In the three years since that landmark case, Boumediene v. Bush, the prisoners’ initial success in the District Court in Washington DC., where they won 38 of the first 52 cases, has been abruptly halted, as right-wing judges in the D.C. Circuit Court, led by Senior Judge A. Raymond Randolph, have pushed back, insisting that little evidence is required to continue holding men indefinitely, even if, as in most cases, they were nothing more than insignificant foot soldiers for the Taliban, rather than international terrorists.

In response to this repeated hurling down of gauntlets by Judge Randolph, who is notorious for approving every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court, there has been no repeat of Boumediene. In the last few months, lawyers for the prisoners have tried to undermine Judge Randolph and his colleagues on numerous fronts. Eight Guantánamo cases have made their way to the Supreme Court, as SCOTUSblog reported back in December, but all have failed.

Some of these cases have previously been discussed here. There are, for example, the poor Uighurs, innocent Muslims from China’s Xinjiang province, seized by mistake but trapped in Guantánamo because no one wants to allow them to be resettled in the US. Their attempt to secure justice in the courts finally came to an end last month, when the Supreme Court refused to consider their case, leading to an extraordinary and eloquent lament by one of their attorneys, Sabin Willett.

Before that, Judge Laurence H. Silberman, another aged right-winger, had wandered off on an extraordinary tangent about the perceived threat of terrorists in the case of a generally insignificant Yemeni, Yasein Esmail, who lost his appeal, and in March another generally insignificant Yemeni, Uthman Abdul Rahim Mohammed Uthman, whose habeas petition was granted in February 2010 by a judge who perceived that the government’s evidence consisted entirely of statements made by prisoners who had been tortured or whose testimony was officially regarded as unreliable, had his successful petition reversed. On that occasion, the culprits were a panel of judges that included another well-known right-winger, Judge Brett Kavanaugh, who declared, as ProPublica reported, “that the government doesn’t need direct evidence that a detainee fought for or was a member of al-Qaeda in order to justify a detention.”

The Supreme Court fails to tackle torture in the past

Over the last two weeks, the Supreme Court has cemented its reputation as a court that has turned its back on the lingering injustices of the Bush administration, which have, in addition, been endorsed and defended by President Obama. In the first instance, on May 16, the Court refused to grant a day in court to five victims of “extraordinary rendition,” who have been trying, since May 2007, to have a court hear their stories of how they were abducted and sent to be tortured in locations around the world with the help of Jeppesen Dataplan, Inc., a subsidiary of Boeing, which, it is clear, acted as the CIA’s travel agent for torture.

The five plaintiffs — who include the British residents Binyam Mohamed, rendered to torture in Morocco, and Bisher al-Rawi, kidnapped on business in the Gambia and rendered to the CIA’s “Dark Prison” in Afghanistan — won a crucial appeal in their case in March 2009, in the Ninth Circuit Court of Appeals, when the government’s attempt to protect itself (and its predecessors) from scrutiny by invoking the little known and little used “state secrets doctrine” was thwarted by a panel of three judges, who ruled that the executive branch’s claim that it was entitled to dismiss lawsuits merely by invoking the words “national security” would “effectively cordon off all secret actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.”

That ruling, however, was overturned last September, when a full panel of judges supported the government’s unprincipled use of the “state secrets doctrine.” As I explained at the time:

[W]hen asked to rule on whether these five men should have their day in court, or whether the government should be allowed to dismiss their lawsuit by claiming that the exposure of any information relating to “extraordinary rendition” and torture threatened the national security of the United States, American justice contemplated looking at itself squarely in the mirror, telling truth to power, and allowing these men the opportunity to address what had happened to them in a court of law, but, at the last minute, flinched and turned away. By six votes to five, the Court decided that, in the interests of national security, the men’s day in court would be denied.

In declining to review the men’s case, the Supreme Court has, as described in a strongly worded editorial in the New York Times, “abdicated [its] duty” and allowed “a major stain on American justice” to proceed unchecked.

The Times‘ editors did not mince their words. After noting that the abduction of “often innocent” foreigners, and their rendition to “countries well known for torturing prisoners” was “central to President George W. Bush’s antiterrorism policy,” and that he “then used wildly broad claims of state secrets to thwart any accountability for this immoral practice,” they added that “President Obama has adopted the same legal tactic of using the secrecy privilege to kill lawsuits,” and that therefore the only hope lay with the courts.

The editors’ verdict on the Supreme Court was harsh but completely justified. After noting first of all that the Ninth Circuit Court of Appeals “gave in to the pretzel logic shaped by the Bush administration that allowing the torture victims a chance to make their case in court using nonsecret evidence would risk divulging state secrets,” and that the Supreme Court has now “allowed that nonsense to stand,” the editors added:

By slamming its door on these victims without explanation, it removed the essential judicial block against the executive branch’s use of claims of secrecy to cover up misconduct that shocks the conscience. It has further diminished any hope of obtaining a definitive ruling that the government’s conduct was illegal — a vital step for repairing damage and preventing future abuses.

They also stated:

The Supreme Court should have grabbed the case and used it to rein in the distorted use of the state secrets privilege, a court-created doctrine meant to shield sensitive evidence in actions against the government, not to dismiss cases before evidence is produced.

In conclusion, the Times‘ editors pointed out that this was “not the first time the Supreme Court has abdicated its responsibility to hear cases involving national security questions of this sort,” lamenting that not even a single one of the justices was prepared to offer “a dissent or comment to let the world know that the court’s indifference was not unanimous,” either in the Jeppesen case, or, last year, in the case of Maher Arar, an innocent Canadian sent to Syria by George W. Bush to be tortured, or even, in 2007, in the case of Khaled El-Masri, a German citizen, seized by mistake, who was rendered to a torture prison in Afghanistan.

“What the world sees,” the editors added, “is rendition victims blocked from American courts while architects of their torment write books bragging about their role in this legal and moral travesty … The Supreme Court’s action ends an important legal case, but not President Obama’s duty to acknowledge what occurred, and to come up with ways to compensate torture victims and advance accountability.”

Unfortunately, as they also added, “It is hard, right now, to be optimistic.”

The Supreme Court fails to tackle torture in the future

In its second recent abdication of responsibility, the Supreme Court dismissed the last of the Guantánamo-related cases to come before them on May 23, with only two dissenters, Justice Stephen G. Breyer and Justice Sonia Sotomayor, prepared to consider Khadr v. Obama, a case named after Omar Khadr, but now, after Khadr accepted a plea deal last October, dealing solely with the question of whether the courts have any say in where Guantánamo prisoners are sent.

Related to Kiyemba v. Obama, the Uighurs’ case, which involved other questions regarding the courts’ ability to dictate where Guantánamo prisoners are — or are not — sent, the focus in Khadr was an attempt by prisoners to prevent the administration from forcibly repatriating them to countries where they fear the risk of torture. In defense of the administration, this has not often been an issue, although President Bush repatriated two Tunisians unwillingly, and Obama has done the same with two Algerians, but it remains a worry (as, for example, in the case of Ahmed Belbacha, an Algerian who is terrified of being repatriated), and it is, of course, disappointing that only two justices were prepared to consider the prisoners’ legitimate fears.

Instead, they have, once more, handed the decision making process to the D.C. Circuit Court, where judges, using a narrow reading of an Iraq detention case (Munaf v. Geren) decided on the same day as Boumediene, have ruled, as SCOTUSblog described it, that they have almost no power “to control the ultimate fate of Guantánamo detainees,” and that the prisoners themselves “have no other constitutional rights than a basic right to file a habeas challenge to their detention.” The Circuit Court also ruled that a 2005 federal immigration law “bars a Guantánamo detainee from making a claim in US court that a transfer to a given nation will violate a global treaty against torture.”

With this decision, as SCOTUSblog noted, “The chances that the Supreme Court will review the way lower courts have implemented its constitutional decision on the legal rights of detainees at Guantánamo Bay moved close to the vanishing point .” It was also noted, in what could almost be read as a sad epitaph for any hope that the law will ever lead to the closure of Guantánamo:

In terms of constitutional history, the Court’s sweeping declarations in the Boumediene decision, about the role of the judiciary in keeping the government from switching the Constitution on and off, now appear to have meant far less as a check on Executive power than they had seemed when that ruling came down in June 2008. And, while that decision might once have seemed to hold out the promise of ending the detention of many held at Guantánamo, it now appears to mean that some will remain at Guantánamo for years to come, and that facility will remain open indefinitely.

And that, in the end, is not something that the Supreme Court foresaw when the ruling in Boumediene was issued, and nor, furthermore, should it be something that the Court can now continue to ignore indefinitely.

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.

The odyssey of Abdul Aziz Naji has taken many terrible twists and turns since he was seized in Pakistan in May 2002, tortured at Bagram, then sent to Guantanamo, were he was formally cleared of any charges in a review of prisoner status last year. He was forcibly repatriated to Algeria on July 20, despite his fears of being harmed by Islamic forces or the government upon his return. Such forcible repatriation of a prisoner or detainee who fears persecution or worse is a violation of international law. This principle of non-refoulement, or non-return is specifically forbidden in the UN Convention Against Torture and Convention Relating to the Status of Refugees.

The Obama administration was cleared to effect the deportation against the prisoner’s will by no less than the Supreme Court, who rejected a lower court order blocking the action. What hasn’t been reported thus far is the role of Congress, who was mandated to have advance notice of the transfer.

According to the 2010 Homeland Security Appropriations, Interior Appropriations, Consolidated Appropriations, and Defense Appropriations Acts, all of which contain similar language on the subject, no funds are to be appropriated for the transfer of a Guantanamo prisoner to another state unless 15 days prior to release the President submit to Congress, “in classified form,” a statement regarding any risks to national security or U.S. citizens, the name of the prisoner and country of release, and “the terms of any agreement with the country or freely associated state that has agreed to accept the detainee.” (See PDF link.)

Congress Informed of Plan to Flout the Law

Both the offices of Senator Carl Levin, chairman of the Senate Armed Services Committee, and Senator Dianne Feinstein, chairwoman of the Senate Select Committee on Intelligence, confirmed to me that the 15-day notification did take place, meaning that requisite Congressional committees were informed of the deportation and the fact that it was not taking place on the basis of non-refoulement, and presumably, as the Obama administration has maintained, with “diplomatic assurances” from the Algerian government the prisoners would not be mistreated. The Washington Post said the administration took this to be good coin “because 10 other detainees have been returned to Algeria without incident.” But we know that in a number of these cases, the former Guantanamo prisoners were subsequently imprisoned and put on trial. Moreover, numerous human rights organizations have decried reliance on “diplomatic assurances” of safety as not being reliable.

Human Rights Watch described the problem with such “assurances”:

Governments that engage in torture routinely deny it and refuse to investigate allegations of torture. A government that is already violating its international obligation not to torture cannot be trusted to abide by a further “assurance” that it will not torture.

Then, too, there is fear that the government cannot protect returnees against being preyed upon by Islamic radical forces. As the U.S. 2006 State Department report on Algeria explained:

The country’s 1992-2002 civil conflict pitted self-proclaimed radical Muslims belonging to the Armed Islamic Group (GIA) and its later offshoot, the GSPC, against moderate Muslims. During the year [2005] radical Islamic extremists issued public threats against all “infidels” in the country, both foreigners and citizens. The country’s terrorist groups generally did not differentiate between religious and political killings.

A number of remaining Algerian prisoners fear return as well. One of them, Farhi Saeed Bin Mohammed, who won his “freedom” via habeas appeal last year, was one of the prisoners whose deportation block was lifted by the Supreme Court at the same time as Naji. To date, he remains at Guantanamo. Andy Worthington describes the fate of the others, including Djamel Ameziane, a Berber who fled Algeria years ago and lived five years in Canada.

The action, or more properly, inaction of Congress in the face of the illegal return (by international standards and U.S. treaty) of Abdul Aziz Naji to Algeria is inexcusable. When asked to make further explanation on policy regarding non-refoulement in general, or in the case of Mr. Naji, both Sen. Levin and Sen. Feinstein’s office declined to comment. We can only be left with the impression that they did not intend to stand in the way of this breaking of international law, and only a widespread outcry has assured, for the moment, that further such deportations have been delayed.

While, after a week’s incarceration, and some confusion about his fate, Naji is now reported to be safe at his family’s home in Batna, about 300 miles east of Algiers, it’s not clear that his safety is assured. Naji had stated that he feared torture, or death, at the hands of either the Algerian government or the Islamic fundamentalist oppositions who have been fighting the government. Over 10,000 have died in this conflict since the early 1990s. As a July 25 New York Times editorial on the Naji deportation noted, U.S. State Department reviews have described the ongoing use of disappearances and the extraction of confessions through torture by the Algerian government.

Andy Worthington has described the case of Mustapha Hamlili, who was arrested with Mr. Naji in Peshawar. He was voluntarily repatriated from Guantanamo to Algeria in July 2008, but then “was subsequently charged with ‘membership in a terrorist organization abroad and using forged travel documents.’” He was only cleared of charges and released last February. Others have faced charges against them over a year after the actual repatriation. Naji may be safe now, but as Worthington warns, “I hope that Abdul Aziz Naji is able to stay in contact with his lawyers, and that he can establish contact with representatives of human rights groups, to ensure that his appearance in the Algerian media is indicative of a new openness on the part of the Algerian government, as is not just a PR stunt, and also, hopefully, to avoid the farcical charges and long-winded trials to which all the other returned Algerians have been subjected.”

The Hell that is Guantanamo

Naji’s own incredible tale of his incarceration at Guantanamo, reported in the Algerian newspaper El Khabar, has not received a U.S. audience. British journalist Andy Worthington describes it, though, in an article late last week. Worthington is a fantastic reporter who also recently updated the U.S. rendition story in an article, “New Evidence About Prisoners Held in Secret CIA Prisons in Poland and Romania.”

According to the July 28 interview with Naji, prisoners were tortured to give false confessions. Even more incredibly, they were forced “to take some medicines for three months to drive them crazy, loosing [sic] memory and committing suicide.” Charges of drugging prisoners have been widespread, but have been difficult to verify. An Inspector General investigation on such drugging was initiated in 2008, but nothing further has been heard, save for an indication earlier this year that the investigation was still underway.

Naji also charges that “some detainees had been promised to be granted political asylum opportunity in exchange of [sic] a ’spying role’ within the detention camp.” Once released, they maintain their spying role, he charged. It is difficult to imagine that the U.S. has not tried to use some prisoners in this way. In fact, the suicide bombing at the CIA’s Forward Operating Base Chapman, Afghanistan, which killed seven CIA officers and a Jordanian intelligence official last December, was undertaken by a Jordanian doctor who was supposedly “turned” after a short period of imprisonment (and likely torture or blackmail) by the Jordanians. One is reminded, too, of the attempts of Britain’s MI5 to turn British resident and U.S. rendition prisoner Binyam Mohamed into an informer, while he was being tortured in a Moroccan prison in September 2002.

We cannot know for sure, but it may have been Naji’s refusal to so turn informant that led him to be considered for forced repatriation by the Obama administration, as in all other cases since January 2009 the government had followed the Bush administration in not undertaking the forced deportation of any Guantanamo prisoner.

Naji’s forced repatriation, his story of drugging and torture and coerced confessions at Guantanamo, and tales of deals with prisoners, swapping political asylum for spying, are all very disturbing. They reveal a side of the government’s actions in what used to be called the “war on terror” that is rarely even mentioned in the press anymore. When any truth about U.S. military or intelligence activity does leak out, as when Wikileaks released tens of thousands of military reports from Afghanistan a few weeks ago, such attempts to unveil government actions have been met by official condemnation and even calls for extrajudicial action against Wikileaks founder Julian Assange, and China-like censorship of the Wikileaks website.

The United States exists today in a state of moral anarchism. The government gives lip service to the rule of law, but repeatedly and consistently shows its disdain for international protocols. As Shahid Buttar of the Bill of Rights Defense Committee pointed out recently, the FBI has been politically spying on Americans for ten years now, and wants the freedom to do even more. BORDC is one of 50 peace, environmental, civil rights, and civil liberties groups seeking “long overdue legislative limits to constrain the FBI” (PDF). Meanwhile, the ACLU and the Center for Constitutional Rights are seeking “a federal court order restraining the Obama administration from killing [the son of Nasser al-Awlaki] without due process of law.” The son, Anwar al-Awlaki, a U.S. citizen, is on a government assassination list.

Cases like that of Abdul Aziz Naji put a human face on the actions of the U.S. government. Organizations as diverse as Wikileaks, BORDC, ACLU, CCR and others are fighting to turn this nation back from its headlong plunge into militarism, torture, and assassination, all the deformations that result from substituting imperialism for democracy. But real democracy will not take place until serious, and far-reaching societal and institutional change takes place. This is the challenge of our generation, a challenge we dare not refuse to answer.

Originally published at Firedoglake.

Jeffrey Kaye is a psychologist living in Northern California who writes regularly on torture and other subjects for The Public Record, Truthout and Firedoglake. He also maintains a personal blog, Invictus. His email address is sfpsych at gmail dot com.

Two observations. First, people, Congress, the White House, state governments, corporations, media outlets, and the Federal Elections Commission are, by and large, treating an unpopular and unconstitutional ruling as the law of the land, even though the ruling itself and others like it make amending the Constitution to fall in line with either the popular will or the obvious meaning of the existing Constitution more difficult — yet still doable and desirable.

Second, if one political party in Washington, no matter which one, moves against the Citizens United ruling, and the other does not, then the followers of those parties across the country will obey the dictates of their rulers exactly as if the polling cited above had never happened. After all, this is what we just witnessed with healthcare. Every Democrat backed a bill that, just by looking at the text of it, one would have guessed was Republican. And every Republican condemned the bill as communism right on que. Now, anything could happen. The states could lead the way, with voices from both parties, as is beginning. But the likely scenario is, of course, that Democrats in Washington will push minor halfway fixes, and Republicans in Washington will oppose them. So, keep the strength of the polling above in mind, because you will never see the media publish it again.

Meanwhile, the disaster of the Citizens United ruling is continuing to spread. And, for the most part, state governments are working to conform to the disaster. Many states are beginning to push back in minor ways. Montana is pushing back a little more strongly:

“Montana Attorney General Steve Bullock essentially dared opponents to sue the state, vowing to continue enforcing restrictions on corporate political spending that date back to scandals involving mining interests nearly a century ago. Testifying before Congress in February, Bullock said the state’s corporate spending limit ‘has served us well and never been challenged.’”

Until now.

“A Denver-based conservative group took up Bullock’s challenge this month. The Western Tradition Partnership joined with a Montana paint company owner in filing a lawsuit in state court challenging Montana’s limits on corporate expenditures as an unconstitutional ban on political speech.”

Courts across the country are being called into action. Federal court rulings have decided that there are no limits on corporate spending, but limits still remain on spending by political parties. But those limits will vanish, too, as soon as the case reaches the Supreme Court, also known as these people.

And thanks to the fine work already performed by the Supremes, we may soon see state judges universally cut from the same corporate cloth. And, as an added improvement, the corporations on whom there are already no limits include the health insurance corporations, which will have hundreds of billions of new dollars coming in by mandated purchase of their products.

Still, even with the current imbalance restricting political parties and not corporations, it is the political parties that hold the most influence. The insurance corporations were not able to buy Democratic congress members away from their party leaders. Nobody votes against war money or anything else, no matter how unpopular, unless their party leaders give them permission.

And yet, when the limits are lifted on parties, the uproar will not match that in response to Citizens United, because very few people will notice that corporate money buys off two parties much more easily than it could buy off 535 independent representatives.

David Swanson is co-founder of AfterDowningStreet.org and author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press. You can order it and find out when tour will be in your town by visiting davidswanson.org/book.

Detainees sit around the exercise yard in Camp 4, the medium security facility within Camp Delta at Naval Station Guantanamo Bay, Cuba. In Camp 4, highly compliant detainees live in a communal setting and have extensive access to recreation. Photo by U.S. Army Sgt. Sara Wood

Please support TPR contributor Andy Worthington’s important work on Guantanamo by making a donation to his investigative fund.

When it comes to dealing with the thorny question of how to close Guantánamo, the remaining prisoners have been caught between two competing systems since President Obama took office last January, and the result, to put it mildly, has been confusing.

Under President Bush, prisoners were cleared for release by military review boards, established to review the supposed evidence against them, and to determine whether they constituted an ongoing threat to the US. This appeared to be a maddeningly arbitrary system, but it led to the release of hundreds of the prisoners.

In June 2008, the Supreme Court added a second layer of review, of a more substantial nature, when it gave the prisoners constitutionally guaranteed habeas corpus rights; in other words, the right to challenge the basis of their detention in a US court. This right had been established by the Supreme Court in June 2004, leading to the filing of habeas petitions on behalf of the majority of the prisoners, but these were all stalled when Congress submitted to the President’s wishes and passed legislation that purported to strip the prisoners of these rights, in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006.

Guantánamo and habeas corpus under George W. Bush

Following the Supreme Court ruling in June 2008, District Court judges began hearing the prisoners’ habeas corpus petitions, and the prisoners secured, for the first time, an objective review of what the government claimed to be evidence proving that they were connected to al-Qaeda and/or the Taliban. The result was a disappointment for the government, although it came as no surprise to those who had been studying Guantánamo closely, and who knew that the majority of the prisoners had been seized by America’s Afghan and Pakistani allies, at a time when substantial bounty payments were being offered, and that the majority of the supposed evidence against the men came from their own interrogations, or those of other prisoners, which were often conducted in conditions where torture, coercion or bribery were prevalent.

From October 2008 to January 2009, 23 prisoners won their habeas petitions, and just three cases were won by the government. In the case of 17 Uighurs (Muslims from China’s Xinjiang province), the government gave up all pretense that they were “enemy combatants,” having established, soon after they were seized in December 2001, that their only enemy was the Chinese government, and having suffered a humiliating court defeat shortly after the Supreme Court ruling last June. A judge also dismissed the government’s claims against five Algerian-born Bosnian citizens, who had been kidnapped by US agents from Sarajevo in January 2002, in connection with a non-existent plot to bomb the US embassy, and the case against a Chadian national, who was a child at the time of his capture by Pakistani police in a raid on a mosque in Karachi.

In both cases, the judge — Richard Leon, an appointee of George W. Bush — dismissed the government’s supposed evidence by ruling, in the case of the Bosnians, that a supposed informer was unreliable, and in the case of the former child prisoner, Mohammed El-Gharani, that unreliable witnesses in Guantánamo (whose unreliability was known to the authorities) had concocted a fictional story about him.

Judge Leon also ruled that the government had established a case against one of the Bosnians — in connection with purported plans to recruit men to fight in Afghanistan — and against two other prisoners with supposed connections to the Taliban or al-Qaeda in Afghanistan, but it was a poor start for the government’s defense of its rationale for holding men for seven years without charge or trial, and these same problems resurfaced under Barack Obama.

Guantánamo and habeas corpus under Barack Obama

In Obama’s first year in office, nine prisoners won their habeas petitions, and six lost. Those who won included a Syrian who had been tortured by al-Qaeda as a spy, an Afghan (also a child at the time of capture) whose confessions were tainted by threats of torture, and a Kuwaiti businessman who had been tortured in Guantánamo until he came up with false confessions that were only finally exposed by a judge last September. In all these cases, false confessions and unreliable witnesses fatally undermined the government’s case.

Moreover, in the majority of cases that the government won, the fault lines in the Bush administration’s rationale for defining men as “enemy combatants” became apparent: most were, at best, peripheral characters in the war between the Taliban and the Northern Alliance that preceded al-Qaeda’s terrorist attacks on September 11, 2001, and should, by any objective measure, have been held as enemy prisoners of war, and protected by the Geneva Conventions.

Although the majority of the nine prisoners who lost their habeas petitions were cast back into the unprecedented world of indefinite detention conceived by the Bush administration, awaiting a substantial overhaul of the very basis of detention policies in the “War on Terror” that has not yet happened, it was clear that the courts provided the first objective review of the Bush administration’s policies. It muddied the waters, therefore, when President Obama established an interagency Task Force to review all the prisoners’ cases, and to come up with its own conclusions about who should be released, and who should be put on trial.

Obama’s Task Force muddies the waters

The Task Force struggled to pull together information about the prisoners that was scattered throughout various department and agencies, and took until January this year to complete its findings, advising the President that 35 prisoners should be put forward for trials, that 47 should continue to be held indefinitely without charge or trial, and that the rest — around 110 prisoners at the time — should be released.

The announcement revealed both the strengths and the weaknesses of the review process. It was, of course, heartening that only 35 prisoners would face trials, as this figure corresponded to analyses revealed by intelligence officials over the previous eight years, demonstrating that less than 5 percent of the 779 prisoners held throughout Guantánamo’s history had any meaningful connection to al-Qaeda, the Taliban leadership or international terrorism. Similarly, the decision to release 110 men was a swifter judgment than the courts were able to achieve — although it should be noted that the progress of the habeas petitions was severely obstructed by the Justice Department, where lawyers dragged their heels providing necessary information to the defense, and also that an executive decision to release a prisoner did not carry the weight of a court verdict, and did not, crucially, remove the stigma of having been held for years as an “enemy combatant.”

However, the biggest disappointment was the Task Force’s recommendation that 47 men be held indefinitely without charge or trial. “Preventive detention” was at the heart of the Bush administration’s baleful experiment in holding prisoners neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects to be put forward for trial on charges related to terrorism, and it was profoundly disturbing to hear President Obama explain, as he did in May last year, that the men in question were those who “cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States.” Essentially, what this statement revealed was that the administration was prepared to rely on information obtained through torture as a reason for continuing indefinite detention without charge or trial.

Moreover, the Task Force’s announcement in January — and Obama’s apparent endorsement of it — also ignored the role of the courts, for the simple reason that the majority of these men had outstanding habeas corpus petitions, and that, as a result, it was up to the District Court judges, and not the executive, to decide whether the supposed evidence against them was at all reliable.

Such is the muddle created by the Task Force — and such is the secrecy surrounding its decisions — that it is impossible to know whether the nine men consigned to indefinite detention after losing their habeas petitions in the courts are included in the 47 men that the Task Force advised should be held indefinitely. I can only presume that this is the case, but, as events last week showed, we are now in a position where rulings on prisoners’ habeas petitions no longer stand independently, but are actively compared to the results reached by a Task Force whose findings are secret.

The latest habeas corpus rulings

Last week, judges ruled on the habeas petitions of three Yemeni prisoners. The unclassified opinions have not yet been released, so the judges’ reasoning is not yet available, but in two cases the prisoner’s habeas petitions were denied, and in the third case the petition was granted. The two men who lost their petitions are Suleiman al-Nahdi and Fahmi al-Assani, and the man who won was Uthman Abdul Rahim Mohammed Uthman. To confuse matters further, both al-Nahdi and al-Assani had been cleared by a Bush-era military review board, while Uthman had not. It is, of course, not known what decision had been reached by the Task Force regarding these men.

Although the judges’ unclassified opinions are not yet available, a glance at these men’s stories, as available through publicly accessible Pentagon documents, indicates how the decisions may have been made. As I explained in my book The Guantánamo Files, Othman, who was 22 years old at the time of his capture, “said that he had traveled between Kabul and Khost teaching the Koran from March to December 2001.” Although he “admitted that he had stayed at a Taliban house in Quetta, Pakistan, which was the normal entry point for volunteers who had come to fight with the Taliban,” he stated that this was “only because he had been told that it was the only way for him to enter Afghanistan.”

If Othman had a plausible argument that he had traveled to Afghanistan as a missionary, this was not the case with al-Nahdi and al-Assani. Both had been seized in the Tora Bora region of eastern Afghanistan (where a major showdown between al-Qaeda and the US military’s Afghan proxies had taken place in November and December 2001), and, although it is clear from the cases of many of the men held at Guantánamo that passing through Tora Bora to escape the chaos of Afghanistan did not prove that they were involved in any kind of military activity (because thousands of civilians were also trying to escape), both men came up with accounts which suggested that they were at least peripherally involved in the conflict.

As I explained in The Guantánamo Files, al-Assani, who was 24 years old at the time of his capture:

was a recent recruit to the Taliban cause, a foot soldier in an inter-Muslim civil war that had suddenly gone global. He traveled to Afghanistan in the summer of 2001, trained briefly at al-Farouq [a training camp established by an Afghan warlord but associated with Osama bin Laden in the years before the 9/11 attacks] and ended up in Tora Bora, but only, he said, because “I was fleeing for my life with many other people to avoid the bombing that was imminent,” and not, as was alleged, because he “was assigned to augment Taliban and al-Qaeda forces already in defensive positions in Tora Bora.” He added that he was with a group of Pakistanis, trying to get to Pakistan, when they were bombed by US forces and he was “the sole survivor.”

He was then taken by Afghan forces to a hospital in Jalalabad, and delivered to US forces some months later.

Al-Nahdi, who was 27 years old at the time of his capture, explained that he had been inspired to assist the Taliban through a fatwa issued by a notorious cleric, and had spent a month at al-Farouq. He added that:

[He] saw Osama bin Laden in Tora Bora, when he “talked about the jihad for approximately one hour and then a senior al-Qaeda operative [identified as Ayman al-Zawahiri, al-Qaeda’s No. 2] made a few comments,” and then went into the mountains, where he took turns guarding a foxhole with 15 other people. Responding to an allegation that he “may have fought in Tora Bora,” he said, “I never fired a weapon. I was only sitting,” and, when asked if he would have shot at Americans, he [said]: “I did not see any Americans. If I had seen any Americans, I would not have shot at them. I would have only shot at them if they had shot at me first, to defend myself.”

Guantánamo’s continuing existence as a legal black hole

Over eight years after Guantánamo opened, it is clear from these three rulings that the fate of the men in question is still dictated more by the disgraceful innovations of the Bush administration than it is by any objective notions of justice. Othman may be released, but only when the Obama administration decides that it is politically safe to free any cleared Yemeni prisoners (having capitulated to unprincipled criticism following the failed Christmas Day bombing attempt by suspending all releases to Yemen until further notice). Moreover, it is impossible to know whether any of these three men were cleared for release by Obama’s Task Force, and, if so, what it means if a prisoner loses his habeas petition, when the Task Force had recommended his release.

Behind all this, of course, lies the problem that I have been highlighting ever since Judge Leon ruled, last January, that Ghaleb al-Bihani, another Yemeni, could continue to be held indefinitely because he had worked as a cook for Arab forces supporting the Taliban, and had not magically spirited himself out of Afghanistan on the day that the US-led invasion began, in October 2001. Absurdly, it seems to me, this was when the Taliban’s civil war with the Northern Alliance suddenly became a “War on Terror,” in which US forces, who hooked up with the Northern Alliance after years of indifference to their cause, were conventional soldiers, but those who opposed them were terrorists.

If there were truly any justice, Ghaleb al-Bihani — and Suleiman al-Nahdi and Fahmi al-Assani — would have been held as prisoners of war according to the Geneva Conventions, and not as special “War on Terror” prisoners whose detention was endorsed by Congress in the Authorization for Use of Military Force, passed in the wake of the 9/11 attacks, which empowered the President to seize and hold anyone he regarded as having a connection to al-Qaeda and/or the Taliban. Crucially, this would mean that they could continue to be held until the end of hostilities (whenever that may be), but it would also mean that they would not have been subjected to the abusive innovations of the “War on Terror,” and would have been shielded from coercive interrogations and “enhanced interrogation techniques.”

I have serious doubts about whether it is acceptable to continue holding peripheral figures seized during the US-led invasion of Afghanistan in October 2001 for longer than the duration of the Second World War, but even if this were the case, no one in the Executive branch, Congress or the judiciary has fully addressed the fact that, instead, they are still effectively in the black hole dreamed up by the Bush administration when the President accepted, in February 2002, that he had the right to hold a new category of human being — “enemy combatants” without rights — outside the Geneva Conventions.

This story was originally publishe 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.

Illustration/Helen Cox

¿Plata o plomo? Colombian and Mexican drug gangs ask government officials, judges and police officers which they prefer, “silver or lead,” when offering bribes and threatening violence.

The U.S. Supreme Court decision granting corporations the same free speech rights as natural persons allows them to spend unlimited amounts of money to influence elections and public affairs.

Corporations, foreign and domestic, can now force politicians to choose silver or lead when supporting or opposing corporate and foreign power interests.

Any politician who places the well-being of the public over corporate demands can count on well-financed negative publicity at the next election. Moreover, corporations will be able to directly influence the election of state judges and the confirmation of federal judges.

With the Congress, White House and Supreme Court now up for sale to the highest bidder, we, the people of the United States of America, must exercise our fading power before it is lost forever.

The 11th and 12th Amendments clearly establish that the Constitution exists to protect the rights and powers of the people, not corporations.

It is our Constitution! We must amend it to ensure it protects us, not corporations.

The Power to the People Amendment

Section 1

Only natural persons shall be protected by this Constitution and entitled to the rights and freedoms it guarantees

Section 2

Nothing contained in this article shall be construed to abridge the freedom of the press for non-person entities engaged in the gathering and reporting of fact, analysis, and opinion. In all other respects, Congress and the States shall regulate and tax non-person entities as necessary for the public good.

Section 3

This article shall become operative once it has been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States, or by Conventions in three-fourths of the States thereof.

William John Cox is a retired prosecutor, public interest lawyer and political activist. His is the author of the book, You’re Not Stupid! Get the Truth: A Brief on the Bush Presidency and is currently working on a fact-based fictional political philosophy. His writings are collected at votersevolt.com. Mr. Cox can be reached at , and he can be contacted at u2cox@msn.com.

Here’s a news release announcing the effort:

A coalition of public interest organizations strongly condemned today’s ruling by the US Supreme Court allowing unlimited corporate money in US elections and announced that it is launching a campaign to amend the United States Constitution to overturn the ruling. The groups, Voter Action, Public Citizen, the Center for Corporate Policy, and the American Independent Business Alliance, say the Court’s ruling in Citizens United v. FEC poses a serious and direct threat to democracy. They aim, through their constitutional amendment campaign, to correct the judiciary’s creation of corporate rights under the First Amendment over the past three decades. Immediately following the Court’s ruling, the groups unveiled a new website – www.freespeechforpeople.org – devoted to this campaign.

“Free speech rights are for people, not corporations,” says John Bonifaz, Voter Action’s legal director. “In wrongly assigning First Amendment protections to corporations, the Supreme Court has now unleashed a torrent of corporate money in our political process unmatched by any campaign expenditure totals in US history. This campaign to amend the Constitution will seek to restore the First Amendment to its original purpose.”

The public interest groups say that, since the late 1970s, a divided Supreme Court has transformed the First Amendment into a powerful tool for corporations seeking to evade democratic control and sidestep sound public welfare measures. For the first two centuries of the American republic, the groups argue, corporations did not have First Amendment rights to limit the reach of democratically-enacted regulations.

“The corporate rights movement has reached its extreme conclusion in today’s Supreme Court ruling,” says Jeffrey Clements, general counsel to www.freespeechforpeople.org and a consultant to Voter Action. “In recent years, corporations have misused the First Amendment to evade and invalidate democratically-enacted reforms, from elections to healthcare, from financial reform to climate change and environmental protection, and more. Today’s ruling, reversing longstanding precedent which prohibits corporate expenditures in elections, now requires a constitutional amendment response to protect our democracy.”

In support of their new campaign, the groups point to prior amendments to the US Constitution which were enacted to correct egregiously wrong decisions of the US Supreme Court directly impacting the democratic process, including the 15th Amendment prohibiting discrimination in voting based on race and the 19th Amendment, prohibiting discrimination in voting based on gender.

“The Court has invented the idea that corporations have First Amendment rights to influence election outcomes out of whole cloth,” says Robert Weissman, president of Public Citizen. “There is surely no originalist interpretation to support this outcome, since the Court created the rights only in recent decades. Nor can the outcome be justified in light of the underlying purpose and spirit of the First Amendment. Corporations are state-created entities, not real people. They do not have expressive interests like humans; and, unlike humans, they are uniquely motivated by a singular focus on their economic bottom line. Corporate spending on elections defeats rather than advances the democratic thrust of the First Amendment.”

“With this decision, the Court has abandoned its usual practice of adjudicating non-constitutional claims before constitutional ones, a radical departure that indicates how far the Roberts Court may be willing to go in order to serve the powerful ‘business civil liberties’ agenda,” says Charlie Cray, director of the Center for Corporate Policy. “While the immediate effect is likely to be a surge in corporate cash in election campaigns, this could also signal the beginning of a sustained attack on the rights and ability of everyday people to govern the behavior of corporations, which, if successful, could effectively eviscerate what’s left of American democracy.”

“American citizens have repeatedly amended the Constitution to defend democracy when the Supreme Court acts in collusion with democracy’s enemies, whether they are slavemasters, states imposing poll taxes on voters, or the opponents of woman suffrage,” says Jamin Raskin, professor of constitutional law and the First Amendment at American University’s Washington College of Law.

“Today, the Court has enthroned corporations, permitting them not only all kinds of special economic rights but now, amazingly, moving to grant them the same political rights as the people. This is a moment of high danger for democracy so we must act quickly to spell out in the Constitution what the people have always understood: that corporations do not enjoy the political and free speech rights that belong to the people of the United States.”

The answer is a matter of debate, but there is little dispute that such an act of Congress would be unprecedented.

Sheldon Laskin, an Adjunct Professor at the University of Baltimore Law School who has argued that the Constitution forbids such a move, describes the new and dangerous can of worms it would open up:

“If Congress can compel the purchase of insurance from a for profit insurance company, it can compel the purchase of any commodity if there is an arguable public policy to support it.

“The auto industry is collapsing? Forget Cash for Clunkers, just order Americans to buy cars or tax them if they don’t. Obesity crisis? Order Americans to join health clubs, or tax them if they don’t. If Congress gets away with this, there is no stopping point and Big Business will have succeeded in making Americans into involuntary consumers whenever it so chooses.”

Outlandish? Consider this: Many Supreme Court observers expect a ruling, quite possibly on Jan. 12, 2010, in the case of Citizens United vs. Federal Elections Commission that would lift all limits on corporate funding of elections, meaning that national and international corporations could swamp the election system with so much money that any influence from actual citizens would be utterly negated.

If you were a corporation and you owned the legislature, and laws were being passed requiring people to purchase products, and you owed it to your shareholders to maximize profits, what would you feel compelled to do?

Exactly.

The U.S. Department of Justice recently claimed that, for purposes of keeping illegal government-funded activities secret from the public and the courts, telecommunications corporations were effectively part of the executive branch of the government.

Might the same argument not be made, in the none-too-distant future, about “health” corporations funded by government mandate? If the federal government can force me to give money to major campaign funders, where does the government stop and the private business begin?

Of course most of those arguing that the government cannot do this are libertarians and/or opponents of the Democratic Party, since so many on the left who ought to be raising these concerns have sold their souls to that party and this is a Democratic proposal.

But the argument against an individual health insurance mandate is not an argument against a civilized healthcare system. The government can tax the public and/or corporations and pay for healthcare, even with those payments going to private businesses, without running up against the same Constitutional hurdles or the same concerns from observers wary of creeping corporatism.

The Constitution provides Congress with certain enumerated powers in Article I and explicitly leaves all other powers to the states or the people in the 10th Amendment.

So, the constitutional question, for those who still care whether laws are constitutional, is whether the power to force you to buy a horrible product you do not want from a disreputable monopolistic corporation that pays regular bribes to your elected representatives in the form of campaign “contributions” is specifically listed anywhere in Article I.

Article I gives Congress the power to “lay and collect taxes” as well as the power to “regulate commerce … among the several states.” Interpretations of these clauses have varied.

Predictions as to where the current Supreme Court would come down vary. I find Laskin’s arguments the most persuasive. Here’s a lengthy two-sided debate and here are the cherry-picked opinions offered by Sen. Max Baucus (D., Blue Cross Blue Shield).

Is mandated health insurance commerce? It is not, like all other commerce, something that can be resold. It is not, like all other commerce, optional, if you force everyone to purchase it.

Is it interstate? That concept has perhaps been loosened enough to cover anything that counts as commerce, and the new legislation may allow the sale of health insurance across state lines despite candidate Obama’s argument that doing so would create a race to the bottom in quality and accountability.

But you can’t have interstate commerce with something that isn’t commerce at all.

Is mandated health insurance a tax? President Obama swears it isn’t. He calls its enforcement mechanism a “fine.”

But perhaps that’s for public consumption, whereas courts will be told it’s a tax. Is it? How can it be, when it is not a payment to the government? If it is, there is the problem that Article I requires that “imposts and excises shall be uniform throughout the United States” which this would not be.

But the Constitution forbids the ongoing warrantless spying programs. The Constitution does not allow presidents to launch wars. In the Constitution everyone has the right to habeas corpus.

We have cases in which the Supreme Court has ruled our general public practices unconstitutional, and yet they blissfully proceed. Ultimately, the question is whether we will stand for fascistic policies or fascistic interpretations of the Constitution. Personally, I will not stand for either.

David Swanson is co-founder of AfterDowningStreet.org and author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press. You can order it and find out when tour will be in your town by visiting davidswanson.org/book.

Detainees sit around the exercise yard in Camp 4, the medium security facility within Camp Delta at Naval Station Guantanamo Bay, Cuba. In Camp 4, highly compliant detainees live in a communal setting and have extensive access to recreation. Photo by U.S. Army Sgt. Sara Wood

Attorneys with the Center for Constitutional Rights (CCR) asked the Supreme Court Friday to allow seven men who remain imprisoned at Guantánamo Bay despite being cleared for release to be released into the United States when there is no other remedy available.

The men, Uighurs from the East Turkestan region of China, are represented by CCR and co-counsel Bingham McCutchen LLP, Kramer Levin Naftalis & Frankel LLP, Miller & Chevalier, Baker & McKenzie LLP, Reprieve and Elizabeth Gilson.

This will be the first time the Court hears a Guantánamo case since it decided the landmark cases brought by CCR and co-counsel, Boumediene v. Bush, in June 2008, and the first time the Obama administration will defend a Guantánamo case before the high court.

Said Sabin Willett, of Bingham McCutchen, lead attorney for the Uighur detainees:

“Today we have asked the Supreme Court to free Uighur clients who now pass their eighth year in the Guantanamo prison. The courts and the Defense Department have said they are neither enemies nor criminals. They fled from communism, and were taken in error. Companions live in Europe and Bermuda, and yet we imprison them still. These men are a living rebuke to America’s boast to be a freedom-loving people.

“To the founders of this republic, freedom was a national conviction. Today neither the President nor the Congress has the courage of that conviction. We urge the Court to remind us all of our ancient trust, and at last set these men free.”

In October 2008, D.C. District Court Judge Ricardo Urbina ordered the U.S. government to release 17 wrongly-imprisoned Guantánamo detainees into the United States. The men had been imprisoned without charge for over seven years. Four of the men have since been resettled in Bermuda and, more recently, another six were temporarily resettled in Palau.

The U.S. government has acknowledged it neither had the authority to detain them nor could it release them to China because of a risk of torture. However, on February 18, 2009, the D.C. Circuit Court of Appeals reversed the decision and held that the indefinite detention of the men could continue. The men asked for the Supreme Court to review the case and find, as the District Court did, that their “release into the continental United States is the only possible effective remedy.”

CCR has led the legal battle over Guantanamo for the last six years – sending the first ever habeas attorney to the base and sending the first attorney to meet with a former CIA “ghost detainee” there. CCR has been responsible for organizing and coordinating more than 500 pro bono lawyers across the country in order to represent the men at Guantanamo, ensuring that nearly all have the option of legal representation. In addition, CCR has been working to resettle the approximately 60 men who remain at Guantánamo because they cannot return to their country of origin for fear of persecution and torture.

In the wake of Boumediene, 31 of the 39 Guantanamo habeas cases heard by the lower courts have resulted in a finding that the detainee was unlawfully held, but, since the Court of Appeals decision in the Uighur cases, the trial courts have felt that they lacked the power to do anything more than order the government to make diplomatic efforts to release the men. As a result, 12 of the 31 detainees found to be wrongly detained by the courts in the last year remain in detention.

Said CCR Executive Director Vincent Warren, “The world community is waiting to see if the Court will put the President and Congress on the right track. If we expect our allies to continue to help us close down Guantánamo and put an end to this symbol of U.S. lawlessness in the world, we have to start by taking some responsibility ourselves and help these innocent men rebuild their lives here.”

For more information and documents, visit CCR’s Kiyemba v. Obama case page.

Fouad al-Rabia

On Thursday, US District Court Judge Colleen Kollar-Kotelly struck another decisive blow to the credibility of the Bush administration’s detention policies at Guantánamo (and the continuation of those same policies by Obama’s Justice Department) by granting the habeas corpus petition of Kuwaiti prisoner Fouad al-Rabia, a 50-year old aeronautical engineer and a father of four who had been accused of fundraising for Osama bin Laden and running a supply depot for al-Qaeda in Afghanistan’s Tora Bora mountains.

Announcing her ruling, Judge Kollar-Kotelly ordered the US government “to take all necessary and appropriate diplomatic steps” to arrange his release “forthwith.”

Why the courts are more qualified than the government to appraise the Guantánamo cases

The ruling brings to 30 the number of habeas petitions granted in the wake of the Supreme Court’s ruling, in June 2008, that the Guantánamo prisoners have constitutionally guaranteed habeas rights. Just seven petitions have been refused (a success rate for the prisoners of 81 percent), and as the government dithers about what to do with the remaining 225 prisoners, these statistics confirm yet again — as I have been arguing since President Obama took office — that the courts and the prisoners’ lawyers, with their long history of dealing with the cases, are better qualified than the government to understand the extent to which those held at Guantánamo were, for the most part, subjected to extremely dubious post-capture intelligence-gathering, based primarily on the “confessions” of other prisoners, or of the prisoners themselves, in situations where coercion or bribery were prevalent.

Just two days ago, the New York Times revealed that the government’s interagency Guantánamo Task Force, established on Obama’s second day in office to work out whether to charge or release the prisoners, was struggling with the kind of decisions that the courts are already making, and which they will continue to make, as ordered by the Supreme Court. The Times explained that “About 80 detainees have been approved for resettlement in other countries,” and that “About 40 other detainees, including the Sept. 11 defendants, have been referred for prosecution in either a military or civilian criminal court,” but that “The cases of more than 100 of the remaining detainees are undergoing a second review by the prosecution teams, who so far have been unable to reach a consensus about whether these prisoners should be transferred to other countries or prosecuted.”

The story of Fouad al-Rabia, which I explain below, ought to demonstrate to the government that much of its caution is misplaced, and that the same applies to its optimism. Al-Rabia was very probably one of the 40 or so prisoners scheduled to face a trial, and, in addition, the allegations against him were regarded as more serious by the government than those against many — if not the majority — of the 110 or so prisoners who are facing a second government review.

The supposed case against Fouad al-Rabia

In the fantasy world of the “War on Terror,” anyone who met Osama bin Laden was a terrorist fundraiser, and anyone who passed through the Tora Bora mountains to escape the war in Afghanistan in December 2001 was a member of al-Qaeda and/or the Taliban, who had been involved in the inconclusive “final showdown” between al-Qaeda and the US.

There were reasons to doubt both allegations, because thousands of people had met bin Laden innocently (briefly introduced to him at religious gatherings or business meetings), and also because thousands of people — civilians as well as soldiers — had fled Afghanistan for Pakistan via the city of Jalalabad at the time of “the battle of Tora Bora.”

In addition, because Osama bin Laden (as well as other senior al-Qaeda figures, and a number of senior Taliban officials who had supported him) had safely escaped from Tora Bora, it was also worth considering that the majority of those who were captured were either civilians, caught up in the chaos, or simple foot soldiers who had been too slow or insignificant to have had an opportunity to escape. Most of the “martyrs” — those who stayed to fight to the death — had achieved their aim, as their corpses littered the mountains after the battle reached its anti-climactic end in mid-December.

For Fouad al-Rabia, sold to US forces by Afghan soldiers who had, in turn, bought him off members of the US-backed Northern Alliance (the Taliban’s opponents), his long years at Guantánamo, and the relentless interrogations to which he was subjected, led inexorably to both sets of allegations being leveled against him.

In November 2008, al-Rabia was put forward for a trial by Military Commission (the “terror trials” introduced by Dick Cheney in November 2001, and revived by Congress in 2006, after the Supreme Court ruled them illegal) and was charged with conspiracy and providing material support for terrorism. The government alleged that he had worked as a fundraiser for Osama bin Laden in Kuwait and had traveled to Afghanistan on several occasions between June and December 2001 “for the purpose of meeting with bin Laden,” and also alleged that he had been “in charge of an al-Qaeda supply depot at Tora Bora,” where he “distributed supplies to al-Qaeda fighters.”

As I explained at the time (in a version of the story that I described in greater detail in my book The Guantánamo Files):

The problem with this story is that al-Rabia has not denied meeting bin Laden or being present at Tora Bora, but has, over the years, provided detailed explanations of how both events were entirely innocent. As a good Muslim, he took time out every year to visit those less fortunate than himself and provide humanitarian aid. In 2001, his attention was drawn to Afghanistan, and when he visited in June he met various Taliban officials and was also introduced to Osama bin Laden, who, he said, explained that his mission was to force US troops to leave the Arabian Peninsula. He said that he was shocked that, when he pointed out that this might allow Saddam Hussein to invade Kuwait again, “Bin Laden said no problem. Let Saddam come in and then something would happen and control would come back.”

Al-Rabia said that he then returned to Kuwait and gained approval for a humanitarian mission from the Kuwaiti Joint Relief Council, but explained that his return to Afghanistan coincided with the start of the US-led invasion in October 2001. Trapped, like many others, he traveled from city to city in search of an escape route, and eventually … ended up in Jalalabad and joined the exodus into the mountains. Because of his age and experience, he said he was compelled by a senior figure in al-Qaeda to look after the “issue counter,” where supplies — food and blankets, rather than weapons — were being handed out.

Overweight and suffering from a variety of ailments, al-Rabia said that he was finally allowed to leave the mountains, traveling with a Palestinian, Mahrar al-Quwari, who is also held at Guantánamo [but was approved for release by a military review board under the Bush administration]. He added, however, that, after staying with an Afghan family for a week, they were betrayed to the Northern Alliance. The US allies then sold them to other Afghans, who imprisoned them in Kabul before turning them over to US forces.

As I also explained, it struck me as highly unlikely that al-Rabia would have been shepherded off the mountains and ultimately betrayed, had he really been associated with al-Qaeda, but in court his lawyers provided an explanation of his experiences in Tora Bora that was even more damning for the government. As Carol Rosenberg described it in the Miami Herald, his lawyers argued at a four-day hearing last month that “the US military had worn Rabia down through relentless and abusive interrogation to the point where he falsely confessed that he ran a supply depot in the Battle of Tora Bora in Afghanistan in December 2001.”

Rosenberg also explained that one of his lawyers, David Cynamon, argued that US interrogators had “learned of Rabia’s Arabic honorific, Abu Abdullah al-Kuwaiti, and confused him with another Kuwaiti who had the same nickname.” Cynamon explained that a man with that particular nickname (literally, the Kuwaiti who is the father of Abdullah) “did handle logistics and supplies” at Tora Bora, but was killed by US bombing. Speaking to the Miami Herald on Thursday, Cynamon added, “The government’s so-called case against Mr. al Rabia was based almost entirely on false ‘confessions’ wrung out of him by months of clearly improper and abusive interrogation techniques taken right from the playbook of the North Koreans and Chinese Communists. Our government should be ashamed of itself — first for using such tactics, then for defending them in court. This is why the writ of habeas corpus matters.”

Following Judge Kollar-Kotelly’s ruling, the Justice Department provided no comment, and did not indicate whether it will appeal the decision, but I sincerely hope that the government follows the judge’s advice and repatriates al-Rabia — and another Kuwaiti, Khalid al-Mutairi, whose habeas petition was granted in July — as swiftly as possible, as he has clearly suffered more than enough.

The abuse of Fouad al-Rabia in Guantánamo

The judge’s full opinion has not yet been made available, but Carol Rosenberg explained that the government’s case had relied on the fact that “military-intelligence agents had accurately concluded that Rabia was at Tora Bora,” and that it had also attempted to make inferences about the supposed threat he posed by noting that, as a younger man, he had “obtained a master’s degree from the Daytona Beach campus of Embry Riddle Aeronautical University.” To me, it sounds innocuous enough that an aeronautical engineer should have studied in the States, but in Guantánamo, anyone who had spent time in the US was regarded as a potential member of a sleeper cell, and, as a result, al-Rabia was subjected to brutal treatment.

Three British men released in March 2004 — the so-called “Tipton Three,” whose story was dramatized in the film “The Road To Guantánamo” — explained that al-Rabia, like dozens of other prisoners, was subjected to prolonged sleep deprivation, in the program known euphemistically as “the frequent flier program.” This involved moving prisoners from cell to cell every few hours, over a period of days, weeks or even months, supposedly to wear down their resistance (although in reality, as a recognizable form of torture, it was more likely to cause severe mental anguish and allied physical side-effects). The men reported that al-Rabia was moved every two hours, leaving him “suffering from serious depression, losing weight in a substantial way, and very stressed because of the constant moves, deprived of sleep and seriously worried about the consequences for his children.”

Al-Rabia was also subjected to the malign policy whereby medical staff at Guantánamo were co-opted as part of the interrogation process. His lawyers explained that, although he suffered from serious stomach pains, he was told that he “couldn’t receive medication unless he cooperated” with the interrogators. It is not known if this contributed to the false confessions identified in court, but despite the litany of cruelty and incompetence outlined above, the most startling fact concerning al-Rabia’s long detention and his final exoneration is that those overseeing Guantánamo were told in the summer of 2002, by a senior CIA intelligence analyst, who, almost uniquely, was also an Arabic expert, that al-Rabia had been wrongly detained.

What the CIA knew, and how it was ignored by David Addington

In The Dark Side, Jane Mayer explained how the analyst had conducted interviews with a random sample of the prisoners, and how his conclusion — that one-third of the men held at the time “had no connection to terrorism whatsoever” — was brushed off by David Addington, Cheney’s Legal Counsel, when John Bellinger, the Legal Advisor to the National Security Council, and General John Gordon, the NSC’s senior terrorism expert, learned of the agent’s report and tried to reveal the information to President Bush, to ask him to urgently review the cases of the men held at Guantánamo. According to two sources who told Mayer about the meeting, Addington dismissed their concerns by declaring, imperiously, “No, there will be no review. The President has determined that they are ALL enemy combatants. We are not going to revisit it!”

This, as Mayer noted, was the crux of the government’s position, as articulated by those who were dictating the policy from the Office of the Vice President. Mayer wrote, “The President had made a group-status identification, as far as he was concerned. To Addington, it was a matter of presidential power, not a question of individual guilt or innocence.”

One of the men who particularly suffered because of Addington and Cheney’s counter-productive arrogance was Fouad al-Rabia, who is the man described by the CIA analyst in an interview with Mayer as follows:

One man was a rich Kuwaiti businessman who took a trip to a different part of the world every year to do charity work. In 2001, the country he chose was Afghanistan. “He wasn’t a jihadi, but I told him he should have been arrested for stupidity,” the CIA officer recalled. The man was furious with the United States for rounding him up. He mentioned that every year up until then, he had bought himself a new Cadillac, but when he was released, he said, he would never buy another American car. He was switching to Mercedes.

This is another small piece of evidence to add to the burgeoning file of complaints against Dick Cheney and David Addington (the one that begins with torture and calls for prosecution, but also includes a whole section on arrogance and incompetence), but it amazes me that no one in the Justice Department, under President Obama, investigated the CIA analyst’s report, and, instead, stuck to the allegations put forward by military prosecutors in the Bush administration’s Military Commission system (overseen by the Convening Authority Susan Crawford, a protégée of Dick Cheney and a close friend of David Addington), and advanced mindlessly towards another humiliation in court.

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.

The new ruling brushes off the charges by 212 Iraqis who said they or their late husbands were abused by U.S. personnel at Abu Ghraib. The suit charged private security firm CACI International Inc., of Arlington, Va., of crimes inside the Baghdad hellhole.

But in a 2-1 ruling, the D.C. Court of Appeals said CACI “is protected by laws barring suits filed as the result of military activities during a time of war,” the Associated Press reported. This opinion was written by Judge Laurence Silberman, a Reagan appointee, and supported by Judge Brett Kavanaugh, a Bush appointee.

“During wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor’s engagement in such activities shall be pre-empted,” Silberman wrote.

If so, with about as many U.S.-led contract mercenaries as regular army involved in the Iraq conflict, this decision preposterously exempts some 150,000 fighters from legal action for any crimes they commit. It gives a shoot-to-kill pass to privateers such as Blackwater, whose operatives on one occasion are said to have gunned down 17 unarmed Iraqi civilians.

“This abuse and torture of these prisoners detained during war time constituted war crimes and torture in violation of the Geneva Conventions of 1949, the U.S. War Crimes Act, the Convention against Torture, and the U.S. Federal Anti-torture Statute—felonies, punishable by death if death results as a violation thereof,” said Francis Boyle, an international law authority at the University of Illinois, Champaign-Urbana.

“Judges Silberman and Kavanaugh have now become Accessories After the Fact to torture, war crimes and felonies in violation of United States federal law and international criminal law,” Boyle asserted. (See if they are ever prosecuted!)

Dissenter Judge Merrick Garland, appointed by President Bill Clinton, argued the law does not protect independent contractors, particularly when they are accused of acting outside the rules or instructions of their military overseers. But where Silberman said most of the claims were limited to “abuse” or “harm,” not war crimes or torture, according to Courthouse News Service, Garland “found the claims much more alarming.”

“The plaintiffs in these cases allege they were beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused by private contractors working as interpreters and interrogators at Abu Ghraib prison,” Garland said.

“No act of Congress and no judicial precedent bars the plaintiffs from suing the private contractors—who were neither soldiers nor civilian government employees,” he wrote.

“Neither President Obama nor President Bush nor any other Executive Branch official has suggested that subjecting the contractors to tort liability for the conduct at issue here would interfere with the nation’s foreign policy or the Executive’s ability to wage war,” Garland pointed out.

“To the contrary, the Department of Defense has repeatedly stated that employees of private contractors accompanying the Armed Forces in the field are not within the military’s chain of command, and that such contractors are subject to civil liability,” he wrote.

Judge Silberman was named to the Federal bench in 1985 by President Ronald Reagan and in 2008 received the Presidential Medal of Freedom, the nation’s highest civilian award, from (surprise!) President George W. Bush, the man who launched the Afghan and Iraq aggressions.

Silverman was supported in his opinion by Kavanaugh, a former legal aide to President Bush who was later appointed by Bush to the Federal bench. In July, 2007, Senators Patrick Leahy, D-Vt., and Dick Durbin (D-Ill.) accused Kavanaugh of “misleading” the Senate during his nomination.

In a statement issued at the time opposing the appointment, Sen. Durbin prophesied, “By every indication, Brett Kavanaugh will make this judgeship a gift that keeps on giving to his political patrons who have rewarded him richly with a nomination coveted by lawyers all over America.” And that, of course, is exactly what happened. Here’s what aroused Durbin’s concern:

“For example, he (Kavanaugh) would not tell us his views on some of the most controversial policy decisions of the Bush administration–like the issues of torture and warrantless wiretapping. He would not comment. He would not tell us whether he regretted the role he played in supporting the nomination of some judicial nominees who wanted to permit torture as part of American foreign policy… It would have been so refreshing and reassuring if Brett Kavanaugh could have distanced himself from their extreme views. But a loyal White House counsel is not going to do that. And that is how he came to this nomination.” And that is how he came to dismiss the torture charges against contractor CACI. Surely, Kavanaugh’s decision in the CACI case is proof he misled the Senate and merits impeachment.

In Jan., 2005, The New York Times reported testimony suggesting that guards and/or interrogators at Abu Ghraib were urinating on detainees, pouring phosphoric acid on them, sodomizing them with a baton, tying ropes to their penises and dragging them across the floor, and jumping on their wounds. Some prisoners were hung with their hands tied behind their back until they died. It should be remembered that the Abu Ghraib inmates were suspects, imprisoned without due process or trials. Abu Ghraib’s commanding officer Brig. General Janis Karpinski estimated that 90 percent of them were innocent.

According to an article by Jeffrey Toobin in the September 21 issue of The New Yorker, President Obama already has the chance to nominate judges for 21 seats on the federal appellate bench—more than 10 percent of the 179 judges on those courts, and at least half a dozen more seats should open in the next few months.

In an interview with the editorial board of the Detroit Free Press last year, Obama said the role of our courts “is to protect people who don’t have a voice…the vulnerable, the minority, the outcast, the person with the unpopular idea, the journalist who is shaking things up…And if somebody doesn’t appreciate that role, then I don’t think they are going to make a very good justice.”

Surely, hundreds of foreign prisoners tortured in an illegal war made by the U.S., or their survivors, are supplicants entitled to a fair hearing, not non-persons to be brushed aside as judges Silberman and Kavanaugh have done this past week. Their ruling that, essentially, injured parties cannot sue the Warfare State and its contractors, drives a tank through the Constitution. Americans had better pray Obama’s judicial choices will aspire to a higher standard.

Sherwood Ross formerly worked for The Chicago Daily News and other major dailies and as a columnist for wire services. He currently runs a public relations firm for “worthy causes”. Reach him at sherwoodr1@yahoo.com