Journalism in the Public Interest

Appeals Court Makes It Easier for Gov’t to Hold Gitmo Detainees

The case could make it more difficult for prisoners at Guantanamo Bay to win release.


Handcuffs hang in a high-security detention facility at Guantanamo Bay, Cuba. (MICHELLE SHEPHARD/AFP/Getty Images file photo)

In a decision that will likely make it more difficult for Guantanamo prisoners to win release, the U.S. Court of Appeals for the D.C. Circuit today reversed a lower court’s ruling in the pivotal case of a Yemeni detainee.

In a 14-page decision, the appeals court rejected the lower court’s ruling to release Uthman Abdul Rahim Mohammed Uthman, who has been held at Guantanamo without charge since 2002. Uthman’s case and the government’s attempts to classify the legal opinions it generated were the subject of a ProPublica story.

The appeals court standard for detention has been laid out over the last year in a number of significant cases, and as with today’s case, each time in the government’s favor. The results have been a boon for the Obama administration’s efforts to keep certain Guantanamo detainees in custody.

Today’s decision further clarifies that standard by declaring that the government doesn’t need direct evidence that a detainee fought for or was a member of al-Qaida in order to justify a detention.

Much was riding on the Uthman case because he is among several dozen prisoners the Obama administration plans to hold indefinitely without charge. For other detainees, it will likely alter the way they can present their cases for release.

In 2008, Guantanamo detainees won the right to challenge the lawfulness of their detention in court. The first challenges were largely successful for detainees, but a number of significant cases have been pushed back at the circuit court.

Uthman filed a challenge, and in February 2010, District Court Judge Henry H. Kennedy, Jr. ruled that he was being improperly held and that the United States had failed to demonstrate that he was a member of al-Qaida. As ProPublica detailed, the government censored Kennedy’s decision and quickly appealed the case to a court that was already lowering the government’s burden for proving a prisoner’s detainability.

In another case last year, known as Salahi, the appeals court rejected a lower court’s standard that the government show direct evidence the detainee was a member of al-Qaida. In that case, the court sent the detainee back to the district court to have his habeas corpus petition reheard.

In today’s opinion, written by Judge Brett Kavanaugh, the appeals court went further by reversing the habeas win outright. In doing so, the court determined that circumstantial evidence, such as a detainee being in the same location as other al-Qaida members, is enough to meet the standard to hold a prisoner without charge.

That standard, the court wrote in its decision today, “along with uncontested facts in the record, demonstrate that Uthman more likely than not was part of al Qaeda.”

Benjamin Wittes of the Brookings Institution and the national security blog Lawfare attended Uthman’s appeals hearing in February and predicted that the government would prevail. Noting the circuit court’s emerging standards, Wittes wrote that if the appeals court ordered an outright reversal of the Uthman decision “a lot of other Guantanamo detainees are going to share his pain. His case could end up lowering the substantive bar for the government to prevail in these habeas cases.”

Jonathan Hafetz, a professor at Seton Hall University School of Law who has represented a number of Guantanamo detainees including Salahi, said today’s opinion significantly favors the government in ways the Supreme Court did not intend when it granted detainees the right to challenge detentions.

“The Uthman case cements the trend in the D.C. Circuit's decisions toward a broad and malleable definition of who can be considered ‘part of’ al Qaeda, combined with a highly deferential view of the government's interpretation of the facts,” Hafetz said, “In many cases, the result is indefinite detention based on suspicion or assumptions about a detainee's behavior.”

Hafetz argued that today’s decision conflicts not only with the approach taken by the district courts but also with the Supreme Court. Hafetz said the Supreme Court “mandated a meaningful judicial process in which the government would be called to account; Uthman says judges should not require much in the way of an answer.”

Wittes embraced today’s opinion, writing on his blog that the court’s opinion reflects the complex reality of Guantanamo Bay. Today’s case asks “whether a relatively spare string of incriminating facts can get the government over the hump. The answer now is clear: It can,” Wittes wrote.

“Many fewer detainees will prevail under this understanding of the government’s evidentiary burden than would prevail under one less tolerant of a mosaic of incriminating facts,” he wrote.

I wonder what the administration’s position would be if another nation held an American citizen indefinitely on the suspicion that he or she may be a spy?  Oh?  We already have them on record against such imprisonment?  Then it would appear that hypocrisy has become a virtue and not a vice.  Has the American flag changed as well?  Just asking.

Each time the law and the courts take one chip here and another there, and eventually we have no rights left or tenuous at best.  Each time it goes one step further until there is no steps left.  Each time they do it, and no one steps up to protest, it becomes accepted law.  Each time it’s accepted, even the High Court will accept it as law.  One knows we’re in trouble when they arrest and convict for only thinking a thought in one’s mind.  America HAS changed.  America HAS lost it’s way.  America NOW stands for injustice.  America IS on the low road.  America is NOT America.

The harm to the US by allowing arrest and indefinite detention without charge is greater than the harm these few individuals could do if released and deported.

Oh yea. Bet you won’t say that when one of these idiots gets out and blows up another building

to Rick:  to quote you, “Oh, yea.  Bet you won’t say that when one of those places you are vacationing grabs you and holds you indefinitely on suspicion of something absurd…  ”  Oh, and just to drive the point home, you won’t have the right to counsel, to contact with the American Embassy, or any meaningful judicial review.  Sort of the thing we always thought was so terrible about the Soviet Union, when it was in play.  Or, maybe, North Korea today. 
This is the United States of America.  The salient question is “why are we even having this discussion?”  The answer to that lies with Mr. Cheney, and his advisers such as John Yoo.

Just a thought.

john, you are absolutely right, of course.  But I can’t help but place most of the blame on those that know better, like Obama and conservative dems.  Cheney and Yoo are so hopelessly lost in their own private idaho I don’t think they know up from down.  But there are those who go along for the sake of politcal expediency and their corner in hell will be greasy, greasy.

This article is part of an ongoing investigation:

The Detention Dilemma

The government remains uncertain what to do with its prisoners at Guantanamo Bay.

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