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Guantánamo Bay: at last, justice — of a sort

In what many will see as long-delayed justice amounting to partial confirmation that the Bush administration actually had no case and had deliberately evaded the United States judicial processes for as long as possible, Judge Richard Leon has ruled in a District Court in Washington DC that five of six Algerians held in the infamous U.S. detention and torture centre at Guantánamo Bay on the island of Cuba must be freed. In the sixth case Judge Leon has ruled that there is sufficient evidence for detention. The five who have theoretically been freed have dual Algerian and Bosnian citizenship; they were first detained by the Bosnian authorities, but were acquitted in the Bosnian courts of charges that they were planning to blow up the U.S. embassy there. They had nevertheless been seized by the U.S. and taken to Guantánamo, allegedly because they were planning to travel to Afghanistan to fight U.S. forces. They had then been held at Guantánamo for nearly seven years without the possibility of trial until the U.S. Supreme Court ruled in June 2008 that a 2006 U.S. law stripping detainees of the right to bring habeas corpus suits against the U.S. government was unconstitutional.

As it happened, Judge Leon himself had ruled in 2005 that the Algerians had no habeas corpus rights; in his recent judgment he also expressed apparent displeasure at the Supreme Court ruling by saying that that it amounted to “superimposing the habeas corpus process into the world of intelligence gathering.” Yet it is precisely under the ordinary U.S. judicial process, including the right to habeas corpus, that Judge Leon has had to consider the actual evidence against these particular detainees. Even then the recent hearings were closed to the public, though Judge Leon’s conclusion is that the U.S. government’s case, which was founded on a single document from an unnamed source, was weak and provided no way of assessing the credibility of the accusation against the men.

This is the first time since the relevant Supreme Court ruling that the U.S. government, in the legal person of the Justice Department, has actually had to present evidence for holding particular detainees at Guantánamo. Judge Leon, a Bush nominee to this particular judicial post, may well have gone against his own inclinations in making his ruling, and has stated that his findings do not constitute a reflection on the strength of 200 other habeas corpus cases that have been filed by other Guantánamo detainees, but he has advised the U.S. government not to appeal his decision. He has added that seven years of unlawful detention is long enough, and has enjoined the prosecution to look hard at their evidence, presumably implying that an appeal would fail. In any case, an appeal could take another two years, and yet further proceedings could even entail indefinite detention of the detainees who have already won their case at first instance. But it is no surprise that the U.S. Defence Department, with the Bush administration still firmly in place, is planning an appeal.

It is now inescapably obvious that in its so-called war on terror the United States has repeatedly engaged in the indiscriminate seizure, indefinite detention, and torture of perfectly innocent people and low-level pawns together with a much smaller number who are still only allegedly much more dangerous and experienced commanders of terrorist outfits. The Bush administration, however, is apparently incapable of admitting any kind of error, let alone gross moral and legal wrongdoing or flagrant breaches of international law, and will probably contest — at the U.S. public’s expense — all the remaining 200 or so habeas corpus cases, or however many reach the courts before the Obama administration takes office on January 20th 2009. A former federal prosecutor has even said the U.S. constitutional separation of powers allocates to the executive, in the form of the military, the power to define who is and is not an enemy combatant in wartime; that simply looks like a casuistical attempt to justify keeping the issues out of the U.S. courts. Even as an empirical matter, if the U.S. military are so brilliant in defining enemy combatants, then an explanation is needed of why 400 or more of the approximately 700 Guantánamo detainees have been quietly released without charge.

The five who have just won their case can contemplate at least the possibility of a return to Algeria or, more probably, to Bosnia. Substantial proportions of the remaining detainees, even if they win their forthcoming U.S. cases, will face torture or death at the hands of their own governments, many of which are brutal dictatorships and have not even the last-ditch judicial recourse that has been made belatedly available in the U.S. A further cruelty is that few if any third countries will accept them, even if they are completely cleared by the U.S. courts.

In wider terms, the numbers involved are small, but that fact does not diminish the magnitude of the moral, if not legal, injustice the released detainees will almost certainly suffer.

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