Originally published by the Future of Freedom Foundation
Last week, in my article, “How the Supreme Court Gave Up on Guantánamo,” I explained how, given the option of addressing complaints made by prisoners in Guantánamo regarding the basis of their ongoing detention, the Supreme Court chose not to, leaving the final decisions regarding the prisoners not in the hands of the District Court in Washington, D.C., which has recommended, in 38 of the 59 cases decided, that the prisoners should be released, but in the hands of the D.C. Circuit Court.
This is alarming, because the Circuit Court has made a point of issuing rulings defending unfettered executive power, and, most importantly, of redefining the detention standard required to justify the ongoing imprisonment of the Guantánamo prisoners in the government’s favor, ruling that evidence of some sort of involvement in the “command structure” of al-Qaeda and/or the Taliban is far too strict, and that all the government should be required to do is to present any information that even remotely suggests that the prisoners in question were involved, in any way, with al-Qaeda and/or the Taliban.
In addition, the most notorious judge in the Circuit, Judge A. Raymond Randolph, who approved every measure relating to Guantánamo under President Bush that was subsequently overturned by the Supreme Court, and who, outrageously, is now effectively in charge of detainee policy, has made a point of criticizing the Supreme Court for its decision in June 2008, in Boumediene v. Bush, to recognize constitutionally guaranteed habeas corpus rights for the prisoners. As the New York Times reported in February:
In a speech called “The Guantánamo Mess” last fall [delivered to the right-wing Heritage Foundation], he said that the justices were wrong to [recognize habeas rights for the prisoners] and all but expressed contempt for the holding. As the basis for the speech’s title, he compared the justices who reached it to characters in The Great Gatsby. “They were careless people,” he read. “They smashed things up … and let other people clean up the mess they had made.”
Alarmingly, Judge Randolph is not the only judge in the Circuit to openly criticize the Supreme Court for creating a law that the Circuit Court judges are obliged to follow, but which, it appears, they are deliberately subverting for political reasons.
On Friday, April 8, when the Circuit Court, predictably, turned down an appeal by a Yemeni prisoner, Yasein Esmail, who had lost his habeas petition last April, one of the judges, Senior Judge Laurence H. Silberman, “one of the most conservative jurists in the federal system,” according to SCOTUSblog, filed a two-page concurring opinion (PDF, pp. 6-7), in which he criticized the Supreme Court and the Justice Department and sounded a klaxon of alarm about the perceived dangerousness of the prisoners at Guantánamo, which was a perfect fit with the right-wing hysteria of the last nine years, even though it has no grounding whatsoever in reality.
In his extraordinary legal outburst, Judge Silberman — after declaring that he found Esmail’s story “phonier than a $4 bill” — issued the following alarming declaration about the perceived difference between dangerous people being released in the criminal justice system (because proof of guilt cannot be established) and prisoners from Guantánamo being released:
In the typical criminal case, a good judge will vote to overturn a conviction if the prosecutor lacked sufficient evidence, even when the judge is virtually certain that the defendant committed the crime. That can mean that a thoroughly bad person is released onto our streets, but I need not explain why our criminal justice system treats that risk as one we all believe, or should believe, is justified.
When we are dealing with detainees, candor obliges me to admit that one can not help but be conscious of the infinitely greater downside risk to our country, and its people, of an order releasing a detainee who is likely to return to terrorism.
What is particularly depressing about these passages is that, while Judge Silberman is correct to defend the criminal justice system’s adherence to the law, he thoroughly betrays those principles by treating the Guantánamo prisoners as some kind of exceptional beings beyond the law, super-terrorists who would wreak havoc on America in an instant, when, to be honest, someone like Yasein Ismael, a foot soldier for the Taliban, is not someone “likely to return to terrorism,” as he was never involved in terrorism in the first place.
Instead, he is one of many men at Guantánamo — including the majority of those who have lost their habeas petitions — who continue to suffer what should be slanderous or libelous comments about them because the Bush administration’s “war on terror” was founded on the absurd notion that the international terrorists of al-Qaeda were the same as the Taliban, the government of Afghanistan at the time of the U.S.-led invasion in October 2001. It is true that the Taliban’s military included foreign foot soldiers trained in camps associated with al-Qaeda, but it is absurd to regard these men as terrorists, when they were clearly soldiers, and should, all along, have been held as prisoners of war, protected by the Geneva Conventions, while the handful of men accused of involvement with acts of terrorism should have been tried in federal court.
Such is the hysteria regarding Guantánamo, however, that judges like Judge Silberman regard it as legitimate to let it infect their very notions of justice.
After this outburst, Judge Silberman proceeded to criticize the Justice Department, stating that the opinions described above mean that “there are powerful reasons for the government to rely on our opinion in Al-Adahi v. Obama [the case of a Yemeni judged to be an al-Qaeda sympathizer because he took his sister to Afghanistan to marry someone allegedly connected to terrorism], which persuasively explains that in a habeas corpus proceeding the preponderance of evidence standard that the government assumes binds it, is unnecessary — and moreover, unrealistic.”
Reinforcing this notion that very little evidence should be required to detain the terrorists of his imagination, Judge Silberman added that he doubted that any of his colleagues would grant a petition if it even appeared to be “somewhat likely” that the prisoner in question was “an al-Qaeda adherent or an active supporter.”
Judge Silberman then criticized the Supreme Court, snidely noting that the decisions made by him and his colleagues on this “somewhat likely” basis would stand “[u]nless, of course, the Supreme Court were to adopt the preponderance of the evidence standard (which it is unlikely to do — taking a case might obligate it to assume direct responsibility for the consequences of Boumediene v. Bush).”
This was a specific attack on the Supreme Court’s refusal to establish the detention standards required, leaving those decisions to the lower courts, and Judge Silberman clearly identified with the “mess” alluded to by Judge Randolph in his speech to the Heritage Foundation last fall.
The only salvation in this otherwise persistent assault on the executive, the Justice Department, the District Court and the Supreme Court, fueled by right-wing paranoia about the dangers posed by every single Guantánamo prisoner, came in Judge Silberman’s final words, when, suddenly, he shone a light on the overall failure of the habeas system to secure justice, writing:
Of course, if it turns out that regardless of our decisions the executive branch does not release winning petitioners because no other country will accept them and they will not be released into the United States, then the whole process leads to virtual advisory opinions. It becomes a charade prompted by the Supreme Court’s defiant — if only theoretical — assertion of judicial supremacy, sustained by posturing on the part of the Justice Department, and providing litigation exercise for the detainee bar.
Again, this was a savage attack on the Supreme Court, but it was also a sound analysis of all the roadblocks in the litigation — including the opposition by the executive, the Circuit Court, and Congress to the release into the Unite States of the Uighurs (Muslims from China, seized by mistake and cleared for release under President Bush, but unable to return home because of the risk of torture). As such it was so unexpected, after all the venom that had come before, that it took a while for observers to realize that, in this description of the charade maintained by all parties — including the executive branch and the Justice Department — was an unusual opportunity to strengthen the Uighurs’ ongoing appeal to the Supreme Court to allow them to live on the U.S. mainland.
This, ironically, was in spite of the fact that it was the Circuit Court that hadprevented them from coming to the United States in February 2009, ruling that it was an immigration matter that was not for judges to decide, and handing responsibility to the executive branch, with depressing results for the Uighurs, whenPresident Obama threw out a plan by White House counsel Greg Craig to bring a handful of the Uighurs to live in the United States.
Last Tuesday, lawyers for the Uighurs duly filed a new plea to the Supreme Court (PDF), incorporating Judge Silberman’s comments, and arguing that they show that “the habeas jurisdiction recognized by this Court in Boumediene has essentially been nullified.”
I wish them success, and am glad that there was some hope to be extracted from Judge Silberman’s outburst, but in general it remains profoundly depressing that judges in the Circuit Court are approaching the Guantánamo litigation through a prism of paranoia and distortion, in which the lies and deceptions of the “war on terror” are intact, and insignificant foot soldiers remain slandered as terrorist masterminds, and are used as an excuse to pretend that the normal rules of the law do not apply.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press) and serves as policy advisor to the Future of Freedom Foundation. Visit his website at:www.andyworthington.co.uk.