Why Habeas Corpus Matters

Next week Congress should vote on the Defense Authorization Bill, which contains Lindsay Graham’s amendment stripping Guantanamo detainees of their right to file habeas corpus petitions. The point of habeas petitions is to allow prisoners to ask the government why they are in prison, and to allow a judge to decide whether the government’s answer holds up.

Graham’s amendment, in its last published version, would grant Guantanamo detainees the right to appeal the verdicts reached by their military tribunals. But that’s not a substitute for the right to file habeas petitions. To see why not, consider the latest development in a case I’ve written about before: the case of Abu Bakker Qassim and A’del Abdu al-Hakim. Here’s an article about the case, and here’s an op-ed by al-Hakim’s lawyer.)

This is a case that illustrates why habeas corpus matters. It could not have been brought if Graham’s amendment had been enacted, since the people who brought it have no reason to appeal the decision of their military tribunal. The military tribunal found that they were not enemy combatants; why would they want to appeal that? What they want to know is: since they were cleared months ago, why are they still locked up in Guantanamo?

Abu Bakker Qassim and A’del Abdu al-Hakim are Uighurs: members of an ethnic minority in Western China. They were picked up in Afghanistan a little over four years ago, by bounty hunters who had been promised $5,000 for each Taliban or al Qaeda member they turned over. But Qassim and al-Hakim were not, in fact, al Qaeda or Taliban, or any other sort of enemy combatant, according to the US military tribunal that cleared them last March.

You might think that once the two men had been cleared, they would be released. You’d be wrong. Having taken them into custody, the government can’t seem to find a place to release them to. Nor did the government bother to inform either their lawyers or the judge who was hearing their case that they had been cleared until their lawyers had a chance to meet with them last July, despite the fact that the justification for holding them was supposed to be that they were enemy combatants.

When the two men met with their lawyers for the first time, three and a half years after being taken into custody and four months after being cleared, they were shackled to the floor. They had not been allowed to contact anyone; when a newspaper article about them came out, one of their attorneys got a phone call in the middle of the night from his client’s sister, who had believed, for nearly four years, that her brother was dead.

During the last hearing I wrote about (warning: pdf), government claimed that it needed more time to ‘wind up’ Qassim and al-Hakim’s detention. Even then, it was not at all clear when the government would manage to let them go:

“”THE COURT: Counsel, you said that — you used the word ‘soon’ to describe when you thought that this might be resolved. Define ‘soon’.

MR. HENRY: I don’t know when that is. I apologize if I misspoke. I mean, I think I said ‘soon’ in kind of the hopeful sense of the word.””

(Last time I wrote about this, I added: “Ah: the hopeful sense. The sense in which it is true that I will “soon” win the lottery, publish my twenty-sixth book, finally become an organized person who answers her email on time, and realize my Buddha-nature.”)

Now, four months later, there has been another hearing (warning: pdf). Because during those four months, nothing has happened:

“THE COURT: I issued a memorandum order, as I said, nearly four months ago on August the 19th declining to decide whether the government really had such a wind-up power, because the parties were in agreement that both Hakim and Qassim should be and would be released. But that hasn’t happened. As far as I can tell, nothing is happening.

My first instinct when I heard this case was I didn’t want to hear ex parte representations from the government. I didn’t really want to have a public/private part of this, and my suspicions, my instincts were correct for reasons that I didn’t expect. They were correct because what I heard ex parte wasn’t any different from what I was hearing in the courtroom. There isn’t any — the government, if it’s making any progress at all, doesn’t even want to tell me about it ex parte.”

So: the government has met with the judge alone, to discuss in private its efforts to find a place where Qassim and al-Hakim can be released. But “the government, if it’s making any progress at all, doesn’t even want to tell me about it ex parte.” There is no evidence that the government is doing anything at all to find a way to release these men.

“THE COURT: I am more interested today in the fundamental underlying question, which is the basic motion to vacate the stay order and issue a writ directing the immediate release of the petitioners. It is getting to be time, and it may be time now, to fish or cut bait on this motion. I think the premise on which I declined to decide this three or four months ago was that the government was making good faith efforts, and that something would happen, and that we were not thinking about indefinite detention of these people because the government wants them released.

The time has stretched out to the point where indefinite is not an inappropriate word to describe what’s happened, and the question is whether I or anybody can or should tolerate that situation. And if it’s intolerable, what I or anybody else can do about it.

From the standpoint of the petitioners at Guantanamo Bay, it clearly is intolerable. It seems to me that I basically have three options. There’s a fourth option, and the fourth option is let’s wait a few more months, and I don’t frankly think that’s an option. I think we’ve had enough time.”

There follows an extended discussion of whether the Court has the authority to order the Uighurs’ release, and if so on what conditions; whether they can be released without being deemed to have “entered” the country, and so forth. But while these are crucial issues for the court, they are not the main issues as far as justice are concerned.

Abu Bakker Qassim and A’del Abdu al-Hakim are in Guantanamo not because they had done anything wrong, but because our government decided to pay bounty hunters for each alleged al Qaeda or Taliban member they turned over, and then to accept those bounty hunters’ word that the people they turned over were in fact enemy combatants. That is: our government set up a policy that created incentives for bounty hunters to pass off innocent people as enemy combatants, and Abu Bakker Qassim and A’del Abdu al-Hakim are victims of that policy and the perverse incentives it created.

As a result, they have been held incommunicado for a little over four years. Think about being imprisoned for four years because of a mistake. During most of those four years, their friends and family thought they were dead. At least one of them has children; he has missed four years of his children’s childhood, and they have spent four years not knowing their father. At least one of them is married; God alone knows what happens to a marriage when one spouse simply vanishes from the face of the earth, and the other has no idea what has happened to him for four years.

While I have a lot of concerns about Guantanamo, I do not fundamentally object to the fact that our government held Abu Bakker Qassim and A’del Abdu al-Hakim while it believed that they were enemy combatants. But it has been about nine months since they were cleared. And the fact that Abu Bakker Qassim and A’del Abdu al-Hakim are still in prison, nine months after our government determined that they had done nothing wrong, and that it was holding them by mistake, is just wrong.

Remember this case the next time someone says that the Graham amendment is about giving legal rights to terrorists. Abu Bakker Qassim and A’del Abdu al-Hakim are not terrorists. They are the victims of our government’s mistakes. And remember this case the next time someone says that the rights provided by the Graham amendment are an acceptable substitute for habeas corpus. The Graham amendment only allows Guantanamo detainees to appeal the findings of military tribunals. It does not allow detainees like Abu Bakker Qassim and A’del Abdu al-Hakim, who have no quarrel with the findings of their tribunals, to ask why, having been found innocent, they are still in prison.

Luckily, the Graham amendment was not in force when Abu Bakker Qassim and A’del Abdu al-Hakim brought their case. Had it been, they would not have been allowed to proceed, innocence or no innocence. As it is, they filed a habeas petition. The judge in the case has said that he will rule soon:

“The one thing that I am sure of is that I’m going to act on this motion within the next week or two one way or another. There isn’t going to be any more waiting. So if anybody has anything to say to me by way of augmenting the record — I don’t — thank you, Mr. Henry, for your offer to speak to me off the record, but I don’t want that. I’m just not going to be in that position. If you can tell me that they’re going to be released on X date, you can tell me that publicly. Or if you can tell me that they’re going to be released on X date and you have a date, I’ll accept that. But “diplomatic efforts are proceeding,” no thank you.”

But it’s only because they had habeas rights that they have a judge at all. If the Graham amendment passes, no other Guantanamo detainee who is cleared by a military tribunal will be able to ask a court to decide whether he can still be kept in detention. (And bear in mind that the government’s position is that it does not have to tell anyone when detainees are cleared.) Again: this is just wrong.

If you haven’t already, please call or write your Senators and Representatives and ask them not to support this amendment, especially if you live in the district of any of the Conference Committee members listed here. (And yes, I know that Duke Cunningham shouldn’t be on this list.)

Thanks — and thanks as well to Kevin Drum for letting me guest-blog, and to all of you for putting up with me.