The Supreme Court has refused to hear any new Guantánamo appeals even though half of the men being held were cleared for release five years ago. Critics of Monday’s decision say it leaves the fate of prisoners — many of them long cleared for release — in the hands of a conservative D.C. Circuit Court of Appeals, which has constantly sided with military prosecutors and refused to order the release of any prisoner. The high court also refused to reinstate a lawsuit by former "enemy combatant" José Padilla against former Secretary of Defense Donald Rumsfeld. We’re joined by two guests: Shayana Kadidal, senior managing attorney of the Guantánamo Global Justice Initiative at the Center for Constitutional Rights, and investigative journalist Andy Worthington, who reports that of the 169 prisoners still held, over half — 87 in total — were cleared for release by President Obama’s Guantánamo Review Task Force. "In a lot of practical ways [the Supreme Court decision] marks the end of the Guantánamo litigation that began more than 10 years ago. ... Detainees have won about two-thirds of their challenges in the trial courts, but the D.C. Circuit ... has overturned every single one of those cases that’s been appealed to it. And in doing so, it’s created standards that make it virtually impossible to win a case." [includes rush transcript]
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: On Monday, the Supreme Court declined to take a new look at the rights of prisoners held for the past decade at the U.S. military prison in Guantánamo Bay, Cuba. The court originally affirmed the prisoners’ legal right to challenge their confinement and seek their release in a landmark ruling four years ago today. But this time, the justices rejected, without explanation, the appeals of seven of the 169 men being held in the military prison.
The high court also refused to reinstate a lawsuit by former "enemy combatant" José Padilla against former Secretary of Defense Donald Rumsfeld. Padilla is the U.S. citizen who was held for 43 months without charge in a Navy brig in South Carolina.
Critics of Monday’s decision say it leaves the fate of prisoners—many of them long cleared for release—in the hands of a conservative D.C. Circuit Court of Appeals. The lower court has constantly sided with military prosecutors and refused to order the release of any prisoner.
For more on Guantánamo, we’re joined by two guests. Here in New York, Shayana Kadidal is senior managing attorney of the Guantánamo Global Justice Initiative at the Center for Constitutional Rights, which has represented many of the prisoners at Guantánamo. And in London we’re joined by investigative journalist Andy Worthington, whose latest piece is called "Guantánamo Scandal: The 40 Prisoners Still Held But Cleared for Release At Least Five Years Ago." In it, he reports that of the 169 prisoners still held, over half—87 in total—were cleared for release by President Obama’s Guantánamo Review Task Force. He’s the author of the book The Guantánamo Files: The Stories of [the] 774 Detainees in America’s Illegal Prison and co-director of the film Outside the Law: Stories from Guantánamo.
We welcome you both to Democracy Now! Shayana Kadidal, first respond to yesterday’s Supreme Court ruling.
SHAYANA KADIDAL: Right, Amy. I think it really, in a lot of practical ways, marks the end of the Guantánamo litigation that began more than 10 years ago. As you said, it’s been four years since the Supreme Court decided a Guantánamo case, in Boumediene. And since then, detainees have won about two-thirds of their challenges in the trial courts, but the D.C. Circuit, the court of appeals between the Supreme Court and the trial court, has overturned every single one of those cases that’s been appealed to it. And in doing so, it’s created standards that make it virtually impossible to win a case.
AMY GOODMAN: And how did it break down yesterday?
SHAYANA KADIDAL: Well, so, seven of these cases where detainees lost were on appeal to the Supreme Court. The court had gathered them a couple weeks ago and had been considering them every week at its conference. And, you know, this left us hopeful that maybe, you know, they were going to review a case. We had thought, up 'til this point, that one of the problems was that Justice Kagan had been excusing herself from hearing any of these cases because of her role as an Obama administration insider. But in yesterday's cases, there was no indication that she recused herself from voting on any of these cases. And the entire Supreme Court apparently had no interest in taking on these cases. There wasn’t even a single dissent from the denial of review of these D.C. Circuit decisions.
AMY GOODMAN: Andy Worthington, talk about the number of people at Guantánamo right now and the number who have been cleared for release years ago.
ANDY WORTHINGTON: Well, yes, Amy, as you said, there are 87 of the 169 prisoners still held who have been—had their release approved, some going back as far as 2004 by military review boards established under President Bush. And in all the years since then, there were then further decisions that were taken by the commander of Guantánamo. These details were revealed in the classified military files that were released last year by WikiLeaks, on which I worked. And I’ve been analyzing those for the report that you mentioned. And all of these people then subsequently had their release approved by the task force that was set up by President Obama in 2009 of career officials and intelligence agency officials, who spent a year going through all the cases deciding who should be released and who should still be held.
AMY GOODMAN: Andy, one of the Guantánamo Bay prisoners that you write about is a Yemeni man who’s come forward to back accounts of worsening torture after President Obama took office. In a 2009 letter to his attorney, Adnan Farhan Abdul Latif wrote, quote, "I have seen death so many times. Everything is over. Life is going to hell in my situation. America, what has happened to you?" Abdul Latif has been in prison since 2001. Andy Worthington, talk more about his case, where he’s from, how he ended up at Guantánamo and remains there.
ANDY WORTHINGTON: Well, his case is absolutely central to everything that’s happening right now. He was—he’s a Yemeni. He said that he traveled to Pakistan to seek medical assistance for a severe head wound that he had received in Yemen and was told that he could get treatment there and that it would be affordable. This is a story that, it seems to me, was actually believed by the authorities in Guantánamo.
He was approved—he’s one of these prisoners who was approved for transfer under President George W. Bush in 2006, at the very latest, possibly earlier than that. He was then—had his release approved by Obama’s task force. He won his habeas corpus petition, as well. But because the judges of the D.C. Circuit Court, you know, a bunch of very right-wing judges, I think that—I think that objectively it’s absolutely fair to say that these people are very right-wing, who have been clamping down on the ability of the lower courts to approve the release of Guantánamo prisoners under any circumstances—you know, they reversed the ruling in Latif’s case, and they relied for that on saying that an intelligence report, which they even said was—you know, was produced in haste under battlefield conditions, should be believed. They’ve pushed it further than before, in Latif’s case, about the standard of evidence that’s required to continue to hold prisoners. So, his was one of the seven appeals.
And it’s absolutely central, on every basis, including the fact that he’s a Yemeni. And, you know, two-thirds of these cleared prisoners are Yemenis. But ever since we had the scandal with Umar Farouk Abdulmutallab, who was a Nigerian apparently trained in Yemen, there was a huge uproar, and the president issued a moratorium saying that no more prisoners would be released to Yemen. And he’s been true to his word.
So, you know, on every level, Latif and all these other men that we’re talking about—but Latif is emblematic—has been failed by every branch of the United States government. The administration, the courts and the—and Congress have all acted to prevent the release of any prisoners from Guantánamo. And it’s a political disgrace that I think is extremely serious. And I think it’s also extremely worrying that most of the mainstream media in the United States doesn’t report it at all.
AMY GOODMAN: I want to play a comment from U.S. Court of Appeals—
ANDY WORTHINGTON: Sure.
AMY GOODMAN: —Judge Raymond Randolph, who was—ruled Guantánamo prisoners did not have rights under the U.S. Constitution. In a 2010 speech called "The Guantánamo Mess," he expressed contempt for the Supreme Court’s later ruling that prisoners had constitutionally guaranteed right of habeas corpus review. As the basis for the speech’s title, Judge Randolph compared the justices who reached it to characters in The Great Gatsby. This is a clip.
JUDGE RAYMOND RANDOLPH: They were careless people, Tom and Daisy—they smashed up things and creatures and let other people clean up the mess they had made. Two years ago, in a case called Boumediene v. Bush, a five-justice majority of the Supreme Court declared that habeas corpus jurisdiction extended beyond the shores of the United States. This, they said, was a matter of American constitutional law. The Boumediene ruling was unprecedented, not just in this country in modern times, but throughout the ancient history of habeas corpus jurisprudence. Boumediene ripped up centuries of settled law, and it left in its wake the title of my talk tonight: "A Legal Mess."
AMY GOODMAN: That is U.S. Court of Appeals Judge Raymond Randolph. The significance of Raymond Randolph talking about this and what he’s saying, Shayana Kadidal?
SHAYANA KADIDAL: Sure. Well, Randolph was a judge who was overturned three different times by the Supreme Court in Guantánamo cases—in the two habeas cases and in the case about military commissions, as well. So maybe he has reason to be bitter. But the D.C. Circuit, easily the most conservative court of appeals in the country, there are three vacancies on it, but Obama hasn’t managed to name a single person to the court. And they’ve been openly contemptuous, not just Randolph, but other judges who characterize Boumediene as full of airy suppositions and openly taunted the Supreme Court, saying if they actually took on a case, maybe they’d have—you know, take—have some sense of responsibility for what they had done in Boumediene. Again, they’ve made it practically impossible to win a case, which is why I think you’re seeing very little litigation now in the lower courts.
AMY GOODMAN: I wanted to go to a clip of President Obama. Shortly after taking office in January 2009, he signed an executive order calling for Guantánamo’s closure within a year.
PRESIDENT BARACK OBAMA: In order to effect the appropriate disposition of individuals currently detained by the Department of Defense at Guantánamo and promptly to close the detention facility at Guantánamo consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order.
AMY GOODMAN: Since making that pledge, Obama has faced bipartisan opposition in Congress, with lawmakers blocking funds, preventing the transfer of Guantánamo prisoners to U.S. soil. The latest Pentagon spending bill, signed into law by President Obama, mandates indefinite imprisonment for all—for al-Qaeda prisoners. In January 2011, White House Press Secretary Jay Carney said President Obama is still determined to close Guantánamo.
PRESS SECRETARY JAY CARNEY: The commitment the president has to closing Guantánamo Bay is as firm today as it was during the campaign. We all are aware of the obstacles to getting that done as quickly as the president wanted to get it done, what they were and the fact that they continue to persist. But the president’s commitment hasn’t changed at all. And it’s the right thing to do for our national security interests.
AMY GOODMAN: Shayana Kadidal, what does that mean? That statement by Jay Carney is over a year ago.
SHAYANA KADIDAL: Right. You know, I think it’s really a bit of a false narrative to claim that the president has been hamstrung by Congress. If you look back in April 2009, when the first resistance from the Republicans to closing Guantánamo was starting to emerge in the form of, you know, these bills to prevent bringing people to the U.S. for trial or resettling asylum seekers who were wrongly detained at Guantánamo in the U.S., the Democrats were silent for a couple days, waiting for leadership from the top of the party, from Obama. And when they didn’t get that from the White House, they you started to see Democratic senators say, "Well, we agree with the Republicans."
You know, when I see what’s happening with the D.C. Circuit and the Supreme Court, it reminds me a little bit, really, of the desegregation cases at Little Rock, where the Arkansas government and Orval Faubus were completely resistant to the Supreme Court’s decision, and the lower federal courts were going along with it. And I think the problem here is that nobody is playing the part of Dwight Eisenhower or the Warren Court. The Supreme Court has thrown up its hands, and President Obama is failing to lead the Democrat Party and, you know, really push us towards a goal with which both parties agreed was in our national security interests—closing Guantánamo, ending this sort of stain on the moral reputation of the United States, and, you know, stopping what has been really a recruiting symbol for the administration’s declared enemies in the, quote-unquote, "war on terror."
AMY GOODMAN: Andy Worthington, can you tell us more about the prisoners who were cleared for release—more than 80 of them—five years ago, who remain and may remain there for the rest of their lives?
ANDY WORTHINGTON: Well, you know, as I was mentioning earlier, I mean, two-thirds of the cleared prisoners are Yemenis. And the problem for those men has been that, in the wake of the failed plane bomb by Umar Farouk Abdulmutallab, the president capitulated, as he has several times, capitulated to criticism and blocked the release of any Yemenis.
Now, it seems to me that this is something that everybody is extremely reluctant in the United States to raise as an issue. But there’s no excuse whatsoever for continuing to hold people who have been approved for release on the basis that the United States has suspicions about the status of the entire country of Yemen. That would be the equivalent of, you know, having issues with somebody from California and, as a result, not releasing any domestic prisoners in the United States from California for any reason. It’s guilt by nationality, essentially.
But the rhetoric of the war on terror is still as hyped up as it ever was. Yemen is construed as this—you know, as this nation where everybody is a terrorist sympathizer, as far as this logic goes. So these people are not being released. There are 58 of these men—
AMY GOODMAN: Can you tell us more about Shaker Aamer?
ANDY WORTHINGTON: —who the United States government has said it doesn’t want to carry on holding forever or put on trial. Release these men.
The people—other people are from countries where—sorry—where either it’s unsafe for them to be returned home, so there is still a handful of the Uyghurs in Guantánamo, the Chinese men who, pretty much from the beginning, the Bush administration knew it had caught by mistake—people—other countries where it’s not safe for people to return probably include some Syrians, for example. New countries need to be found, or, I would say, morally, the argument is that the United States needs to take some of these people, who have no homes to go to.
And other people are from countries where Congress, in particular, has blocked the release of prisoners, although the president has a waiver in the National Defense Authorization Act, the act that was so criticized for its mandatory military detention provisions for terrorists. There is a waiver in there where he can bypass these incredible obstructions that have been raised by Congress and can say that, in national security interests, he wants to release prisoners.
And we’re waiting for him to do that. We’re waiting for him to do that with Shaker Aamer, the last British resident in the prison. We’re waiting for him to do that with other prisoners. Two men have been released in the last 18 months from Guantánamo. It will stay open forever, unless somebody in the United States in a position of power and authority decides to do the right thing. And we’re waiting for that. And we need President Obama to take leadership on this issue.
AMY GOODMAN: Finally, Shayana Kadidal, the case of José—well, many call him Padilla [ pah-dee-yah ], I think he calls himself Padilla [ puh-dill-uh ]—talk about the significance of this case now.
SHAYANA KADIDAL: Sure. Well, you know, on the one hand, we’ve got a lot of litigation trying to get people out of detention. Padilla had a case like that that was aborted at the last minute before it got to the Supreme Court, because the Bush administration finally decided to charge him. But we also have accountability litigation, you know, cases seeking damages. And this was a case seeking nominal damages: $1 against the folks who were responsible for horrific torture against Padilla, you know, some of the worst isolation we’ve ever seen, guards wearing gloves so that he wouldn’t even feel human contact when they’d move him out of his cell. And the courts of appeals have basically said that these—all of these cases, whether they’re for Guantánamo detainees or people—even U.S. citizens like Padilla who were held domestically here at home for years without charges, that they all have to be thrown out of court on a variety of immunity grounds.
AMY GOODMAN: The Supreme Court rejecting the appeal, what does it mean for him? He just serves out his full term?
SHAYANA KADIDAL: Right. Well, this was a case about damages. It was really an attempt to hold accountable the officials in the White House and below who were responsible for his treatment. As far as his, you know, charges after being in this kind of isolation that had left him, you know, sort of like a piece of furniture, I believe as one of the experts said, he was criminally tried, convicted and given a very long sentence of 17 years, I believe. In his criminal case, a court of appeals actually threw that sentence back down to the district court, saying it wasn’t harsh enough.
AMY GOODMAN: And Bush administration officials, this ongoing issue of whether President Obama would agree to hold previous officials accountable?
SHAYANA KADIDAL: Right. Apparently President Obama is interested in looking forward and not backwards. You know, the one sort of silver liner in this is that the absolute unwillingness of the U.S. courts to hold Bush administration torturers responsible is grounds for jurisdiction for foreign courts, with universal jurisdiction laws, to hold Bush administration officials responsible, criminally liable, if they should ever be so foolish to travel to those countries.
AMY GOODMAN: Which is why some say Bush, for example, didn’t go to Switzerland—
SHAYANA KADIDAL: Exactly.
AMY GOODMAN: —that he could be—highly unlikely, but arrested there.
SHAYANA KADIDAL: Right, prosecuted under their sort of universal jurisdiction law, essentially, you know, something akin to kind of this Nuremberg principle that certain sorts of crimes are so serious that they can be tried wherever the perpetrator is found, regardless of where the actual criminal acts took place.
AMY GOODMAN: Well, I want to thank you both very much for being with us. Shayana Kadidal is with the Center for Constitutional Rights, and Andy Worthington, speaking to us from London, author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison. This is Democracy Now!, democracynow.org, The War and Peace Report. Back in a minute.