The War Profiteers - War Crimes, Kidnappings & Torture
September 6th, 2009 - Guantanamo Detainees Cleared For Release Remain Imprisoned
By William Fisher
The Public Record
September 6, 2009
Since the Supreme Court ruled last year that inmates at Guantanamo Bay have a right to go to federal court to challenge their detention, detainees have filed more than 150 such lawsuits.
Thirty-five of these cases have now been completed. And of these, federal judges have ruled that 29 prisoners are being unlawfully detained.
The high percentage of prisoners who have “won” their habeas corpus appeals has surprised many observers, who may have anticipated that GITMO detainees would be, as former Defense Secretary Donald Rumsfeld put it, “the worst of the worst.”
In those cases where prisoners have been successful in their appeals, the court has repeatedly found that the government has not been able to prove its allegations. In some cases, the government’s evidence was excluded by the judge because it was obtained through torture.
The growing caseload of habeas corpus petitions has been seen as a contest between executive authority and judicial independence. While judges may find in favor of detainees and order them released - the usual remedy for habeas petitions - they are apparently powerless to enforce their rulings. As a result, 20 of the 29 prisoners ordered released are still at Guantanamo.
Nevertheless, judges have been finding much of the government’s evidence lacking.
Three weeks ago, one angry judge lambasted the seven-year detention of a Kuwaiti citizen. She said the government’s case was built on “speculation.”
In June, another federal judge said by the time of the 2002 arrest of a Syrian detainee, the prisoner been tortured by al-Qaida and incarcerated for a year and a half in a Taliban prison.
In May, another judge found that the evidence against one detainee contained second-and third-hand hearsay and allegations that it was obtained by torture.
In an another case, Judge Ellen Segal Huvelle recently directed that President Obama “promptly release” A young Afghan, Mohammed Jawad, who was reportedly 12-14 years old when he was captured. Jawad’s detention stemmed largely from a confession that was rejected by a military judge because it was obtained through threats of death.
But before Jawad could be sent back to Afghanistan, the president had to submit classified details to Congress.
While the Obama Administration is arguably having somewhat more success than its predecessor in relocating Guantanamo detainees, those who have been cleared for release but still remain on the Caribbean island have no place to go.
More than 100 of these detainees are from Yemen. Many of them could be released immediately, but the U.S. government is not certain that Yemen is capable or willing to provide enough security for released prisoners to prevent them from becoming allied with Al-Qaeda, which is said to be active there. Of the approximately 550 prisoners released from Guantanamo by the Bush Administration, only 14 were from Yemen.
Since April, it is believed that three Yemeni prisoners have been successful in federal court. While the judges in these cases have ordered their release, the Obama administration has failed to comply with these rulings, even though the government has not demonstrated that the prisoners constitute a security risk.
One Yemeni, who has heart problems, recently won a release order. He was captured by Pakistani troops while fleeing Afghanistan after the U.S. invasion. But he was found on a bus that was also transporting wounded Taliban soldiers, the Pentagon claimed he was working for the Taliban.
Originally suspected of being Osama bin Laden’s bodyguard, he was sent to Guantanamo in January 2002, and has been imprisoned there ever since. When he testified to a federal court via video camera from Guantanamo, he was chained to the prison floor. Guantanamo officials have confirmed his heart problems.
The judge found that there was no reliable evidence that the prisoner was ever a member of or fought for al-Qaida or the Taliban, or provided support to either group.
In April, a federal judge ordered the release of another Yemeni who would face security risks because he provided often-unreliable information about other Guantanamo detainees.
And a month later, a judge ordered the release of another Yemeni man, who was arrested seven years earlier. The Pentagon, relying largely on statements from other Guantanamo prisoners, labeled him a terrorist. But the judge found his testimony unreliable, and ruled that other circumstantial evidence was “weak and attenuated.”
All three men remain at Guantanamo.
Among other Yemenis at Guantanamo is a 38-year-old orthopedic surgeon captured in Afghanistan in January 2002. In March, the Justice Department said it had him cleared for release, but he remains in prison. The government says two other Yemeni prisoners committed suicide.
Other prisoners have not yet been released because they might face repression if returned to their home country. The Uighurs - Chinese Muslims - are examples.
Last October, federal district judge Ricardo Urbina ordered the government to release 17 Uighurs into the U.S. But that decision was blocked by an appeals court judge, who ruled that entry into the U.S. was an immigration matter that was the responsibility of the executive branch of government, not the courts.
Four Uighurs have since been released to other countries and lawyers for the remaining 13 have asked the Supreme Court to hear their case. But meanwhile, the 13 are still imprisoned.
The Obama Administration has weighed in on this issue, expressing its view that the Supreme Court should affirm the lower court decision. Government lawyers have argued that the U.S. is providing a safe harbor for the detainees while it figures out where it can safely relocate them.
Adding to the Administration’s problems are the strong anti-detainee sentiments expressed by members of both parties in Congress. Outspokenly opposed to releasing any detainee into the U.S., Congress passed a law requiring the president to submit a report to legislators before using taxpayer funds to release or transfer any Guantanamo detainee.
Two issues remain unclear. The first is whether the executive branch’s inability to release prisoners will have lasting effect on the courts. The second is the possibility that Congress will delay a court-ordered detainee release, thus opening the way to a suit by the detainee, who may claim that such a delay is unconstitutional because it violates the separation of powers among the judiciary, legislative and executive branches of government.
This tug of war over the habeas issue is likely to have consequences well beyond Guantanamo. For example, people detained for years at the U.S. air base at Bagram, Afghanistan, are also claiming the right of habeas corpus.
A federal court recently ruled that Bagram prisoners who are not Afghan nationals and who were captured outside Afghanistan may file habeas corpus petitions. But lawyers for Bagram prisoners are pressing for habeas rights for all who are held there. Some 600 prisoners are thought to be at Bagram.
The Obama Administration is also considering what to do with newly captured terrorist suspects.