Imagine being seized in Afghanistan or Pakistan, where you were, perhaps, a completely innocent man sold for a bounty, or a Muslim soldier fighting other Muslims in a civil war whose roots lay in the resistance to the Soviet occupation of the 1980s, which was partly funded by the United States.
Then imagine that, both during and after being treated with appalling brutality by U.S. forces, you are given no opportunity to establish whether you are an innocent man seized by mistake, a soldier, or the victim of bounty hunters, and you are, instead, flown halfway around the world to an experimental offshore prison, where you are interrogated about your connections to al-Qaeda and Osama bin Laden.
At no point are you offered the protection of the Geneva Conventions (to which your captors are a signatory), which were designed to prevent the "humiliating and degrading treatment" of prisoners seized during wartime, and also to prevent their interrogation (prisoners may be questioned, but any form of "physical or mental coercion" is prohibited). Moreover, if you struggle to answer the questions put to you – perhaps because you know nothing about al-Qaeda or Osama bin Laden – you are not only interrogated relentlessly, you are also subjected to an array of "enhanced interrogation techniques," which contravene the UN Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, to which your captors are also a signatory.
Now imagine that, after six and a half years of this imprisonment – in which, unlike convicted criminals on the U.S. mainland, you have never been charged, tried, or allowed a single visit from your loved ones – the highest court in the United States rules, in Boumediene v. Bush, that you have habeas corpus rights; in other words, the right to know why you are being held. And finally, imagine that, in response to this ruling, when the judges responsible for establishing the reviews have ordered the cases to be addressed "as expeditiously as possible," and have set a deadline for the government to comply, your captors turn around and say that, after holding you for up to 2,444 days in Guantánamo, they need more time to prepare a case against you.
You would, I think, be appalled, and would conclude that the government was specifically dragging its heels for political purposes, hoping to avoid humiliation ahead of the presidential election, and, in particular, hoping to prevent a replay of the verdict in Parhat v. Gates, the only case reviewed since the Supreme Court made its ruling in June, in which the judges – two conservatives and a liberal, no less – ruled that the designation of Huzaifa Parhat, a Chinese Muslim, as an "enemy combatant" was "invalid." They even lambasted the quality of the government’s evidence as being akin to a nonsense poem by Lewis Carroll, author of Alice’s Adventures in Wonderland.
And in this opinion you would, I think, be correct. When the Supreme Court ruled that the prisoners were entitled to "a prompt habeas corpus hearing," adding that "[w]hile some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody," it’s certain that they did not intend, over three months down the line, for the government still to be dragging its heels. In the immediate wake of the Supreme Court’s ruling, meetings were scheduled to appoint judges to review the 250 cases and to set dates for the government and the prisoners’ defense lawyers to file their evidence. On July 11, the district court dealing with the reviews "ordered the government to file factual returns at a rate of fifty per month, with the first fifty due by August 29, 2008."
"Just before midnight" on Aug. 29, however, with only 22 returns filed, the government filed an "instant motion" begging for more time, pleading that it "simply did not appreciate the full extent of the challenges posed by the extensive need for classified information in these cases when [it] proposed to complete the first set of factual returns by the end of August" and asking for "partial and temporary relief" from the order of July 11. Specifically, as Judge Hogan noted in the opinion of Sept. 19 [.pdf], from which this article draws extensively, the government asked for an extension of 30 days. High-ranking figures – the acting general counsel for the Department of Defense, the assistant attorney general for the Civil Division of the Department of Justice, and the director of the CIA – explained "the substantial resources and efforts the government has devoted to preparing factual returns and the risk of harm to the national security involved in releasing classified information to persons outside the Executive Branch."
After noting that delaying the schedule by a month was neither "partial" nor "temporary" relief, Judge Hogan agreed to grant the government’s motion. He stated that, after reviewing the declarations, "the court is satisfied that the government is not dragging its feet in an attempt to delay these matters beyond what is necessary to protect the national security concerns associated with releasing classified information. These cases are not run of the mill; they involve significant amounts of sensitive, classified information concerning individuals whom the government alleges were part of or supporting the Taliban or al-Qaeda or other organizations against which the United States is engaged in armed conflict."
However, Judge Hogan also noted that "the court grants the government’s motion reluctantly," explaining that "it is disappointed in the government’s failure to meet the schedule the court adopted based in part on the government’s assurances." Citing statements in which the government claimed that it had "attempt[ed] to meet its goal" and that it would "continue to strive to meet the 50-per-month requirement," Judge Hogan added, pointedly, that the court was "not merely setting a ‘goal’ for which the government is to ‘strive,’" but was, rather, "ordering the government to produce at least fifty factual returns by month’s end, followed by at least another fifty more each month thereafter until production is complete."
In conclusion, while Judge Hogan recognized, as the government explained, that, since the Supreme Court ruling, its "[a]ttorneys and others from multiple agencies have worked long and hard, nights and weekends," he reminded the executive that "the government has detained many of these petitioners for more than six years, and the time has come to provide them with the opportunity to fully test the legality of such detention in a prompt, meaningful manner."
He added, with just a hint of irritation, that the decision to grant the prisoners the right "to fully test the legality of their detention through habeas corpus challenges" was "no bolt out of the blue," as the government contended, because the Supreme Court had ruled, four years before (in Rasul v. Bush), that they had this right. This was, it seems, a barbed comment on the legislation passed by the government in the wake of Rasul (the Detainee Treatment Act and the Military Commissions Act), which was partly overturned – and ruled unconstitutional – in Boumediene.
The court’s decision will be small comfort to the prisoners languishing in Guantánamo while the government does all in its power to avoid exposing its reasons – or lack of reasons – for holding them, but it shows, at least, that the judges responsible for reviewing their cases are paying attention.
