrorists,

they might want to take a close look at what's

happening at the federal district courthouse just a

short walk down Pennsylvania Avenue from both the White

House and the Capitol.

 

Trial judges there have quietly decided 31 of some 200

cases brought by Guantanamo inmates seeking freedom.

Dossier by dossier, the jurists have answered the core

questions that policy experts have been addressing in

theory: When can the president place someone in

preventive detention, and how solid does the evidence

need to be?

 

President Obama, like George W. Bush before him, has

claimed the power to detain not only Qaeda and Taliban

members, but also those who "support" them. Last year

the Supreme Court ruled [2] (PDF) that the courts can

scrutinize these detention decisions and overturn them

if they are invalid. But the court didn't say exactly

what a valid detention looks like, and Congress hasn't

stepped in to make it clear.

 

Thus the federal judges in Washington have had to

develop their own guidelines - functioning, in essence,

as the country's national security court.

 

A close examination [3] of the decisions shows that

some of the fears about sending terrorism cases to

civilian courts have not been realized. The judges

haven't been particularly hard on the government,

holding it to a low standard of proof: If more than

half the evidence tips in the government's favor, then

the detainee stays put - a far lower bar than "beyond a

reasonable doubt." The judges have also admitted

hearsay evidence, and they've sealed courtrooms to

protect government secrecy.

 

Yet despite these allowances, the government has not

fared well. Twenty-six detainees have won their

lawsuits, known as habeas petitions, while five have

lost. So far, the Obama administration has filed just

one appeal.

 

These initial judgments may not be typical, because

they involved relatively low-level suspects. But they

offer the first tangible indication of what members of

the third branch of government believe it takes to make

preventive detention legal.

 

While the federal trial judges are working largely

without guidance, the Supreme Court did offer some

clues in its decision [4] on a 2004 challenge by Yaser

Hamdi, an American accused by the Bush administration

of fighting the United States in Afghanistan. The

justices said the situation in which he was captured

was enough like a classic battlefield that detention

without charge was justified until the end of

hostilities, as is typical in wartime.

 

But the fight against terrorism won't have a "clear

terminal point," as President Obama said recently, and

many of the detainees weren't captured on an obvious

battlefield. The president says he can detain not only

anyone who contributed to the 9/11 attacks, but also

people "who were part of, or substantially supported,

Taliban or Al Qaeda forces or associated forces that

are engaged in hostilities against the United States."

The habeas suits have opened this claim to dispute.

Some judges have pushed back at President Obama's

assertion of power, particularly when assessing the

concept of "supporting" the enemy.

 

In the case of Ghaleb Nassar Al Bihani [5], a Yemeni

being held at Guantanamo Bay, Judge Richard Leon agreed

with the government that simply cooking meals for the

Taliban was "more than sufficient 'support'" of the

enemy to justify his detention. Yet Judge Gladys

Kessler ordered another Yemeni, Alla Ali Bin Ali Ahmed

[6], freed despite the government's claim that he'd

stayed at a suspect guesthouse and "traveled ... in the

company of terrorist fighters fleeing the battlefield."

 

Another judge, Reggie Walton, who is handling the

challenges of more than a dozen men, defined

"substantial support" as membership in "the 'armed

forces' of an enemy organization." Judge John Bates

scrapped the "substantial support" concept altogether,

which he said comes from the world of criminal law.

 

[3]Perhaps the sharpest curb on presidential authority

came from Judge Ellen Segal Huvelle, who ruled in March

that even if a Taliban fighter named Yasin Muhammed

Basardh [7] had deserved detention when captured, he

now deserved freedom because he had informed on other

detainees and "any ties with the enemy have been severed."

 

The judges have been more accommodating of the

government on technical matters, including the

protection of national security secrets. All have

routinely concealed important facts - sometimes even

the very basis for deciding to keep someone locked up -

despite the principle that American courts should be open.

 

That's what happened in the case of Moath Hamza Ahmed

Al Alwi [8], a Yemeni whose lawyer insisted he had

traveled to Afghanistan to fight in its civil war, not

against the United States, and was "easy prey for

locals who were eager to hand over anyone they could

find in return for American rewards." Judge Leon

rejected the argument, saying there was "more than

ample evidence" of Mr. Alwi's affiliation with

America's enemies, but that evidence isn't revealed in

the unclassified version of the judge's decision

released to the public.

 

In the case of six Algerian men arrested in Bosnia,

Judge Leon ruled in favor of five because the evidence

that they had planned to travel to Afghanistan to take

up arms against the United States was unreliable. But

the judge decided against the sixth man because of

other "credible and reliable" evidence that he kept secret.

 

The judges have also overlooked technical imperfections

in the government's evidence, admitting anonymous and

other unverifiable information. One government lawyer

explained that military and intelligence officers

aren't accustomed to following the "finer points" of

evidence rules, and the court doesn't appear to expect

them to be: in no case has a judge decided against the

government merely because its evidence lacked proper

form, as far as the publicly available records show.

 

The judges were more demanding when it came to

interpreting the substance of the government's

evidence. In the case of Mr. Ahmed, Judge Kessler

agreed to consider hearsay "because of the exigencies

of the circumstances." But she eventually ruled that he

should be released because the accuracy of the evidence

was "hotly contested for a host of different reasons

ranging from the fact that it contains second- and

third-hand hearsay to allegations that it was obtained

by torture to the fact that no statement purports to be

a verbatim account of what was said."

 

The trial judges have also rejected much of the

intelligence community's "mosaic theory," which calls

for interpreting minor facts to suggest a greater

threat. Judge Kessler, for example, refused to infer

that Mr. Ahmed was an enemy fighter simply based on a

"web of statements" that he had associated with enemy fighters.

 

She acknowledged that the mosaic approach "is a common

and well-established mode of analysis in the

intelligence community," but that the legal system

required more specific evidence. Likewise, in January

Judge Leon ordered the release of Mohammed El Gharani

[9], a citizen of Chad, after dismissing the main

evidence against him: contradictory statements from two

detainees whose credibility the government itself had

"directly called into question."

 

In the absence of guidelines from Congress and the

president for evaluating preventive detention cases,

these judges have succeeded in coming up with their

own, individual approaches. Yet whenever ground rules

seem ad hoc, people worry about fairness - is the man

in the next courtroom getting a better shake? One step

toward assuring the public that justice will be uniform

is to establish clear standards.

 

At the top of the list, the government could clearly

state what makes a person subject to indefinite

detention by the president. Is "supporting" the enemy

enough? If so, what exactly is "support?" And, once a

judge has concluded that someone has been unjustifiably

detained, what is the president required to do?

 

Seventeen of the 26 detainees who've been cleared for

release by judges remain in custody. President Obama

has given mixed signals on how he views the issue. He

has resisted a judge's order to release immediately 13

Chinese Uighurs, saying that the courts can't override

the president's discretion to decide when detainees

will be freed. Yet that position contrasts sharply with

his message in a recent televised speech [10], when he

said he accepted judges' rulings that certain prisoners

should be released. "The courts have spoken," Mr. Obama

said. "We must abide by these rulings."

 

But as these cases show, neither the guidelines for

deciding the cases nor the consequences of the

decisions are quite so clear.

 

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