Their Own Private Guantanamo
by Chisun Lee,
ProPublica - July 22, 2009 11:14 pm EDT
This story was published  as an op-ed in the New York Times.
The 10 men pictured above have all gone before trial
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
House and the Capitol.
Trial judges there have quietly decided 31 of some 200
cases brought by
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  (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
develop their own guidelines - functioning, in essence,
as the country's national security court.
A close examination  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
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  on a 2004 challenge by Yaser
Hamdi, an American accused by the Bush administration
of fighting 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
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 , a Yemeni
being held at
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
, 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.
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  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 , a Yemeni whose lawyer insisted he had
locals who were eager to hand over anyone they could
find in return for American rewards." Judge
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
that they had planned to travel to
up arms against the
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
, a citizen of
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 , 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.