Yesterday marked the 10th anniversary of the detention facilities at Guantanamo Bay. A total of 779 different persons have been detained since they opened in January 2002. The various camps were at their most crowded in May 2003. A total of 680 detainees were being held at that time. From that point on the number began to fall. The interagency task force set up by President Obama in January 2009 reviewed 242 cases and it recommended the release, transfer or trial of the majority of these. Obama’s task force was set up with a view to closing the camps within one year. As everyone knows that deadline has long gone. 171 individuals remain in the camps today.
Among those are 89 detainees who have been approved for transfer. This is perhaps the most shocking aspect of the present situation. The first habeas petition was presented to the courts shortly after the camps opened and the issue slowly worked its way through the Courts until the Supreme Court ruled in 2008 in Boumediene that the detainees had a Constitutional right to appeal against their detention. Since then the Courts have ordered the release of certain detainees but in some cases, such as those of the remaining Uighurs, a concern for their human rights stops them being repatriated. Yet Congress has denied funds to transfer any detainees to the mainland (most recently in section 1026 of the National Defense Authorization Act for 2012), and indeed the Appeals Court has upheld the argument that the political branches had ‘exclusive power’ to decide which non-Americans could enter the country (Kiyemba v. Obama 563 US (2011)). This leaves the possibility of transfer to other states. But the administration and Congress remain concerned that certain foreign governments will not keep close tabs on those it releases. And indeed other foreign governments are unlikely to take these detainees if the US itself is unwilling to transfer them to its mainland. There are then many obstacles, even for those the administration accepts need not be in Guantanamo.
Of course, not all detainees have been approved for transfer. The political/diplomatic problem over the transfer and resettlement of detainees is in fact somewhat marginal to the bigger issue, which is the Obama administration’s insistence that it can hold detainees in what it calls ‘prolonged detention’. Even if Congress allocated funding to transfer the detainees to the mainland the administration would still insist on detaining some of them without trial in a supermax prison (“Gitmo North”). Of the 242 cases Obama’s task force reviewed, 48 fell into this category because they were too dangerous to release and could not be put on trial because the evidence against them was inadmissible. The legal authority for this is the Authorization to Use Military Force (AUMF), which was passed by Congress in September 2001 and reaffirmed in the latest NDAA. The courts have upheld this in the post-Boumediene habeas litigation, which of course doesn’t always result an order for release. Indeed, commentators are now concluding that the effects of Boumediene are not that significant. They focus their attention on the Court of Appeals, in particular its October 2011 decision in the Latif case. The New York Times offers a nice summary of the case and the concern it raises:
The power of the [Boumediene] ruling … has been eviscerated by the Court of Appeals for the District of Columbia Circuit. The appellate court’s wrongheaded rulings and analyses, which have been followed by federal district judges, have reduced to zero the number of habeas petitions granted in the past year and a half.
The Supreme Court must reject this willful disregard of its decision in Boumediene v. Bush, and it can do so by reviewing the case of Adnan Farhan Abd Al Latif, a Yemeni citizen imprisoned at Guantánamo Bay since 2002. … The appellate court improperly replaced the trial court’s factual findings with its own factual judgments. It also unfairly placed the burden on Mr. Latif to rebut the presumption that the government’s main evidence was accurate: the government should bear the burden of proving by a preponderance of the evidence that his detention is warranted.
It is undisputed that Mr. Latif was in a car accident in Yemen in 1994 and sustained head injuries. In 2001, he went to Pakistan to seek free medical treatment, and eventually travelled to Kabul to find a Yemeni man who had promised to help him. He was arrested near the border between Pakistan and Afghanistan and transferred to Guantánamo Bay, where he has been imprisoned without a trial. The government contends that Mr. Latif was recruited by an Al Qaeda operative and fought with the Taliban.
The federal trial judge found that the government’s evidence did not sufficiently support its contention, that incriminating evidence was not corroborated and that Mr. Latif had a plausible alternative explanation for his travels.
The appeals court reversed that decision, arguing that the government’s intelligence report on the Latif case should have been given “a presumption of regularity” and that unless there is “clear evidence to the contrary,” trial judges must presume that this kind of report is accurate. But as the strong dissent by Judge David Tatel explains, there is no reason to make such an assumption about the report, which was “produced in the fog of war, by a clandestine method that we know almost nothing about.”
In ruling on 15 habeas cases since mid-2010, the appellate court has made the standard of review toothless, and its views have affected lower court rulings. Since July 2010, district judges have denied 10 habeas petitions in Guantánamo cases and granted none, compared with 22 habeas petitions granted and 15 denied in the two years before that.
The designation of terrorist suspects as unlawful enemy combatants and the militarization of law enforcement is exceptional among liberal nations. The state of that exception ten years from the opening of Guantanamo appears strong. The President’s rhetoric and initial promises offered some the hope that the US would once more observe liberal norms, and this was renewed, albeit briefly, when he threatened to veto the NDAA. Whether the NDAA exacerbates the threat to civil liberties or merely consolidates the threat that was already there with the AUMF is being debated (see this post at Opinio Juris by Marty Lederman and Steve Vladeck as a way in). But it is probable that the Obama administration would not have wanted to exercise its veto for fear of being portrayed as soft on terrorism in an election year. This says a lot about the state of political opinion.
So what it the British response to this? There is of course a limit to what it can do but that is not an excuse for silence. And it appears the government has been working “very hard” to secure the release of the one remaining British citizen. But in many respects the British obligation goes beyond securing the rights of its citizens. Indeed, the detention facility at Guantanamo Bay is in many ways a symptom of a much wider problem, which is the consolidation of Bush’s war paradigm under Obama. This does not just underpin detention policy. As I have noted elsewhere, it also underpins the policy of prosecution by military commission and targeted killings. Evidence that British politicians are concerned about the latter can be found in this report by the House of Commons library.
There has been debate within the administration about what actually constitutes ‘the battlefield’. Is it territorially limited to the Af/Pak region or does it follow specific individuals (AQ, Taliban and associated forces) wherever they may be. The AUMF and NDAA for 2012 suggest it is the latter, as does the targeting of Awlaki in Yemen. But then there has also been a debate within the administration about what it means to be AQ. Does one have to be “part of”, “support” or “substantially support”? This is technical stuff. The fact we are looking at this level to judge the state of the American exception is, however, evidence that the war paradigm is well and truly consolidated in American national security policy.