More detainee victories and what a majority of Congress tried to do

Most members of Congress deliberately tried to deny innocent people the right of judicial review.


Glenn Greenwald
July 31, 2009 7:32PM (UTC)

(updated below - Update II)

This week, two more Guantanamo detainees -- Khaled Al-Mutairi from Kuwait and Mohamed Jawad of Afghanistan -- were ordered released by federal judges on the ground that there was insufficient evidence to justify their detention.  The Washington Independent's Daphne Eviatar notes this amazing fact: "In 28 of 33 Gitmo detainee cases heard so far, federal judges have found insufficient evidence to support keeping them in prison."  Virtually all of those detainees were held for many years without charges and with no opportunity for judicial review.  Once they finally got into a court, federal judges (including Bush-43 appointed judges) in the vast majority of cases concluded there was virtually no credible evidence ever to justify their detention.  Just consider what that fact, standing alone, means about what our Government has been doing.

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The case of Jawad is particularly striking because he was a young teenager -- possibly as young as 12 -- when he was shipped to Guantanamo in 2002; unquestionably tortured; never accused of being a member of either Al Qaeda or the Taliban; barely saved after a suicide attempt in 2003; and then kept in a cage for seven years and counting with no charges.  I wrote at length about Jawad's case here, and Scott Horton summarizes some of the miserable lowlights of his case today here.  As Andy Worthington reports, so unpersuasive was the case against Jawad -- particularly once the "confession" he gave after being threatened with his own death and his family's death were, over the objections of the Obama DOJ, excluded -- that the federal judge excoriated the Obama DOJ with an unusually strident and hostile tone for attempting to continue his detention.  Adam Serwer considers the implications of Jawad's habeas victory, as well as the fact that the Obama DOJ may try now to indict him on actual criminal charges in order still to prevent his release even in light of the judge's ruling.

I'm going to have a podcast interview posted here later this afternoon tomorrow morning with Jawad's lawyer, the ACLU's Jonathan Hafetz, but for now, I want to emphasize one point.  When Congress passed the Military Commissions Act in 2006, they explicitly denied the right of habeas corpus for Guantanamo detainees.  In other words, they tried to bar these detainees from having the very judicial hearings which are resulting in findings that there was no evidence to justify the accusations against them.  The only reason why these hearings are even taking place is because, in June, 2008, the Supreme Court -- by a 5-4 vote in Boumediene -- struck down the MCA's denial of habeas corpus as unconstitutional and held that detainees are entitled to a hearing before a federal judge to contest the validity of their accusations.  John McCain called that decision "one of the worst decisions in the history of this country."

If the members of Congress who voted for the MCA had their way -- and that includes all GOP (except Chafee) plus 12 Democratic Senators, as well as all GOP House members (except 7) and 34 Democratic House members -- then all of these detainees against whom there is virtually no evidence (including Jawad) would still be sitting in a cage, possibly forever, with no mechanism to secure their release.  One should be hesitant to attribute bad motives to someone based on political disagreements, but some positions are so morally depraved and just plain tyrannical that a rational person has no choice but to do so.  Voting to empower the President to imprison people for life with no charges and no judicial review -- particularly where the individuals were not captured on any "battlefield," thus ensuring a very high risk of error and/or abuse -- falls squarely into that category.  

Every time a federal judge orders another Guantanamo detainee released on the grounds of insufficient evidence (and that does not mean "insufficient evidence to convict"; it merely means:  "insufficient evidence even to justify their detention"), just remember that the vast majority of the current members of Congress voted to deny those detainees any opportunity to have a court review their imprisonment, the most basic and defining right of Western justice.  Put simply, they knowingly voted to deny innocent people the right to have a court review their indefinite imprisonment.  If that isn't morally depraved, what is?

Of course, the Military Commissions Act, like the FISA Amendment Acts, was one of those many Bush-era laws which Democrats were oh-so-sad to see enacted, and they vowed so solemnly that once they were in the majority, I mean:  once they won the White House, I mean:  once they had 60 Senate seats, then they would be fixing it for sure.  I'm sure that'll happen any minute now.

* * * * * 

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On an unrelated note:   as is true for the U.S., Latin America -- to an even greater extent -- is witnessing, finally, a real debate over drug policy, based on a growing recognition that the "War on Drugs" is a profound failure and criminalization schemes only worsen the problem.  As a result of that growing debate, the report I wrote on Portugal's success with drug decriminaliztion and which I presented in April at the Cato Institute continues to generate interest (this Time article on my report helped substantially in that regard). 

There are several new efforts on the part of Latin American governments, both separately and jointly, to formulate new approaches to drug policy.  Last week in Brazil, I spoke at a conference, sponsored by Viva Rio, among government officials and policy experts from that region.  My presentation on Portugal's success was my first ever in Portuguese and so I was a bit anxious about it, but those interested (and Spanish-speakers should be able to understand much of it) can view excerpts of my presentation here.  For those in or near Rio de Janeiro, there is a major drug policy conference on August 21, featuring former Brazilian President Fernando Henrique Cardoso (who declared the drug war a "failure"), and I'll be speaking there as well (I'll post details once I know them).  In many ways, the abuses of the War on Drugs were a precursor to many of the abuses ushered in by the War on Terror; undermining the former can only help in undermining the latter.

 

UPDATE:  On Twitter, Eviatar notes:  "If the 85% success rate for Gtmo detainees holds up, that would mean govt lacks evidence to support holding about 195 of 229 detainees left."  Remember, that's The Worst of the Worst -- so evil and threatening that the Democratic-led U.S. Congress has barred the Obama administration from accepting any of them into the U.S., including the ones found guilty of nothing, even as we try to persuade other countries to accept them.

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See also:  this statement from Major David J. R. Frakt, who represents Mohamed Jawad, as well as this possible sign of progress from NPR.

 

UPDATE II:  Never mind about NPR.  

Meanwhile, according to a new international poll from The Economist, the U.S. population is as willing or more willing to tolerate torture when compared to citizens in countries such as Egypt, Iran, Russia, Indonesia and China (citizens of the latter two countries are substantially more anti-torture than Americans).  Among Americans, roughly 52% say that "all torture should be prohibited" while 43% say that "some degree of torture should be allowed."  Only in Nigeria, India, Turkey and South Korea is there a substantially higher pro-torture sentiment than in the U.S.

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Glenn Greenwald

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