Last week, two years and three months after the US Supreme Court granted the prisoners held at Guantánamo constitutionally guaranteed habeas corpus rights in Boumediene v. Bush, Fawzi al-Odah, a Kuwaiti prisoner held for nearly nine years, became the first prisoner to appeal to the Supreme Court “to protest federal court interpretations of detainees’ right to contest their detention,” as AFP described it.
Over the last two years, the prisoners have won 38 out of the 55 cases in which the District Court judges in Washington D.C. have made a ruling, but al-Odah is one of the 17 whose appeals have been denied. As I reported when he lost his petition in August 2009:
[T]he government secured another shallow victory when Judge Colleen Kollar-Kotelly denied the habeas petition of Fawzi al-Odah, a Kuwaiti prisoner, agreeing with the government that it was “more likely than not” that he “became part of Taliban and al-Qaeda forces in Afghanistan.” Judge Kollar-Kotelly’s ruling was based on a dubious assemblage of information that relied more on inconsistencies in al-Odah’s account of his activities than it did on anything resembling concrete evidence, as she herself admitted, when she wrote that there were “significant reasons why the Government’s proffered evidence may not be accurate or authentic.”
Al-Odah has always claimed that he took a break from work and traveled to Afghanistan in August 2001 to teach the Koran and provide humanitarian aid (which he had done previously in other countries), and has also admitted that he established contact with the Taliban, as they were the government at the time, and spent one day at a Taliban-controlled training camp. He has also stated that, after the US-led invasion, he was sent by a Taliban representative to a safer location outside Kabul, and, from there, traveled to Jalalabad, where he stayed with another family, who gave him an AK-47 assault rifle to protect himself. He then joined other people crossing the mountains to Pakistan, where he handed himself in to the border guards, and was subsequently handed over — or sold — to US forces.
While Judge Kollar-Kotelly was undoubtedly justified in finding numerous holes in al-Odah’s account of his activities, including asking why he did not flee Afghanistan before traveling to Jalalabad, and why he allowed himself to travel with other armed men through the Tora Bora mountains, the result of her ruling, as I also explained at the time, was that:
[N]early eight years after the 9/11 attacks [now over nine years], the United States is still asserting that it has the right to hold a young man who spent just one day at a training camp, who did not flee Afghanistan after the 9/11 attacks (perhaps because he feared reprisals if he was found escaping), who traveled with other men to Kabul, and then to Logar and then to Tora Bora and his eventual capture, with no evidence that he ever used the weapon he was given, and no evidence that his training involved anything more than firing a few rounds from an AK-47 in a practice session.
Al-Odah’s appeal to the Supreme Court follows the dead end he reached in the lower courts, when, on June 30, the D.C. Circuit Court dismissed his appeal, endorsing Judge Kollar-Kotelly’s ruling, and refusing to acknowledge that there was any weight to al-Odah’s complaints regarding the “preponderance of evidence” standard for continued detention, and the use of hearsay evidence.
Although the burden of proof is on the government in the habeas cases, the “preponderance of evidence” standard is considerably lower than in criminal cases, for example, where a case must be established beyond reasonable doubt. However, the Circuit Court dismissed al-Odah’s complaint “under binding precedent in this circuit,” and also dismissed his complaint about the use of hearsay evidence, pointing out that the use of hearsay evidence had been approved by the Supreme Court in Hamdi v. Rumsfeld, the 2004 case that approved the detention of prisoners under the Authorization for Use of Military Force, the legislation passed by Congress the week after the 9/11 attacks, which authorized (and still authorizes) the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001” (or those who harbored them).
In Hamdi, the Supreme Court declared that “[h]earsay … may need to be accepted as the most reliable available evidence from the Government” to justify the prisoners’ detention, and the D.C. Circuit Court also noted that its use had been endorsed in previous habeas appeals considered by the Circuit Court — specifically, the cases of Adham Ali Awad and Sufyian Barhoumi, discussed here. It should also be noted that the use of hearsay has been accepted by the District Court judges ruling on the prisoners’ habeas petitions, although their approach has generally involved an attempt to establish that hearsay evidence corresponds with other evidence submitted by the government.
In his petition to the Supreme Court, al-Odah argues that the courts have “applied a burden of proof lower than any ever approved by this Court in a case involving prolonged imprisonment, allowing the government to justify indefinite detention by a mere preponderance of the evidence, rather than by clear and convincing evidence.” He also argues that “both the District Court and the Court of Appeals have … allowed the indiscriminate admission of hearsay, denying the detainees any meaningful opportunity to test the reliability of statements made against them.”
These are extremely valid points. By raising the question of whether a low evidentiary standard is appropriate for cases involving indefinite detention, al-Odah echoes what Tom Wilner, who represented the Kuwaiti prisoners in the early days of the habeas legislation, told me after the other remaining Kuwaiti, Fayiz al-Kandari, lost his habeas petition two weeks ago. Al-Kandari, he said (and, by extension, Fawzi al-Odah), “has not been convicted of any wrongdoing, yet he has been imprisoned for more than eight years. The low standard for habeas might be an appropriate standard for detaining someone initially, but it is hardly an appropriate standard for holding people for years without end.”
On hearsay, it will be difficult for al-Odah to argue that he District Court has allowed its “indiscriminate use,” as several judges have, very forcefully, refused to accept hearsay evidence as valid — in, to cite just a few examples, the cases of six Algerians kidnapped in Bosnia in January 2002, the case of Mohammed El-Gharani, a former child prisoner, the case of Alla Ali Bin Ali Ahmed, a Yemeni seized in a university guest house in Pakistan, and the cases of Farhi Saeed Bin Mohammed, an Algerian, and Uthman Abdul Rahim Mohammed Uthman, a Yemeni, whose cases were largely made up of hearsay evidence extracted from torture victims.
However, to provide a counter-weight, it remains apparent that the case against Fayiz al-Kandari consists almost entirely of unreliable hearsay, and Fawzi al-Odah’s case is also extremely weak on anything resembling actual evidence, rather than holes in his story into which suppositions were inserted.
What impresses me most about al-Odah’s complaint about the use of hearsay evidence is his assertion that it “den[ies] the detainees any meaningful opportunity to test the reliability of statements made against them,” as this is a vivid reminder of the failings of the Bush administration’s military review boards — the Combatant Status Review Tribunals — which were established in 2004 to review the prisoners’ cases to determine if, on capture, they had been correctly designated as “enemy combatants,” who could be held without charge or trial.
As was revealed in 2007 by Lt. Col. Stephen Abraham, a veteran of US intelligence who worked on the tribunals, the entire system was rigged, and geared towards rubber-stamping the detainees’ prior designation as “enemy combatants.” because the supposed evidence frequently consisted of intelligence “of a generalized nature — often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status.” In particular, however, I was reminded of Fawzi al-Odah’s complaint through recalling numerous examples of the use of hearsay evidence that prevented the prisoners from having “any meaningful opportunity to test the reliability of statements made against them,” and it struck me that on this point, al-Odah has made a powerful claim that little has actually changed in the last six years.
This, for example, is an exchange that took place in the CSRT of Mustafa Ait Idr, one of the six men kidnapped in Bosnia in January 2002, who was finally released in December 2008 after winning his habeas petition:
Recorder: While living in Bosnia, the detainee associated with a known al-Qaeda operative.
Detainee: Give me his name.
President: I do not know.
Detainee: How can I respond to this?
President: Did you know of anybody who was a member of al-Qaeda?
Detainee: No, no. These are accusations that I can’t even answer … You tell me I am from al-Qaeda, but I am not al-Qaeda. I don’t have any proof except to ask you to catch Bin Laden and ask him if I am part of al-Qaeda … What should be done is you should give me evidence regarding these accusations because I am not able to give you any evidence. I can just tell you no, and that is it.
Beyond these complaints, I can only reiterate my belief that the fundamental problem with the habeas litigation is the government’s reliance on the Authorization for Use of Military Force as its justification for holding prisoners neither as prisoners of war or as criminal suspects, but as a unique category of human being that is neither soldier nor terrorist, but something much more amorphous, with less rights than either.
This is the baleful legacy of the Bush administration, as maintained by President Obama, and it has infected the otherwise successful habeas litigation, largely by failing to distinguish between al-Qaeda (a terrorist organization) and the Taliban (the government of Afghanistan at the time of the US-led invasion in October 2001). The result of this confusion is that the majority of the men who have lost their habeas petitions (and whose detention is being robustly upheld by the Circuit Court) were, at best, minor players in a military conflict that had nothing to do with al-Qaeda’s international terrorist operations.
Fawzi al-Odah is right to ask the Supreme Court to consider whether the methods used to determine the quality of the evidence against him are substantial enough to prevent the government from continuing to hold men indefinitely at Guantánamo without any meaningful ability to challenge the evidence. However, it is surely just as important — if not more so — that prisoners found to have been foot soldiers in Afghanistan on the basis of plausible evidence are being consigned to indefinite detention in Guantánamo (a prison indelibly associated with allegations that it held “the worst of the worst” terrorists), when they should, all along, have been held as prisoners of war according to the Geneva Conventions.
Originally published on the website of the Future of Freedom Foundation.
Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.