The ‘War on Terror’ goes to court

For a majority of Guantanamo detainees, US judges have found flimsy evidence linking the suspects to ‘terror’ groups.

US supreme court [GALLO/GETTY]
According to US officials, about 90 children were detained at Bagram Air Base as 'unlawful enemy combatants' [EPA]

Days after the attacks of September 11, 2001, the Bush administration started making decisions that led to the official authorisation of torture tactics, indefinite incommunicado detention and the denial of habeas corpus for people who would be detained at Guantánamo, Bagram, or “black sites” (secret prisons) run by the CIA, kidnappings, forced disappearances and extraordinary rendition to foreign countries to exploit their torturing services.

While some of those practices were cancelled when Barack Obama took office in January 2009, others continue to characterise US detention policy in the “War on Terror”. Even the cancelled policies continue to stain the record because there has been a total failure to hold the intellectual authors of these illegal practices accountable or to provide justice for the victims of American torture and extraordinary rendition.

This five-part series traces the detention policy debacle as it has evolved over the last 10 years.

Part 3: The war in court

In the context of the detention debacle, the importance of the courts was elevated in large part by the lack of alternatives. Congressional representatives in both houses, with a few exceptions – including then-Senator Barack Obama – demonstrated a bipartisan unwillingness to condemn the executive excesses of the Bush administration’s wartime policies, let alone pursue accountability for the authorisation of illegal practices.

Aside from some small-scale anti-torture demonstrations and online petition drives, the majority of Americans have been, at best, indifferent to the systematic abusive, violent and degrading treatment of prisoners, neither mobilising any meaningful opposition nor exacting any political price.

Public indifference may be explained in part by the fact that those subjected to some combination of torture; cruel, inhumane and degrading treatment; extraordinary rendition; and incommunicado detention have been foreign Muslims abroad – with a few exceptions at home (including Jose Padilla and Bradley Manning). No domestic constituency has been directly affected or perceived itself as imperiled by these practices.

Protest within the US against torture and illegal detention has been scattered [GALLO/GETTY]
Protest within the US against torture and illegal detention has been scattered [GALLO/GETTY]

But equally important is the fact that the general public is too ignorant of the legal issues and unaware of the facts about the government’s interrogation and detention policies to formulate intelligent, critical opinions, and their ignorance has been nourished by coverage in the mainstream media of specious arguments propounded by government officials, politicians and right-wing pundits that coercive interrogation methods, when done by us, are not “torture” and that they actually “worked”.

Since 2004, various forms of litigation have been mounted relating to the treatment of prisoners, including efforts to pursue their habeas rights in theory and practice; Freedom of Information Act cases (spearheaded by the American Civil Liberties Union) to access relevant data about custodial treatment, medical conditions and circumstances of capture; challenges to the legality of the military commissions (i.e., Hamdan v Rumsfeld ); and civil suits on behalf of people who were tortured by or at the behest of the US government (e.g., El Masri v Tenet, Arar v Ashcroft, Mohamed v Jeppesen Dataplan ).

Congress versus the Supreme Court

The Bush administration denounced such litigation and sought – usually successfully – to persuade judges that claims relating to the treatment of unlawful combatants are non-justiciable by invoking the “state secrets” privilege.

In 2005, to negate the right of Guantanamo detainees to access federal courts granted by the Supreme Court in the 2004 Rasul v Bush decision , the Republican-led Congress passed the Detainee Treatment Act (DTA) which included a jurisdiction-stripping measure to impede detainees’ access to federal courts for habeas or torture claims.

The Supreme Court’s Hamdan decision in June 2006, which ruled that the presidentially created military commissions and the jurisdiction-stripping language in the DTA were unconstitutional, also held that “War on Terror” prisoners have, at minimum, the rights and protections of Common Article 3 of the Geneva Conventions, which prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment”.

That decision undermined the efficacy of the Bush administration’s stock assertions that people classified as unlawful enemy combatants are rightless.


by ”Common

violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture… outrages upon personal dignity, in particular humiliating and degrading treatment.”]

At a September 16 press conference, President Bush denounced the Hamdan decision and mocked the vagueness of “outrages”. He announced that the White House was working with Congress to pass legislation to restore the military commissions. He also acknowledged for the first time the existence of the CIA’s programme and proclaimed that practices authorised for detainees held at black sites – including waterboarding – had been deemed “legal” by lawyers from the Justice Department’s Office of Legal Counsel. He said that 14 “high value detainees” (HVDs) in CIA custody, including the self-proclaimed architect of the 9/11 attacks, Khalid Sheikh Muhammad (KSM), were being transferred to Guantánamo.

In October 2006, Congress passed the Military Commissions Act (MCA) to resurrect the tribunal system that the Supreme Court had canceled. The MCA also included a clause to grant ex post facto immunity for violations of the 1996 War Crimes Act to shield government officials and state agents from prosecution for grave breaches of Common Article 3.

The MCA included even bolder jurisdiction-stripping language than the DTA: No court would have jurisdiction for an application of the writ of habeas corpus filed by a person “who has been determined by the US to have been properly detained as an enemy combatant or is awaiting such determination”. This “shall apply to all cases, without exception… which relate to any aspect of detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001”. Senator Obama voted against the MCA.

Bagram rising

From the start of the “War on Terror”, the Bush administration’s position on Guantánamo and Bagram had been essentially the same: foreign nationals captured abroad, classified as unlawful enemy combatants and detained at these facilities had no right to access US courts, and the judiciary had no oversight role for the government’s overseas detention policies. The preponderance of prisoner-related litigation challenging the legality of these positions emanated from Guantánamo, and the few cases that the government ultimately lost at the Supreme Court cut into the theory that detainees held there were beyond the reach of the law.

Although Guantánamo detainees began to have access to lawyers in 2004 , Bagram remained a closed facility where detainees were held incommunicado except for visits by the International Committee of the Red Cross. On September 28, 2006, the first Bagram habeas petition was filed in federal court by the New York City-based International Justice Network on behalf of Fadi al-Maqaleh, a Yemeni who was 20 years old when he was arrested sometime in 2003. On September 29, a petition was filed for Haji Wazir, an Afghan currency trader who was arrested in 2002 in Dubai (where he had a shop) and transported to Bagram. The two petitions were combined as Maqaleh v Gates.

In July 2007, District Court judge John Bates rejected the government’s motion to dismiss Maqaleh for lack of jurisdiction because three weeks earlier the Supreme Court had agreed to hear Boumediene v Bush , a Guantánamo habeas case that challenged elements of the 2006 MCA that blocked detainees’ access to federal courts.

On June 12, 2008, the Supreme Court ruled in Boumediene that the MCA unconstitutionally suspended the writ of habeas corpus for prisoners at Guantánamo because the US exercises “de facto sovereignty” over the facility. The Court also determined that the Combatant Status Review Tribunal process, instituted in July 2004, was a deficient substitute for this right. This was decisive in moving stalled Guantánamo habeas cases into federal courts.

Lisa Hajjar explores the dark world of secret prisons in a five part series
Part 3:  The ‘War on Terror’ goes to court

When district court judges began reviewing the materials in habeas cases, the government lost the majority of cases because that evidence did not stand up to scrutiny.

However, the government’s losing streak has been reversed on appeal by the heavily right-wing DC Circuit Court, which has crafted its decisions to ensure that no Guantánamo detainees, regardless of the flimsiness of evidence or credible assertions of interrogational violence, will be freed on a court order. 

Boumediene was decided during the 2008 presidential campaign. Republican contender John McCain called it “one of the worst decisions in the history of this country”, whereas Obama praised the Supreme Court for taking “an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus”.

The following month, lawyers representing Bagram detainees pressed to have the habeas rights provided by Boumediene  applied to their clients, too. To the petitions of Maqaleh and Wazir were added two others: Amin al-Bakri, a Yemeni gem trader who was arrested in Thailand in 2002, and Redha al-Najar, a Tunisian who was arrested at his home in Karachi, Pakistan, in 2002. The four petitions were consolidated.

Bagram is still a “legal black hole”

In the wake of the government’s loss in Boumediene , the Bush administration shifted its position to contend that the legal status of Bagram and the detainees confined there are essentially different from Guantánamo. The Justice Department filed a response to one of the Bagram habeas motions, which stated:

Federal courts should not thrust themselves into the extraordinary role of reviewing the military’s conduct of active hostilities overseas, second-guessing the military’s determination as to which captured alien as part of such hostilities should be detained, and in practical effect, superintending the Executive’s conduct in waging a war… [Al-Bakri] places much emphasis on his allegations that he is a Yemeni citizen who was captured in Bangkok, Thailand, while on a trip there in December 2002, and that the [CIA] detained him for some months before transferring him to US military custody in Bagram, Afghanistan… [His] allegation that he was not captured on a battlefield in Afghanistan is immaterial .”

The government maintained that the Authorisation To Use Military Force, passed by Congress on September 14, 2001, imposed no geographic limit on where detainees can be captured or held.

On January 8, 2008, The New York Times reported on a confidential ICRC report contending that there was a secret section of Bagram where detainees were held off the books and harshly abused before being transferred into the general population. That same month, the ICRC concluded protracted negotiations with US officials that initiated a programme of telephone and video calls between Bagram detainees and their families, and in September, some began to be allowed face-to-face visits with family members.

Not only have coercive methods failed to generate significant and actionable intelligence, they have also caused the squandering of resources on a massive scale.

by David Rose, Investigative journalist

As Amnesty International reported, in a November 2008 affidavit from a released Afghan journalist, Jawed Ahmed, who worked for Canadian Television News at the time of his arrest in October 2007, he had been allowed one 20-minute conversation every two months.

He said that “during those conversations I was not allowed to share information with them about my case, my treatment or anything else about Bagram. I was only allowed to say that I was fine (regardless of whether I actually was fine) and that I received good food and good treatment (regardless of whether I actually did).”

Through the end of Bush’s second term, at least 2,000 people had been detained at Bagram, including many of the 779 who ended up at Guantánamo. According to US officials, about 90 children had been detained as unlawful enemy combatants, and as of April 2008, 10 children were in custody there. The Afghan government demanded, but was denied, access to Bagram detainees because it refused the condition that meetings take place in the presence of US military officials.

The torture policy is a crime and a failure

Although the torture policy did not garner the political opposition it deserves, those Americans who have challenged it – mainly lawyers – did so because they recognise that torture violates the most basic tenet of the rule of law and is a gross crime under international law (in the same company with genocide and crimes against humanity). Moreover, the prohibition of torture is universal and applicable to all human beings under all circumstances, including in war and conflict. Challengers rejected the Bush administration’s proposition that the law could be disregarded or reinterpreted to grant the government the right to systematically abuse and harm people in custody.

Jawad al Ahmad, a former inmate at Guantanamo, said he was allowed a 20-minute conversation every two months [GALLO/GETTY]
Jawad al Ahmad, a former inmate at Guantanamo, said he was allowed a 20-minute conversation every two months [GALLO/GETTY]

In addition to its flagrant illegality, the torture policy was also a practical failure in its ostensible mission of eliciting valuable and accurate intelligence. By subjecting thousands of prisoners to protracted incommunicado detention and violent and dehumanising treatment, the quest for information and co-operation in critically important communities was as damned as the United States’ reputation abroad.

Some people allegedly revealed some information about al-Qaeda’s structure and operations under torture . But there is no evidence that, but for torture, this information could not have been elicited by legal and conventional interrogation methods, and there is plenty of evidence that much of what came out of torture sessions was false. Indeed, the American experience has verified the ageless truism that many people will say anything to make the torture stop.

In an online Vanity Fair article published on December 16, 2008, David Rose, an investigative journalist who interviewed numerous counterterrorism officials from the US and elsewhere, reported that their conclusions were unanimous: “[N]ot only have coercive methods failed to generate significant and actionable intelligence, they have also caused the squandering of resources on a massive scale…, chimerical plots, and unnecessary safety alerts.” A worst-case example of the failed policy is Ibn al-Shaykh al-Libi’s false claims about a connection between Saddam Hussein and al-Qaeda, a tortured lie that was used to justify a war that has cost tens of thousands of lives and trillions of dollars.

The flawed and criminal torture policy was compounded by protracted incommunicado detention and the denial of the right to a status review. Thousands of people who were arrested, interrogated and detained in the “War on Terror” were affected by these policies. The overwhelming majority was innocent of ties to “terror” organisations, and many continued to be interrogated harshly long after their innocence or lack of intelligence value was known by officials.

The torture policy has affected Americans, too: According to Matthew Alexander (pseudonym), an Air Force major who served as an interrogator in Iraq, the torture and abuse at Abu Ghraib and Guantánamo were cited as the main reason that foreign fighters were motivated to go to Iraq. Because many devastating bombings have been carried out by foreign fighters, “at least hundreds but more likely thousands of American lives (not to count Iraqi civilian deaths) are linked directly to the policy decision to introduce the torture and abuse of prisoners as accepted tactics”. Former Navy JAG Alberto Mora expressed a similarly scathing critique in his testimony on June 17, 2008, before the Senate Armed Services Committee.

The 2008 report by the bipartisan Senate Armed Services Committee rendered its own harsh judgment that the use of aggressive techniques “damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority”.

Yet it is these truths about the deleterious effects and consequences of the policy that President Bush and Vice-President Cheney as well as other enthusiasts for “enhanced interrogations” denied while they were in office and continue to deny. Without a thorough and impartial accounting of the detention policy debacle, specious claims of “success” and “legality” continue to compete in the public imagination as statements of fact rather than fantasy.

Lisa Hajjar is a professor of sociology at the University of California – Santa Barbara. Her research and writing focus on the laws of war and conflict, human rights, and torture. She is the author of Courting Conflict: The Israeli Military Court System in the West Bank and Gaza . She is also a co-editor of Jadaliyya and serves on the editorial committees of Middle East Report and Journal of Palestine Studies. Hajjar is currently working on a book about anti-torture lawyering in the US.

The views expressed in this article are the authors’ own and do not necessarily reflect Al Jazeera’s editorial policy.