Moral Low Ground

US Government

US Supreme Court Slams Door on Justice for Guantánamo Detainees, Half of Whom Are Cleared for Release

No end, nor justice in sight.

The Supreme Court has slammed the door on justice for detainees at the US military prison at Guantánamo Bay by refusing to hear any new appeals from them.

This, despite the fact that the Supreme Court ruled four years ago today in Boumediene v. Bush that detainees had the right of habeas corpus under the US Constitution.

This, despite the fact that more than half of the remaining GITMO detainees have been cleared for release, many of them since the Bush era.

This, despite the fact that many of them have been wrongfully detained– and some are innocent men.

Monday’s decision means that the fate of the remaining 169 GITMO detainees– 87 of whom have been cleared for release– is in the hands of the Washington, DC Circuit Court of Appeals, a notoriously conservative body which almost always sides with military prosecutors and blocks the release of nearly all detainees.

In Boumediene v. Bush, a landmark 2008 ruling which reigned in some of the excesses of an out-of-control Bush administration and a sycophantic Congress, the justices ruled 5-4 that Guantánamo detainees were entitled to the right of habeas corpus– the ability to challenge their detention– under the Constitution.

This was a major victory not only for the detainees but also for the cause of American justice. For, by creating a novel class of human beings– ‘enemy combatants’– that were by design beyond the reach of the law, the Bush administration laid the dubious legal foundation for indefinite military detention without charge or trial and, ominously, for the convenient abrogation of relevant prisoner protections afforded under international treaties and laws such as the Geneva Conventions and all that this implies– most shockingly of all, legalized torture.

Since Boumediene v. Bush, Guantánamo detainees have won about two-thirds of their habeas corpus challenges in lower trial courts. But the Washington, DC Circuit Court of Appeals– the most conservative appeals court in the country– has overturned every last case that it has heard. The DC court has interpreted Boumediene in such a way as to make it practically impossible for detainees to win their appeals.

In its latest decision, the Supreme Court has effectively reversed their laudable achievement in Boumediene v. Bush, turning their back on habeas corpus by leaving such matters up to a federal appeals court that can only be described as overtly hostile towards detainees seeking their constitutional right to challenge their detention.

There are those who say that terrorists don’t deserve constitutional rights. But considering that 87 of the 169 remaining GITMO detainees have been cleared for release, some of them for as long as eight years, the interests of justice demand that the Supreme Court at least hear their appeals.

Worse, among the scores of cleared-yet-imprisoned men are at least a handful of innocent men. Consider the case of Adnan Farhan Abdul Latif, a Yemeni who has been locked up in GITMO for more than 10 years. Abdul Latif, who was captured in Pakistan, claims he traveled there to receive medical treatment for a severe head wound. Guantánamo officials believed his story and he was approved for release during George W. Bush’s second term in 2006. An Obama task force affirmed his cleared status and he won his habeas corpus petition. But the Washington, DC Circuit Court of Appeals reversed the lower court’s ruling and Abdul Latif languishes in Guantánamo today. He has repeatedly tried to kill himself.

Two-thirds of the Guantánamo detainees cleared for release are Yemeni nationals. But ever since the foiled attempt by Umar Farouk Abdulmutallab, the Yemen-trained Nigerian “Underwear Bomber,” to blow up a US-bound commercial airliner on Christmas day in 2009, the Obama administration has refused to send any Yemeni detainees home. Dozens of men who have been cleared for release are being denied their freedom simply because of their nationality, what GITMO expert Andy Worthington has dubbed “guilt by nationality.”

“That would be the equivalent of… having issues with somebody from California and, as a result, not releasing any domestic prisoners in the United States from California for any reason,” Worthington told Democracy Now! on Tuesday.

Then there are the Uighurs, Muslims from western China who have been resisting Beijing’s encroaching domination of their culture and land. The War on Terror makes strange bedfellows, and anti-China Uighurs who had no beef with the United States ended up in Guantánamo Bay. Incredibly, Chinese intelligence agents were even allowed into GITMO to interrogate them.

It wasn’t long before the Bush administration realized the Uighurs should be released, but they couldn’t be repatriated to China without the risk of execution. Most of them were eventually resettled in countries as far-flung as Canada, Albania and the tiny Pacific island nation of Palau. But three men who have been cleared for release since 2004 remain locked away in GITMO, wrongfully imprisoned by the United States for the better part of a decade.

If this all sounds like a travesty of justice, that’s because it is. The 87 Guantánamo detainees who have been cleared for release have been failed by every branch of the United States government.

The Obama administration has betrayed them, first by reneging on the president’s promise to close the Guantánamo concentration camp within a year of taking office, then by refusing to release cleared and innocent detainees and then again by punishing all Yemeni prisoners for being born in Yemen.

Congress has betrayed them by blocking GITMO’s closure and by opposing the release of cleared prisoners.

And now the Supreme Court has dealt them a tremendous blow by effectively reversing Boumediene v. Bush, creating the soul-crushing prospect of a lifetime of imprisonment for cleared and innocent men.

Once again, the justices have turned their backs on justice.

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