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.
For months now, certain commentators and legislators have been arguing that Congress needs to pass a new law authorizing the indefinite detention without charge or trial of suspected terrorists and their supporters.
On its face, that would seem to violate some basic tenets of the U.S. Constitution. But the U.S. government is already detaining hundreds of suspects captured abroad at Guantanamo Bay and elsewhere. The question is whether Congress should expand that authority and define it in more detail.
Writers such as Benjamin Wittes of the Brookings Institution and lawmakers such as Senator Lindsey Graham of South Carolina argue that even though hundreds of people have been detained over the last eight years at Guantanamo Bay, the law that justifies their detention or mandates their release isn't clear, and Congress needs to step in and make new rules.
In fact, as a new report issued today by 16 former federal judges makes clear, that's nonsense. The people in the best position to decide when military detention is legal are already doing just that. The new report, published by Human Rights First and the Constitution Project, explains exactly how that process is working - and demonstrates that it's actually working very well. Responding to a series of habeas corpus petitions, where Guantanamo detainees have asked the federal court to review the legality of their detentions, federal district court judges in Washington, D.C. have already issued written opinions concerning 50 different detainees that set out the legal standard for indefinite wartime detention, and which cases do and do not meet it.
The claim by Wittes and Graham that judges are somehow overstepping their bounds and usurping the role of Congress reflects a fundamental misunderstanding of how the federal courts and judges work. In fact, the courts are doing just what they're supposed to do: interpret the law.
The reason judges are so well-situated to explain the contours of U.S. detention authority is because, according to judicial rulings, the right to detain arises out of existing laws, including the Authorization for Use of Military Force against Terrorists, or AUMF, passed by Congress in 2001; the traditional law of war; and the U.S. Constitution.
Traditionally, a government at war can detain fighting members of the enemy's forces, under humane conditions, until the war is over. Although that authority is less clear when the government is fighting a loose coalition of insurgent forces around the world rather than another country, the Supreme Court has said that at least in some circumstances, pursuant to the AUMF, the United States can detain enemy fighters seized on the battlefield.
It's the Supreme Court's rulings on the subject, combined with the law of war and the mandates of the U.S. Constitution, that highly experienced federal judges have been applying to the habeas corpus cases that have come before them. Applying those rulings, they've developed a clear and consistent body of law that explains what kind of evidence the government needs to have amassed against a suspected insurgent to justify his military detention.
Under the D.C. District Court's rulings, for example, Fouad Al Rabiah, a 43-year-old, 240-pound, Kuwaiti Airways executive with a long history of volunteering for Islamic charities who'd been discharged from compulsory military service in Kuwait due to a knee injury, and who suffered from high blood pressure and chronic back pain, did not meet the requirement of being "part of" or having "substantially supported" al Qaeda, the Taliban or associated forces. Although seized while attempting to leave Afghanistan in 2001, by the time of Al Rabiah's hearing, even the government had decided the witnesses who claimed he'd helped al Qaeda weren't credible. The government's own interrogators didn't believe his "confessions," which the court determined had been coerced and were "entirely incredible."
On the other hand, Fawzi Al Odah, also Kuwaiti, did meet the law's detention standards. The same judge found that he'd attended a Taliban training camp, learned to use an AK-47, travelled with other armed fighters on a route common to jihadists, and took directions from Taliban leaders - all making it more likely than not that he was a member of Taliban fighting forces.
Still, despite the courts' careful analysis in these cases, Congress could step in and write its own new law on indefinite detention. But how can any one statute possibly address all the vastly different factual scenarios, many spanning several countries and decades, that constitute the government's claims that any particular individual is detainable? What's more, any new law will still have to meet the requirements of the U.S. Constitution, and the Supreme Court gets the ultimate say on that. Any new statute passed by Congress, then, would likely be challenged as soon as it's applied, causing more confusion about what the law really is until the U.S. Supreme Court weighs in on that new statute several years later.
The federal judges of the D.C. District Court and Court of Appeals are already way ahead of that game. In addition to the trial court opinions, the appellate court recently issued its own opinion setting out the law of detention and the government's constitutional authority. That decision may be appealed to the Supreme Court, whose opinion would set out the binding standard that every judge and future U.S. administration will have to follow.
The D.C. Circuit Court of Appeals on Friday morning issued a stunning ruling: that the United States government may seize suspected terrorists outside the United States, send them to the U.S.-run Bagram detention center in Afghanistan, and thereby deprive them of the right to challenge their detention in federal court.
The question came up in the case of Maqaleh v. Gates, which involves two Yemenis and a Tunisian, one of whom was arrested in Thailand, and all of whom were flown from outside Afghanistan to Bagram by U.S. authorities and imprisoned there. They've been there, without charge or trial, for the past seven years.
The D.C. court relied heavily on the fact that these three men, all suspected of ties to terrorism, are being held in a battlefield prison in a theater of active war. But as American University law professor Steven Vladeck points out, the only reason they were "in theater" is because the U.S. government had decided to move them there. So this case stands for "the proposition that location of capture is less important than location of detention--and that, so long as the latter is in a zone of active combat operations, there will be no habeas."
The case isn't necessarily over, because the detainees could ask for rehearing or appeal to the Supreme Court. But in the meantime, it highlights the absurdity of the United States' claim that the entire world is a battleground and suspected terrorists seized anywhere can be held by the U.S. government as enemy belligerents without the opportunity to challenge that in an impartial federal court. Although the laws of war do allow detention of some belligerents captured on a battlefield in an international conflict, there's nothing in U.S. or international law that authorizes capture of alleged enemies anywhere in the world to be brought to a battlefield where the U.S. is fighting local insurgents, for purposes of their indefinite detention.
The United States continues, however, to detain more than 800 prisoners at Bagram, on very shaky legal ground. To be sure, the U.S. military does eventually offer them some form of a hearing to decide whether they're actually "belligerents" fighting U.S. forces. But as Human Rights First has pointed out before, the procedures in those hearings -- although improved during the Obama administration -- still don't come near providing real due process.
For one thing, the 800 + detainees at Bagram have no right to a lawyer. Although they are assigned a "personal representative" by the military to represent them, there are only about eight such representatives available to represent more than 800 prisoners, and none of them are lawyers. Meanwhile, their own ability to collect evidence and call witnesses is limited to whatever is deemed "reasonably available" by the military. On top of that, much of the evidence used to justify detaining the suspects has been classified; the suspects themselves never actually get to see it. So how can they defend themselves, or even inform their "personal representative" of the relevant facts, if they don't know what evidence is being used against them, or the credibility of whoever provided it?
In Boumediene v. Bush, the U.S. Supreme Court ruled that similar proceedings provided at Guantanamo Bay were wholly inadequate, and that prisoners there have a right to challenge their detention in federal court. Although the D.C. Circuit Court decision on Friday acknowledged this, it ultimately decided the case based on other considerations, such as the practical difficulty of providing habeas corpus rights to hundreds of detainees held in Afghanistan.
Setting aside the broader issue of who's a belligerent and who gets to decide, Friday's decision underscores the importance of the Obama administration providing a meaningful way for Bagram detainees to challenge their detention.
Improving those procedures isn't only a matter of the United States meeting its obligations under international law.It also has very practical implications.
The U.S. military has said repeatedly that its strategy in Afghanistan depends on winning the "hearts and minds" of the Afghan people. Only by providing legitimate public proceedings that afford detainees a meaningful ability to challenge their detention can the United States ever hope to win that critical battle.
There is a lot of debate in the public space this week over the impact of the United States Supreme Court's ruling that gives detainees in a "holding pattern" at Guantanamo Bay access to the United States Courts for the purpose of presenting petitions of habeas corpus.
It is a generally accepted misunderstanding that the Court's ruling gave new rights to the detainees, which seems to be the issue that is the most controversial.
The purpose of today's discussion is to explain why that view of the ruling is dead wrong...and to offer some thoughts on why this ruling might actually be one of the most important "restraint of government" rulings to have come down the pike in some time.
In our attempts to build a large Democratic trifecta in Washington, D.C., what, exactly, are we fighting for? To answer that question, here is a comprehensive list of legislation that is certain to pass if Obama wins the White House, we pick up 20 more seats in the House, and 8 more seats in the Senate:
Webb amendment to HR 1585: To specify minimum periods between deployment of units and members of the Armed Forces for Operation Iraqi Freedom and Operation Enduring Freedom.
I have organized this list starting with Iraq, then labor, then election reform, then habeas corpus, then health care, then energy / global warming. Additionally, all twelve departmental appropriations bills, as well as the national budget, will be significantly different from their current incarnations.
Overall, this is pretty much a wave of centrist legislation. We will give troops more time at home, and withdraw about 70-75% of them from Iraq, but not all of them. We will expand health care, but it won't be universal. We will restore some civil liberties, but not all of them. We will get some immigration reform, but not much. Something will be done about sustainability in energy, global warming and agriculture, but nowhere near enough. So, we are going to begin with a centrist template, but at least we will have to fight to make all of these bits of legislation better. Having even that opportunity will be a dramatic improvement. With Bush in office and only 50 Senators, right now progressive legislation is impossible.
The most exciting bits are the positive, progressive feedback loops around increasing unionization (the employee free choice act) and election reform (D.C. voting rights, verified paper trails). These are laws that will make the country itself more progressive, thus building a progressive majority down the road. If we can get more of these, including sweeping media reform (about which we should be optimistic), real immigration reform, (about which I am not optimistic) and the progressive budget (which might just happen by 2011, if all goes well), then we will be on our way to a progressive majority in America that will last for an entire generation.
A newly declassified document shows that J. Edgar Hoover, the longtime director of the Federal Bureau of Investigation, had a plan to suspend habeas corpus and imprison some 12,000 Americans he suspected of disloyalty.
Hoover sent his plan to the White House on July 7, 1950, 12 days after the Korean War began. It envisioned putting suspect Americans in military prisons.
Hoover wanted President Harry S. Truman to proclaim the mass arrests necessary to "protect the country against treason, espionage and sabotage." The F.B.I would "apprehend all individuals potentially dangerous" to national security, Hoover's proposal said. The arrests would be carried out under "a master warrant attached to a list of names" provided by the bureau.
The names were part of an index that Hoover had been compiling for years. "The index now contains approximately twelve thousand individuals, of which approximately ninety-seven per cent are citizens of the United States," he wrote.
"In order to make effective these apprehensions, the proclamation suspends the Writ of Habeas Corpus," it said.
Habeas corpus, the right to seek relief from illegal detention, has been a fundamental principle of law for seven centuries. The Bush administration's decision to hold suspects for years at Guantánamo Bay, Cuba, has made habeas corpus a contentious issue for Congress and the Supreme Court today.
The Constitution says habeas corpus shall not be suspended "unless when in cases of rebellion or invasion, the public safety may require it." The plan proposed by Hoover, the head of the F.B.I. from 1924 to 1972, stretched that clause to include "threatened invasion" or "attack upon United States troops in legally occupied territory."
After the terrorist attacks of Sept. 11, 2001, President Bush issued an order that effectively allowed the United States to hold suspects indefinitely without a hearing, a lawyer, or formal charges. In September 2006, Congress passed a law suspending habeas corpus for anyone deemed an "unlawful enemy combatant."
Weiner pretty adroitly nails the historical connections in a very straightforward way. It's not impossible for the corporate media to report things accurately.
So, this week we get our shot at the plate to restore one of the most fundamental American rights -- the right to challenge government detention before a fair and independent court.
Senator Leahy just introduced his bill, *The Habeas Corpus Restoration Act,* on the floor of the U.S. Senate and debate is well underway. The bill is co-sponsored by Senator Chris Dodd and the two are working together hand-in-hand to rally the grassroots in support of the legislation.
It's going to be a tremendously close vote, and this is one of those situations where your support could mean the difference between passage and failure.
Over the coming days we'll be rolling out a full suite of tools to arm yourself for battle. The first of which is a "Citizen Generated Whip Count" tool that will allow you to contact, record, and track responses from grassroots phonebanking taking place across the country.
Until then, please consider becoming a citizen co-sponsor of the bill as a first step.
A while back, dating to our time at MyDD, Matt and I asked everyone for input on a poll on Habeas Corpus. At long last, I am happy to show you the memo that came from the poll:
A solid 63% majority of American voters say they favor passage of legislation that would "give Guantánamo detainees the legal right to have their detention reviewed in federal court, and require the government to demonstrate that it has a lawful reason to imprison them." Only one-third (32%) of voters express opposition. This level of support for habeas is more impressive still when one considers that survey participants had been informed that the detainees are "accused terrorists."
Support for the habeas legislation is broad, extending across many demographic lines (see table). For example, we find majority support among both men and women; among whites, African Americans, and Hispanics; and in all regions of the country. Crucial swing political constituencies also voice solid approval, including 66% of independents, 69% of presidential swing voters, and 71% of moderates. Although Republicans are opposed by 58% to 39%, strong opposition is limited to a narrow political base of conservative Republicans (66% opposed) and GOP men (69% opposed). By contrast, a majority of GOP women (53%) and a plurality of moderate-to-liberal Republicans (50%) favor the habeas legislation.
No real surprise there: Republicans are generally opposed to where the rest of the country stands on an issue. Of course, for a long time we have known that the public is on our side when it comes to most issues, but that isn't always enough. As such, of particular interest is how the poll tested the effectiveness of various messaging on Habeas Corpus, providing progressives with insights on how to proceed:
Americans respond strongly to the message that current policy is un-American and contradicts basic American values, especially freedom. Two of the three most convincing pro-habeas messages tested make the case that the Bush policy violates core American values. By appealing to voters' pride in America as a beacon of freedom, these messages resonate even with many who would not instinctively oppose the administration.
The current policy is un-American and contradicts basic American values. We are people who believe in freedom and human rights. We need to defend ourselves against terrorism, but to do that we don't have to give up the values that make America great. (60% very convincing)
Countries such as Cuba, China, and North Korea deny the right of judicial review to those imprisoned by the government. That is not the kind of company the United States of America wants to keep. (60% very convincing)
Voters are more concerned about America-our values and our security- than about those being detained. Independents, moderates, and presidential swing voters believe that upholding American values and keeping America safe are more important than protecting the rights of accused terrorists. Habeas opponents will try to make this a debate about the detainees and what level of legal rights they are (or are not) entitled to; habeas supporters should want a debate over whether the Bush policy violates our national principles and puts Americans at risk.
Expressing this idea in legal or constitutional terms is less effective. Voters respond more favorably when the case for habeas is stated in terms of core values and fundamental principles, rather than legal or constitutional rights. Even many Americans who oppose the current detainee policy are not easily persuaded that their own civil liberties are in jeopardy. Furthermore, arguments about constitutional rights are easily undercut by a conservative response informing voters that only non-citizens, not U.S. citizens, are denied habeas.
Expressing their positions in terms of values is something that Democrats and progressives have often failed to do. It is much easier to organize a broad coalition for any goal when it is based in values and visions of how the government should operate, or what the country should look like, than it is around specific, wonkier tasks. In other words, you are not going to be as successful building a broad coalition around reducing carbon emissions by 80% by 2050 as you are around making sure that a healthy environment is a positive value unto itself and as such preserved for future generations instead of exploited by wealthy interests. This is also, I think, one of the reasons why impeachment campaigns have struggled, since they are not connected to a broader movement based on how government should operate, but are instead a specific campaign centered around Bush and Cheney. A more successful impeachment campaign would have grown out of a coalition that supports a broad vision of government, of which Bush and Cheney are simply two negative examples rather than the whole problem.
Anyway, check out the whole memo. You input helped form it, and as such will hopefully help put Democrats down a more successful road in terms of strategy on civil liberties.
Based on the Bush Dog vital statistics chart that I produced yesterday, which I think can serve as an important reference point for the upcoming campaign against the Bush Dogs, over the last 24 hours I have discovered some more useful information about this caucus:
Of the thirty-eight members listed in the Bush Dog chart I produced yesterday, twenty-seven of the them were in the 109th Congress. Twenty-two of those twenty-seven voted in favor of the 2006 Military Commissions Act, and only ten other Democrats voted in favor of destroying habeas corpus. Cooper, Costa, Lipinski, Melancon, and Snyder actually showed some decency on that vote. Now, of those five, three come from solidly blue districts (Cooper, Costa and Lipinski), one come from a swing district (Snyder) and one comes from a red district (Melancon).
In 2005, looking at those same twenty-seven members, only Gordon, Matheson, Peterson, Salazar, Snyder, and Tanner voted against the reauthorization of the Patriot Act. In this case, none of them are from blue districts, but some of them are from swinging districts.
Looking further back, only seventeen of these thirty-eight members were in Congress in 2002, during the vote to authorize the use of military force in Iraq. Every single one of them, except Rep. Snyder, voted in favor of the use of military force.
Considering that his name keeps appearing on these lists, I am starting to think that there is real hope for Representative Vic Snyder. It is always possible to stop being a Bush Dog. It also makes me wonder if there is any hope at all for the older members who never appeared as exceptions to any of these votes: Boswell, Boyd, Cramer, Edwards, Etheridge, McIntyre, Pomeroy, Ross and Tanner. They just appear to be neo-cons. Considering that Leonard Boswell's district is both in Iowa and lean Democratic, that might be a nice high visibility location to run a primary challenge. It wouldn't even be a waste of money, either, considering that the DCCC is constantly forced to spends money to defend Boswell, who appears to be a weak candidate, in that district. Rather than giving money to the DCCC to defend a Democratic neocon, let's defeat Boswell in a primary, and then give money to the DCCC so they can support someone else as the Democratic nominee. That way, the money the DCCC spends in the districts won't be such a waste.
Disturbingly, fully twenty-one of the Bush Dogs have entered Congress since 2002. while that still makes them only about 25-30% of the new Democratic members since that time, that also means they have a larger presence among newer members than they have of older members, where they are only about 10% of the Democratic House population. This makes me wonder just how anti-progressive Democratic House recruiting practices were from 2001-2006. To a very real extent, Democrats seem to have brought this working conservative majority on themselves. DCCC Chair Chris Van Hollen can complain about the Bush Dog campaign all he wants, but until he demonstrates improved recruiting practices on behalf of the DCCC, I am not budging.
36 of the 38 Bush Dogs are men, with only Melissa Bean and Stephanie Herseth Sandlin representing women. By way of contrast, 48 of the 194 Democrats in Congress who are not Bush Dogs are women. Overall, that is a difference of 5.3% to 27.4% female representation. Being a Bush Dog, and supporting neo-conservative foreign policy despite being a Democrat, seems to be a male habit. In fact, I think there is a much more direct correlation to Bush Dogs being male Blue Dogs, than there is to them being Blue Dogs from red districts. It is a dude thing.
All food for thought. You can sign up for email alerts on our Bush Dog campaign in the upper right hand corner of Open Left. Also, you can read the entire Open Left Bush Dog archive here. The more we learn about these problem Democrats, the better our campaign against them will become. Keep digging.
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