[Ppnews] Guantánamo - US Says 6 Years Not Long Enough to Prepare Evidence

Political Prisoner News ppnews at freedomarchives.org
Wed Sep 24 13:08:42 EDT 2008


September 24, 2008

Government Says Six Years Not Long Enough to Prepare Evidence

The Guantánamo Trials


Imagine being seized in Afghanistan or Pakistan, 
where you were, perhaps, a completely innocent 
man, sold for a bounty, or a Muslim soldier, 
fighting other Muslims in a civil war whose roots 
lay in the resistance to the Soviet occupation of 
the 1980s, which was partly funded by the United States.

Then imagine that, both during and after being 
treated with appalling brutality by US forces, 
you are given no opportunity to establish whether 
you are an innocent man seized by mistake, a 
soldier, or the victim of bounty hunters, and you 
are, instead, flown halfway around the world to 
an experimental offshore prison, where you are 
interrogated about your connections to al-Qaeda and Osama bin Laden.

At no point are you offered the protection of the 
Geneva Conventions (to which your captors are a 
signatory), which were designed to prevent the 
“humiliating and degrading treatment” of 
prisoners seized during wartime, and also to 
prevent their interrogation (prisoners may be 
questioned, but any form of “physical or mental 
coercion” is prohibited). Moreover, if you 
struggle to answer the questions put to you -- 
perhaps because you know nothing about al-Qaeda 
or Osama bin Laden -- you are not only 
interrogated relentlessly, you are also subjected 
to an array of “enhanced interrogation 
techniques,” which contravene the UN Convention 
Against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment, to which your captors are also a signatory.

Now imagine that, after six and a half years of 
this imprisonment -- in which, unlike convicted 
criminals on the US mainland, you have never been 
charged or tried, and have not been allowed a 
single visit from your loved ones -- the highest 
court in the United States rules, in 
v. Bush, that you have habeas corpus rights; in 
other words, the right to know why you are being 
held. And finally, imagine that, in response to 
this ruling, when the judges responsible for 
establishing the reviews have 
the cases to be addressed “as expeditiously as 
possible,” and have set a deadline for the 
government to comply, your captors turn around 
and say that, after holding you for up to 2,444 
days in Guantánamo, they need more time to prepare a case against you.

You would, I think, be appalled, and would 
conclude that the government was specifically 
dragging its heels for political purposes, hoping 
to avoid humiliation ahead of the Presidential 
election, and, in particular, hoping to prevent a 
replay of the verdict in 
v. Gates, the only case reviewed since the 
Supreme Court made its ruling in June, in which 
the judges -- two Conservatives and a Liberal, no 
less -- ruled that the designation of Huzaifa 
Parhat, a Chinese Muslim, as an “enemy combatant” 
was “invalid,” and lambasted the quality of the 
government’s evidence as being akin to a nonsense 
poem by Lewis Carroll, author of Alice’s Adventures in Wonderland.

And in this opinion you would, I think, be 
correct. When the Supreme Court ruled that the 
prisoners were entitled to “a prompt habeas 
corpus hearing,” and added that, “[w]hile some 
delay in fashioning new procedures is 
unavoidable, the costs of delay can no longer be 
borne by those who are held in custody,” it’s 
certain that they did not intend, over three 
months down the line, for the government still to 
be dragging its heels. In the immediate wake of 
the Supreme Court’s ruling, meetings were 
scheduled to appoint judges to review the 250 
cases and to set dates for the government and the 
prisoners’ defense lawyers to file their 
evidence. On July 11, the District Court dealing 
with the reviews “ordered the government to file 
factual returns at a rate of fifty per month, 
with the first fifty due by August 29, 2008.”

“Just before midnight” on August 29, however, 
with only 22 returns filed, the government filed 
an “instant motion” begging for more time, 
pleading that it “simply did not appreciate the 
full extent of the challenges posed by the 
extensive need for classified information in 
these cases when [it] proposed to complete the 
first set of factual returns by the end of 
August,” and asking for “partial and temporary 
relief” from the order of July 11. Specifically, 
as Judge Hogan noted in the opinion of September 
from which this article draws extensively, the 
government asked for an extension of 30 days. 
High-ranking figures -- the Acting General 
Counsel for the Department of Defense, the 
Assistant Attorney General for the Civil Division 
of the Department of Justice, and the Director of 
the CIA -- explained “the substantial resources 
and efforts the government has devoted to 
preparing factual returns and the risk of harm to 
the national security involved in releasing 
classified information to persons outside the Executive Branch.”

After noting that delaying the schedule by a 
month was neither “partial” not “temporary” 
relief, Judge Hogan agreed to grant the 
government’s motion. He stated that, after 
reviewing the declarations, “the Court is 
satisfied that the government is not dragging its 
feet in an attempt to delay these matters beyond 
what is necessary to protect the national 
security concerns associated with releasing 
classified information. These cases are not run 
of the mill; they involve significant amounts of 
sensitive, classified information concerning 
individuals whom the government alleges were part 
of or supporting the Taliban or al-Qaeda or other 
organizations against which the United States is engaged in armed conflict.”

However, Judge Hogan also noted that “the Court 
grants the government’s motion reluctantly,” 
explaining that “it is disappointed in the 
government’s failure to meet the schedule the 
Court adopted based in part on the government’s 
assurances.” Citing statements in which the 
government claimed that it had “attempt[ed] to 
meet its goal” and that it would “continue to 
strive to meet the 50-per-month requirement,” 
Judge Hogan added, pointedly, that the Court was 
“not merely setting a ‘goal’ for which the 
government is to ‘strive,’” but was, rather, 
“ordering the government to produce at least 
fifty factual returns by month’s end, followed by 
at least another fifty more each month thereafter 
until production is complete.”

In conclusion, while Judge Hogan recognized, as 
the government explained, that, since the Supreme 
Court ruling, its “[a]ttorneys and others from 
multiple agencies have worked long and hard, 
nights and weekends,” he reminded the executive 
that “the government has detained many of these 
petitioners for more than six years, and the time 
has come to provide them with the opportunity to 
fully test the legality of such detention in a prompt, meaningful manner.”

He added, with just a hint of irritation, that 
the decision to grant the prisoners the right “to 
fully test the legality of their detention 
through habeas corpus challenges” was “no bolt 
out of the blue,” as the government contended, 
because the Supreme Court had ruled, four years 
before (in Rasul v. Bush), that they had this 
right. This was, it seems, a barbed comment on 
the legislation passed by the government in the 
wake of Rasul (the Detainee Treatment Act and the 
Military Commissions Act), which was partly 
overturned -- and ruled unconstitutional -- in Boumediene.

The Court’s decision will be small comfort to the 
prisoners languishing in Guantánamo while the 
government does all in its power to avoid 
exposing its reasons -- or lack of reasons -- for 
holding them, but it shows, at least, that the 
judges responsible for reviewing their cases are paying attention.

Andy Worthington is a British historian, and the 
author of 
Guantánamo Files: The Stories of the 774 
Detainees in America's Illegal Prison' (published 
by Pluto Press). Visit his website at: 
He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk

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