Amicus Curiae Brief — United States, Petitioner v. Zayn al-Abidin Muhammad Husayn, aka Abu Zubaydah, et al.
Supreme Court briefAug 20, 2021
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No. 20-827
IN THE
Supreme Court of the United States
d
UNITED STATES OF AMERICA ,
Petitioner,
—v.—
ZAYN AL -ABIDIN MUHAMMAD HUSAYN ,
AKA ABU ZUBAYDAH , et al.,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
BRIEF FOR AMICUS CURIAE
CENTER FOR CONSTITUTIONAL RIGHTS
IN SUPPORT OF RESPONDENTS
BAHER AZMY
Counsel of Record
OMAR FARAH
KATHERINE GALLAGHER
PARDISS KEBRIAEI
MARIA LA HOOD
CENTER FOR CONSTITUTIONAL
RIGHTS
666 Broadway, 7th Floor
New York, New York 10012
(212) 614-6430
bazmy@ccrjustice.org
Attorneys for Amicus Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .....................................ii
STATEMENT OF INTEREST ................................. 1
INTRODUCTION AND
SUMMARY OF ARGUMENT .......................... 2
ARGUMENT ............................................................. 5
I.
INDEFINITE DETENTION AT
GUANTÁNAMO BAY ...................................... 6
A.
JUDICIAL REVIEW AND
COLLAPSE OF GUANTÁNAMO
MYTHMAKING........................................ 7
1. Judicial Rejection of Government’s
Assertion of Total Executive
Prerogative ...................................... 7
2. Exposure of Central Untruths
Undergirding Guantánamo
Detentions ..................................... 10
B.
OTHER EXAMPLES OF EXECUTIVE
OVERCLASSIFICATION AND
EXAGGERATION CAUSED
SERIOUS HARM ................................... 23
1. Deaths at Guantánamo ................ 23
2. Hunger Strikes .............................. 24
3. Secrecy Around “Targeted
Killing” Law and Policy ................ 26
4. Rendition to Torture ..................... 27
12775940
ii
TABLE OF CONTENTS
(continued)
Page
C.
THE DISTRICT COURTS HAVE
DEMONSTRATED EXPERTISE AND
COMPETENCE IN MANAGING
HABEAS CASES WITHOUT
JEOPARDIZING THE GOVERNMENT’S
ASSERTED INTEREST IN NATIONAL
SECURITY. ............................................ 29
CONCLUSION ....................................................... 32
12775940
iii
TABLE OF AUTHORITIES
Cases
Page
Abu Zubaydah v. Lithuania,
App. No. 46454/11, Eur. Ct. H.R. (31
May 2018) ............................................................... 3
Abu Zubaydah v. Poland,
App. No. 7511/13, Eur. Ct. H.R. (24
July 2014) ............................................................... 3
ACLU v. Dep’t of Justice,
No. 15-cv-1954 (CM), 2016 WL
8259331 (S.D.N.Y. Aug. 8, 2016) ......................... 27
ACLU v. Dep’t of Justice,
894 F.3d 490 (2d Cir. 2018) ................................. 27
Al-Adahi v. Obama,
No. 05-280 (GK), 2009 WL 2584685
(D.D.C. Aug. 21, 2009) ......................................... 31
Al-Adahi v. Obama,
613 F.3d 1102 (D.D.C. 2010) ............................... 31
Al-Aulaqi v. Panetta,
35 F. Supp. 3d 56 (D.D.C. 2014) ............................ 2
Ali Ahmed v. Obama,
613 F. Supp. 2d 51 (D.D.C. 2009) ........................ 31
Ali al-Marri v. Pucciarelli,
534 F.3d 213 (4th Cir. 2008) .................................. 8
Ali al-Marri v. Pucciarelli,
555 U.S. 1220 (2009) .............................................. 8
iv
TABLE OF AUTHORITIES
(continued)
Page
Al Nashiri v. Poland,
App. No. 28761/11, Eur. Ct. H.R. (24
July 2014) ............................................................... 3
Al Odah v. United States,
No. 06-1196. ......................................................... 22
Al Qahtani v. Biden,
No. 05-cv-1971 (D.D.C.) ....................................... 17
Al Rabiah v. United States,
658 F. Supp. 2d 11 (D.D.C. Sept. 17,
2009) ............................................................... 31, 32
Al Salami v. Bush,
No. 05-cv-2452 (PLF) (D.D.C.) ............................. 24
Al Shimari v. CACI Premier Tech., Inc.,
840 F.3d 147 (4th Cir. 2016) .................................. 1
Arar v. Ashcroft,
585 F.3d 559 (2d Cir. 2009) ............................. 1, 28
Associated Press v. U.S. Dep't of Def.,
395 F. Supp. 2d 15 (S.D.N.Y. 2005) ....................... 7
Boumediene v. Bush,
553 U.S. 723 (2008) ...................................... passim
Dickstein Shapiro, LLP v. U.S. Dep’t Defense, et al.,
No. 08-cv-226 (PLF) (D.D.C.) ............................... 24
v
TABLE OF AUTHORITIES
(continued)
Page
Gherebi v. Obama,
609 F. Supp. 2d 43 (D.D.C. 2009) ........................ 31
Hamdan v. Rumsfeld,
548 U.S. 557 (2006) .......................................... 3, 10
Hamdi v. Rumsfeld,
542 U.S. 507 (2004) ................................................ 9
Hamlily v. Obama,
616 F. Supp. 2d 63 (D.D.C. 2009) ........................ 31
Hammamy v. Obama,
604 F. Supp. 2d 240 (D.D.C. 2008) ...................... 31
In re Guantánamo Detainee Cases,
355 F. Supp. 2d 443 (D.D.C. 2005) ...................... 20
In re Guantanamo Bay Detainee Litig.,
Misc. No. 08-0442 (TFH), 2008 WL
4858241 (D.D.C. Nov. 6, 2008) ............................ 31
In re Guantanamo Bay Detainee Litig.,
2008 WL 5245890 (D.D.C. Dec. 16,
2008) ..................................................................... 31
Karnaz v. Bush,
No. 04-1135 (D.D.C.) ............................................ 21
Khan v. Bush,
No. 06-cv-1690 (RBW) (D.D.C.) ........................... 18
Padilla ex rel. Newman v. Rumsfeld,
243 F. Supp. 2d 42 (S.D.N.Y. 2003) ....................... 8
vi
TABLE OF AUTHORITIES
(continued)
Page
Padilla v. Hanft,
432 F.3d 582 (4th Cir. 2005) .................................. 8
Parhat v. Gates,
532 F.3d 834 (D.C. Cir. 2008) .............................. 15
Rasul v. Bush,
542 U.S. 466 (2004) ...................................... passim
Razak v. Obama,
No. 05-1601 (GK), 2009 WL 2222988
(D.D.C. July 22, 2009) .......................................... 31
Uthman v. Obama,
637 F.3d 400 (D.D.C. 2011) ................................. 31
Statutes
Detainee Treatment Act of 2005,
Pub. L. No. 109-148,
119 Stat. 2739 (2005) ........................................... 10
Military Commissions Act of 2006,
Pub. L. 109-366,
120 Stat. 2600 (2006) ........................................... 10
Other Authorities
Baher Azmy, Executive Detention,
Boumediene, and the Common Law
of Habeas, 95 Iowa L. Rev. 445
(Feb. 2010) ...................................................... 31, 32
vii
TABLE OF AUTHORITIES
(continued)
Page
Center for Constitutional Rights, Report
on Torture and Cruel, Inhuman and
Degrading Treatment at Guantanamo Bay, Cuba (2006) .................................... 16
Center for Constitutional Rights,
The Guantanamo Prisoner Hunger
Strikes and Protests (2005) ................................. 25
Geneva Convention Relative to the
Treatment of Prisoners of War art.
3(1)(a), Aug. 12, 1949, 6 U.S.T. 3316,
75 U.N.T.S. 135. ................................................... 15
House Hearing, 110th Congress –
Rendition to torture: The case of
Maher Arar – Serial No. 110-118
(Committee on Foreign Affairs) and
Serial No. 110-52 (Committee on the
Judiciary), Oct. 18, 2007 ...................................... 29
IG Joint Hearing Transcript, 110th
Cong. 56 (Statement of the
Honorable Richard L. Skinner,
Inspector Gen. of the Dep’t of
Homeland Security before Subcommittees of the House Foreign Affairs
and Judiciary Committees) ................................. 30
Jane Mayer, The Dark Side: The Inside
Story of How The War on Terror
Turned Into a War on American
Ideals (2008) ......................................................... 16
viii
TABLE OF AUTHORITIES
(continued)
Page
John Ashcroft, Never Again: Securing
America and Restoring Justice
(2006) ...................................................................... 8
John Brennan, Assistant to the
President for Homeland Security
and Counterterrorism, Speech at the
Wilson Center, “The Ethics and
Efficacy of the President’s Counterterrorism Strategy” (Apr. 30, 2012) .................... 27
Joseph Margulies, Guantánamo and the
Abuse of Presidential Power (2007) ...................... 6
Joseph Margulies, The Myth of the
Superhuman Terrorist, Natl. L.J.
(Nov. 23, 2009) ....................................................... 3
Larry Siems, The Torture Report: What
the Documents Say about America’s
Post 9/11 Torture Program (2012) ....................... 16
Mark Denbeaux et al., Death in Camp
Delta, Seton Hall University School
of Law, Center for Policy & Research
(Dec. 7, 2009) ........................................................ 24
Mark Denbeaux et al., No-Hearing
Hearings: CSRT: The Modern
Habeas Corpus? (Nat’l Sec. & For.
Rel. Law Journal 2006) ........................................ 20
ix
TABLE OF AUTHORITIES
(continued)
Page
Mark Denbeaux et al., Report on
Guantanamo Detainees: A Profile of
517 Detainees Through Analysis of
Department of Defense Data, Seton
Hall Pub. L Res. Paper No. 46
(2006), ................................................................... 12
Memo from President Bush to White
House Senior Executive Branch
Officials, “Humane treatment of al
Qaeda and Taliban detainees,”
Feb. 7, 2002 .......................................................... 15
Michael Ratner, Litigating Guantánamo, in International Prosecution
of Human Rights Crimes 202
(Springer 2007) ...................................................... 1
Muneer I. Ahmad, Resisting
Guantanamo: Rights at the Brink of
Dehumanization,
103 Nw. U. L. Rev. 1683 (2009) ............................. 3
Statement of Lieutenant Colonel Stephen Abraham, U.S. Army Reserve,
Upholding the Principle of Habeas
Corpus for Detainees, Before the
House Armed Services Committee
(Jul. 26, 2007) ....................................................... 22
Stephen I. Vladeck, The D.C. Circuit
after Boumediene, 41 Seton Hall L.
Rev. 1451 (2011) ................................................... 32
x
TABLE OF AUTHORITIES
(continued)
Page
The Office of the Sec’y of Def. & Joint
Staff, Testimony of Detainees Before
the Combatant Status Review
Tribunal, Set 21, 1645–88 ................................... 20
The Office Transcripts and Certain
Documents from Admin. Review Bd.
(ARB) Round One, Set 5 20000–254 ................... 21
Tr. of Hearing, Subcommittee on
International Organizations, Human
Rights, and Oversight of the House
Committee on Foreign Affairs (Serial
No. 111-53) (Jul. 16, 2009) ................................... 14
U.S. Dep’t of Homeland Sec. Office of
Inspector General, The Removal of a
Canadian Citizen to Syria, OIG-0818 (March 2008, publicly released
June 5, 2008) ........................................................ 29
U.S. Senate, Select Committee on
Intelligence, Committee Study of the
Central Intelligence Agency’s
Detention and Interrogation
Program (S. Rept. 114-8) (2014) .......................... 19
STATEMENT OF INTEREST 1
The Center for Constitutional Rights (“CCR”) is a
national not-for-profit legal, educational, and advocacy organization dedicated to advancing and protecting the rights guaranteed by the United States Constitution and international law. Since 9/11 CCR has
litigated dozens of cases challenging violations of international and domestic human rights law. CCR
twice successfully litigated Guantánamo detainee
cases to this Court, in Rasul v. Bush, 542 U.S. 466
(2004), and Boumediene v. Bush, 553 U.S. 723 (2008),
and since Rasul has coordinated the work of the hundreds of pro bono counsel working on individual detainees’ cases while directly representing numerous
clients in habeas proceedings and before the military
commissions. 2
CCR has also litigated challenges to the government’s practice of extraordinary rendition of foreign
nationals for interrogation in countries notorious for
torture, see Arar v. Ashcroft, 585 F.3d 559 (2d Cir.
2009), challenges to the torture and abuse of Iraqi citizens by private contractors in conspiracy with U.S.
soldiers, see Al Shimari v. CACI Premier Tech., Inc.,
840 F.3d 147 (4th Cir. 2016) (torture is legal, not political question), and the targeted killing of U.S.
All parties have consented in writing to the filing of this
amicus brief. Amicus and their counsel have authored the entirety of this brief, and no person other than amicus or their
counsel has made a monetary contribution to the preparation or
submission of this brief.
1
See generally Michael Ratner, Litigating Guantánamo,
in International Prosecution of Human Rights Crimes 202
(Springer 2007).
2
2
citizens, see Al-Aulaqi v. Panetta, 35 F. Supp. 3d 56
(D.D.C. 2014). CCR has also filed complaints in Germany, Spain, France, Canada, and in the International Criminal Court under the principle of Universal
Jurisdiction, seeking accountability against U.S. officials for torture.
CCR submits this amicus brief to document from
its experience many examples whereby government
claims to secrecy and attempts to foreclose judicial review on grounds of national security have served to
cover up incompetence, abuse, and violations of law
and which have otherwise not produced the harms to
national security the government reflexively recites.
The tailored judicial review authorized by the Ninth
Circuit in this case—like the judicial review made
available in other cases implicating national security
described below—correctly preferences democratic accountability over executive fiat.
INTRODUCTION AND
SUMMARY OF ARGUMENT
Respondent, Zayn al-Abedin Mohammed Husayn,
a.k.a. Abu Zubaydah, is an iconic victim of the sprawling, violent, and lawless so-called “global war on terror.” Abu Zubaydah was apprehended by U.S. forces
outside an active battlefield in a raid on a guest house
in Pakistan, then unlawfully transferred to a secret
overseas detention site where he was tortured by a variety of barbarous techniques, applied ever more
harshly for his lack of useful intelligence. He subsequently disappeared into an archipelago of secret CIA
“black sites,” where he was subjected to additional
sustained torture and abuse by U.S. officials in
3
violation of U.S. and international law, including prohibitions on inhumane treatment contained in Article
3 of the 1949 Geneva Conventions applicable to individuals such as Abu Zubaydah, 3 as well as the domestic criminal laws of the countries in which he was
held. 4 In 2006, he was transferred to Guantánamo,
where he has been held for fifteen years without
charge or trial. Like many Muslim individuals swept
up in post-9/11 U.S. counterterrorism practices, Abu
Zubaydah was demonized 5 and his boundless detention and mistreatment was fueled by baseless suspicion.
As outrageous as the government’s treatment of
Abu Zubaydah was, it was not exceptional. Amicus
CCR has represented many dozens of individuals
across a continuum of post-9/11 detention and torture
practices that the government has sought to conceal
from judicial review. CCR represented the first individuals challenging their incommunicado detention at
Guantánamo Bay and has since represented or otherwise assisted in the representation of dozens of others,
nearly all of whom, despite the United States’
3
Hamdan v. Rumsfeld, 548 U.S. 557, 629–30 (2006) (protections in Common Article 3 apply to persons placed hors de
combat by detention).
See Abu Zubaydah v. Poland, App. No. 7511/13, Eur. Ct.
H.R. at ¶ 171–74 (24 July 2014); Abu Zubaydah v. Lithuania,
App. No. 46454/11, Eur. Ct. H.R. at ¶ 212–13 (31 May 2018). See
also Al Nashiri v. Poland, App. No. 28761/11, Eur. Ct. H.R. at ¶
6 (24 July 2014).
4
Joseph Margulies, The Myth of the Superhuman Terrorist, Natl. L.J. (Nov. 23, 2009); Muneer I. Ahmad, Resisting Guantanamo: Rights at the Brink of Dehumanization, 103 Nw. U. L.
Rev. 1683, 1696 (2009).
5
4
exaggerated claims, had no meaningful connection to
9/11 or terrorism. CCR represented Majid Khan in habeas and before the military commissions, another
survivor of grisly torture in secret CIA custody, whom
the government fought to keep out-of-reach of legal
counsel upon his transfer to Guantánamo. CCR represented one of a number of victims of the government’s
“extraordinary rendition” program, Maher Arar, who
U.S. officials secreted from JFK airport to a grave-like
cell in Syria for the purpose of being interrogated under torture. CCR has also represented over 330 Iraqi
citizens subject to torture and inhumane treatment by
private contractor employees acting in concert with
U.S. soldiers at U.S. detention centers in Iraq.
CCR’s experience has revealed three basic truths
about the conduct of the United States government’s
post 9/11 detention and torture practices:
One: the government reflexively attempts to defeat
judicial review of its practices by asserting that executive branch interests in national security categorically trump the oversight role of the judicial branch.
Two: litigation revealed that the government’s initial attempts to foreclose judicial review were likely
not driven by creditable national security interests,
but by a fear of exposure of the U.S. government’s embarrassing and unlawful conduct.
Three: in nearly every case, the executive was
proved wrong. The asserted harms to national security were exaggerated or false, and courts were able to
competently manage their constitutional responsibilities while protecting bona fide national security interests in tailored ways.
5
ARGUMENT
In the twenty years since the United States initiated a so-called “global war on terror,” the government has reflexively opposed individuals’ access to
federal courts in order to challenge any of the myriad,
extraconstitutional counterterrorism policies the government pursued. Examples of this misguided government reflex are too numerous to catalog here, but are
nevertheless made evident from even a selection of
substantial legal challenges led by CCR. Each of these
examples show that the government’s impulse to assert total executive prerogative in order to evade judicial review—accompanied as it is in this case, by a
claim that any adjudication will irreparably harm national security—has proved demonstrably wrong.
When afforded the opportunity to undertake judicial review, district courts have consistently shown
“expertise and competence,” 6 in balancing a hearing
on the merits of a litigant’s claims with the government’s asserted interest in security. Moreover, that
adjudication ultimately pulled back the curtain covering the executive’s resistance to judicial review, to reveal a fear of revealing government mistruths, incompetence, and abuse. Given two decades of experience
(and beyond) with government exaggerations regarding the supposed harms judicial review would cause
to national security, the government should not be afforded a strong presumption of plausibility or deference to asserted national security harms in this case.
6
Boumediene v. Bush, 553 U.S. 723, 796 (2008).
6
I. INDEFINITE DETENTION AT
GUANTÁNAMO BAY
From its inception, Guantánamo has been a central component in the government’s global post-9/11
detention operation, founded as it was on the executive’s claim to unreviewable detention authority and
the power to facilitate unlawful interrogations with
impunity. 7 Publicly, the Bush administration sought
to defend the creation of a prison-beyond-the law at
Guantánamo by relying on three narratives it could
defend only as long as the prison remained free from
judicial review or legal constraint. First, administration officials routinely described detainees held there
as “the worst of the worst” or the kind of monsters who
could “gnaw the hydraulic lines in the back of a C-17
[military plane] to bring it down.” 8 Second, administration officials, despite eschewing the required protections of the Geneva Conventions, assured the public that detainees were being treated humanely.
Third, administration officials projected confidence
around the independence, competence, and correctness of their detention decisions. As demonstrated below, each of these narratives—sustainable only
through a regime of secrecy—was exposed to be untrue. See infra Section (I)(A)(2). These examples likewise display the executive branch’s exaggerated—and
sometimes demonstrably untrue—claims that tailored judicial review would harm national security.
See Joseph Margulies, Guantánamo and the Abuse of
Presidential Power (2007).
7
Katharine Q. Seelye, First ‘Unlawful Combatants’ Seized
in Afghanistan Arrive at U.S. Base in Cuba, N.Y. Times, Jan. 12,
2002, at A7.
8
7
A. JUDICIAL REVIEW AND COLLAPSE OF
GUANTÁNAMO MYTHMAKING
1. Judicial Rejection of Government’s Assertion of Total Executive Prerogative
Bush Administration officials, based on far-fetched
national security assertions, insisted on keeping the
names of detainees secret and otherwise holding detainees incommunicado. 9 Nevertheless, CCR learned
the identities of European and Australian detainees
and filed the first habeas petitions—on behalf of Next
Friend family members—in February 2002. 10
Throughout the litigation—culminating in this
Court’s decision in Rasul v. Bush (as well as in a companion case involving a U.S. citizen, Yasser Hamdi),
the government took a maximalist position regarding
executive prerogative, to the exclusion of any judicial
review. In Rasul, the government contended among
other jurisdictional arguments, that the military’s determination that “the Guantanamo detainees are enemy combatants,” and the President’s “conclusive[]
determin[ation] that the Guantanamo detainees ...
are not entitled to prisoner-of-war status under the
Geneva Conventions,” are total and conclusive, 11 and
Associated Press v. U.S. Dep't of Def., 395 F. Supp. 2d 15,
16 (S.D.N.Y. 2005) (Defense Department claims harm from possibility that “terrorist groups or other individuals abroad are displeased by something the detainee said to the Tribunal”).
9
10
See Rasul v. Bush, 542 U.S. 466, 471 (2004).
See Brief of Respondent at 36, Rasul v. Bush, No. 03-343
(U.S., Oct. 21, 2004).
11
8
that access to habeas and counsel would undermine
“the military’s ability to win the war.” 12
In other cases, such as Padilla v. Rumsfeld and Al
Marri v. Pucciarelli, the Bush Administration engaged in manipulative behavior to evade judicial review entirely. 13 And, when questioned in the Padilla
oral argument about the limits of the government’s
position—that is, if it would permit the commission of
torture—the then-Solicitor General indignantly responded, “our executive doesn’t ... [and] [w]here the
government is on a war footing ... you have to trust
the executive to make the kind of quintessential
12
Id. at 43.
In Padilla, just two days before a hearing on Padilla’s
motion to dismiss a material witness warrant, the President designated Padilla an “enemy combatant” and transferred him into
Defense Department custody, see Padilla ex rel. Newman v.
Rumsfeld, 243 F. Supp. 2d 42, 48–49 (S.D.N.Y. 2003), where he
was held incommunicado for months and subject to a brutal regime of isolation and interrogation, Moreover, just before its opposition to Padilla’s petition for certiorari from the Fourth Circuit’s decision approving his detention was due, the Government
indicted the putative “enemy combatant” in a seemingly transparent attempt “to avoid consideration … by the Supreme
Court.” Padilla v. Hanft, 432 F.3d 582, 585 (4th Cir. 2005).
13
Similarly, in Ali al-Marri v. Pucciarelli, the government
designated a lawful permanent resident apprehended in his
home in Peoria, Illinois and charged with bank fraud, as an “enemy combatant” the Monday after a district court judge scheduled a motion-to-dismiss hearing. 534 F.3d 213, 219, 220 (4th
Cir. 2008), vacated, 555 U.S. 1220 (2009). Attorney General Ashcroft explained that al-Marri was transferred to secretive military custody because he “insisted on becoming a hard case,” presumably because he elected to assert his constitutional entitlement to trial by jury. John Ashcroft, Never Again: Securing
America and Restoring Justice 168–69 (2006).
9
military judgments that are involved in things like
that.” 14 That statement was made just several days
before depictions of the “Gtmo-ized” prison in Abu
Ghraib revealed grotesque torture, humiliation and
cruelty toward the Muslim prisoners detained there. 15
Correctly rejecting the government’s absolutist position, this Court in Rasul concluded that the habeas
statute did apply to a territory like Guantánamo and
in part because of the historic function of habeas to
impose a check on the dangers of executive detention,
542 U.S. at 474. The Court thus authorized statutory
habeas challenges to the legality of indefinite detention there, and more fundamentally recognized the illegitimacy of a project of secretive executive detention
beyond the law. In Hamdi v. Rumsfeld, the Court likewise rejected the government’s claim that its detention decisions are left completely to executive discretion, explaining that the position “serves only to condense power into a single branch of government,” 542
U.S. 507, 535–36 (2004); see also id. (explaining that
war is not a presidential “blank check” and courts
must “exercise their own time-honored and constitutionally mandated roles of reviewing and resolving
claims [of individual rights] like those presented
here”).
Nevertheless, the government continued to make
every effort to resist judicial review contemplated by
Rasul (and released Hamdi to his home country
Charles Lane, Iraq Prison Abuse May Hurt Administration in Court, Wash. Post, May 13, 2004.
14
Rebecca Leung, Abuse of Iraqi POWs by GIS Probed, 60
Minutes II, CBS News, Apr. 27, 2004.
15
10
rather than produce a factual return substantiating
the grounds for his detention), seeking instead to create an exclusive and narrow regime of administrative
review of military detention decisions, shrouded in
continued secrecy, and incapable of making fair and
competent determinations, as it was later revealed.
See infra at 21 (discussing “myriad defects” of the military’s enemy combatant designation process via Combatant Status Review Tribunals (“CSRTs”)).
The executive branch meanwhile successfully lobbied Congress to pass successive jurisdiction stripping
provisions—the Detainee Treatment Act of 2005
(“DTA”) 16 and, following the conclusion of this Court
in Hamdan v. Rumsfeld that the DTA was not retroactive, 17 a fully retroactive jurisdictional strip in the
Military Commissions Act of 2006 (MCA)—which attempted to displace judicial review with the conclusive (and wildly flawed) results of the military’s secretive and defective CSRT determinations of detainees’
“enemy combatant” status. 18
2. Exposure of Central Untruths Undergirding Guantánamo Detentions
Even while the government attempted to forestall
bona fide habeas hearings to adjudicate the factual or
legal basis for detentions, a consequence of Rasul was,
16
Detainee Treatment Act of 2005, Pub. L. No. 109-148,
§ 1005(e), 119 Stat. 2739, 2741–42 (2005).
17
Hamdan, 548 U.S. at 662.
See Military Commissions Act of 2006 § 7, Pub. L. 109366, 120 Stat. 2600 (2006) (codified as amended at 28 U.S.C.
§ 2241(e) (2008)); Boumediene, 553 U.S. at 732–39 (describing
circumscribed judicial review under DTA-MCA scheme).
18
11
at a minimum, to guarantee detainees access to counsel—a process CCR took responsibility for coordinating. By mid-2006, nearly all Guantánamo detainees
had counsel such that access to first-hand accounts of
the detainees’ experiences—which the government
had desperately sought to keep secret under pretext
of national security—revealed that the government’s
defense of Guantánamo rested on a foundation of misrepresentations, chief among them that: (a) the detainee population were “the worst of the worst” or
“killer terrorists,” (b) detainees were treated humanely in Guantánamo; (c) the military could be
trusted to develop adequate processes and make competent judgments about who should be detained.
a. The Overwhelming Majority of
Detainees Had No Connections to
Terrorism.
At the same time high-level government officials
were publicly proclaiming that Guantánamo was
filled with individuals connected to 9/11, military and
intelligence officials privately understood (and sought
to keep secret) that Guantánamo was filled with individuals in the wrong place at the wrong time who were
swept up or turned over by inducement of substantial
bounty. 19 Studies of the government’s evidence
Brigadier General Martin Lucenti, then-deputy commander of the military task force that ran the detention center,
stated: “[o]f the 550 [detainees] that we have, I would say most
of them, the majority of them, will either be released or transferred to their own countries … Most of these guys weren’t
fighting. They were running.” Mark Huband, U.S. Officer Predicts Guantanamo Releases, Fin. Times (London), Oct. 4, 2004;
See also Tim Golden & Don Van Natta, Jr., The Reach of War;
19
(footnote continued …)
12
confirmed this to be true. 20 According to one such
study of the government’s proofs from 517 CSRT records, 86% of detainees were not apprehended on any
battlefield but rather arrested and placed in U.S. custody by Pakistan or the Northern Alliance after the
United States offered large financial bounties for the
capture of “Arab terrorists”; 21 only eight percent were
alleged to be al Qaeda fighters; 22 and a majority of
U.S. Said to Overstate Value of Guantanamo Detainees, N.Y.
Times, Jun. 21, 2004, at A1 (“Officials of the Department of Defense now acknowledge that the military’s initial screening of the
prisoners for possible shipment to Guantanamo was flawed.”);
Frontline: Son of Al Qaeda (PBS television broadcast Apr. 22,
2004), (quoting knowledgeable CIA operative as estimating that
“only like 10 percent of the people that are really dangerous, that
should be there and the rest are people that don’t have anything
to do with it, don’t even, don’t even understand what they’re doing here”).
20
Tom Lasseter, Day 1: America’s Prison for Terrorists Often Held the Wrong Men, McClatchy Newspapers, June 15, 2008,
(“An eight-month McClatchy investigation in 11 countries on
three continents has found that [there are] perhaps hundreds [of
men] whom the U.S. has wrongfully imprisoned in Afghanistan,
Cuba and elsewhere on the basis of flimsy or fabricated evidence,
old personal scores or bounty payments.”); Stuart Taylor, Jr.,
Falsehoods About Guantanamo, Nat’l J., Feb. 4, 2006, at 13
(studying Defense Department disclosures about detainees and
concluding that “fewer than 20 percent ... have ever been Qaeda
members[,]” that “perhaps hundreds ... of the detainees were not
even Taliban foot soldiers,” and that “[t]he majority were ...
handed over by reward seeking Pakistanis and Afghan warlords
and by villagers of highly doubtful reliability”).
See Mark Denbeaux et al., Report on Guantanamo Detainees: A Profile of 517 Detainees Through Analysis of Department of Defense Data, Seton Hall Pub. L Res. Paper No. 46
(2006), available at SSRN: https://ssrn.com/abstract=885659.
21
22
Id. at 4, 17.
13
detainees never participated in any “hostile acts”
against the United States or allies, but were detained
because of a varyingly loose “association with” one of
seventy-two groups the military asserted to have
some unspecified connection to al Qaeda or other terrorist groups; 23 others were detained simply because
they wore Casio watches or olive drab clothing. 24
Indeed, in a number of cases, habeas proceedings
revealed that the government kept individuals detained as enemy combatants despite clear knowledge
of their innocence. For example, the classified file for
former detainee Murat Kurnaz (later made public) revealed the government’s definitive conclusion that
Kurnaz had no connections to terrorism, despite their
insistence in the CSRT and in federal court that he
was an enemy combatant. 25 As early as 2002, U.S. intelligence officials concluded “there is no information
that Kurnaz received any military training or is associated with the Taliban or Al Qaeda,” that, according
to German intelligence officials in 2002, the “USA considers Murat Kurnaz’s innocence to be proven.” 26
23
Id.
Id. at 10; see also Editorial, They Came for the Chicken
Farmer, N.Y. Times, Mar. 8, 2006, at A22 (describing the case of
a chicken farmer in Pakistan, detained because his name resembled the Taliban deputy foreign minister’s name).
24
Carol D. Leonnig, Panel Ignored Evidence on Detainee;
U.S. Military Intelligence, German Authorities Found No Ties to
Terrorists, Wash. Post, Mar. 27, 2005, at A1 (quoting once-classified statements in Kurnaz’s file demonstrating that both the
U.S. military and his home German government recognize he
had no connections to terrorist groups).
25
Carol D. Leonnig, Evidence of Innocence Rejected at
Guantanamo, Wash. Post, Dec. 5, 2007, at A1; see also In re
26
(footnote continued …)
14
Because Kurnaz had no access to this definitively exculpatory evidence, and no counsel during the CSRT
process, he could not present these findings in defense
of the otherwise preposterous claims lodged against
him in the CSRT. See infra at 21.
Similarly, for the 22 Uighur detainees held at
Guantánamo, “[s]oon after they were picked up in
2002, [United States] intelligence and security personnel concluded that they posed no threat to the
United States.” 27 The Uighurs would nonetheless
spend years in Guantánamo as part of a secret quid
pro quo whereby the United States designated a purported Uighur group—the East Turkistan Islamic
Movement—as a terrorist organization as a pretext
for the Uighurs’ continued imprisonment, all in exchange for Chinese diplomatic acquiescence in the invasion of Iraq. 28 In fact, when the Uighur men sought
their release through judicial process, the government’s supposedly inculpatory classified evidence was
Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 470–71
(D.D.C. 2005) (discussing exculpatory evidence in Kurnaz’s classified file which he could not access to contest otherwise legally
insufficient charges against him); Baher Azmy, Epilogue to Murat Kurnaz, Five Years of My Life: An Innocent Man in Guantánamo 239, 235–51 (2008) (describing weakness of allegations
against Kurnaz); 60 Minutes: Nightmare at Guantánamo Bay
(CBS television broadcast Mar. 30, 2008) (disclosing evidence of
innocence in Kurnaz’s case).
See Tr. of Hearing, Subcommittee on International Organizations, Human Rights, and Oversight of the House Committee on Foreign Affairs (Serial No. 111-53) (Jul. 16, 2009) at 66
(“Tr.”). They were reportedly formally cleared for release from
Guantánamo by late 2003. See Robin Wright, Chinese detainees
are men without a country, Wash. Post, Aug. 24, 2005.
27
28
Tr. at 60.
15
all so similar it seemed to have a “common source”—
which the D.C. Circuit noted was credibly alleged to
be the Chinese government. Parhat v. Gates, 532 F.3d
834, 849 (D.C. Cir. 2008). That court, finding the “evidence” insufficient to justify their classification as
“enemy combatants,” ordered the government to either provide the Uighurs new hearings or release
them. Id. at 854. Two years later, the last of the 22
were resettled in third countries, after nearly a decade
in wrongful detention.
b. U.S. Military Officials Subjected Detainees to Torture and Cruel, Inhuman, and Degrading Treatment.
Even as the Bush Administration declared it
would not abide by provisions of the Geneva Conventions, including by necessity its prohibitions on torture and cruel, inhuman, and degrading treatment
(“CIDT”), 29 President Bush declared that “[a]s a matter of policy, the United States shall continue to treat
detainees humanely.” 30 In fact, as a matter of policy
and practice, the U.S. government engaged in a systematic practice of physical and psychological brutality that constituted torture and CIDT. 31
Geneva Convention Relative to the Treatment of Prisoners of War art. 3(1)(a), Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S.
135.
29
Memo from President Bush to White House Senior Executive Branch Officials, “Humane treatment of al Qaeda and Taliban detainees,” Feb. 7, 2002.
30
See generally, Larry Siems, The Torture Report: What
the Documents Say about America’s Post 9/11 Torture Program
31
(footnote continued …)
16
Once lawyers were able to access detainees whom
the U.S. had formerly kept incommunicado, they relayed story after harrowing story of detainee torture
and abuse. CCR catalogued these reports of torture
and abuse in a comprehensive 2006 report, 32 which included consistent accounts of: psychological abuse
(such as solitary confinement, light and sound manipulation, exposure to the elements and to temperature
extremes, prolonged sleep deprivation, and threats of
transfer for torture in another country); 33 physical
abuse, (including violent beatings, short-shackling
and other acutely painful stress positions); 34 sexual
provocation, rape and harassment; 35 and religious
and cultural humiliation. 36
Similar to Abu Zubaydah, the first Guantanamo
detainee to have a “special interrogation plan” drafted
in Washington to approve the methods of torture to be
applied to him in exacting detail was CCR client Mohammed al Qahtani, whose torture only became public when a log of his interrogation sessions was leaked
to Time magazine and published in 2005. 37 The
(2012); Jane Mayer, The Dark Side: The Inside Story of How The
War on Terror Turned Into a War on American Ideals (2008).
Center for Constitutional Rights, Report on Torture and
Cruel, Inhuman and Degrading Treatment at Guantanamo Bay,
Cuba (2006).
32
33
Id. at 16–20.
34
Id. at 20–22.
35
Id. at 24–25
36
Id. at 25–28.
See Adam Zagorin &Adam Duffy, Inside the Interrogation of Detainee 063, Time, June 20, 2005.
37
17
government eventually admitted that he had been
“tortured.” 38 But long before “special interrogation”
techniques were applied to al Qahtani to drive him to
the brink of madness, he was already manifesting
clear symptoms of his longstanding and severe schizophrenia. 39 The secrecy attending every aspect of al
Qahtani’s case shielded this grim irony from public
view for years—by which point the public’s attention
had moved on to even more egregious abuses perpetrated against detainees by the CIA.
On September 6, 2006, President Bush announced
the transfer of 14 so-called “high-value” detainees
from secret CIA detention to Guantánamo, including
Abu Zubaydah and CCR client Majid Khan. Later that
month, CCR filed a habeas petition on behalf of Khan
and sought prompt access to him at Guantánamo.
The government opposed the request for access to
Khan, arguing that affording him the ability to meet
with his lawyers threatened “exceptionally gave danger” to the United States because the “CIA had previously held Khan as part of a special, limited program
operated by that agency … in order to help prevent
terrorist attacks,” and many aspects of the program
Bob Woodward, Guantanamo Detainee Was Tortured,
Says Official Overseeing Military Trials, Wash. Post (Jan. 14,
2009) at A1 (quoting military prosecutor saying “We tortured Mohammed al-Qahtani”).
38
See Pet’r’s Opp’n to Mot. for Recon., Al Qahtani v. Biden,
No. 05-cv-1971 (D.D.C Feb. 26, 2021) (ECF No. 412) at 3–5 (noting inter alia that in 2002 the “FBI observed behaviors consistent
with psychosis, such as ‘talking to non-existent people, reporting
hearing voices,’ and ‘crouching in a corner of the cell covered with
a sheet for hours on end.’”).
39
18
remained classified. 40 In support of its opposition to
counsel access, the government provided a sworn declaration by a CIA information-review officer that
stated it was “imperative” to limit Khan’s access to
counsel because access “could prevent the CIA from
obtaining vital intelligence that could disrupt future
planned attacks,” and because “it is likely he will possess, and may be able to transmit to counsel” top secret classification materials. 41 All of this speculation
proved to be untrue.
After nearly a year, Khan was finally permitted to
meet with CCR attorneys in October 2007, which
caused no damage to national security. Details concerning Khan’s torture were also later revealed publicly in the Senate intelligence committee’s report on
the CIA program—including disclosure that Khan
was sodomized in CIA detention—without causing
damage to national security. Moreover, as with the
government’s since-retracted claim that Abu
Zubaydah was a member of Al Qaeda, the Senate report concluded that the CIA’s claims about the effectiveness of the torture program in gathering intelligence and disrupting terrorist plots were patently
false and misleading. 42
40
Khan v. Bush, No. 06-cv-1690 (RBW) (D.D.C. Oct. 26,
2006) (ECF No. 6) at 3–4.
41
Id. ECF No. 6-1 at ¶¶ 13, 15, 16.
U.S. Senate, Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program (S. Rept. 114-8) at 89 (2014) (“Truthfully,
though, I don't recall that the WB [waterboard] produced anything actionable in AZ [Abu Zubaydah] any earlier than another
technique might have.”).
42
19
In the end, contrary to the government’s initial
blanket invocation of classified information and
threatened harms to the United States, affording
Khan access to counsel and an adversarial process in
a military commission produced a fair an orderly result: in February 2012, Khan pled guilty to certain offenses and agreed to cooperate and provide his assistance to U.S. authorities.
c. Military Processes and Judgments
Were Rife with Bureaucratic
Incompetence and Bad Faith.
Central to its claimed entitlement to be free from
judicial review of Guantánamo detentions—as the
U.S. government again asserts to shut down
Zubaydah’s suit—is a confidently asserted executive
expertise in handling sensitive classified materials
and making military-style judgments. Yet once the
military’s administrative CSRT process—and correspondingly uniform decisions to find individuals detainable—was subject even to nominal scrutiny, the
military revealed itself to have no bona fide expertise
in judgment, to have acted in bad faith, and to have
otherwise displayed considerable bureaucratic incompetence. 43 Substantively, the process authorized detention of anyone—regardless of knowledge or intent—whom the executive believed “was part of or
supporting Taliban or Al Qaeda forces,” a definition so
elastic that the government had to concede in a postRasul hearing that it permitted the detention of “[a]
little old lady in Switzerland who writes checks to
See, e.g., Mark Denbeaux et al., No-Hearing Hearings:
CSRT: The Modern Habeas Corpus?, at 37–39 (Nat’l Sec. & For.
Rel. Law Journal 2006).
43
20
what she thinks is a charity that helps orphans in Afghanistan but [what] really is a front to finance alQaeda activities.” 44
The military used the CSRT process to put on show
trials. Among the among the “myriad deficiencies”
this Court found with the CSRT process, Boumediene,
553 U.S. at 729, detainees were presumed to be “enemy combatants” and left somehow to disprove this
determination even where, as in the majority of cases,
classified evidence not shared with the detainee
formed the basis of the “enemy combatant” designation. This produced innumerable darkly absurd exchanges between the manufactured tribunal and a detainee thousands of miles from home. 45 CSRTs ultimately did what they were constructed to do: find that
the government’s secretive determination was in fact
correct in 534 of 572 cases—a 93% confirmation rate. 46
The show trials also produced absurd results. As
described above, Murat Kurnaz’s classified file revealed the U.S. government knew him to be innocent
of any terrorist connections, but such conclusively
44
In re Guantánamo Detainee Cases, 355 F. Supp. 2d 443,
475 (D.D.C. 2005).
For example, one detainee was told that “[a]n al Qaida
leader said he knew you at a terrorist training camp.” But when
the detainee asked who made the allegation, the Tribunal President responded that “[t]he only information we have is that he is
a leader. This Tribunal doesn’t have his name. It is not available
to you in the unclassified.” The Office of the Sec’y of Def. & Joint
Staff, Testimony of Detainees Before the Combatant Status Review Tribunal, Set 21, 1645–88, at 1659, 1661.
45
Carol D. Leonnig, Evidence of Innocence Rejected at
Guantanamo, Wash. Post, Dec. 5, 2007.
46
21
exculpatory evidence was not provided to Kurnaz at
his hearing. Given this predicate procedural defect,
the CSRT was unconstrained in simply making up out
of thin air the public charges against him. Kurnaz was
a Turkish national, and his CSRT panel concluded
that a Turkish friend from his German hometown,
Selcuk Bilgin “engaged in a suicide bombing” that occurred in Istanbul in 2003, two years into Murat’s incommunicado detention. 47 Setting aside the astonishing legal proposition that an individual can face lifetime detention based on totally unknown and unknowable actions of an acquaintance thousands of
miles away, it was factually preposterous. His habeas
lawyers were able to instantly show that the suspected suicide bomber, Bilgin, was alive and well and
under no suspicions by German authorities. 48 And,
since the review scheme contemplated by the DTA
and MCA, the factual determinations of the CSRT are
taken as true, and foreclose independent evidence,
there would have been no judicial review of this lie
promulgated by the military to its umbrella assertion
of superior institutional competence.
Whistleblower testimony of Lieutenant Colonel
Stephen A. Abraham, “a long-time militaryDeclaration of James R. Crisfield Jr. at 11, Karnaz [sic]
v. Bush, No. 04-1135, Dkt. 25-1 (D.D.C. Oct. 18, 2004).
47
48
See Richard Bernstein, One Muslim’s Odyssey to Guantánamo, N.Y. Times, June 5, 2005, § 1, at 12 (reporting that
Bilgin suicide bomber allegations are untrue); see also The Office
Transcripts and Certain Documents from Admin. Review Bd.
(ARB) Round One, Set 5, 20000–254, at 20080, (affidavit of Bilgin
swearing that he is alive and has not undertaken any suicide
bombing); id. at 20084, (letter of local German prosecutor attesting that Bilgin suicide bomber charges are obviously false).
22
intelligence officer,” confirmed that CSRTs sometimes
operated in bad faith. He explained that evidence provided to the CSRT panels on which he served “lacked
even the most fundamental earmarks of objectively
credible evidence” 49 and that the CSRTs worked from
a pre-ordained determination of guilt:
When our panel questioned the evidence,
we were told to presume it to be true.
When we found no evidence to support
an enemy-combatant determination, we
were told to leave the hearings open.
When we unanimously held the detainee
not to be an enemy-combatant, we were
told to reconsider. And ultimately, when
we did not alter our course ... a new panel
was selected that reached a different result. 50
Nominal legal process—even short of the full adversarial hearings the habeas petitioners sought—revealed that the government’s asserted entitlement to
exclusive executive prerogative and superior institutional expertise was undeserved and that the judicial
function is essential to check against executive error
and malfeasance. That process strengthened our democratic institutions without causing any harm (beyond
harm to the nation’s credibility) to national security.
Reply to Opp’n to Pet. for Reh’g app. at vi, Al Odah v.
United States, No. 06-1196 (Jun. 22, 2007).
49
Statement of Lieutenant Colonel Stephen Abraham, U.S.
Army Reserve, Upholding the Principle of Habeas Corpus for Detainees, Before the House Armed Services Committee (Jul. 26,
2007).
50
23
B. OTHER EXAMPLES OF EXECUTIVE
OVERCLASSIFICATION AND EXAGGERATION CAUSED SERIOUS HARM
1. Deaths at Guantánamo
On June 10, 2006, the government reported the
first deaths of detainees at Guantánamo, of three
men—Salah Al Salami, Yasser Al Zahrani, and Mani
Al Utaybi. The government reported the deaths as suicides by hanging. 51 Senior government officials offered additional color, calling the deaths “asymmetric
warfare” and “a good PR move,” and comparing all
Guantánamo detainees to Nazis during World War
II. 52 Apart from cursory, self-serving statements characterizing the detainees and the deaths, the government offered no information to the public, habeas
counsel, or their families. It ignored requests from
medical experts retained by the families to conduct independent autopsies and to release information about
the condition of the bodies when returned home—with
scars and injuries. It opposed counsel’s efforts in habeas proceedings to preserve evidence relating to the
cause and circumstances of the deaths. 53 And it opposed FOIA litigation counsel brought after a year of
Sgt. Sara Wood, DoD Identifies Guantanamo Detainee
Suicides, Am. Forces Press Serv. (June 12, 2006).
51
52
See id.
Respt’s Opp. to Petr’s Mot. for Preservation Order, Al Salami v. Bush, No. 05-cv-2452 (PLF), Doc. No. 20 (D.D.C. filed
June 29, 2006).
53
24
repeated, failed attempts for information about the
deaths, citing a list of national security exemptions. 54
Ultimately, after pressure from litigation and
mounting domestic and international concern, and
over two years after the deaths were reported, the government finally released the results of its investigations—thousands of pages of material it had previously adamantly maintained could not be disclosed
without undue harm. 55 To be sure, the records were
riddled with inconsistencies and raised additional serious questions about a cover-up of the full circumstances surrounding the deaths, but the lesson still
stood—the government’s reflexive demand for total
secrecy about the treatment and deaths of Al Salami,
Al Zahrani and Al Utaybi was neither necessary nor
tenable.
2. Hunger Strikes
Widespread hunger strikes by detainees to peacefully protest their conditions and their indefinite detention, and the corresponding government attempts
to suppress information about them, have been a feature of the prison from its earliest days. Though there
were organized hunger strikes as early as 2002 and
2005, for example, which the government diminished
Defs’ Mot. for Summary Judgment, Dickstein Shapiro,
LLP v. U.S. Dep’t Defense, et al., No. 08-cv-226 (PLF), Doc. No.
13 (D.D.C. filed Aug. 22, 2008).
54
See Mark Denbeaux et al., Death in Camp Delta, Seton
Hall University School of Law, Center for Policy & Research
(Dec. 7, 2009).
55
25
or denied, 56 perhaps the most significant hunger
strike at Guantánamo occurred throughout 2013.
From February to March 2013, after more than
two years without a prisoner release, Guantánamo
prisoners began reporting that the overwhelming majority of the 166 prisoners there at the time were again
on hunger strike to protest their indefinite imprisonment. 57 Yet, the head of Southern Command would
only concede that 24 prisoners were on “hunger strike
light,” showing the government’s penchant for both
denial and word games. 58 The day he made that comment, eight prisoners were already being tube-fed. 59
The next month, the government would detail a “40
strong medical back up team” 60 to oversee the hunger
strike as the number of prisoners refusing food would
reach a high of 106 in July 2013, 46 of whom were being force-fed with tubes through the nose and into
their stomachs, in restraint chairs. 61 After the official
narrative was overtaken by mutually-reinforcing reports from prisoners that painted a picture of despair
at Guantánamo—and in the process rekindled
longstanding outrage about the prison—the
See generally Center for Constitutional Rights, The
Guantanamo Prisoner Hunger Strikes and Protests (2005).
56
57
Paul Harris, Guantánamo hunger strike much bigger
than reported, rights group claims, The Guardian Mar. 21, 2013.
58
Id.
59
Lazaro Gamio & Carol Rosenberg, Guantanamo: Tracking the Hunger Strike, Miami Herald, Dec. 2. 2013.
Matt Williams, Guantanamo Bay hunger strike prompts
arrival of medical back-up, The Guardian, Apr. 29, 2013.
60
Paul Harris, Guantánamo doctors must refuse to forcefeed hunger strikers—physicians, The Guardian, Jun. 12, 2013.
61
26
government imposed a total information blackout on
the number of hunger strikers 62 and, as if to wish
them away, darkly rebranded their protest “long term
non-religious fasting.” 63
This was a cynical turn of phrase given the effects
of hunger striking on CCR client, Tariq Ba Odah. By
2014, Ba Odah’s weight hovered at roughly 74 pounds
and yet the government undercut its own preparations for his release by withholding his potentially
scandalous medical records from prospective recipient
countries under the cynical pretext of protecting his
privacy. As one would expect given that it might hasten his freedom, Mr. Ba Odah had knowingly provided
written consent for their release through counsel. 64
3. Secrecy Around “Targeted Killing”
Law and Policy
The government’s reflexive attempt to preclude
even nominal scrutiny of its actions extends beyond
the detention context, to its “targeted killing” policy
and classification of information about even the legal
and policy dimensions of its actions. In the initial
years of the government’s controversial use of lethal
force against suspected terrorists outside recognized
battlefields, through covert drone strikes, it gave little
more than broad assurances and outlines addressing
62
Guantanamo detainees’ hunger strikes will no longer be
disclosed by U.S. military, Associated Press, Dec. 4, 2013.
Phil Stewart, U.S. calls Guantanamo hunger strikes
'non-religious fasting,' Reuters, Mar. 12, 2014.
63
Charles Levinson and David Rhode, Special Report: Pentagon thwarts Obama's effort to close Guantanamo, Reuters, Dec.
28, 2015.
64
27
the legality of its actions, 65 fighting FOIA requests for
meaningful information and disclosing little about the
legal and policy bases for the strikes, at a time when
thousands of deaths were being reported, including of
several American citizens. 66 Ultimately, and only
through the pressure of litigation and public advocacy, the government was compelled to be transparent
about at least some of the basics of its policy. 67
4. Rendition to Torture
CCR represented Maher Arar, a Canadian citizen
who was intercepted by United States officials in September 2002 as he transited through New York en
route home to Canada, detained for nearly two weeks
without judicial process, and then delivered to Syria
to be interrogated under torture, Arar v. Ashcroft, 585
F.3d 559, 566 (2d Cir. 2009)—a process euphemistically dubbed “extraordinary rendition.” 68 In Syria,
Mr. Arar was beaten, whipped with electrical cables,
See John Brennan, Assistant to the President for Homeland Security and Counterterrorism, Speech at the Wilson Center, “The Ethics and Efficacy of the President’s Counterterrorism
Strategy” (Apr. 30, 2012).
65
66
See Bureau of Investigative Journalism, Drone Warfare
Database,
https://www.thebureauinvestigates.com/projects/
drone-war (tallying 172-237 people killed by U.S. strikes in
Yemen, and 1992-3113 people killed in Pakistan, up to 2012); Peter Finn & Greg Miller, Anwar al-Awlaki’s family speaks out
against his, son’s deaths, Wash. Post, Oct. 17, 2011.
See, e.g., ACLU v. Dep’t of Justice, No. 15-cv-1954 (CM),
2016 WL 8259331 (S.D.N.Y. Aug. 8, 2016), vacated by, 894 F.3d
490 (2d Cir. 2018) (ordering public release of Presidential Policy
Guidance for the use of force outside areas of active hostilities,
among other policy documents).
67
68
585 F.3d at 563–64.
28
held in an underground grave-like cell, and interrogated relentlessly by Syrian officials asking questions
similar to those U.S. officials had asked him before. 69
He was released after a year without charge. 70
He sued various U.S. officials and the government
moved to dismiss on, inter alia, grounds of state secrets privilege. 71 The federal courts ultimately dismissed his claims on other grounds related to the purported need to protect secrecy and discretion in the
foreign policy and national security realms. 72
Canada, by contrast, saw no harm in transparency. Following a comprehensive investigation, a specially convened Canadian Commission of Inquiry exonerated Mr. Arar. The Commission’s findings were
set out in an exhaustive report, certain parts of which
the Canadian government tried unsuccessfully to conceal on national security grounds. Some of the unredacted information released under Canadian court order implicated the FBI and CIA. The Canadian government apologized to Mr. Arar and, in 2007, settled
Mr. Arar’s Canadian civil suit for 10.5 million Canadian dollars, with the Prime Minister urging the
United States to “come clean” and acknowledge “the
deficiencies and inappropriate conduct that occurred
in this case.” 73
69
Id. at 566, 587.
70
Id. at 587.
71
Id. at 574, 605.
72
Id. at 567.
Editorial, “Come clean” on Arar, Harper asks U.S., CBC
News, Oct. 6, 2006.
73
29
In 2007, soon after members of Congress offered a
public apology to Mr. Arar during a hearing where he
testified via video-link, 74 then-Secretary of State Condoleezza Rice admitted that the U.S. government had
mishandled his case. 75 In 2008, the Office of the Inspector General of the Department of Homeland Security issued a Report finding that U.S. officials had determined that Mr. Arar was entitled to protection
from torture, and that if sent to Syria, he would likely
be tortured, but that decision was later overridden. 76
The Inspector General testified that it was possible
that Mr. Arar was intentionally sent to Syria to be interrogated under unlawful conditions. 77
C. THE DISTRICT COURTS HAVE DEMONSTRATED EXPERTISE AND COMPETENCE IN MANAGING HABEAS CASES
WITHOUT JEOPARDIZING THE GOVERNMENT’S ASSERTED INTEREST IN
NATIONAL SECURITY.
House Hearing, 110th Congress – Rendition to torture:
The case of Maher Arar – Serial No. 110-118 (Committee on Foreign Affairs) and Serial No. 110-52 (Committee on the Judiciary),
Oct. 18, 2007.
74
Editorial, Rice Admits U.S. Erred in Deportation, N.Y.
TIMES, Oct. 25, 2007.
75
See U.S. Dep’t of Homeland Sec. Office of Inspector General, The Removal of a Canadian Citizen to Syria, OIG-08-18
(March 2008, publicly released June 5, 2008).
76
IG Joint Hearing Transcript, 110th Cong. 56 (Statement
of the Honorable Richard L. Skinner, Inspector Gen. of the Dep’t
of Homeland Security before Subcommittees of the House Foreign Affairs and Judiciary Committees).
77
30
In Boumediene, this Court again rejected the executive branch’s claim to make detention decisions free
from judicial scrutiny, finding the DTA’s scheme for
judicial review inadequate in light of many procedural
deficiencies, including the lack of provision for introduction of exculpatory evidence by the detainee. Expressing confidence in the “expertise and competence” 78 in the district courts to resolve undecided substantive and procedural questions, the Court directed
the lower courts to provide “meaningful” review in habeas proceedings. 79
The district courts proved this Court’s confidence
well placed, ultimately developing a “common law of
habeas” 80 to substantively limit the previously unbounded scope of the executive’s claim for detention
authority 81 and a procedural framework to govern all
aspects of the habeas proceedings, including discovery
and burdens of proof. 82 Courts managed evidentiary
78
553 U.S. 723 at 796.
79
Id. at 783.
See generally, Baher Azmy, Executive Detention,
Boumediene, and the Common Law of Habeas, 95 Iowa L. Rev.
445 (Feb. 2010).
80
See, e.g. Gherebi v. Obama, 609 F. Supp. 2d 43, 68
(D.D.C. 2009), abrogation recognized sub nom, Uthman v.
Obama, 637 F.3d 400 (D.D.C. 2011); Hamlily v. Obama, 616 F.
Supp. 2d 63, 74 (D.D.C. 2009).
81
In re Guantanamo Bay Detainee Litig., Misc. No. 08-0442
(TFH), 2008 WL 4858241 (D.D.C. Nov. 6, 2008), amended by,
2008 WL 5245890 (D.D.C. Dec. 16, 2008). Other judges in the
district largely adopted Judge Hogan’s Case Management Order
but made additions or alterations as they saw fit. See, e.g., Razak
v. Obama, No. 05-1601 (GK), 2009 WL 2222988, at *2 (D.D.C.
82
(footnote continued …)
31
matters, by excluding evidence obtained by torture
and obviously unreliable hearsay testimony 83 and
evaluating the sufficiency of the evidence. 84 In short,
the courts did exhibit “expertise and competence” in
managing habeas cases without any security breaches
or compromises to national security. 85 The district
court here, as in the Guantánamo cases, is fully
equipped to balance the interests of Abu Zubaydah
and the government in the adjudication of his case.
July 22, 2009) (ordering the government to produce any objects
or documents it relied on to justify detention).
83
Compare Ali Ahmed v. Obama, 613 F. Supp. 2d 51, 63
(D.D.C. 2009) (rejecting “nine-word hearsay allegation” transmitted without an interpreter and rejecting other evidence “due
to the fact that it was elicited at Bagram amidst actual torture
or fear of it”), with Hammamy v. Obama, 604 F. Supp. 2d 240,
244 (D.D.C. 2008) (granting extra weight to government hearsay
document because general allegations were corroborated by Italian law enforcement reporting).
See, e.g., Al-Adahi v. Obama, No. 05-280 (GK), 2009 WL
2584685, at *12 (D.D.C. Aug. 21, 2009) (rejecting witness accusation because of a host of “serious credibility problems that undermine the reliability of his statements”), rev’d by, 613 F.3d
1102 (D.D.C. 2010); see also Al Rabiah v. United States, 658 F.
Supp. 2d 11, 15 (D.D.C. Sept. 17, 2009) (describing the evidentiary record as “surprisingly bare” and granting habeas).
84
85
See Azmy, Common Law of Habeas, 95 Iowa L. Rev. at
537. That the D.C. Circuit, which has expressed open hostility to
this Court’s Boumediene decision, see Stephen I. Vladeck, The
D.C. Circuit after Boumediene, 41 Seton Hall L. Rev. 1451, 1455–
56 (2011), has chosen to override much of the district court’s adjudication in no way weakens the lesson about the competence of
the district courts to carefully manage cases assertedly implicating national security.
32
CONCLUSION
The history of U.S. post-9/11 policy and practice,
resulting in the rendition, torture, abuse and ongoing
detention of so many Muslim individuals, should caution this Court to withhold deference to the government’s traditionally reflexive, overbroad claim that
national security concerns and the need for secrecy defeat recourse to judicial review. This history and the
essence of the judicial role in our separation-of-powers
system requires the Court to draw the distinction between the legitimate exercise of the government’s prerogative to conceal sensitive information and its
demonstrated pattern of avoiding accountability from
the survivors—like Abu Zubaydah here—of its misjudgments and abuse.
August 20, 2021
Respectfully submitted,
BAHER AZMY
Counsel of Record
OMAR FARAH
KATHERINE GALLAGHER
PARDISS KEBRIAEI
MARIA LAHOOD
CENTER FOR
CONSTITUTIONAL RIGHTS
666 BROADWAY, 7TH FLOOR
NEW YORK, NY 10012
(212) 614-6464
bazmy@ccrjustice.org
Counsel for Amicus Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.