Guantánamo Dreams

http://www.nytimes.com/2014/12/25/opinion/guantnamo-dreams.html

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It’s been more than a year since I wrote about Guantánamo. That fact surprised me when I realized it the other day. I used to write about Guantánamo every few months, as developments in the courts or in politics offered at least a hint that events might be moving in a new direction — illusory as the hint usually proved to be.

In that last column, last December, I mentioned an Algerian detainee named Abdul Razak Ali, who had just lost his habeas corpus appeal in the United States Court of Appeals for the District of Columbia Circuit. Ali was captured in Pakistan 2002 during a brief stay in a guesthouse, another resident of which, captured at the same time, was Abu Zubaydah, a close associate of Osama bin Laden. Ali’s basic complaint was that the “unfortunate coincidence” of having been found in the presence of a most-wanted Al Qaeda terrorist, without proof that he himself had engaged in any hostilities, couldn’t justify a 12-year detention at Guantánamo. He was, he argued, no enemy combatant, just a victim of “guilt by guesthouse.”

In the context of Guantánamo habeas cases, this is garden-variety stuff. What lifted it out of the ordinary, potentially, was a separate concurring opinion by one of the court’s senior judges, Harry T. Edwards. Judge Edwards said the circuit’s precedents on how to define a detainable enemy combatant required him to go along with the majority. But with no end in sight to the “war on terror,” he said, the result of the decision could well be to consign Ali to detention for the rest of his life.

“It seems bizarre, to say the least,” Judge Edwards wrote, “that someone like Ali, who has never been charged with or found guilty of a criminal act and who has never ‘planned, authorized, committed, or aided any terrorist attacks,’ is now marked for a life sentence.” (The quotation was from congressional statutes authorizing the use of military force.) Judge Edwards said the “troubling question” was whether the D.C. Circuit had now stretched the meaning of enemy combatant “so far beyond the terms of these statutory authorizations that habeas corpus proceedings like the one afforded Ali are functionally useless.”

Well, make it 13 years and counting for Abdul Razak Ali. On Oct. 6, the first day of the current term, the Supreme Court turned down his appeal without comment. (Ali v. Obama, No. 13-10450.)

Judge Edwards raised a similar alarm in another Guantánamo case, an appeal by a Yemeni detainee, Abdul al-Qader Ahmed Hussain, a teenager when he was captured in early 2002 in Faisalabad, Pakistan. He had ended up there shortly after the September 11 attacks after fleeing from Afghanistan, where he had been living with three Taliban guards near the front lines of the war between the Taliban and the Northern Alliance. He argued that he had never taken part in any hostilities against the United States. But the appeals court, noting inconsistencies in his account of his movements in the months before he was picked up, said Hussain had been “more likely than not a part of enemy forces at the time of his capture,” thus authorizing his continued detention.

“Is it really surprising that a teenager, or someone recounting his teenage years, sounds unbelievable?” Judge Edwards asked in his concurring opinion — a thought familiar to anyone who listened to the just-completed season of the “Serial” podcast. “I am disquieted by our jurisprudence,” Judge Edwards wrote. “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.”

Hussain’s Supreme Court appeal did capture the attention of one justice, Stephen G. Breyer. To the court’s order last April declining to hear the appeal, Justice Breyer attached a separate statement noting that the Supreme Court had yet to decide whether a statute or the Constitution itself permits holding someone who, while a member of Al Qaeda or the Taliban, had not actually engaged in armed conflict against the United States. But neither Justice Breyer nor any other justice voted to hear the case.

So this is how the year at Guantánamo proceeded. These developments and some others like them are dots on a map, worthy of more attention than they have received but hard to assemble into a narrative that says much more than “stuck.” We are the jailers of Guantánamo, now down to 132 inmates with the release of four Afghan detainees last weekend, but we are prisoners there, too: We can’t find our way out.

I probably would have left Guantánamo to its rest but for the release early this month of the Senate Intelligence Committee’s report on the C.I.A.'s detention and interrogation practices. What caught my eye, thanks to The Blog of Legal Times, was an episode recounted on pages 140 to 142 of the report’s 499-page executive summary.

On those few pages, the report recounts that in January 2004, shortly after the Supreme Court had shocked the administration of President George W. Bush by agreeing to decide whether the Navy base at Guantánamo Bay lay without the jurisdiction of the federal courts, the C.I.A. decided it might need to take pre-emptive action. Its general counsel raised with Bush administration lawyers the question of whether five high-value detainees being held there (including Abu Zubaydah and Ramzi bin al-Shibh) should be sent back to black sites in other countries to make sure they would remain out of the judiciary’s reach. The answer was yes. In the publicly released report, the locations to which they were sent are blacked out.

This re-rendition had been discovered and reported by The Associated Press back in 2010, but I either missed it then or it didn’t raise the question in my mind that it raised now, more than four years later. The detainee litigation that began with the 2004 case, Rasul v. Bush, and that had to clear so many obstacles put up by the White House and Congress in an effort to push back against the court, took another four years to play out. Eventually, in Boumediene v. Bush in 2008, the Supreme Court ruled definitively that the detainees had a constitutional right to challenge their confinement by means of petitions for habeas corpus. Some 200 petitions made their way to federal court.

So here is my question. The mere grant of review in Rasul v. Bush led to five detainees being spirited away from Guantánamo. How many detainees actually got out due to the successful exercise of their right to habeas corpus?

The answer is not hundreds, not scores, but just a dozen or so. That number doesn’t include the 17 Chinese Uighurs, hapless victims of global politics who even the Bush administration conceded were picked up by mistake and who were eventually off-loaded to a variety of more or less — some much less — desirable locations. There is some imprecision in the number of habeas-driven releases, because some of these very low-value detainees might have been cleared by the various layers of review boards and released anyway, as is happening bit by bit now that the weirdly obstructionist secretary of defense, Chuck Hagel, has been pried off the case.

But whatever the precise number, it is tiny. A main reason is the body of D.C. Circuit precedent to which Judge Edwards referred in the Ali and Hussain cases. In a handful of major rulings that the Supreme Court refused to review, the court of appeals adopted a posture of extreme deference toward the executive branch, instructing the district judges who actually hear these cases to permit the government to draw every inference against the detainee and to evaluate the evidence according to a very relaxed standard of proof. (The “beyond a reasonable doubt” standard isn’t applicable because habeas corpus is technically a civil rather than a criminal proceeding.)

District judges were granting habeas most of the time in the immediate post-Boumediene period. But beginning in 2010, when the D.C. Circuit began overturning those decisions (the main cases were Al-Bihani v. Obama, Al-Adahi v. Obama and Ali Awad v. Obama, all from 2010), grants of habeas corpus at the district court level have been nearly nonexistent. The district judges have basically given up. (It’s worth noting that all the D.C. Circuit decisions resulted from Obama administration appeals; the administration has stoutly defended its detention authority in court.) I wonder how much of this story might have been different had the court of appeals, recently augmented by four judges named by President Obama, been in more moderate hands during the crucial period when the court was writing the law of detention.

On Jan. 11, 2002, the first 20 captives arrived at the U.S. Navy base at Guantánamo Bay. The last arrival took place in March 2008. A new day has now dawned in Cuba, one that until last week seemed, despite its inevitability, as if it would never come. Is there a new day ahead for Guantánamo? Someday, guests lounging on the beach at the Four Seasons Guantánamo may shake their heads and wonder what it was all about.