JURIST Special Guest Columnist P. Sabin Willett
, a partner at Bingham McCutchen, LLP, working pro bono
with a team of Bingham lawyers in the Guantanamo habeas litigation, says that the detention of a Chinese Uighur is just one proof that the general, officially-articulated proposition that Guantanamo holds terrorists is a lie...
del's anniversary is coming up.
I met him one day last July, when he was chained to the floor of a hut in Guantanamo. Four months before, my firm had filed his habeas case, but I'd never seen or spoken to him before. Was he a terrorist? One of the worst of the worst?
You might be excused for thinking so. Vice President Dick Cheney says, "The people that are there [at Guantanamo] are people we picked up on the battlefield, primarily in Afghanistan. They're terrorists. They’re bomb makers. They're facilitators of terror. They’re members of Al Qaeda and the Taliban."
But last July I discovered what the Bush Administration had kept secret about Adel. They'd concluded he was not a terrorist, not an enemy soldier, not Al Qaeda, not Taliban, had never been on a battlefield or fired a shot in anger. He'd been sold to U.S. forces by bounty hunters from Pakistan.
On December 22, 2005, a federal judge ruled that the President's imprisonment of Adel is unlawful. Then he dismissed Adel's case. Adel is a "Uighur," a Turkic Muslim from the far western reaches of Communist China. A dissident, he cannot be returned to China because the Chinese would torture him, or worse. The judge concluded he could not order Adel's release within the continental US because that would be to infringe on the President's control of immigration. His lawyers think that was incorrect, but does it matter? The core function of a judge in a free society – remedying illegal imprisonment – is undone by immigration law
I used to think Adel was the exception. My guess now is that History will show he's the rule. Last month, Seton Hall Law Professor Mark Denbeaux published a study analyzing the Military’s own “combatant status review tribunal” records. He ignored what we lawyers say, and relied exclusively on military allegations. Here’s what he found.
The Vice President says they men are Al Qaeda fighters. What does the military say? Eight percent are al Qaeda fighters. Ninety two percent are not. The Vice President says these men were picked up on the battlefield. The military data show that five percent were picked up on the battlefield. How did we get the others? US forces distributed leaflets. One says, in Pashto:
Get wealth and power beyond your dreams …
You can receive millions of dollars helping the anti-Taliban forces catch al-Qaida and Taliban murderers. This is enough money to take care of your family, your village, your tribe for the rest of your life. Pay for livestock and doctors and school books and housing for all your people.
Eighty-six percent were sold to us by people who got the leaflets.
Vice President Cheney says they committed hostile acts against Americans or their allies. What do the data show? Fifty-five percent of the detainees committed no hostile act against the US or its allies or any one else. By the way, wearing a Casio watch is a "hostile act." So is fleeing from US bombing.
Who’s at Guantanamo? Privates, orphans, the poor, conscripts, cooks, drivers, persons who "associated with the Taliban" by inhabiting its prisons as enemies of its regime. The Taliban generals aren’t there. Some are busy in the Afghan parliament we helped construct. A former Taliban spokesman isn't there either. He’s a freshman at Yale.
The central lie of Guantanamo is the whopper: that as a general proposition it holds terrorists. The President, the Vice President, their amen chorus in Congress tell us so relentlessly. But if one searches the military’s findings for an act of violence against persons or property, for bombing or bombmaking or the teaching of bombmaking or planning or conspiring for it, fundraising, cheerleading – anything -- when one searches hundreds and hundreds of military records, one finds that this is, most of all, who isn't
When the history of all this is written no branch of our government will fare very well. The President will be remembered for the shabby inhumanity of this exercise, as well as the pointless ineptitude of imprisoning chicken farmers, stroke victims, and former prisoners of the Taliban. He bowed to theorists who lacked life experience or judgment. Or decency. On his watch they brought their fanciful notions out of the academy and into Guantanamo, where men were beaten, and Bagram and Abu Ghraib, where men were murdered. History will not be kind to him.
Nor to Congress, either. Last year, with trumpets blaring, Congress declared a ban on torture, voting sotto voce
to abolish the only remedy that might bring torture to light: habeas corpus at Guantanamo. Not so long ago, America's chief law enforcement officer blandly testified that the President is free to offend an act of Congress when he deems it necessary. The legislators clucked and scolded for a few hours -- then hastened to amend the act. The Republicans scramble to protect the President, while the Democrats are up on the roof with a windsock, trying to figure out what to believe in. History will not be kind to them either.
But I wonder if History will save its sternest verdict for the judicial branch. We like to think our judges are on the watch tower. In times of panic and folly, we rely on them for judgment and courage. Yet when our judges' moment came, they flinched.
It came on June 28, 2004. On that day, in the plainest possible words the Supreme Court of the United States ordered one court -- the United States District Court for the District of Columbia -- to hold factual hearings on the habeas cases. It ordered the judges to decide who was an 'enemy combatan'” and who a chicken farmer. "We ... remand these cases for the District Court to consider in the first instance the merits of petitioners’ claims," the Court said in Rasul v. Bush
. The Court did not remand to a lieutenant colonel in the Army, and it did not, after two years of litigation, remand for a test of the pleadings. It sent the case to a federal judge to hear the merits. Thus far only one has done so, and he found the imprisonment unlawful.
Through eighteen months, all the other district judges have begged someone -- Congress, the Court of Appeals, anyone -- to take the cup from them. The Executive filed motions challenging jurisdiction (again); appeals were taken; the district judges breathed a sigh of thanks and granted stays. The appeals grind on, and many of those stays are now more than a year old. Zadvydas v. Davis
teaches that indefinite imprisonment of aliens is illegal, but the district judges decreed an indefinite imprisonment in the habeas litigation nonetheless, and at last Congress let them all off the hook by voting to abolish habeas review at Guantanamo. Or not: now we are into a new round of briefs about whether the Detainee Treatment Act is retroactive. Another appellate exercise – well, that's
a mercy. It should keep the cup of judgment away for at least another year.
Do we have a judicial branch in this country, or Kabuki theatre? We can wait for History’s verdict, or we might just ask Adel. On March 26, 2006, he'll reach a milestone: one year since the military completed its determination that he is not an enemy combatant. He'll be celebrating that date behind concertina wire, at Camp Iguana, JTF Guantanamo Bay, Cuba.P. Sabin Willett is a partner at Bingham McCutchen LLP in Boston.