Pruning Shears

No Associated Press content was harmed in the writing of this post

The case of Guatánamo detainee Abdul Hamid Al-Ghizzawi took a bizarre turn last week. He is represented by habeas lawyer H. Candace Gorman and is, as Andy Worthington pointed out, overwhelmingly likely to be innocent. He has never been charged with anything, anywhere. Even his first Combatant Status Review Tribunal determined there was no evidence he was an enemy combatant. By all indications he was in the wrong place at the wrong time and is currently languishing in America’s extrajudicial netherworld of indefinite detention because his treatment at our hands is too shameful for our leaders to allow us to know about.

In the wake of the Supreme Court’s Boumediene decision Al-Ghizzawi, and all the other detainees at Guatánamo, have the right of habeas corpus. Meaning, they are entitled to appear before a judge and challenge the legitimacy of their detention. Theoretically the government has to show up with something more than earnest assurances to justify it, and if it cannot provide it must release them. Habeas corpus exists precisely because of the kind of circumstances represented by Al-Ghizzawi - someone grabbed and imprisoned for no defensible reason, and held only to spare embarrassing (and possibly criminal) details from coming to light.

Gorman filed a habeas petition for Al-Ghizzawi but the stalling has continued. In a way this case is simply a piece of a larger strategy. Boumediene was handed down over a year and a half ago and the response by the government has been utter contempt for the concept of a speedy trial. Now the Obama administration is trying to game the system - and at least one judge has decided to play along. US District Judge Reggie Walton indefinitely stayed one detainee’s petition. His lawyers argued the ruling “eviscerated the clear directives of the Supreme Court of the United States and the plain language of the habeas corpus statute that detainees at Guantánamo have a right to challenge their detention by petitioning the district court for a writ of habeas corpus.”

Walton’s actions may be hard to defend, but at least they represent an obstruction put up by a judge. Whatever his motives or reasoning, it is the appropriate venue for such a decision. Al-Ghizzawi faces hurdles placed by the Department of Justice (DOJ) in a way that appears capricious at best. Gorman’s habeas petition was declassified and cleared for public release last Tuesday. She posted on it and included a link to her petition. There is no link to her post because last Friday the DOJ said it made a mistake and reclassified it. She posted on the order to rescind and that too has been taken down. (I’ve rescued the non-explosive details here.)

This is exactly the kind of Kafkaesque absurdity that the Bush administration was famous for, and the fact that it continues under Obama shows it is not part of an ideological jihad being waged by political appointees but an accepted practice among career employees. Even more outrageous is how the DOJ implemented its latest yank of the chain. It put the muzzle back on Gorman but made no attempt to recall the electronic copy - each page now ironically stamped with a header and footer declaring it “UNCLASSIFIED//FOR PUBLIC RELEASE” - from other areas. So this supposedly sensitive filing that the DOJ went to the trouble of disappearing from Gorman’s site is easily available at The Talking Dog, Corrente, my site, and others.

(I encourage readers to grab a copy of the PDF file and host it on their own sites. The more an item like this proliferates the more difficult it will be to erase should the DOJ decide everyone - not just Gorman - is prohibited from making it available. Also, it heightens the silliness of the DOJ’s position and makes their transparently phony concern about the alleged sensitivity of the petition even more ridiculous.)

It is extremely difficult to take the DOJ’s position at face value. Considering the central place Guantánamo currently holds in our legal system there is no reason why any decision to declassify in the first place should have been done lightly or hastily enough to need to be rescinded. Even in the event of such sloppy lawyering - which does not appear to have had any consequences for the clowns who screwed up - there is no reason for such an indifferent effort to reclaim it from the public domain. The message the DOJ is sending is: We know it’s broken, we know we’re making it up as we go along, we know you know it’s a sham, we don’t care, and we’ll make you go through the motions anyway. There are a limited number of ways to explain such a situation. None of them reflect well on Justice.