Last Monday, on the very same day that the Obama administration gave up on Guantánamo, so too did the Supreme Court. As far as we know, it was not a choreographed climbdown — nor had money been offered by George W. Bush and Dick Cheney to rehabilitate their legacies — but the effect was the same.
For opponents of the unconstitutional aberration that is Guantánamo, last Monday — April 4, 2011 — will go down in the history books as the day that they were obliged to watch impotently as federal court trials for terrorist suspects were discarded or discredited, the tired and tawdry looking “War on Terror” was revitalized, and the Supreme Court, through its inaction, decided that judges in the D.C. Circuit Court — who have publicly criticized the Supreme Court for incompetence — should continue to decide detainee policy at Guantánamo.
What this means, as I will spell out in detail below, is that, having gutted habeas corpus of all meaning in rulings over the last 15 months, the D.C. Circuit Court will be allowed to continue deciding that every prisoner still held at Guantánamo should — and very possibly will — be held forever, regardless of whether they were cleared for release by other judges, or by the President’s own interagency Guantánamo Review Task Force.
In last Monday’s first capitulation, the Obama administration — via Attorney General Eric Holder — abandoned a 16-month promise to try alleged 9/11 mastermind Khalid Sheikh Mohammed and four others in federal court, capitulating to Republican pressure — and a ban on moving prisoners to the US mainland to face trials, which was unconstitutionally implemented by Congress in December — by announcing that the men would, instead, be tried by Military Commission at Guantánamo.
The administration therefore fulfilled a key Republican aim — ensuring that the highest-profile prisoners in Bush’s “War on Terror” would be regarded as “warriors” rather than as criminals — and, in effect, turned the clock back to 2008, when the Bush administration held three pre-trial hearings in the Military Commissions of these five men.
Admittedly, the Obama administration bears the ultimate responsibility, having revived the Military Commissions in the summer of 2009, when senior officials could have consigned the reviled system to the grave of failed legal novelties. In addition, it may all backfire, as the Commissions are built on dubious legal sands, and the proceedings tend to be full of holes through which determined defendants like Khalid Sheikh Mohammed will be able to mock America more successfully than in federal court. However, the end result is that Republicans — and, should they wish, George W. Bush and Dick Cheney — will be able to claim that they were right all along.
On the judicial front, the Supreme Court has ducked Guantánamo since its last major intervention, in Boumediene v. Bush, in June 2008, when the justices ruled that the prisoners had constitutionally guaranteed habeas corpus rights, and also ruled that Congress had acted unconstitutionally by attempting to strip the prisoners of those rights in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006.
Although this was an enormously important decision, reinforcing the unusual but crucial ruling in June 2004, in Rasul v. Bush, that the prisoners, though seized in wartime, had habeas rights because the Bush administration had cut off all mechanisms whereby innocent men seized by mistake could prove their innocence, it also sowed the seeds of last Monday’s disaster.
Essentially, the Supreme Court refused to provide a description of an “enemy combatant,” leaving it to the lower courts to decide that, and although the District Court in Washington D.C. did a fine job of coming up with its own definition, and applying it in practice — and tweaking it along the way — in 41 cases from October 2008 to December 2009, for the last 15 months judges in the D.C. Circuit Court (the court of appeals) have fought back, with a number of notoriously right-wing judges refusing to accept the District Court’s generally accepted decision that some sort of involvement in the command structure of al-Qaeda and/or the Taliban is necessary to deny their habeas petitions.
Beginning with Al-Bihani v. Obama in January 2010, in which D.C. Circuit Court judges argued for no limit on the President’s wartime powers in the case of a Yemeni cook for Arab forces supporting the Taliban in Afghanistan, other panels have attacked the “command structure” argument, insisting that being “part of” al-Qaeda and/or the Taliban is sufficient to justify ongoing detention for life, and proceeding to attack the already low threshold required of the government — that it demonstrates its case by a “preponderance of the evidence,” rather than “beyond any reasonable doubt.”
What the D.C. Circuit Court desires, as judges have occasionally spelled out, is for the burden to be nothing more than “some evidence” — and that in a very open-ended way, as I explained in my last broadside directed at the Circuit Court. If they could, one suspects that the Circuit Court judges would simply return to the Combatant Status Review Tribunals at Guantánamo, held in 2004-05, which the Supreme Court in Boumediene found “insufficient.” In the CSRTs, the burden of proof was not on the government, but, outrageously, on the defendant, even through the prisoners in Guantánamo had no way of securing any evidence in their favor, or even of knowing what the government’s supposed case was against them.
In an attempt to overturn the Circuit Court’s dominance of all the arguments regarding the Guantánamo prisoners, a number of submissions have been made to the Supreme Court in recent months, and although these have all been turned down, as I mentioned above, it is worth analyzing what has been happening, in order to understand more thoroughly the dark forces that are now in control.
In an excellent editorial last month, the New York Times addressed the problem with the D.C. Circuit Court, focusing specifically on the court’s opposition to attempts by the Uighurs — Muslims from China’s oppressed Xinjiang province, seized by mistake, who won their habeas petition in October 2008 — to be allowed to live in the US.
Although the judge in their case, Judge Ricardo Urbina, ordered that they be brought to live in the US in October 2008, the Bush administration — and then the Obama administration — appealed, and in February 2009, long before the Circuit Court specifically began meddling in reversing successful habeas opinions, or unilaterally calling for an expansion of executive power — the Circuit Court agreed. Under Judge A. Raymond Randolph — notorious for endorsing every opinion about Guantánamo under President Bush that was subsequently overturned by the Supreme Court — a panel of judges ruled, as the Times described it, that Judge Urbina “lacked authority to free them in the United States because the ‘political branches’ have ‘exclusive power’ to decide which non-Americans can enter this country.”
Since then, although 12 of the 17 Uighurs have accepted new homes (in Bermuda, Palau and Switzerland), the Court has continued to resist claims made by the other five, who turned down offers to rehouse them made by Palau and at least one other unidentified country, because they did not trust those countries to protect them from the Chinese government.
Appalled by this decision, and by all the other developments in the last 15 months, the Times boldly pointed out that the D.C. Circuit Court “has dramatically restricted the Boumediene ruling,” and that, “In its hands, habeas is no longer a remedy for the problem the Boumediene majority called ‘arbitrary and unlawful restraint.’”
The editors proceeded to note that, in the Uighurs’ brief to the Supreme Court, challenging this decision (as the latest instalment of a case that has bounced around the courts for the last two years), their lawyers point out explicitly that the only constant factor in this case is “the court of appeals’ refusal to apply, or even acknowledge” the Boumediene ruling, and the editors also provided an eye-opening glimpse into the partisan nature of Judge Randolph’s opposition to the decisions regarding Guantánamo that have come before him, explaining:
Judge Randolph … wrote the opinion for the District of Columbia Circuit that the Supreme Court overturned in Boumediene. In a speech called “The Guantánamo Mess” last fall, he said that the justices were wrong to do so and all but expressed contempt for the holding. As the basis for the speech’s title, he compared the justices who reached it to characters in The Great Gatsby. “They were careless people,” he read. “They smashed things up … and let other people clean up the mess they had made.”
This contemptuous approach to the Supreme Court’s ruling prompted the New York Times to respond:
In Kiyemba [the Uighurs' case] and related cases, however, it is Judge Randolph and others on the District of Columbia Circuit who are making the mess. Respected lawyers say they are subverting the Supreme Court and American justice. Of 140 challenging their detentions in the face of this hostility, dozens who should have been freed will likely remain in prison.
In conclusion, the Times sought to remind the Supreme Court that “Alexander Hamilton called ‘arbitrary imprisonments’ by the executive ‘the favorite and most formidable instruments of tyranny,’” and that, in Boumediene, Justice Anthony Kennedy “stressed that habeas is less about detainees’ rights, important as they are, than about the vital judicial power to check undue use of executive power,” adding that this is important because the Circuit Court “has all but nullified that view of judicial power and responsibility backed by Justice Kennedy and the court majority,” and that the Supreme Court should now remind the Circuit Court “which one leads the federal judicial system and which has a solemn duty to follow.”
If the Times‘ editors made a valid case — and I believe they did — then it was the Supreme Court who failed to take their responsibilities on board, because last Monday they refused to consider the Uighurs’ case, and also turned down three other habeas-related submissions — challenging the government’s use of hearsay, the “preponderance of evidence” standard, and the sweeping executive powers endorsed in Al-Bihani.
To date, analysts have suggested that the Supreme Court might have been unwilling to revisit Guantánamo, because Elena Kagan, who replaced Justice John Paul Stevens, served as Obama’s Solicitor General working on Guantánamo issues, and would have had to recuse herself, leaving the court, in all likelihood, split 4-4 on any Guantánamo cases. However, as SCOTUSblog noted, Kagan did not recuse herself from two of the cases turned down last Monday, suggesting that the problem is actually that no one amongst the justices wants to step into the role taken by Justice Stevens, who, from 2004 to 2008, “had been the Court’s leader in asserting a strong role for the Justices in overseeing how the law of detention had developed.”
Along with the Obama administration’s capitulation to Republican demands on Guantánamo, the fact that the Supreme Court, under Obama, has also ended up more right-wing than it was under Bush, when it comes to detention issues in the “War on Terror,” appears to be some sort of cruel joke.
How on earth have we ended up in a situation whereby, as SCOTUSblog explained, the poisonous figure of Judge Randolph has been left in a position in which the Supreme Court’s denial of review last Monday “might … count as a personal triumph” for him — and, thereby, a tacit admission that he was correct to regard Boumediene as a “mess” that requires cleaning up? Was Justice Stevens the only reason that the US justice system did not thoroughly endorse arbitrary detention as official policy under George W. Bush?
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.