Above Photo: Victoria Pickering/Flickr
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Anyone who has been following the alleged legal basis for the ongoing imprisonment without charge or trial of prisoners at Guantánamo should be encouraged by a ruling on June 21, 2019 by a three-judge panel — consisting of Judges Patricia A. Millett, Cornelia T. L. Pillard, and Harry T. Edwards — in the D.C. Circuit Court (the Court of Appeals for the District of Columbia) in Qassim v. Trump, a case involving Khalid Qassim, a 41-year old Yemeni citizen who has been held at Guantánamo without charge or trial for over 17 years.
Close Guantánamo’s co-founder Tom Wilner argued the case before the court, and, as he explains, the court “reversed an eight-year rule that has prevented Guantánamo detainees from seeing and rebutting the evidence purportedly justifying their detentions,” as part of a ruling in which the judges granted Qassim’s request to reverse the District Court’s denial of his petition for habeas corpus.
To give some necessary perspective to the significance of the ruling, it is important to understand that, for most of Guantánamo’s history, the law has failed to offer them adequate protections against executive overreach. In a glaring demonstration of arrogant folly after the terrorist attacks of September 11, 2001, the Bush administration decided that anyone who ended up in U.S. custody would be treated neither as a criminal (to be charged and put on trial), nor as a prisoner of war protected by the Geneva Conventions, who could be held unmolested until the end of hostilities. Instead, the prisoners were designated as “unlawful enemy combatants”; essentially, human beings without any rights whatsoever.
It took until June 2004, when Guantánamo had been open for nearly two and a half years, for the Supreme Court to rule, in Rasul v. Bush, that, as Wilner describes it, “the detainees have the right to habeas corpus review under the original habeas corpus statute passed by the first Congress of the United States.” Later that year, another case, Al Odah v. United States, “established the Guantánamo detainees’ right to legal counsel.”
Wilner was lead counsel in both cases, and as he further explains, “Following that decision, Congress repealed the statutory right of the Guantánamo detainees to pursue habeas relief.” Wilner and other lawyers “challenged that repeal, arguing that it was unconstitutional, and the Supreme Court agreed, ruling in June 2008, in Boumediene v. Bush, that the detainees’ right to habeas corpus is protected by the United States Constitution and that they are entitled to pursue their habeas petitions in the district courts of the District of Columbia.”
The two years following the Boumediene ruling were the the only period resembling a golden age for Guantánamo and the law, as 52 cases were heard by judges in the District Court, and, in 38 of those cases, ruled that, despite there being a low evidentiary hurdle, the government had failed to demonstrate that the men in question had any meaningful connection to either Al-Qaeda or the Taliban. The majority of those 38 men were subsequently released.
Unfortunately, as these rulings were taking place, judges in the D.C. Circuit — in particular Judges A. Raymond Randolph, Laurence Silberman, Janice Rogers Brown and Brett Kavanaugh (disgracefully elevated to the Supreme Court last year) — were fighting back, issuing rulings that made it harder for the lower court judges to continue to be as openly critical of the government’s many evident failings, and, indeed, to grant prisoners’ habeas petitions.
Three of the 38 rulings mention above were reversed on appeal, three others were vacated (sent back to the District Court to re-consider), and, from July 2010, no more habeas petitions were granted, and, after eleven straight losses (through to October 2011), the prisoners and their lawyers gave up.
What is also shameful — and worth noting — is that, since this time, the Supreme Court has never once revisited the Guantánamo litigation, and, as a result, has tacitly allowed the appeals court to usurp Boumediene and set their own inferior standards instead.
One of the District Court rulings that was reversed was Kiyemba v. Obama (originally Kiyemba v. Bush), involving 17 Uighurs, transparently innocent prisoners, and an oppressed minority in China, whose only enemy was the Chinese government. However, in February 2009, the D.C. Circuit “held that the government had the authority to detain the Uighurs indefinitely,” as Slate explained a year later when, shamefully, the Supreme Court refused to take up their case.
As Tom Wilner describes it, in Kiyemba the D.C. Circuit “declared that, although the detainees may have a right to a habeas hearing, they have no constitutional right to due process of law.”
And so to the legal wasteland of the last eight years, as the District Court, in Wilner’s words, has “strictly followed and uniformly interpreted that decision to deny the detainees the right to view any of the purported evidence against them that the government claims is classified.”
As Wilner adds, “Because the government claims that almost all the evidence is classified, the Kiyemba decision effectively prevents the detainees from seeing, confronting and rebutting the purported evidence against them, making it virtually impossible for them to prevail in a habeas proceeding. In the eight years since that decision, not a single habeas petition contested by the government has been granted.”
Discussing the challenge to Kiyemba in the D.C. Circuit Court, Wilner points out that Qassim “has never been charged with any crime, such as material support for terrorism. Rather, he is detained on the assertion that he was an ‘enemy combatant’ who was part of or supported the Taliban or Al Qaeda more than seventeen years ago. He denies that assertion but has never had the opportunity to view and rebut the purported evidence upon which it is based. Significantly, had Mr. Qassim been charged with material support for terrorism and convicted, he would in all likelihood have already served his sentence and been released.”
Wilner adds that, “Recognizing that Mr. Qassim could not prevail in any proceeding in which he was denied notice of the government’s evidence purportedly justifying his detention, we moved the district court to disregard Kiyemba and hold that due process governed the proceedings, and we conceded that we could not prevail unless it did. The district court ruled that it was powerless to disregard Kiyemba, denied our motion and ruled against us on the merits. We appealed.”
As he further explains, “Last Friday, the D.C. Circuit granted our appeal and reversed and remanded to the district court to conduct Mr. Qassim’s habeas proceeding in accordance with procedures that would afford him a ‘meaningful review’ of the basis for his detention. The court did not overrule Kiyemba, but limited that decision to its particular facts and emphasized that neither it nor any other decision establishes a prohibition on affording the detainees any constitutional protections and that the habeas process must afford Mr. Qassim a ‘meaningful review’ of the basis for his detention.”
As Judge Millett, who wrote the court’s opinion, stated in the ruling, “As it now stands, the record is insufficient for this court to resolve Qassim’s constitutional challenge. We leave it for the district court to address on remand both Qassim’s claimed constitutional right to access the classified information in the government’s hands and the constitutional source (if any) of such a right.” Judge Millett also addressed a recent concession by the government regarding classified information, stating, “In so doing, the district court can also address the government’s belated concession, made for the first time on appeal, that some of the sought-after information may properly be disclosed in this case.”
Tom Wilner’s conclusion sums up the judges’ ruling — and the hope it offers — perfectly. “This decision,” he explains, “tears down the major barrier that has prevented the Guantánamo detainees from receiving a fair hearing.”
While everyone concerned with justice should enjoy this victory, it now remains to be seen how the District Court responds. To help the lower court to understand the significance of the D.C. Circuit Court’s ruling, please share this news as widely as possible, as we note that, to date, the mainstream media has not yet seen fit to report on it.
POSTSCRIPT: The Lasting Power of Presidential Nominations to the U.S. Courts
Anyone tempted to doubt the influence of the courts to issue rulings that resonate long after the presidents who appointed the judges that make up the court have left office should note that the D.C. Circuit Court’s ability to shine a sensible light on the compromised history of the Guantánamo litigation in the D.C. Circuit Court was significantly aided by the departure not only of Brett Kavanaugh, but also the retirement of Janice Rogers Brown (both George W. Bush nominees), and the appointment in 2013, by Barack Obama, of Judges Millett and Pillard.
Judge Edwards, meanwhile, one of the court’s seven senior judges, was appointed by Jimmy Carter back in 1980, and, in June 2013, after the court’s conservative-dominated orgy of negative rulings regarding the Guantánamo prisoners, between 2009 and 2011, had effectively eviscerated their habeas rights, voiced concerns about flaws in the approach taken towards the prisoners by both the courts and the the Obama administration.
In the case of Abdul al-Qader Ahmed Hussain, a Yemeni whose habeas petition had been denied in October 2011, Judge Edwards, who “reluctantly concurred” with his colleagues’ decision to turn down Hussain’s appeal because of the court’s precedents, as I wrote at the time, added his own observations, stating, “when I review a record like the one presented in this case, I am disquieted by our jurisprudence. I think we have strained to make sense of the applicable law, apply the applicable standards of review, and adhere to the commands of the Supreme Court. The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantánamo detainee cases.”
Judge Edwards lamented that the government had “implicitly shift[ed] the burden of proof from the Government to Hussain,” noting that, “Under the approach adopted by the majority, Hussain’s petition was rejected because he could not offer a coherent story about his whereabouts during the times in question, not because the Government proved by a preponderance of the evidence that he was ‘part of’ al Qaeda, the Taliban, or associated forces. Respectfully, this is not an appropriate application of the preponderance of the evidence standard. It was the Government’s burden to show that Hussain ‘planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,’ and this burden was not met by Hussain’s failure to explain his whereabouts. Hussain is not presumed to be guilty under the applicable law merely because he was taken into custody and transferred to Guantánamo.”
Hussain was subsequently released, because, in a vivid demonstration of the absurd confusions regarding the Guantánamo prisoners across the various branches of the U.S. government, at the time of his habeas hearing he had already been approved for release by a high-level government review process, the Guantánamo Review Task Force, that President Obama had appointed in 2009 to review all the prisoners’ cases.
Six years later, however, Judge Edwards has finally had the opportunity to revisit his disquiet, and to make a more significant contribution to the painfully slow unfolding of measured and valid legal resistance to the executive overreach authorized by the D.C. Circuit than he was able to do in 2013.
The wheels of justice may indeed grind slowly, as an ancient proverb suggests, but on Guantánamo, when not actually moving backwards, their movement has often been so slow as to be imperceptible. It is now time for that shameful situation to be addressed in a genuinely meaningful manner.