As Adel Hamad’s lawyers feared, Hamad’s name appearing on a transfer list has not secured his freedom or cleared his name. Months later he remains imprisoned with no signs that the U.S. government and Sudan have come any closer to an agreement around his return. Certainly the increasing strain between the two countries over the Darfur crisis cannot be helping his cause. Many detainees who, unlike Adel Hamad, had some incriminating evidence presented against them, have been returned to their countries if the U.S. had good relationships with their home governments (e.g. Britain, Canada). Consequently two of Adel Hamad’s attorney’s William Teesdale and Steve Wax are travelling to Sudan to present his case directly to the Sudanese government in hopes of jump starting the process. You can read more about their trip in the Portland Tribune article “Lawyer Seeks African Allies.”
In a post-habeas corpus world there are no obvious ways forward. Most lawyers aren’t arguing their cases on YouTube or travelling to Pakistan and Sudan on behalf of their clients. But it is this sort of creative new thinking that is required of all of us. The two traditional avenues left to restore habeas corpus and bring justice back to the justice system, the Supreme Court and the Congress, are no sure thing.
The Supreme Court has ruled twice against the Bush administration over Guantanamo but the new Roberts court has notably refused to hear the third appeal. Some speculate that the more liberal justices voted against hearing the case rather than have the Roberts court rule in favor of Bush’s military commissions, thus setting a disturbing precedent around habeas corpus suspension. Regardless of motive, the Military Commissions Act stands as U.S. law. In other words, habeas corpus is suspended, evidence obtained by coercion is allowed, the government can prevent the detainee from being present at parts of his own hearing, and detainees can’t see the evidence against them or expect to call witnesses in their defense.
The second traditional avenue of reform would be legislative action to repeal or reform the Military Commissions Act. Legislation exists in both the House and Senate, most notably the Restoring the Constitution Act of 2007, sponsored by Senator Dodd. But it is unclear whether this Act will ever make it out of committee to a general vote.
So where does that leave us? Either at a dead end or thinking outside of the box. Hopefully Adel Hamad’s lawyers will inspire the latter. One of you might come up with the next best way to bring Adel Hamad’s situation or the woeful condition of our Constitution back into the national discussion. We, at Project Hamad, have been working on the local level to try to get the City of Portland to pass a resolution in support of the restoration of habeas corpus. Cities took the lead around the Iraq war several years ago with many passing anti-war resolutions that hopefully emboldened their respective state and Federal delegations to be more assertive on this topic. The suspension of habeas corpus seems even more fundamental with more dire consequences to our civil rights and liberties if not restored. Even if the war ends tomorrow, even if Guantanamo is closed and all detainees are tried or released, the conditions that allowed the United States to detain people indefinitely without presenting evidence against them will still exist. If the Military Commissions Act stands as U.S. law it is a significant blow to a cornerstone of our Constitution, something that our Founding Fathers considered fundamental to American democracy.
Most people do not have a sense of what habeas corpus is, let alone that it has been suspended for only the second time in U.S. history. Once explained, most people are quite astonished and sympathetic to the cause. We found this at Portland City Hall. But we failed to find a city commissioner who would bring the resolution forward to a vote. Perhaps this movement will start in your town instead. If we can get one city to stand behind this most basic civil right it could be the beginning of a movement. Below is a copy of our proposed resolution. Feel free to adapt it and present it to your local leaders. Keep us posted of your progress and let us know of any other ideas you have come up with to keep this issue alive.
David
Resolution No.
Declare the City of Portland in support of the writ of habeas corpus and efforts towards its full restoration
WHEREAS, the 800 year history of habeas corpus, preceding the Magna Carta of 1215, has been an essential check on executive power and the cornerstone for the rights of individuals to question the legality of their imprisonment
WHEREAS, habeas corpus is enshrined in our Constitution and considered by Thomas Jefferson as an essential principle of our government and by Alexander Hamilton as one of the greatest securities to liberty
WHEREAS, the writ of habeas corpus has not been suspended in the United States since armed rebellions during the Civil War
WHEREAS, the Military Commissions Act of 2006 has suspended the writ of habeas corpus
WHEREAS, the language of the Military Commissions Act of 2006 is inconsistent concerning the applicability of the Act to U.S. citizens
WHEREAS, the city of Portland has already experienced the wrongful incarceration of Portland lawyer Brandon Mayfield, falsely accused of terrorism; that the ability of Mr. Mayfield and others wrongfully arrested to properly have their cases heard is unduly compromised since the passage of the aforementioned act of 2006
WHEREAS, we live in a political climate where the patriotism of public defenders of persons detained by the U.S. government is in question
WHEREAS, the public defenders office of Oregon, based here in Portland, represent 7 of the detainees at Guantanamo Bay, Cuba
WHEREAS, Portland citizens have begun a campaign for the restoration of the writ of habeas corpus for these and all detainees of the United States government
WHEREAS, the City of Portland can make an important statement on principle by asserting the rights and liberties of its citizens
NOW, THEREFORE, BE IT RESOLVED THAT THE PORTLAND CITY COUNCIL
1. Asserts support for the writ of habeas corpus and the efforts to restore it
2. Asserts support for the pro bono work of public defenders in general, and the public defenders office in Oregon in particular, as vital to a healthy democracy
3. Endorses the efforts of local citizens who have advocated for these goals through Projecthamad.org
Adel Hamad’s lawyers have been notified that Hamad and his landlord, Mammar, have been approved to leave Guantanamo. Some internet articles have already begun speculating about the effect that the YouTube video, Guantanamo Unclassified, may have had in securing his release. Of course, we hope that Project Hamad and Guantanamo Unclassified have helped expedite Hamad’s release, as these articles suggest, yet we believe it is premature to declare victory for a number of reasons.
1)Adel Hamad has not been released. Hamad’s counsel have known of the presence of a detainee transfer list for over a year. Each year, Adel Hamad, and other detainees receive a Combatant Status Review Tribunal (CSRT). When Hamad failed to have a CSRT last year his lawyers speculated that he could indeed be on this transfer list. Previously released detainees had also missed their CSRT’s prior to their release. Thus, most likely, Adel Hamad has been on a list to be transferred from Guantanamo for over a year yet still remains to this day behind bars and separated from his family. The fact that this list has been made public does not change the fact that he remains imprisoned without any timeline regarding his release.
2)The U.S. government, if and when they release Adel Hamad, are not reversing their decision that he is an enemy combatant nor that he could potentially pose a threat to the U.S. and its allies. This may be a face saving measure or a means to limit liability since the governement has produced no evidence to support their claims. Nevertheless, they may try to pressure the Sudanese government to prosecute him or detain him in Sudan.
3)The U.S. government explcitly stated in their letter to Hamad’s lawyers that they will not provide a timeline for Adel Hamad’s release. There is also no agreement in place with the Sudanese government regarding how or when he will be transferred.
4)The conditions that allow people to be detained indefinitely without charge remain. Regardless of how many detainees are released, the Military Commissions Act of 2006 continues to deny basic habeas corpus rights to detainees of the U.S. government, preventing access to the federal courts, and access to proper counsel. Detainees have spent 5 years in prison without being charged of a crime and without an impartial judge reviewing the merits of their case. The government wants to release these detainees as quietly as possible with no admission of wrongdoing, and without unclassifying them as “enemy combatants”. Meanwhile most of the home governments of these detainees (e.g. England, Canada) are releasing the detainees as free citizens because of the lack of credible evidence. We believe the U.S. government, at a very minimum, should either produce the evidence against the detainees or exonerate them of wrongdoing.
This is not the time to raise our arms in victory. On the contrary, it is time to step up our efforts to secure Adel Hamad’s release as a free man with a cleared name. Help us let the U.S. government know that people are watching during this crucial time, that we want Adel Hamad’s release expedited and, if no credible charges are going to be brought forth against him, that his status as an enemy combatant be officially removed.
Send your appeals to:
Navy Rear Adm. Harry B. Harris
Commander Joint Task Force Guantánamo
Department of Defense
Joint Task Force Guantánamo
Guantánamo Bay, Cuba
APO AE 09360
Fax: +1 305 437 1241
Email: harrishb@jtfgtmo.southcom.mil
Salutation: Dear Rear Admiral
Brigadier General Cameron Crawford
Deputy Commander United States Southern Command
3511 NW 91st Ave., Miami, FL, 33172-1217
USA
Fax: +1 305 437 1077
Salutation: Dear Brigadier General
Email via: http://www.southcom.mil/home/
The Honorable Robert M. Gates
Secretary of Defence
1000 Defense Pentagon
Washington DC 20301, USA
Fax: + 1 703 697 8339
Email via: http://www.defenselink.mil/faq/comment.asp
Salutation: Dear Secretary of Defense
Hopefully, with our continued efforts, Adel Hamad will be home with his family soon. And hopefully the conditions that allowed this to happen, that allowed our government to ignore the Geneva Conventions as well as suspend habeas corpus, namely the Military Commissions Act of 2006, will be repealed or found unconstitutional when litigation reaches the Supreme Court.
Yesterday was a dark day for the Guantanamo detainees and those who value the basic right of due process. A federal appeals court ruled that Guantanamo prisoners cannot challenge their indefinite detentions in U.S. courts. This decision dismisses hundreds of cases pending in federal court and leaves the detainees to face military tribunals where the legal burden is placed on the accused to prove their innocence, even though they cannot see all the evidence agaisnt them and evidence obtained through torture is allowed. This regressive ruling makes more sense, and seems sadly more inevitable, if we look behind the black robes of the two judges, David Sentelle and A. Raymond Randolph who formed the majority opinion on this case.
David Sentelle
Judge Sentelle, a protege of Jesse Helms, is a hard-line conservative judge with ties to the Federalist society. He is the judge responsible for overturning the felony convictions of Oliver North and John Poindexter during the Iran-Contra scandal and for appointing Kenneth Starr as independent counsel to investigate Bill Clinton. David Sentelle wrote the majority opinion that allowed then Attorney General John Ashcroft to keep secret the identities of nearly 1000 people who were rounded up and detained after 9/11, mostly on immigration violations, a decision that “eviscerated both the Freedom of Information Act itself and the principles of openness in government that the FOIA embodies” stated dissenting Judge Tatel. It is the same Judge Sentelle who ruled that reporters Judith Miller and Matthew Cooper would go to jail if they did not reveal their sources, who wondered during the debate on this issue whether journalists could feasibly have any legal protections in the internet era.
A. Raymond Randolph
Judge Randolph has twice before ruled in favor of Bush’s indefinite detentions at Guantanamo. Both times his rulings were overturned by the Supreme Court. In Hamdan v Rumsfeld, the opinion written by Randolph essentially gave George Bush the right to set up any tribunal he deemed necessary to fight terrorism. The type of tribunal Bush ultimately set up, and that Randolph gave the thumbs up to, does not even grant the detainee the right to be present at their own tribunal. Heresay could be introduced as evidence, the presumption of innocence was not guaranteed, and if convicted a detainee could be sentenced to death. Randolph, like Sentelle, is a hard-line conservative, siding consistently with big business, with Microsoft against anti-trust litigation,with the Tobacco industry against payouts for illegally marketing to minors, with the auto industry against state governments who wanted the EPA to regulate greenhouse gas emissions, with Cheney against the Sierra Club who wanted the government to reveal just how involved special interests (oil and nuclear) were in shaping government policy.
In December Sentelle and Randolph rejected a friend-of-the-court brief submitted by 7 formal federal judges that expressed concern about the Military Commissions Act and urged that the Guantanamo detainees be allowed to challenge their detentions. Judges Sentelle and Randolph rejected this brief simply and soley because these former judges referred to themselves by the honorific “judge” despite now being retired.
It appears that this will head to the Supreme Court for a third time. The outcome is not clear. Last time, Justice Roberts recused himself because he was involved, just prior to joining the Supreme Court, in the lower court ruling, Hamdan v Rumsfeld, where he sided with A. Raymond Randolph and the U.S. government. As we know, that ruling was overturned by the Supreme Court by a vote of 5-3. Yet, this vote dealt with statutory issues not constitutional ones. The question whether laws that unconditionally bar habeas corpus petitions are unconstitutional, and whether the president has the constitutional power to convene military tribunals have yet to be addressed by the high court. It merely ruled that the tribunals the governement did convene under the Detainee Treatment Act of 2005 did not meet the standards of the Uniform Code of Military Justice and the Geneva Conventions. Military commissions were not categorically prohibited.
The U.S. government has returned with a new piece of legislation, the Military Commissions Act of 2006, and Justice Roberts will not need to recuse himself from this case should it arrive at the Supreme Court. Thus, the judicial outcome is murky at best.
So where does that leave us? Certainly not to wait while this case winds its way towards its uncertain destiny. The two avenues we have at our disposal are complementary ones: a)legislative action to restore habeas corpus and repeal the Military Commissions Act b)grass roots organizing to keep this issue alive in the media and to put pressure on our representatives to support the Restoring the Constitution Act
Great news from Congress yesterday. Senator Chris Dodd (D-CT) introduced the Restoring the Constitution Act of 2007.
This Act would:
1)restore habeas corpus
2)reaffirm our commitment to the Geneva Conventions
3)disallow evidence obtained through torture
4)give judges leeway to disregard evidence based solely on heresay
5)expedite judicial review of the Military Commissions Act of 2006
6)narrow the definition of “unlawful enemy combatant” to something reasonable where hospital administrators like Adel Hamad, where fruit vendors, landlords and cooks could not be considered combatants unless engaging in hostile acts.
In other words, this Act has teeth and Senator Dodd is asking us, as U.S. citizens, to be co-sponsors of the Restoring the Constitution Act of 2007.
