A Broken Writ, a Kangaroo Court

Habeas corpus rights aren’t intact in America. Just ask my Guantanamo detainee client.

Leonard C. Goodman March 5, 2012

On New Year’s Eve, Pres­i­dent Barack Oba­ma signed into law the Nation­al Defense Autho­riza­tion Act (NDAA), which autho­rizes the indef­i­nite deten­tion with­out tri­al of alleged al-Qae­da ter­ror­ists – includ­ing Amer­i­can cit­i­zens, if the pres­i­dent so choos­es. Pres­i­dent Oba­ma issued a sign­ing state­ment promis­ing not to use these new pow­ers against Amer­i­cans, which – as come­di­an Stephen Col­bert point­ed out – might be com­fort­ing if Oba­ma passed anoth­er law declar­ing that no one besides him can ever be president.

I can offer a firsthand account of how the once-great writ of habeas corpus has been transformed into a Kafkaesque farce.

Even our cur­rent Supreme Court, undu­ly con­cerned with the rights of cor­po­ra­tions, might find that a law strip­ping Amer­i­cans of their con­sti­tu­tion­al rights based on mere alle­ga­tions vio­lates the nation’s found­ing document. 

Or per­haps not. The Court was called on once, in 2004, to rule on the legal­i­ty of hold­ing Chicagoan José Padil­la with­out charges in soli­tary con­fine­ment at a naval brig in South Car­oli­na, but it ducked the con­sti­tu­tion­al issue and dis­missed Padilla’s habeas peti­tion on a technicality.

One of the lead­ing pro­po­nents of NDAA, Sen. Carl Levin (D‑Mich.), assures Amer­i­cans that habeas cor­pus will pre­vent the pres­i­dent from hold­ing peo­ple with­out cause. But Levin should have checked to see what remains of the great writ” after 10 years of efforts by gov­ern­ment lawyers to weak­en it in order to jus­ti­fy the indef­i­nite deten­tion of Guan­tá­namo detainees.

As an attor­ney for one of the 171 remain­ing Guan­tá­namo detainees, I can offer a first­hand account of how the writ of habeas cor­pus has been trans­formed, at least in ter­ror­ism” cas­es, from the once-great bul­wark against arbi­trary deten­tion into a Kafkaesque farce.

My client, Shawali Khan, is an une­d­u­cat­ed Afghan man who grew up on an orchard out­side of Kan­da­har. In 2002, Khan was cap­tured by Afghan war­lords and turned over to the Amer­i­cans. At that time, the U.S. gov­ern­ment was pay­ing boun­ties of about $10,000 to Afghans who turned in al-Qae­da fight­ers. No actu­al evi­dence or cor­rob­o­ra­tion was required.

Khan was sent to Git­mo in 2003, based on the word of a sin­gle infor­mant. At his habeas hear­ing in 2010, the gov­ern­ment called no wit­ness­es but mere­ly intro­duced intel­li­gence reports” indi­cat­ing that an uniden­ti­fied Afghan infor­mant had told an uniden­ti­fied Amer­i­can intel­li­gence offi­cer that Khan was an al-Qae­da-linked insurgent.

Fed­er­al appel­late courts have ruled in oth­er Guan­tá­namo cas­es that the government’s evi­dence must be pre­sumed accu­rate, thus putting the bur­den on Khan’s vol­un­teer lawyers to estab­lish that the infor­mant is unre­li­able. First we demand­ed the informant’s file to see how much he was paid and what his rep­u­ta­tion was for truth telling. But the gov­ern­ment said the file was not rea­son­ably” avail­able. So we asked for the informant’s name so that our Afghan inves­ti­ga­tor could inves­ti­gate. But the gov­ern­ment refused to declas­si­fy the informant’s name.

When the habeas judge request­ed some cor­rob­o­ra­tion for the alle­ga­tions against Khan, the gov­ern­ment lawyers said that at the time of cap­ture, Khan pos­sessed a high­ly incrim­i­nat­ing hand-writ­ten note relat­ing to explo­sive devices. We demand­ed to see the note, giv­en that Khan was func­tion­al­ly illit­er­ate. But the note had not been pre­served. So we asked to see the intel­li­gence” report which accused Khan of hav­ing the note. But this report had been clas­si­fied above the secu­ri­ty lev­el of Khan’s two attor­neys. So we pro­posed that our col­league, Joe Mar­gulies, who has the high­est lev­el secu­ri­ty clear­ance, would sign on as co-coun­sel to review the report about the note. The gov­ern­ment lawyers then pro­vid­ed Khan’s attor­neys with a sum­ma­ry” of its secret report. The judge accept­ed this sum­ma­ry as suf­fi­cient cor­rob­o­ra­tion, and denied Khan’s habeas petition.

The government’s sum­ma­ry” of the secret intel­li­gence report describ­ing the miss­ing hand­writ­ten note is still clas­si­fied, but I can report that when, in April 2011, Wik­iLeaks released Khan’s offi­cial Pen­ta­gon file, it estab­lished that the government’s sum­ma­ry was false.

This past Sep­tem­ber, we filed a motion demand­ing Khan’s release based on the fact that the gov­ern­ment sub­mit­ted false evi­dence to jus­ti­fy his indef­i­nite deten­tion. We await a rul­ing. Per­haps the judge is strug­gling to rec­on­cile the rule that says the gov­ern­ment is pre­sumed to always tell the truth about sus­pect­ed ter­ror­ists with clear proof that it has lied about Khan.

Leonard Good­man is a Chica­go crim­i­nal defense lawyer and Adjunct Pro­fes­sor of Law at DePaul University.
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