US Supreme Court building

The CIA recommended prisoners captured in the Afghanistan War be imprisoned at Guantanamo Bay because officials were convinced prisoners would be outside the jurisdiction of US courts. The secret jail would potentially be able to hold prisoners forever. However, just over ten years ago, the United States Supreme Court ruled that prisoners at Guantanamo Bay had a right to challenge their detention in US courts and opened up the pervasive lawlessness at the facility to lawsuits by prisoners.

The Center for Constitutional Rights represented two men from the United Kingdom, Shafiq Rasul and Asif Iqbal, as well as others. The case was filed in February 2002, very soon after the US first began to send prisoners to Guantanamo. And, according to CCR, no other legal organization wanted to join CCR in challenging the prisoners’ detention and the organization received death threats.

This historic challenge made its way through US courts, as the appeals court in the District of Columbia decided “no court in this country has jurisdiction to grant habeas relief…to the Guantánamo detainees, even if they have not been adjudicated enemies of the United States.”

The Supreme Court ultimately disagreed on June 28, 2004. In a 6-to-3 decision, the court held that “jurisdiction” to hear claims of being held in US custody in violation of laws extended to “aliens held in a territory over which the United States exercises plenary and exclusive jurisdiction but not ‘ultimate sovereignty.’”

To mark the anniversary, I spoke to Center for Constitutional Rights legal director Baher Azmy, who described the significance of the decision.

“It rejected the most extreme of the Bush administration’s legal claims, mainly that they could hold individuals in a prison outside the law without any protection of US courts or international law,” Azmy declared.

There had been an expectation among lawyers after the Rasul decision that they would go to court and have “mini-habeas trials.” Azmy said that did not really start to happen until after another Supreme Court decision – Boumediene v. Bush. But a more practical outcome occurred: for the first time, Azmy added, prisoners had “access to the outside world” because they could now legally meet with lawyers.

“More so than the existence of any abstract rights, access to lawyers was critical in shaking free hundreds of detainees as a result of Rasul because lawyers could report on claims of innocence — and there were hundreds,” Azmy stated. There were also claims of government incompetence as well as torture, which could now be made public.

Azmy represented Murat Kurnaz, who spent five years in detention at Guantanamo. Azmy filed a habeas petition but was never able to get a formal hearing in court. Yet, by talking to Kurnaz, he was able to travel to Germany and speak to Germans about Kurnaz. He was able to describe the abuse he experienced and how he was innocent.

“I saw the government have to produce records of what happened to him,” Azmy recalled.

Azmy was able to outline how the German government was implicated in his detention and that eventually created the pressure needed to get the US government to release him.

Nonetheless, there is a “long-term disappointment” because there are men still in confinement in Guantanamo whose cases are very similar to Rasul, who was released over ten years ago.

The courts in Washington, DC, which have reviewed cases brought by Guantanamo prisoners have sided with the executive branch in just about every single case they have heard, where prisoners have presented evidence of innocence. The Supreme Court has also disregarded Guantanamo prisoners.

“It’s been five years since they’ve heard a case despite multiple requests arising out of Guantanamo,” Azmy said.

In particular, Adnan Farhan Abdul Latif, a Yemeni prisoner, asked the Supreme Court to hear his case [PDF] and determine whether presuming that all intelligence reports on him were “accurate” denied him the ability to challenge the lawfulness of his detention.

Latif had asserted that he was traveling to Pakistan/Afghanistan for medical treatment he could not obtain in Yemen. The government claimed he had traveled a route al Qaeda militants were known to travel.

The district court found Latif’s story to be “plausible” and that the government had not “demonstrated by a preponderance of the evidence that Latif was part of Al Qaeda or an associated force.” The court wondered why no other person could corroborate the government’s claim that he had been a Taliban trainee and fighter. However, the appeals court decided that the district court had erred and that the report on his interrogation, containing the government’s only “evidence,” was entitled to a presumption of accuracy.

Judge David S. Tatel dissented and his dissent appropriately highlighted the security state culture that all cases of this nature have run up against.

“Our evidentiary procedures already accommodate the government’s compelling national security interests by admitting all of its evidence, including hearsay,” Tatel noted. He feared “in practice” this presumption came “perilously close to suggesting that whatever the government says must be treated as true.”

The Supreme Court declined to hear Latif’s case on June 11, 2012. Months later, on September 10, Latif died at Guantanamo after being held in detention for more than ten years. The military claimed his death was a suicide, but the circumstances of his death remain suspicious.

Most recently, the DC Court of Appeals ruled in a lawsuit prisoners filed to challenge their torture and abuse that what they had experienced was all “incidental” and within the “scope” of employment for military officers. It was a “foreseeable” part of the military’s effort to maintain “peace, security and safety at a place like Guantanamo Bay,” which is a “stern and difficult business.” It was also considered to be “standard for all those similarly situated.”

Lawyers for Abu Wa’el Dhiab, a Guantanamo prisoner who has been subject to brutal forced feedings because he has been on hunger strike, have managed to convince a DC Circuit judge to release videotapes of treatment he’s endured from guards removing him from his cell to be placed in a “restraint chair.”

Judge Gladys Kessler ruled in May that guards were causing “unnecessary suffering” and barred the feeding procedure, however, a week later the order was lifted so that Dhiab wouldn’t starve to death. In other words, she may be able to force the release of all kinds of documentation to his lawyers, which confirms abuse, but whether she will use her authority to try and free Dhiab from this torment is less likely.

If the judiciary really wanted to challenge the continued detention of 78 individuals who are cleared for release, the courts could play the role they should be playing and challenge the executive branch for failing to let prisoners go free.

Unfortunately, the courts have not chosen to rely upon Rasul to force an end to indefinite and unlawful detention. And President Barack Obama’s administration has taken advantage of the judiciary’s permissiveness as the administration takes its time closing the prison while prisoners continue to be subjected to the inhumanity perpetuated within the walls of camps at Guantanamo.

Creative Commons Licensed Photo by Mark Fischer