Requiem: Update

by hilzoy

Next week Congress should vote on the Defense Authorization Bill, which contains Lindsay Graham's amendment stripping Guantanamo detainees of their right to file habeas corpus petitions. The point of habeas petitions is to allow prisoners to ask the government why they are in prison, and to allow a judge to decide whether the government's answer holds up.

Graham's amendment, in its last published version, would grant Guantanamo detainees the right to appeal the verdicts reached by their military tribunals. But that's not a substitute for the right to file habeas petitions. To see why not, consider the latest development in a case I've written about before: the case of Abu Bakker Qassim and A'del Abdu al-Hakim. Here's an article about the case, and here's an op-ed by al-Hakim's lawyer.)

This is a case that illustrates why habeas corpus matters. It could not have been brought if Graham's amendment had been enacted, since the people who brought it have no reason to appeal the decision of their military tribunal. The military tribunal found that they were not enemy combatants; why would they want to appeal that? What they want to know is: since they were cleared months ago, why are they still locked up in Guantanamo?

Abu Bakker Qassim and A'del Abdu al-Hakim are Uighurs: members of an ethnic minority in Western China. They were picked up in Afghanistan a little over four years ago, by bounty hunters who had been promised $5,000 for each Taliban or al Qaeda member they turned over. But Qassim and al-Hakim were not, in fact, al Qaeda or Taliban, or any other sort of enemy combatant, according to the US military tribunal that cleared them last March.

You might think that once the two men had been cleared, they would be released. You'd be wrong. Having taken them into custody, the government can't seem to find a place to release them to. Nor did the government bother to inform either their lawyers or the judge who was hearing their case that they had been cleared until their lawyers had a chance to meet with them last July, despite the fact that the justification for holding them was supposed to be that they were enemy combatants.

When the two men met with their lawyers for the first time, three and a half years after being taken into custody and four months after being cleared, they were shackled to the floor. They had not been allowed to contact anyone; when a newspaper article about them came out, one of their attorneys got a phone call in the middle of the night from his client's sister, who had believed, for nearly four years, that her brother was dead.

During the last hearing I wrote about (warning: pdf), government claimed that it needed more time to 'wind up' Qassim and al-Hakim's detention. Even then, it was not at all clear when the government would manage to let them go:

""THE COURT: Counsel, you said that -- you used the word 'soon' to describe when you thought that this might be resolved. Define 'soon'.

MR. HENRY: I don't know when that is. I apologize if I misspoke. I mean, I think I said 'soon' in kind of the hopeful sense of the word.""

(Last time I wrote about this, I added: "Ah: the hopeful sense. The sense in which it is true that I will "soon" win the lottery, publish my twenty-sixth book, finally become an organized person who answers her email on time, and realize my Buddha-nature.")

Now, four months later, there has been another hearing (warning: pdf). Because during those four months, nothing has happened:

"THE COURT: I issued a memorandum order, as I said, nearly four months ago on August the 19th declining to decide whether the government really had such a wind-up power, because the parties were in agreement that both Hakim and Qassim should be and would be released. But that hasn't happened. As far as I can tell, nothing is happening.

My first instinct when I heard this case was I didn't want to hear ex parte representations from the government. I didn't really want to have a public/private part of this, and my suspicions, my instincts were correct for reasons that I didn't expect. They were correct because what I heard ex parte wasn't any different from what I was hearing in the courtroom. There isn't any -- the government, if it's making any progress at all, doesn't even want to tell me about it ex parte."

So: the government has met with the judge alone, to discuss in private its efforts to find a place where Qassim and al-Hakim can be released. But "the government, if it's making any progress at all, doesn't even want to tell me about it ex parte." There is no evidence that the government is doing anything at all to find a way to release these men.

"THE COURT: I am more interested today in the fundamental underlying question, which is the basic motion to vacate the stay order and issue a writ directing the immediate release of the petitioners. It is getting to be time, and it may be time now, to fish or cut bait on this motion. I think the premise on which I declined to decide this three or four months ago was that the government was making good faith efforts, and that something would happen, and that we were not thinking about indefinite detention of these people because the government wants them released.

The time has stretched out to the point where indefinite is not an inappropriate word to describe what's happened, and the question is whether I or anybody can or should tolerate that situation. And if it's intolerable, what I or anybody else can do about it.

From the standpoint of the petitioners at Guantanamo Bay, it clearly is intolerable. It seems to me that I basically have three options. There's a fourth option, and the fourth option is let's wait a few more months, and I don't frankly think that's an option. I think we've had enough time."

There follows an extended discussion of whether the Court has the authority to order the Uighurs' release, and if so on what conditions; whether they can be released without being deemed to have "entered" the country, and so forth. But while these are crucial issues for the court, they are not the main issues as far as justice are concerned.

Abu Bakker Qassim and A'del Abdu al-Hakim are in Guantanamo not because they had done anything wrong, but because our government decided to pay bounty hunters for each alleged al Qaeda or Taliban member they turned over, and then to accept those bounty hunters' word that the people they turned over were in fact enemy combatants. That is: our government set up a policy that created incentives for bounty hunters to pass off innocent people as enemy combatants, and Abu Bakker Qassim and A'del Abdu al-Hakim are victims of that policy and the perverse incentives it created.

As a result, they have been held incommunicado for a little over four years. Think about being imprisoned for four years because of a mistake. During most of those four years, their friends and family thought they were dead. At least one of them has children; he has missed four years of his children's childhood, and they have spent four years not knowing their father. At least one of them is married; God alone knows what happens to a marriage when one spouse simply vanishes from the face of the earth, and the other has no idea what has happened to him for four years.

While I have a lot of concerns about Guantanamo, I do not fundamentally object to the fact that our government held Abu Bakker Qassim and A'del Abdu al-Hakim while it believed that they were enemy combatants*. But it has been about nine months since they were cleared. And the fact that Abu Bakker Qassim and A'del Abdu al-Hakim are still in prison, nine months after our government determined that they had done nothing wrong, and that it was holding them by mistake, is just wrong.

Remember this case the next time someone says that the Graham amendment is about giving legal rights to terrorists. Abu Bakker Qassim and A'del Abdu al-Hakim are not terrorists. They are the victims of our government's mistakes. And remember this case the next time someone says that the rights provided by the Graham amendment are an acceptable substitute for habeas corpus. The Graham amendment only allows Guantanamo detainees to appeal the findings of military tribunals. It does not allow detainees like Abu Bakker Qassim and A'del Abdu al-Hakim, who have no quarrel with the findings of their tribunals, to ask why, having been found innocent, they are still in prison.

Luckily, the Graham amendment was not in force when Abu Bakker Qassim and A'del Abdu al-Hakim brought their case. Had it been, they would not have been allowed to proceed, innocence or no innocence. As it is, they filed a habeas petition. The judge in the case has said that he will rule soon:

"The one thing that I am sure of is that I'm going to act on this motion within the next week or two one way or another. There isn't going to be any more waiting. So if anybody has anything to say to me by way of augmenting the record -- I don't -- thank you, Mr. Henry, for your offer to speak to me off the record, but I don't want that. I'm just not going to be in that position. If you can tell me that they're going to be released on X date, you can tell me that publicly. Or if you can tell me that they're going to be released on X date and you have a date, I'll accept that. But "diplomatic efforts are proceeding," no thank you."

But it's only because they had habeas rights that they have a judge at all. If the Graham amendment passes, no other Guantanamo detainee who is cleared by a military tribunal will be able to ask a court to decide whether he can still be kept in detention. (And bear in mind that the government's position is that it does not have to tell anyone when detainees are cleared.) Again: this is just wrong.

If you haven't already, please call or write your Senators and Representatives and ask them not to support this amendment, especially if you live in the district of any of the Conference Committee members listed here. (And yes, I know that Duke Cunningham shouldn't be on this list.)

***

Update: I wrote that I had no fundamental objection to the government holding people while it thought they were enemy combatants. This provoked some discussion, so, just to be very clear:

What I have no fundamental objection to: the government holding people it thinks are enemy combatants.

What I did not mean to include in "holding people": how the government goes about making the determination that someone is an enemy combtant, whether or not it allows those persons a trial with counsel and decent procedural safeguards; whether or not the government tries to carve out some special new designation to which no existing legal anything (e.g., the Geneva conventions) applies; the conditions in which those people are held, the expeditiousness (or lack thereof) of the trials that imho they should be given, etc., etc. And centrally: whether or not the government obeys its own laws.

So what I meant to be not having a fundamental objection to was just: the fact that they are held, leaving open to possible objection any of the above, and any other stuff related to how they are held, and under what authority.

Comments

[Jesurgislac]

While agreeing in general with this piece, I have two points to make about one sentence.

While I have a lot of concerns about Guantanamo, I do not fundamentally object to the fact that our government held Abu Bakker Qassim and A'del Abdu al-Hakim while it believed that they were enemy combatants.

One: your government believed that Abu Bakker Qassim and A'del Abdu al-Hakim were enemy combatants for no good reason. Your government knew - had known since at least 2002 - that many of the detainees were "Mickey Mouse". You should fundamentally object to the fact that your government continued to assume, for no particularly good reason, that so many detainees were "enemy combatants" for so many years.

Two: The invention of the category "enemy combatant", as someone who was not entitled to the protection of the Geneva Conventions, was illegal. Anyone captured in war who is not immediately determined to be a civilian and entitled to the rights of a civilian in time of war, is entitled to be assumed to be a prisoner of war, with all the rights under that Geneva Convention, until the detaining power can by means of a competent tribunal prove them not to be so entitled. When Bush declared that his government had a right to hold "enemy combatants" without treating them as prisoners of war, he broke the law.

In the Washington Monthly recently, you asserted: "for a President to order violations of the law meets my criteria for impeachment."

That's exactly what Bush did. In declaring Abu Bakker Qassim and A'del Abdu al-Hakim enemy combatants and holding them in Guantanamo Bay without any of the rights of a prisoner of war (including the right to communicate with family) he broke the law. So, if you have such fundamental objections to Bush breaking the law in one instance, why do you have "no fundamental objections" to Bush breaking the law in this other instance?

[Jake - but not that one]

The "he might be a terrorist" argument just doesn't cut it. Not because terrorists should be allowed to go free, but because as a rationale for suspending constitutional rights it is subject to abuse. Just like these two men, just like FISA, just like torture.

Men (and women) in power cannot be trusted with that power unsupervised and unchecked. If there is ANYTHING history teaches us, it is the truth of that statement.

Jake

[victor falk]

agree with jesurgislac. To be called an "enemy combattant" and sent to Gitmo is about the same as beeing sent to Siberia for "contra-revolutionary activities".

[victor falk]

Or worse; at least the chekists had show trials.

[Stentor]

I'm still waiting for any evidence that passing a law against something will stop this administration from doing it. Even if the judge rules in favor of Qassim and al-Hakim, what incentive does the government have to actually let them go?

This is not to say that there's no point in opposing the Graham amendment -- there's always the chance that our next administration will be more law-abiding. But I'm not holding out hope that it will change much over the next three years.

[Barry]

Stentor, I'd really like to know what intra-judicial communications have been happening.

I imagine that, in theory, it'd be easy - the judge orders their immediate release, within 24 hours. If that doesn't happen, and there's no stay by a higher court, then the judge puts out a warrant for the arrest of Donald Rumsfield, for contempt of court.
If any officer in the military, or lawyer arguing before the court attempts any BS, hit them with a contempt citation. Make sure that it includes a stiff (as in bankrupting) fine for each day that they don't comply.

So I assume that *something* is going on, but what?

[NeoDude]

Oh, are American right-wingers cheerleading authoritarians, yet?

[Nell]

Hilzoy, by 'next week' you mean this week, yes? I got the impression the Senate is trying to get a bunch of things done in a hurry exactly so that they don't have to be in DC the week between Christmas and New Year's.

I find it very hard to follow the Congressional doings without help from people who work on the Hill. So bear with me....

Is it the case now that McCain's amendment and the Graham (-Levin-Warner-Kyl) abomination will be attached not to the defense appropriations bill but to the authorization bill? And the approp. (spending) bill will be voted on before the authorization? God, these Republicans have trashed the process; in the "olden days" the auth. bill would always be passed first, in fact often months earlier.

[HankP]

So we now live in a country where a single person can strip a citizen of their constitutional rights ("enemy combatant"), detain them in secrecy (Guantanamo et al), torture them in secrecy (Guantanamo, Abu Ghraib, Bagram, etc.), render them to other countries in secrecy ("extraordinary rendition") and never have to answer to anyone regarding their decisions (Graham amendment). How exactly is this different from a dictatorship?

[Katherine]

the vote is probably today or tomorrow hil.

frankly we're going to lose this one but I hope that doesn't discourage people from calling their reps--some losing battles are worth fighting.

[CharleyCarp]

Nell, it now Title X to Div. A of Defense Appropriations (HR 2863): short title is the Detainee Treatment Act of 2005.

The http://www.rules.house.gov/109/text/hr2863cr/109hr2863cr_text.htm>House Rules Committee has a link to the bill text, in pdf form. Title X, which includes the McCain anti-torture provisions, starts on p. 154 of 465.

[CharleyCarp]

The bill passed http://thomas.loc.gov/cgi-bin/bdquery/z?d109:HR02863:@@@S>the House at 5:02 a.m.

[Nell]

The bill passed the House at 5:02 a.m.

5:02 a.m.???

This is a travesty of a mockery of a sham.

[Nell]

It's true. An all-night session on Sunday. Sneaking it through while we sleep -- literally.

The House voted to cut a thin slice off federal deficits and sink oil drills into the Arctic National Wildlife Refuge early Monday, quelling Democratic opposition in a marathon struggle ending near dawn.