razorwire2.jpgThere will be a brief filed shortly with the US Supreme Court in the Al Odah et al. v. US cases.  I’ve spent some time reviewing a number of the matters from the DC Circuit decision that will be appealed, and I keep coming back to Kafka’s “The Trial.”  And the fact that we are visiting so much of that on the defendants involved in these cases in the supposed name of law and order. 

These defendants have been held for almost six years in US custody, in a US-controlled jurisdiction, and yet they have been denied basic constitutional protections by argument of a legal technicality that the US Supreme Court has more than once held to be without merit.

What does that system allow for at present, you may ask?  Under the current system, the defendant bears the burden of proving innocence to a panel of military officers.  They are proving their innocence to charges that, for the most part, they never fully get to see, based on evidence they aren’t allowed to review completely.  This evidence is gathered from witnesses who are not identified to the defendants so that there is no possibility of independent investigation for the most part — because such information is deemed to be too highly classified for defendants to see it and, thus, they have no real opportunity to rebut these phantom charges and assertions whatsoever made by people who are kept anonymous to them. 

Thus, the full extent of the charges are unchallengeable on the merits because the defendants never get to know what all the merits are.

In 2006, there were a series of reviews of information gathered on the detainees at Guantanamo that were put together through a combination of FOIA requests and other reporting and legal proceedings, and I want to share a summary of findings with everyone that brings this into sharp focus:

– A high percentage, perhaps the majority, of the 500-odd men now held at Guantanamo were not captured on any battlefield, let alone on “the battlefield in Afghanistan” (as Bush asserted) while “trying to kill American forces” (as McClellan claimed).

– Fewer than 20 percent of the Guantanamo detainees, the best available evidence suggests, have ever been Qaeda members.

– Many scores, and perhaps hundreds, of the detainees were not even Taliban foot soldiers, let alone Qaeda terrorists. They were innocent, wrongly seized noncombatants with no intention of joining the Qaeda campaign to murder Americans.

– The majority were not captured by U.S. forces but rather handed over by reward-seeking Pakistanis and Afghan warlords and by villagers of highly doubtful reliability.

These locals had strong incentives to tar as terrorists any and all Arabs they could get their hands on as the Arabs fled war-torn Afghanistan in late 2001 and 2002—including noncombatant teachers and humanitarian workers. And the Bush administration has apparently made very little effort to corroborate the plausible claims of innocence detailed by many of the men who were handed over….

It is, therefore, quite remarkable to learn (from Hegland) that well over half (75) of the 132 are not even accused of fighting the United States or its allies on any battlefield in post-9/11 Afghanistan or anywhere else.

Indeed, only 35 percent of them (more precisely, of the 115 whose court files specify the locus of capture) were seized in Afghanistan; 55 percent were picked up by Pakistanis in Pakistan.

The current CSRT system, under which the DOD has been operating since the Supreme Court decision in Rasul, allows for military officers to make decisions on guilt or innocence with no outside, third party review allowed by the Bush Administration under the current law which was enacted in the MCA in the fall of 2006. 

One of the fundamental principles of the American judicial system is the right of an accused to confront the evidence and witnesses who accuse him.  To deprive a defendant of basic rights of fairness and notification is bad enough.  To do so relying on statements and accusations often obtained via torture or a paid bounty, neither of which is often disclosed to the defendant is even worse.

All these defendants have sought, for almost six years, is a trial in which the accusations presented against them are fully disclosed so that they can present rebuttal evidence on the full set of charges, and so that accusers can be confronted and their evidence challenged – something that is done every day in courts of law where human rights laws are followed and upheld.  This used to be the standard toward which the US worked — and a standard which we held up to other nations as a model to follow.

No longer.

And worse, we now know that the CIA more than five years ago sent a memorandum to the WH stating that the majority of the detainees in Guantanamo ”didn’t belong there.”  I hope to get more on the particulars of the brief filings on this case once they are docketed, but the Suspension Clause arguments alone with regard to habeas corpus ought to be instructive — not just for the Court, but for the members of Congress who hope to right this legal wrong by revoking the abominable MCA provision which unconstitutionally stripped these protections from detainees in US custody.  More on this to come, I promise you that.

(Photo of razor wire and blue sky via rknickme.)

UPDATE:  The brief has been filed, and the Center for Constitutional Rights has more on why the President is not above the law.

Related posts:

  1. Guantanamo: When Justice Meets “Evidentiary Thresholds”
  2. Can Alleged Terrorists Get Fair Trials? The Case of Aafia Siddiqui
  3. What If Civilian Trials Prove Torture Wasn’t Necessary?
  4. Innocence Ended: Uighurs Still Seek Fair Day in Court
  5. Supreme Court Will Hear Uighur Case