No Habeas If They’ve Moved Your Body

Fatster linked to this Carol Rosenberg story, describing how Judge Thomas Hogan dismissed the habeas petitions of over a hundred former Gitmo detainees because they were no longer held at Gitmo–though they may be held by US proxies elsewhere.

A federal judge has dismissed more than 100 habeas corpus lawsuits filed by former Guantanamo captives, ruling that because the Bush and Obama administrations had transferred them elsewhere, the courts need not decide whether the Pentagon imprisoned them illegally.The ruling dismayed attorneys for some of the detainees who’d hoped any favorable U.S. court findings would help clear their clients of the stigma, travel restrictions and, in some instances, perhaps more jail time that resulted from their stay at Guantanamo.

There’s one argument, in particular, that is very haunting, given our recent discussions of the way the US was playing with jurisdictional definitions to hold or kill captives.

Moreover, he added, CCR affiliated attorneys have tracked former captives to prison at Pol-i-charki, Afghanistan, that was once run by the U.S. military. He said “the U.S. may be pulling the puppet strings” of their continued captivity.

Hogan said the attorneys for the former detainees hadn’t offered enough proof that other countries were operating essentially as U.S. proxies. “Petitioners are short on examples, except for the fact that former Guantanamo detainees from Afghanistan transferred back to Afghanistan have been detained at a detention facility built by the United States,” he wrote.
And let’s not forget how Ibn Sheikh al-Libi was suicided conveniently after we sent him back to a Libyan prison rather than Gitmo.
23 replies
  1. bobschacht says:

    What are the odds that this idiotic decision will be appealed?

    IIRC, the habeas tradition has nothing to do with *where* the detainee is being held, and everything to do with *who* is holding him/her.

    Bob in AZ

    • bmaz says:

      Oh, it will be appealed. But, honestly, it is not procedurally an idiotic decision. Federal district courts are constantly flooded, seriously, with Habeas petitions from just about anybody and everybody incarcerated in America, and more than a few outside of the continent. The number nationally was in the tens of thousands per year in the early 90s, it has grown wildly since then from what I see. The default operation of courts are to dismiss any petition that is not ripe, timely, appropriate, has already been litigated or that has become moot. While this decision is extremely disappointing, and it would have been nice to see the court maintaining jurisdiction, that the cases were so dismissed is not surprising in the least if you know habeas practice.

  2. Jeff Kaye says:

    Hogan said the attorneys for the former detainees hadn’t offered enough proof that other countries were operating essentially as U.S. proxies.

    I’m very, very tired of this kind of argument, viz. if you don’t have some kind of signed statement by country A that it is a puppet proxy of the USA or CIA, then you’re just out of luck.

    As if the history of this country in relation to its activities in and control over events in other countries weren’t copiously documented by a generation or more of historians, journalists, political scientists… and bloggers.

    An awful decision. — I wonder if Andy Worthington will report on this.

  3. earlofhuntingdon says:

    A pity Hogan didn’t ask for or allow more time for the claimants to offer more evidence that the current jailers of these men are acting as proxies for the US.

    It sounds rather unseemly like Lehman’s pre-meltdown accounting fraud, where it transferred unsound assets off its books for a few days before and after the end of its yearly accounting period, only to reacquire those unsound assets immediately thereafter, thus making them magically disappear for accounting and disclosure purposes. Of course, per Hogan, we haven’t the claimants have not put forward sufficient proof yet to make that a valid comparison.

    More’s the pity that Hogan couldn’t take judicial notice of the fact that the US had exclusive jurisdiction for years over these prisoners, then delivered them up to others under not completely known circumstances and they are still in prison, with their treatment unknown. Why that should be a non-justiciable event is hard to fathom. Perhaps an appeal will make it clearer, or reverse Hogan’s attempt to wash his hands of a thorny problem.

    • bmaz says:

      Kind of agreed, but keep in mind that the habeas petitioners have been aware of this issue for almost two years; in fact, Hogan first ordered briefing on the habeas claims were extinguished “by the petitioner’s transfer or release from Guantanamo Bay” on Jan. 12, 2009, far more than a year ago. It was not a snap judgment.

      Here is Hogan’s full Order.

      • earlofhuntingdon says:

        Thanks, I’ll read it. But surely, Shirley, a government cannot avoid its obligations in connection with a habeas petition simply by lending its prisoners to another jailer. Did the government not have to show the circumstances, the terms under which it had “released” these prisoners to other jailers and for how long, with what conditions or limitations on their mistreatment?

        • bmaz says:

          The government submitted sworn declarations and, predictably, the habeas petitioners had little but generalized and conclusory statements. You know how that ends up, and so it did. I would think, however, that if information was adduced demonstrating the government was dishonest or duplicitous, the court would certainly entertain it.

      • JohnLopresti says:

        Thx for the memorandum opinion link.

        I think this was an outcome of the genre Republicans argued to guarantee by seeking to craft into parts of the Detainee Treatment Act narrowed access to courts for torture victims, though there were numerous allied arguments. A bundle of 100 cases consolidated, habeas denied in toto to the entire bunch. I think the similar remoteness features in parts of admiralty law provided allure to Goldsmith in his conservativism studies, and concomitantly rendered Goldsmith attractive for administration folks looking for multiple avenues for smokescreen+ tactics.

        I wonder if Center for Constitutional Rights has a catalog of current, or sequence of, host countries for the 100 habeas corpus claimants whose petition is denied. It would be surprising to find among the list of those destination countries any nation with strong habeas law practice++. In a subtle way, perhaps this is the zone of permissible bureaucratic slipage factor defense available to a system such as the US*, which has a robust history of habeas rights. The contrast of legal systems seems a steady theme in US policy developed for detainments to torture. There seems a threshold beyond which country of origin becomes less important than accessibility to sectarian ecclesiastical traditions for habeas, a zone which presents a difficult series of attributes for internationally recognizable fair adjudication (as in, ?Does ecclesiatical habeas exist within detainees* {putatively uniform} ideology?). These concerns, to some extent, are present in the Geneva Accords of 1949; and I would expect the UN to be reviewing ways to reinterpret and rebalance the expectations that the UN be some sort of mediator with a capacity for transcending nationstatehood, and addressing other ethnic value systems.
        +The bundling of detainees* habeas cases bore striking similarity, as an outcome, to a similar strategem as voiced by Byshco*s Kyle Sampson, he of **gum up the works**. [Link is to author Scott Horton article.]

        ++(a)I doubt any detainee among the 100 consolidated cases in Judge Hogan*s batch was shipped to, say, Australia and other British Commonwealth, France, Spain. It might be worthwhile to develop a list of countries with gradations of historical involvement in the ghostplane lockups, like a *number line*, to depict a sliding scale of robustness of habeas rights in those nations. (b) There may be a prototype of this kind of scale of robustness measurement on the international stage at Global Integrity Commons there; if I find time, perhaps that would be a worthwhile research project, as a beginning to start defining the real outcomes for the bundled 100 petitioners.

  4. sailmaker says:

    I am not a lawyer. I must be mistaken about the result of Hamdan was that the Constitution follows the flag: the military commissions were not sufficient (under current law) to hold terrorists, as followed from Hamdi (one gets to challenge one’s detention before an impartial judge). Why does the location of the body matter? If it is illegal (in theory) to transfer people to places where they torture, shouldn’t it follow that one can’t transfer people to places where they are beyond the reach of the law of the U.S. (in theory)?

  5. Margaret says:

    Denying habeus appeals and slaughtering civilians…two legacies among many others left to us by Bush which Orahma seems perfectly happy to continue. I don’t live in the United States anymore.

  6. spanishinquisition says:

    This is just showing how Obama’s Gitmo move is all just a charade. What went on at Gitmo under Bush isn’t stopping with Obama, but rather it’s just being hidden away.

  7. Mary says:

    Under the S. Ct’s ruling in Munaf v. Green, I think this was pretty predictable. That case involved a US citizen that the US military took and held overseas, then handed over to the Afghan gov for prosecution. The good news – Sup Ct unanimously held that there was a habeas right for those held overseas in US military detentions (even over the Eisentrager framed argument that they were really being held by “joint” forces and not US forces). The bad news – the court also unanimously held that it was perfectly ok for the military to “refuse to shield” those it detained from “local authorities” for crimes.

    I guess the legitimate query is – – why haven’t Blackwater guards been handed over to local authorities for their killings?

  8. Kassandra says:

    I keep yelling about how they’re trying to bring it on home to US…but nobody seems to get it. What? Do you think I’m a kook? It’s all over the net and Thom Hartman went on at length about this yesterday…how it’s already happening in
    the militarization of our police forces, due to Bush;s repeal of posse comitatus.
    FDL is getting warm but:
    Rights groups fear Graham bill will sanction indefinite detention

    McCain and Lieberman’s “Enemy Belligerent” Act Could Set U.S. on Path to Military Dictatorship

    Can’t BELIEVE the lefties have missed this one. Will we only know when the brown shirts start kicking down our doors…which they are already doing.

    The Hartmann episode is here:

  9. Mary says:

    BTW – also no habeas when they’ve blown up your body.

    Rupert Murdoch’s WSJ picks up pretty belatedly on the Koh speech from March

    They give his articulation of rationale:

    “In this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks,”

    and then add in, with very little objective disbelief, the CIA’s success story stats

    The Central Intelligence Agency has used drones to kill between 400 and 500 suspected militants since January 2009, senior intelligence officials say. The entire program has been expanded notably since Mr. Obama took office. While critics of the program cite collateral civilian deaths, intelligence officials say only about 20 civilians have been killed in that period—a lower estimate than that made by some independent researchers.

    And then there’s the other necessary element for that Koh-Dependency Doctrine of “self defense” by targeting “high level al-Qaeda leaders” – the underlying AUMF (which isn’t a direction to a civilian agency like the CIA to control kills anyway)

    Another potential pitfall: The Obama administration relies on a Bush-era congressional resolution as its main authority to track and kill suspected al Qaeda members. That 2001 resolution authorized the president to “use all necessary and appropriate force against those nations, organizations, or persons” deemed linked to the September 11, 2001 attacks—a justification that dims as time passes.

    So somehow the CIA has managed to kill 400 – give or take 100 (or 25%) – high level al-Qaeda leaders who wer linked to the Sept 11 2001 attacks! Who knew al-Qaeda had so many chiefs back then?

    Or wait – is the AUMF now being used for anyone who has objected to our occupation and civilian killing in Afghanistan and Iraq and drug warlords and opposition politicians and guys too close to Iran and people with names that sound like the names of guys we’ve already killed and …

    Nah – not that. We wouldn’t have a Bush-Obama Koh Dependent Doctrine for something like that.

    I’m sure they were all just as high level al-Qaeda as Abu Zubaydah. And al-Libi. And the pregnant women whose bodies were left with US calling cards carved on them as bullets were dug out to destroy the evidence. Koh-Dependency in action.

    After all, if no one ever leaves GITMO innocent, I’m sure Obama is making equally sure that no one ever leaves life innocent. I’m so glad for him that he won his torturers’ allegiance. It’s serving him and them both so well. I think this Easter they have all been really praying – that there is no God and that their children succumb easily to propaganda.

      • Mary says:

        It’s good to see Koh and Obama and Holder ending up to the left of – McChrystal.


        …to my knowledge, in the nine-plus months I’ve been here, not a single case where we have engaged in an escalation of force incident and hurt someone has it turned out that the vehicle had a suicide bomb or weapons in it and, in many cases, had families in it. That doesn’t mean I’m criticizing the people who are executing. I’m just giving you perspective. We’ve shot an amazing number of people and killed a number and, to my knowledge, none has proven to have been a real threat to the force.

        And he wasn’t even talking about carving bullets out of pregnant women and teenaged girls by his spec force guys.

        bmaz, Koh is a huge disappointment. You give the CIA a huge budget, the whole world, carte blanche to kill, no duty to get Presidential authorizations for each kill and put the President directly in the authorization to murder chain, and then give them drones and a bunch of blackwater goons and “intel” sources like the Jordanian doctor.

        What could possibly go wrong?

        If he can’t see that’s worse than Rice’s faux amaze, it’s beyond sad.

  10. tjbs says:

    Really do we have three interacting branches of government or did the AUMF replace the constitutional tri-powers with the power of a king or sovereign, instead of a co-equal government?

    I read the drones had killed 19 targets with 685 extras killed off. That CIA must be dyslectic to misinterpret those numbers. When I brought this up to Rep. Rob Andrews he didn’t dispute the numbers.

  11. endtimesgal says:

    Black hole ping pong. So they aren’t in Guantanamo so it doesn’t matter where they are(of course the reason they WERE in Guantanamo and the reason they are in our new improved see no evil prison somewhere else still leads back to the unitary executive) -and they have no rights anyway.

    It’s so nice America gets to play judge, jury and executioner without answering to anyone. Disgusting.

  12. MarkH says:

    I haven’t heard any recent estimates on how the anti-AQ war is going. If it has dwindled to nothing, then the AUMF is finished and I suppose some announcement could be made. But, who would want to be the politician who says al Qaeda is gone and then gets bit on the butt when some new guys take up the mantle and attack us again?

    If AQ is done, then our rationale for being in Afghanistan is to hold the area so terrorists can’t use it and to help the gov’t build strength.

    Our activities in Pakistan aren’t being discussed or reported at all. It’s hard to imagine we still need to be there. I say the quicker we can get out of there the better.

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