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
On February 22, the Department of Defense sent this office a “Detainee
Status Notification” that advised us that Mr. Hamad had “been approved to
leave Guantanamo.” The notice went on to state that this does not mean
that he has been determined not to be an “enemy combatant” or even that
“he does not pose a threat to the United States.” The notice concluded
that there was no information that could be provided on when he might
actually leave Guantanamo.
Based on the refusal of the Department of Defense to comply with its own
rules and tell Mr. Hamad the result of a review of his case in the summer of
2005 or to give him a new review in 2006, and based on statements made to
Mr. Hamad by his interrogators, we believe that the Department of Defense
had decided as early as the summer of 2005 that Mr. Hamad should be sent
home. Yet even today, Mr.Hamad remains in the prison in Guantanamo. We
have asked the Departments of State, Defense, and Justice whether there are
any plans to send Mr. Hamad home or even any negotiations on going with
Sudan. They refuse to provide us any information. We have been advised by
the Sudanese government, through a human rights organization, that there
are no negotiations taking place between Sudan and the United States about
repatriation of Mr. Hamad.
Meanwhile, Mr. Hamad’s court case remains on hold as the government
continues to assert that the courts have no jurisdiction to hear his, or
any detainee’s, habeas corpus case. No one in the government will tell him
whether the Department of Defense is reviewing the evidence he has
submitted showing that he is innocent so that his name can be cleared, his
passport returned, and so that he can be put on a commercial flight home.
Amnesty International released their case sheet on Adel Hamad today. It is a good summary of his situation and concludes with ways to take action on his behalf.
CASE SHEET 21
Adel Hassan Hamad
Sudanese national: Adel Hassan Hamad
ISN#: 940
Family status: Married with children
Occupation: Hospital Administrator, Aid Worker and Teacher
Age: 48
“I was arrested in my house at 1:30 at night when I woke up and found myself in front of policemen from the Pakistani intelligence pointing their weapons in my face…” Adel Hamad
Sudanese national Adel Hamad was taken at gunpoint from his home in Peshawar, Pakistan on 18 July 2002. Pakistani agents, led by a US agent, took his passport away, bound his hands and took him down the stairs into a waiting car.
Adel Hamad was taken to a Pakistani prison where he was held for six and a half months in what he describes as very bad conditions. Adel Hamad says that his weight dropped from 90 to 60 kilograms during this time.
Transfer to Bagram, then Guantánamo “In Bagram there was also great suffering for me… They took me and stripped me naked completely. They laughed a lot in my face…They left me for three days not sleeping.” Adel Hamad.
During his transfer to Bagram, Adel Hamad says that he was beaten at the airport and thrown to the ground. At Bagram, dogs were set upon him whilst watching soldiers laughed. He was also stripped naked and subjected to sleep deprivation. He still suffers from pain in his feet due to the lengthy periods he was chained, both hands and feet. He was held in Bagram for approximately two months before being transferred to Guantánamo where he has now been held for nearly four years without charge or trial.
Background “…all my interrogators they told me that I am innocent that I would be released soon they told me after a month and a month came and I wasn’t released.”
Adel Hamad had been living in Pakistan, near the border with Afghanistan, since 1999 when he was appointed as the administrative director of the Afghanistan based World Assembly of Muslim Youth (WAMY) hospital.
The US authorities claim that some of the people running WAMY, miles from where Adel Hamad worked at the hospital, may have terrorist connections. Adel Hamad says that he was just an employee of the organization and knew nothing of the alleged connections which have been used as the primary basis for his continued detention.
The Combatant Status Review Tribunal (CSRT) ruled in Adel Hamad’s case that he was an “enemy combatant”. However one panel member dissented from that opinion stating that continued detention on the basis of the allegations would be “unconscionable”. He found that the six allegations against Adel Hamad were unpersuasive and urged that the tribunal recommend his release.
In March 2005, Adel Hamad wrote to the US District Court for the District of Columbia asking for help. That court assigned the Federal Public Defender’s Office in Portland, Oregon to the case. Lawyers from that office have visited Guantánamo to interview him and have also travelled to Pakistan and Afghanistan to speak to witnesses to confirm his story.
During the investigation, William Teesdale, an attorney with the Federal Public Defender’s Office in Portland, said that he confirmed the details of Adel Hamad’s story by meeting with and taking videotaped sworn statements of nearly a dozen witnesses. These witnesses included three physicians who worked side-by-side with Adel Hamad at the hospital in Chamkani, Afghanistan. A video of their investigations can be viewed here:
You can also become a member of Project Hamad, an advocacy group working on Adel Hamad’s case, for justice in Guantánamo and the restoration of habeas corpus:
http://projecthamad.org
Family “She always tries to lift my spirits up. She always tells me we’re fine…we don’t need anything…we’re doing okay. But I know that she doesn’t have anyone. She is on her own.”Adel Hamad, on letters received from his wife.
Adel Hamad has received a few letters from his family who are said to be suffering financially due to his prolonged absence. One letter he received while in detention informed him that his six-month-old daughter Fida had died. He never had the chance to meet her.
Just prior to his arrest, Adel Hamad had been on holiday with his family in Sudan for one month. He returned to Pakistan alone, as the family had decided that his wife should stay in Sudan with their children for the sake of their upbringing and education. They had previously been living with him in Pakistan, but felt isolated due to their unfamiliarity with the language and local culture. Adel Hamad says that he planned to continue working in Afghanistan for one more year in order to save some money before returning home to his family.
TAKE ACTION FOR
Adel Hamad
Write to the US authorities:
–Calling for Adel Hamad to be released from Guantánamo unless charged and tried in accordance with international standards of fairness in a court that will not impose the death penalty;
–Urge them to immediately investigate all allegations that Adel Hamad was tortured or ill-treated in US custody, and to ensure that all those found responsible are brought to justice;
–Calling for them to keep Adel Hamad’s family fully informed of his status, health and well-being, and to ensure that he has adequate communication with his family;
–Calling for them to close the detention facility at Guantánamo Bay and either release the detainees held there or charge and try them in accordance with international standards in a court that may not impose the death penalty.
Write to the Sudanese authorities:
Send any appeals to the Sudanese embassy in your country.
–Noting that Adel Hamad, and eight other Sudanese nationals remain detained in Guantánamo and welcoming the statement made by the Sudanese Parliament calling for Guantánamo to be closed;
–Calling on the Sudanese authorities to make representations to US authorities on behalf of all Sudanese nationals still detained at Guantánamo;
–Seeking assurances that the relatives of the detainees are being fully informed of developments in their cases and provided with full information on their welfare;
–Seeking information as to the situation of the Sudanese nationals believed to have already been returned to Sudan;
–Seeking assurances that anyone returned to Sudan from Guantánamo will either be released or if charged with a recognizably criminal offence given a fair trial in accordance with international standards and without recourse to the death penalty.
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
COPIES TO:
The Honorable Condoleezza Rice
Secretary of State
U.S. Department of State
2201 C Street, N.W.
Washington DC 20520
Tel: + 1 202 647 4000
Fax: + 1 202 261 8577
E-mail: Secretary@state.gov
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
President’s day is an ideal time to reflect on where we are today. The first Republican president, who we are honoring on President’s day, and the latest, George W. Bush, share something in common. Lincoln and Bush are the only presidents to suspend the writ of habeas corpus. Lincoln’s decision to suspend habeas and to declare martial law was extremely controversial. Whether this decision was right or wrong I’ll leave to the historians, but we can at least say in his favor that he could look to the Constitution in his defense. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. Lincoln suspended habeas to put down armed rebellions during the Civil War. Bush, on the other hand, is facing neither an invasion nor a rebellion. He has lost his judicial battle to deprive habeas rights to U.S. detainees at Guantanamo. The Supreme Court ruled that habeas, like it always has, applies to aliens and U.S. citizens alike, including those at Guantanamo bay. Thus, Bush went to Congress to legislate habeas away with the Military Commissions Act of 2006 and his Attorney General additionally declared that the writ of habeas corpus is not guaranteed in the Constitution for citizen or alien. Thus, this administration has both suspended the writ of habeas corpus and asserted that the right to it in the first place is not guaranteed. Some opponents of the Military Commissions Act suggest the Act does not suspend habeas but eliminates it altogeher.
On the bright side, many countries who have nationals at U.S. detention facilities are mounting increasing pressure on the Bush administration to either charge or release them to their home countries. To date there has been no even-handedness to this process. Detainees that get released are not the detainees with the least evidence against them. Quite the contrary. The citizenship of the detainee often plays a large role. Countries that have good relationships with the United States, like Britian and Kuwait, have had much greater success at getting their citizens released, compared to countries like Adel Hamad’s, Sudan, that has had little. But lately there has been increasing media coverage and public protest on behalf of the Sudanese detainees. Here are a couple photos of protests in Khartoum last week:
If you have any good photos of Project Hamad related activity help us flesh out our photo gallery.
