Gitmo Detainee's Habeas Petition Granted

Last week, a U.S. District Court Judge ordered the release of one Abdul Rahim Abdul Razak al-Janko. The Court concluded that the government had not established that Janko was "part of" either al-Qaeda or the Taliban.

(Article)

(Opinion)

I'm a bit amazed at the contiuned hard-assedness with which the government is pursuing these cases under the new administration. This guy's story is pretty amazing.

It was undisputed that, after upon his arrival in Afgahnistan, the al-Qaeda leadership suspected Janko of being a U.S. spy. After being tortured by al-Qaeda for three months, he falsely confessed that he was indeed a U.S. spy (see torture does get confessions!). The judge noted that he was not at liberty to discuss what torture methods were used due to issues of government confidentiality, but that they could be fairly characterized as "barbaric."

He was then transferred to the Sarpusa Taliban prison in Kandahar where, as the judge summaraizes, the conditions "were so terrible-if not horrific-that many prisoners died while incarcerated. Prisoners were fed next to nothing, and the prison was overcrowded, unsanitary, and lacked sufficient medical care." He was incarcerated there for 18 months, until the Taliban abandoned the prison during their retreat from the advancinig Northern Alliance forces in late 2001. He was then transferred to the custody of U.S. forces, and sent to Gitmo.

So now the disputed part. The government claimed that he had travelled to Afghanistan (Janko is a Syrian, though I'm not sure where he was before Afghanistan) "to participate in jihad" and that he admitted having stayed at a guesthouse used by Taliban and al-Qaeda fighers for five days, where he cleaned some guns, and then went to the al Farouq training camp where he was in training for 18 days before he was taken, tortured, and imprisoned for almost two years, as discussed above.

Janko admitted that he had stayed at the guesthouse and had attended the training camp. In fact, most of the government's case and evidence was based on his testiomony during his interrogations. But, Janko claimed that we was trying to get to Europe or the U.S. as a refugee, and was forced to stay in the guesthouse and training camp against his will. He said he never wanted or intended to join either al-Qaeda or the Taliban.

The Court found the goverment's position "defies common sense." The Court, sub silencio, seems to assume, arguendo, that Janko did travel to Afgahnistan with the intention to join either al-Qaeda or the Taliban throughout the opinion. With an exclamation point, however, the court disagrees that, considering the short amount of time he was actually involved with either of the two groups when followed by almost 2 years of torture and incarceration, the government succeeded in showing by a preponderance of the evidce that Janko was "part of" of either group:

Here, the Government contends that petitioner Janko was "part of' al Qaeda and/or the Taliban prior to his being imprisoned and tortured, as evidenced by his travel to Afghanistan, stay at a certain Taliban guesthouse for approximately five days, and his attendance at the notorious al Parouq training camp for two-plus weeks. (Unclassified Oral Arg. Tr. 31.) The Government also contends, in essence, that the extreme treatment Janko was subjected to over a substantial period of time thereafter was not sufficient to vitiate that relationship. As such, the Government contends he was still "part of' those organizations when he was ultimately taken into custody by the U.s. forces some two years later. I disagree!

Terminating in another exclamation point, the court also found that even expressly assuming that he did travel to Afghanistan to join al-Qaeda's or the Taliban's military ranks, "[s]urely extreme treatment of that nature evinces a total evisceration of whatever relationship might have existed!"

The Court thus granted the petition, and ordered the government "to take all necessary and proper diplomatic step" to facilitate Janko's release. This, however, might be tricky, as I've discussed before, since now the government still needs to find a country willing to take him.

Italy has already accepted a whopping three, and four Chinese members of the Uighur ethnic group were released in Bermuda. Which, I have to say, must be an interesting culture shock for them.

Right to Habeas Extends into Afghanistan

It seems ages since Boumediene v. Bush was handed down, holding that the prisoners held at Guantanamo Bay had a right to petition for habeas corpus in federal civilian courts. But yesterday, the decision was the basis for a significant ripple in federal jurisprudence. Yesterday, a federal judge determined that, under the rationale used in Boumediene, detainees that are being held at Bagram Afghanistan also have a right to petition for the great writ.

Well, not everybody. It turns out that Bagram has become a sort of terrorist holding tank for prisoners picked up all over the region, not just in Afghanistan. The judge ruled that the writ extends to prisoners who are NOT Afgahn nationals. So the decision concluded that three of the four (two Yemenis and a Tunisian) have a right to file habeas petitions, but due to possible friction with the host country, the Afghan does not.

NYT Article

Decision

Hamdan v. Rumsfeld (again)

Well, it finally happened. The Guantanamo detainee, Hamdan, whose challnge to his detention and status ended up in this summer's Hamdan v. Rumsfeld decision, which in turn led to the MCA legislation that strips federal courts of habeas jurisdiction, had his habeas petition thrown out today for lack of subject matter jurisdiction.

(See order here from D.D.C.)

Interestingly, it does say that the MCA is an unconstitutional suspension of the Great Writ insofar as it extends to those entitled to the writ. But, as Hamdan is a non-resident captured outside of the United States, he is not entitled to habeas relief as a constitutional matter.

I don't think this is going to make us very popular with our foreign friends. If we catch you and throw you into Guantanamo (which was a deliberate attempt to escape the jurisdiction of the courts in the first place), and call you an unlawful detainee, you no longer have any recourse to our courts. Just these military commissions of dubious independence.

Weekend Reading

As I am tired of writing meaningless motions that disappear into the ether, here's something of substance; briefing has begun in two (al Odah v. United States and Boumediene v. Bush) pending habeas cases of detainees at Guantanamo subsequent to the passage of the Military Commissions Act (MCA). The government has argued that the D.C. district and appellate courts no longer have jurisdiction after the passage of the MCA to entertain habeas petitions. This is the first challenge to the MCA (that I know of). The petitioners argue, inter alia, that the MCA violates the suspension clause, and that Congress cannot bar Geneva Conventions-based claim. Cross your fingers.

Previous Posts here and here

More detail at National Security Advisors

Have a great weekend!