Last week, U.S. District Judge Henry H. Kennedy, Jr. released a forceful 36-page opinion in the case of a Guantanamo detainee that would ordinarily be shocking. Sadly, such opinions are now so common that, except for one news story and a few particularly alertbloggers, they get barely a mention in the news.
In his opinion, issued in May but publicly released just last Thursday, the Judge found that a young man from Yemen, seized at the age of 17, has been imprisoned in the United States detention center in Cuba for the past eight years without cause. Although five different times since his arrest officials reviewing his case said Odaini should be released, Obama administration lawyers argued against his petition for habeas corpus, insisting that because the Yemeni student had spent one night at the guest house of a fellow student’s family, and because he had a medical visa rather than a student visa (he said his father had gotten him a medical visa because it was cheaper), the U.S. government can lawfully continue to imprison him.
If that sounds bizarre, it’s not, really. Pursuant to the Obama administration’s interpretation of the Authorization for the Use of Military Force, or AUMF, it says it has the authority to detain indefinitely anyone, anywhere in the world who it suspects is affiliated with the Taliban, al Qaeda or associated forces. And if its position in the case of Mohamed Hassan Odaini is any guide, then it interprets that right very very broadly.
Odaini is one of many young men seized in the weeks and months after September 11, 2001 during raids on guesthouses in Pakistan. He has consistently claimed that he was a student at Salafia University who was invited for dinner at a fellow student’s home and spent the night there. But that home was also a guest house, and some al Qaeda fighters stayed there. Although none ever named Odaini as being connected to their cause, the United States insisted it can infer based on his overnight stay that Odaini was an al Qaeda fighter.
The other men seized in the raid corroborated Odaini’s story that he was a student with no ties to al Qaeda or terrorism. As Judge Kennedy notes in his opinion, U.S. government interrogators and officials, too, quickly came to believe Odaini’s consistent claim. Indeed, five different times, government interrogators or task forces independently determined that Odaini should be released. Each time, that recommendation was ignored.
Then in January, President Obama suspended the transfer of any detainees to Yemen, Odaini’s home country, after the attempted Christmas day bombing by a Yemeni national. At that point Odaini’s lawyer, who had until then assumed his client would be released, as recommended, resumed his petition for habeas corpus to the federal court.
In ruling on that petition, Judge Kennedy said that the evidence presented to the court “overwhelmingly supports Odaini’s contention that he is unlawfully detained.” Reviewing the evidence in painstaking detail, including Odaini’s and other detainees’ statements, plus summaries of interrogation and intelligence reports produced by the government, the judge himself seems shocked that the government would be arguing the lawfulness of Odaini’s detention based on the paucity of proof.
The government repeatedly “distort[s] the evidence,” writes Judge Kennedy, concluding that the only way to believe the government’s position is “if one begins with the view that Odaini is a part of Al Qaeda and searches for a way to believe that allegation regardless of its inconsistency with an objective view of the evidence.”
The judge concludes:
Respondents have kept a young man from Yemen in detention in Cuba from age eighteen to age twenty-six. They have prevented him from seeing his family and denied him the opportunity to complete his studies and embark on a career. The evidence before the Court shows that holding Odaini in custody at such great cost to him has done nothing to make the United States more secure. There is no evidence that Odaini has any connection to al Qaeda. Consequently, his detention is not authorized by the AUMF [Authorization of the Use of Military Force]. The Court therefore emphatically concludes that Odaini’s motion must be granted.
In concluding that Odaini’s detention “has done nothing to make the United States more secure,” Judge Kennedy may as well have been talking not only about this one case, but about the much broader problems caused by the government’s interpretation of the AUMF and international law. After all, indefinite detention at Guantanamo Bay and Bagram, the continued authorization of abusive interrogation techniques under Appendix M of the Army Field Manual, the prosecution of a handful of terror suspects by military commission, and the controversial drone attacks or “targeted killings” outside declared zones of conflict have all served to foment anger at the United States and been used to justify insurgent attacks. Meanwhile, none of those policies have been shown to have made the United States any more secure.
The administration appears not to be learning from past mistakes, however. Just as it refused to concede the case of Mohamed Odaini, it’s insisting that it maintains the authority to continue to detain indefinitely without trial some 48 more Guantanamo detainees who it has said cannot be tried yet are too dangerous too release – based on evidence that it acknowledges would not hold up in court.
Even more troubling is the administration’s continued detention of some 800 prisoners at the Bagram air base in Afghanistan, since the courts have ruled that those prisoners are not even entitled to habeas corpus review, as Odaini finally obtained here – eight years after his capture.
Last week, 15 former federal court judges urged Congress not to write a new detention law to authorize indefinite detention of suspected terrorists, because independent federal judges are best equipped to decide who’s detainable under the law.
The case of Mohamed Odaini is yet another reason to listen to them.
Update: I was thrilled to see this editorial in the Washington Post this morning pointing out that Odaini's case puts the lie to the still widely-held assumption that Guantanamo remains populated with "the worst of the worst" and urging Odaini's repatriation. Unfortunately, as the Post notes, the Obama administration's ban on transferring any Gitmo detainees to Yemen means Odaini is likely to stay stuck in prison even longer, despite Judge Kennedy's scathing criticism and determination that his detention is unlawful.
Down in the updates to both his pieces, Greenwald praises Tim Noah and John Cole for publishing meaningful apologies and rejections of their earlier viewpoints which led them to support the invasion. What's missing, and what I'd like to do is take a moment to remember some people who got it right. The world had gone mad in 2002-2003, so it is all the more important to look back and note who managed to keep their heads and call things accurately 5 years ago.
These are the people we need to commend and look to for guidance come the next purported existential threat to our safety. I wish I could say I was one of them. I wish I could say I marched against the war here in Toronto (yes, there was a protest here). I wish I could say I wasn't beguiled by the belief that no one could tell lies this preposterous without getting called out by the press, that maybe it was just a good bluff to get Saddam to disarm without firing a shot, or that maybe they really knew what they were doing and it could work out well. I'm happy to say I wasn't for the war, but I wasn't opposed to it like I should have been, watching the evidence and spotting the tricks the way the people below did. So my hat is off to them, and here is my homage:
President Bush's speech in Cincinnati and the changes in policy that have come forth since the Administration began broaching this issue some weeks ago have made my vote easier. Even though the resolution before the Senate is not as strong as I would like in requiring the diplomatic route first and placing highest priority on a simple, clear requirement for unlimited inspections, I will take the President at his word that he will try hard to pass a UN resolution and will seek to avoid war, if at all possible.
Because bipartisan support for this resolution makes success in the United Nations more likely, and therefore, war less likely, and because a good faith effort by the United States, even if it fails, will bring more allies and legitimacy to our cause, I have concluded, after careful and serious consideration, that a vote for the resolution best serves the security of our nation. If we were to defeat this resolution or pass it with only a few Democrats, I am concerned that those who want to pretend this problem will go way with delay will oppose any UN resolution calling for unrestricted inspections.
This is a very difficult vote. This is probably the hardest decision I have ever had to make -- any vote that may lead to war should be hard -- but I cast it with conviction.
That passage is from Hillary Clinton's floor speech in favor of S.J. Res. 45, A Resolution to Authorize the Use of United States Armed Forces Against Iraq. It is remarkable that a congressional resolution entitled "A Resolution to Authorize the Use of United States Armed Forces Against Iraq," is justified on the grounds that it will improve diplomatic efforts. What part of "Authorize the Use of United States Armed Forces Against Iraq," wasn't clear in the title? The text of the legislation, which isn't very long, also states "[t]he President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate." To argue that this legislation serves to further diplomacy, rather than to authorize the use of force no matter the outcome of diplomatic efforts and no matter the seriousness with which such efforts were engaged, is to cling to an incontrovertibly false argument. Arguing that the Authorization for the Use of Military Force Against Iraq authorized the use of military force against Iraq is as straightforward as an argument can be.
In his speech today on Iraq, Barack Obama echoes something that has always pissed me off: claims that the AUMF against Iraq in 2002 wasn't actually a vote on whether or not to go to war with Iraq. From the speech:
Some seek to rewrite history. They argue that they weren't really voting for war, they were voting for inspectors, or for diplomacy. But the Congress, the Administration, the media, and the American people all understood what we were debating in the fall of 2002.
This was a vote about whether or not to go to war. That's the truth as we all understood it then, and as we need to understand it now. And we need to ask those who voted for the war: how can you give the President a blank check and then act surprised when he cashes it?
I really, truly, and deeply despise the claim from some Democrats, including Kerry in 2004 and Clinton more recently, that the vote back in 2002 wasn't about going to war with Iraq. After months of a drumbeat to war with Iraq, and especially after the House vote a few weeks earlier, anyone who actually believed the authorization to use military force was not about authorizing the war itself is simply delusional. And no, I can't put it any nicer than that. For starters, it was called A joint resolution to authorize the use of United States Armed Forces against Iraq. If that isn't explicit enough for you, Section Three of the legislation stated the following:
SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) AUTHORIZATION- The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to--
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.
Let me summarize. After several months of arguing around the nation that Iraq needed to be invaded, the Senate voted on legislation entitled "A joint resolution to authorize the use of United States Armed Forces against Iraq," which stated that "[t]he President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq." It that clear enough?
To argue that this vote was not about authorizing the war is to leave the reality-based community on Iraq. Period. Obama is absolutely right on this one.
Obama, like Howard Dean in 2004, has long flogged that his opposition to the war before the invasion is demonstrative of his “better judgment” than virtually every other candidate. For example, last night he “swiped” at Clinton on this matter:
As someone who opposed the war from long before it started, including marching in several pre-war protests against the impending invasion, I think Obama is basically right: he did have better judgment, at least on that issue and at least at that time. However, it is much more difficult to convince me that opposing the Iraq war before it began is clearly demonstrative either of superior judgment on Iraq now, or that that it is demonstrative of better judgment in general. I know that will not be a popular position to take online, especially considering how we repeatedly mock the media for promoting pundits who were flat wrong on Iraq, and demoting those who were right. It is extremely frustrating that bad judgment has been rewarded by most established news outlets, especially since anti-war voices were all but entirely blacked out by those same news outlets before the war. The injustice, not to mention continuing danger to our democracy this implies, seems very real.
However, I would still be lying if I said the continued focus on the AUMF resonated with me. I don’t think it resonates with many Americans, either. Here is why:
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