Category Archive: Federal Judging

"Just Imagine"…Unchallenged, Government Tells Supreme Court While Torturing: "The United States Is Gonna Honor Its Treaty Obligations"

As originally posted in the reader-diary section of; the post’s 2011 comment thread is available at that link.

David Cornwell (British author John le Carré) speaking in a March, 2002 interview:

The Cold War was fought under a constant mystery: How much can we do in defense of a free and decent society and remain a free and decent society that is worth defending? So there was always a very great unease, particularly in the secret world, about the methods with which we protected our virtue, as we saw it.


When you’ve got a preconception, you can always decorate it with slightly bent intelligence.

On this ninth anniversary of the opening of the notorious American prison camp built on a U.S. Navy Base at Guantanamo Bay, Cuba to hold, and, above all, to interrogate, foreigners claimed to be law of war combatants, I’ve transcribed below part of a recent interview of an English-speaking detainee – a citizen of Britain – who was transported by cargo plane from Afghanistan to Guantanamo’s Camp X-Ray in February, 2002. [His two British companions, Shafiq Rasul and Asif Iqbal – they’re collectively known as the “Tipton Three” – were flown to Cuba a month earlier, on January 13, 2002, two days after the prison camp opened nine years ago today, 1/11/11.]

That former detainee is Ruhal Ahmed, and the transcribed portion of his joint interview with Shafiq Rasul (made especially poignant and compelling by the presence of Ahmed’s young daughter), which was conducted in East London by British writer Andy Worthington last September 18th – nine years to the day after President Bush signed the never-rescinded Congressional Authorization for Use of Military Force (war) against the perpetrators of 9/11/2001 – may be viewed here (starting about five minutes in; don’t miss Shafiq Rasul’s account in the first two minutes of the clip).

2010 screen-captured photo of former Guantanamo prisoner Ruhal Ahmed

Ruhal Ahmed and daughter in London on September 18, 2010

Interspersed with my transcript of Ahmed’s account of his pre-April, 2004 Guantanamo experiences, is my transcription of an exchange that took place in open court in the United States Supreme Court, on April 28, 2004, as two of the justices questioned the appointed representative of the U.S. government at the time, Deputy Solicitor General Paul Clement of the Executive Branch’s Department of Justice. Clement was resisting, in the name of the President and Congress and the American people, the efforts of another wartime detainee – U.S./Saudi citizen Yaser Hamdi – to have his claim, of being unlawfully detained as an armed-conflict combatant, heard and adjudicated by a neutral decision-maker in our independent Judicial Branch of government, or elsewhere.

Ruhal Ahmed and his two companions were seized by Northern Alliance forces in northern Afghanistan (where they’d been touring the area prior to attending the wedding of Iqbal in Pakistan, apparently partly in search of “dope,” but without even a tangential connection to any armed conflict, if one can prove a negative) in late November, 2001, were soon transferred to the custody of American Special Forces troops in Afghanistan, and then forcibly flown in January and February, 2002 to Guantanamo Bay, Cuba, where they were held, abused, and interrogated, until released to British custody – without explanation, apology, or reparations from the United States President or Congress then or since – in March, 2004.

Ahmed’s appallingly-abusive treatment and torture, while in American military custody in Afghanistan and Guantanamo, were detailed at length in a joint public account by the three British friends on July 26, 2004, as part of The Guantánamo Testimonials Project of the University of California at Davis’s Center for the Study of Human Rights in the Americas (CSHRA). That laudable academic project has been voluntarily compiling, during the abdication of Congressional oversight and DOJ enforcement of the law against powerful government actors, the evidence of crimes committed by agents of our federal government, that other members of our government should have been compiling and using to impeach and prosecute, years ago.

Some excerpts from that Guantánamo Testimonials Project written account:

80. During the first several weeks [in Guantanamo] the American interrogations with all three [men] consisted of pressing them to ‘just say you’re a fighter’. Asif [Iqbal] was told ‘if you just say you’re a fighter, because of the Geneva Convention when the war is over you’ll get sent back to England’. [Ruhal Ahmed] was told ‘just say you’re a fighter and you’ll go home’. He was told ‘you’ve come to kill American and British soldiers, coalition forces’. They talked about ‘allied forces’. They referred to the Northern Alliance as being the same as ‘allied forces’.


98. The interrogators very rarely introduced themselves. Occasionally they lied about the organizations they worked for and all three men believe the names they gave were almost always false. This misinformation was quite common. As an example, on one occasion [Ruhal Ahmed] told an investigator that one of her colleagues from the FBI had kept him in the interrogation room for 18 hours (this was in Camp Delta). He described the interrogator. The person to whom he was complaining told him that he knew the woman and that she was not from the FBI but from Military Intelligence.

99. In relation to the interrogators, they generally changed. It was very rare to have the same interrogator on a regular basis. Shafiq [Rasul] says ‘I only ever saw the same interrogator on three occasions at the most’.

100. The organizations that were involved in the interrogations included the CIA, FBI, DOD, MI5, NCI (Navy Crime Investigators), NSA, Army CID.
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Yemen’s Foreign Minister Al-Qirbi Admits Permission Granted, Withdrawn for U.S. Attacks on Neutral Yemen, Reports CNN

As originally posted in the reader-diary section of; the post’s 2010 comment thread is available at that link. A January 4, 2010 U.S. State Department cable, sent from the American embassy in Sanaa, Yemen to multiple Executive Branch recipients – entitled “SUBJECT: GENERAL PETRAEUS’ [1/2/2010] MEETING WITH [PRESIDENT] SALEH ON SECURITY ASSISTANCE, AQAP STRIKES” – was leaked to, which released it to the public domain on August 30, 2011 (with similar versions apparently previously released in November/December 2010); that cable confirms the CNN & AFP/Amnesty International reporting below about Yemeni/U.S. cooperation in the “successful” 12/17/2009 & 12/24/2009 U.S. missile-strike “operations” in Yemen. Subsequently, on September 30, 2011, the Executive Branch of the United States government deployed a CIA-operated, missile-armed drone (and one or more military-operated, missile-armed jets) inside the sovereign territory of Yemen, and deliberately killed American-born Anwar Al-Awlaki and three companions (one of whom was also a U.S. citizen), as they traveled together on a public road. Ten months earlier, on December 7, 2010, federal district Judge John Bates had thrown the plea of Al-Awlaki’s father (quoted below), for due process for his hit-listed American citizen son, out of court as non-justiciable by the American judiciary, without bothering to rule on the merits of Mr. Al-Awlaki’s life-and-death case. [Specifically, wrote Judge Bates: “Because these questions of justiciability require dismissal of this case at the outset, the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day or another (non-judicial) forum.” It was a typical perversion of his solemn judicial role by Judge Bates, to avoid his duty to mete out justice, even, and especially, for the powerless and demonized, and even when it would displease the powerful – which he cloaked behind 83 pages of spurious claims about lack of jurisdictional authority. The reasons for that supposed lack of authority were chillingly described (by an Executive Branch eager to continue its abuse of power, obligingly parroted by Bates) as the justice-foreclosing – and, as it predictably turned out for Anwar Al-Awlaki and his companions, life-foreclosing – “threshold” hurdles of “standing, the [judiciary-concocted, so-called] political question doctrine, the Court’s exercise of its ‘equitable discretion,’ the absence of a cause of action under the Alien Tort Statute (‘ATS’), and the [judiciary-concocted, so-called] state secrets privilege.”]

Yemen’s “neutral” territory, that is, given the explicit target(s) that the United States Congress (alone among nations in this regard, as far as I know) selected and authorized the President to attack with armed force under the law of war, by passing the never-revisited 9/18/2001 Authorization for Use of Military Force (AUMF):

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

In what way did Yemen, or Anwar Al-Aulaqi (aka Anwar Al-Awlaki), “plan, authorize, commit, or aid the terrorist attacks that occurred on September 11, 2001, or harbor such organizations or persons”??

Especially given that Anwar Al-Awlaki was a resident of the United States at the time of the 9/11 attacks, and for the decade that preceded them:

Plaintiff’s son, Anwar Al-Aulaqi, was born in New Mexico in 1971. Plaintiff remained in the United States with his family for the next seven years, until 1978, when they moved back to Yemen.


In 1991, Plaintiff’s son Anwar Al-Aulaqi returned to the United States to attend college at Colorado State University. Anwar Al-Aulaqi went on to obtain his master’s degree at San Diego State University and later enrolled in a Ph.D. program at George Washington University, which he attended through December 2001. He married and had three children while living in the United States. He moved to the United Kingdom in 2003, and to Yemen in 2004.

At this point, given the public information that’s available, Yemen seems very much within its neutral-state rights to question any characterization of Al-Awlaki as an “enemy belligerent” fighting us under the 2001 AUMF-authorized armed conflict (as defined by the law of war), or as any “part of” the enemy forces against which Congress in 2001 authorized hostilities (and related detention, under the law of war) by our military. Neutral-state law of nation rights of Yemen that conflict, no doubt, with the asserted, but fraudulent, interpretations of the law of nations, and its subsidiary law of war, with which the Executive Branch (and the media, in the absence of judicial or congressional checks) is now thoroughly contaminated.

And yet, the United States military has apparently already killed at least 41 innocent civilians in Yemen, with the permission of the government of Yemen, in an attempt to kill native-born U.S. citizen Anwar Al-Awlaki, who left this nation more than a year after 9/11, and has been charged with no crimes:

In January 2010, the Washington Post reported that Anwar Al-Aulaqi had been added to “a shortlist of U.S. citizens” that JSOC was specifically authorized to kill. The same article reported that Anwar Al-Aulaqi had survived a JSOC-assisted strike in Yemen in late December 2009. That strike reportedly killed 41 civilians, mostly children and women.

This is how the Agence France-Presse, in June, 2010, reported that December, 2009 “strike” in Yemen, drawing on the investigative work of Amnesty International:

(AFP) – Jun 6, 2010

LONDON — A US cruise missile carrying cluster bombs was behind a December attack in Yemen that killed 55 people, most of them civilians, Amnesty International (AI) said on Monday.

The London-based rights group released photographs that it said showed the remains of a US-made Tomahawk missile and unexploded cluster bombs that were apparently used in the December 17, 2009 attack on the rural community of Al-Maajala in Yemen’s southern Abyan province.


A military strike of this kind against alleged militants without an attempt to detain them is at the very least unlawful,” said Philip Luther, deputy director of AI’s Middle East and North Africa Programme.

Yemen’s defence ministry had claimed responsibility for the attack without mentioning a US role, saying between 24 and 30 militants had been killed at an alleged Al-Qaeda training camp.


“The fact that so many of the victims were actually women and children indicates that the attack was in fact grossly irresponsible, particularly given the likely use of cluster munitions,” Luther said.


[Amnesty International] said photographs it had obtained showed damaged remains of the BGM-109D Tomahawk land-attack cruise missile.

As of yesterday, September 30th, thanks to reporting by CNN’s Mohammed Jamjoom, we now appear to have official, on-the-record confirmation from the government of Yemen of the evidence unearthed by Amnesty International:

Sanaa, Yemen (CNN) — The United States has carried out airstrikes in Yemen, Yemen’s foreign minister told a pan-Arab newspaper in an interview published Thursday, marking that government’s first official confirmation of a U.S. military role in its fight against terrorism.

Foreign Minister Abu Bakr al-Qirbi told the Saudi-owned Al-Hayat newspaper that the air strikes ended in December because the “Yemeni government ascertained they weren’t achieving results.”

Al-Qirbi also told the newspaper that combating al Qaeda “is the responsibility of the security and counterterrorism forces in Yemen.”

Yes, combating international criminals is “the responsibility” of a nation’s government, when that nation is sovereign, governed, and not in a state of external war…

Just as it is that government’s responsibility to cease and desist “unlawful” attacks against its own citizens – euphemistically “because they weren’t achieving results,” or otherwise – by withdrawing the permission to bomb its territory that had been granted to a more powerful, heavily-militarized nation with which Yemen is at peace.

CNN’s Jamjoom on September 23rd further documented the evidence of a state of peace between Yemen and the U.S., as well as active efforts by Yemen to apprehend international and domestic outlaws residing in Yemen:

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Supreme Court Friday: Secret D.C. Circuit Court of Appeals proceedings (overruling lower court), allowing Obama DOD to rendition Guantanamo prisoner fearing torture to Algeria, can take effect before appeal is heard

As originally posted in the reader-diary section of; the post’s 2010 comment thread is available at that link.

Here’s the pitiless, anodyne legal formalism behind which a man’s life or liberty likely hangs in the balance:

FRIDAY, JULY 16, 2010



The application for stay presented to The Chief Justice and by him referred to the Court is denied.

Justice Ginsburg, with whom Justice Breyer and Justice Sotomayor join, dissenting.

I would grant the stay to afford the Court time to consider, in the ordinary course, important questions raised in this case and not resolved in Munaf v. Geren, 553 U. S. 674 (2008).

The Supreme Court, of course, is on vacation until October, having left crucial questions unaddressed and unresolved in its last term, and left unreviewed crucial panel decisions of the lower D.C. Circuit, which directly impact the fate of Guantanamo prisoners. [Chief Justice Roberts, for example, who was responsible for hearing bin Mohammed’s plea to reinstate Judge Kessler’s injunction this week, will be lecturing about the American Bill of Rights – the Fifth Amendment, the Sixth Amendment, etc. – in Australia later this month…]

Farhi Saeed bin Mohammed, however, like every other Guantanamo inmate, is not on vacation. He won his habeas corpus appeal last November. [Translation: Independent federal District Judge Gladys Kessler, after hearing all the evidence the government could muster about his pre-capture activities, while detaining this man for seven years, using its many Pentagon and DOJ resources and outsourced torture-state contractors, determined in an adversarial proceeding with a pro bono civilian attorney acting on bin Mohammed’s behalf, that it was not “more likely than not” that bin Mohammed was a participant in the conflict authorized by the 2001 AUMF (against forces responsible for the 9/11 attacks), and therefore that he has been unlawfully detained by the American military under the law of armed conflict since February, 2002.]

As of yesterday, however, bin Mohammed was still a prisoner at Guantanamo, despite having made an emergency motion in May to effect his release to a nation other than Algeria, where he fears for his life at the hands of both the government and terrorist gangs in that nation.

Lyle Denniston at, who has been all over this story (as has Josh Gerstein of Politico), puts the recent events that culminated in Friday evening’s ruling by a Supreme Court majority – consisting of Justices John Roberts, Jr., Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, Jr. – into plain English:

Lyle Denniston | Friday, July 16th, 2010 7:44 pm

UPDATE Saturday 5:50 a.m. Late Friday night, the Court, without noted dissent, refused to delay the transfer of a second Algerian, Abdul Aziz Naji. The order is here.


In the first indication that the Supreme Court will not allow federal judges to interfere with government controls on who leaves or stays at Guantanamo Bay, the Court Friday evening cleared the way for the transfer of an Algerian detainee to his home country over his protest. The action divided the Court 5-3; the dissenters noted that the case involved “important questions” the Court has yet to answer. The Court’s action was not a final ruling on those questions; rather, it was a refusal to block a lower [D.C. Circuit panel] court order letting the government, not a judge, decide the transfer issue.

While the order would not prevent lawyers for the Algerian, Farhi Saeed Bin Mohammed, from going ahead with an appeal seeking to challenge his transfer, such an appeal very likely would lose all of its significance if the government opts to send him to Algeria promptly. Nothing in the order prevents that result, which probably would moot the controversy.

Mohammed is one of six Algerians now at Guantanamo, each of whom is trying to head off being sent to their homeland because each fears that he faces torture or death, either from the Algerian government or from a terrorist group operating in that country — a fear the U.S. government says is not well-founded.


But, since the Munaf decision was issued by the Court on June 12 two years ago, the D.C. Circuit Court has given it a wide interpretation, ruling that it bars any federal judge from “second-guessing” a decision by the Pentagon and State Departments that controls the ultimate fate of detainees who have been cleared by judges for release. In Mohammed’s case, for example, the Circuit Court relied upon only one Supreme Court precedent — Munaf – as it overturned a federal judge’s order barring his transfer to Algeria.


The Court has not taken any action on the merits of a detainee case since its Boumediene ruling.


District judges handling habeas cases from Guantanamo prisoners are left, for the time being, with only one option if they decide that a detainee is not being held legally: they can urge the government to use its best efforts to try to find a place to relocate that prisoner. That, in fact, is the way most release orders have been worded in the wake of the Circuit Court’s interpretation of the Munaf precedent.


The ruling that the Supreme Court refused to stay [Friday], pending its challenge on appeal, accepted the government’s word that it was more likely than not that a transferred detainee would not be subjected to torture, or worse. Different panels of the Circuit Court have made it clear that the government’s word on that issue is not to be subjected to rigorous testing by District judges in habeas cases.

This is probably a good place to point out that the autocratic-presidency-enamored D.C. Circuit Court, and many of its three-member panels, is an outlier of increasingly-obvious proportions on this and similar Constitutional questions. For example, just one week before the Supreme Court summarily dismissed bin Mohammed’s plea to temporarily prevent (pending appeal) his U.S. military captors from shipping him to Algeria, for fear of torture or worse, a Third Circuit Court of Appeals panel strongly repudiated the Obama DOJ’s similar effort to deport a foreign citizen living in New York to China, for fear of torture, citing the Convention against Torture:

Published: July 15, 2010

Saying that government lawyers let their zeal for victory in a deportation case outweigh their responsibility to be fair, a federal appeals court last week ordered the United States to provide a haven for a woman facing the likelihood of torture in China.


“It is disappointing, even shocking, that the government fails to acknowledge that the evidence is not only strongly in Kang’s favor, but, indeed, compels the conclusion that she will likely be tortured,” said the decision, issued by a three-judge panel of the United States Court of Appeals for the Third Circuit, which covers Delaware, New Jersey, Pennsylvania and the United States Virgin Islands.


The Third Circuit judges called the government’s position “inexplicable” and said both the board [the Board of Immigration Appeals which had overturned an immigration judge who granted Kang protection] and the government lawyers ignored overwhelming evidence.


“Instead, the government sought to characterize the facts in such a way so as to distract the court from the dire nature of Kang’s plight,” Judge Marjorie O. Rendell wrote. “While our adversarial system may permit such advocacy by private parties, when the United States appears before us, it is duty-bound to ‘cut square corners’ and seek justice rather than victory. We are distressed that it failed to do so.

[Tellingly, that proceeding and ruling was in the context of immigration law, to which the D.C. Circuit has been trying to reduce the fundamental, bedrock, Constitutionally-protected right of habeas corpus (the actual judicially-mandated release it encompasses, at least) for Guantanamo detainees, via Kiyemba I, II, & III (the Chinese Uighur cases forbidding their release into the U.S.), in order to try to write our independent Judicial Branch out of an “exclusive” province of the Executive and Congress.]

A similar “zeal for victory” has been in evidence in the Guantanamo case at issue here, the instant that Judge Gladys Kessler requested the presence of a State Department representative (Daniel Fried) in her court so that she could test the strength of the government’s assurances that Algeria will not harm bin Mohammed. Her order for Fried to appear was immediately appealed to the D.C. Circuit, a D.C. Circuit panel in turn immediately acted to prevent the hearing Kessler ordered, and then proceeded to order her to issue a final judgement without recourse to State Department witnesses. All, as Lyle Denniston noted, without benefit of full briefing or oral argument:

The case of Farhi Saeed bin Mohammed, proceeding largely in secret in lower courts, poses a major test of federal judges’ power to assert control over the legal fate of Guantanamo prisoners.

At its core, the case could test how the Supreme Court reconciles two opinions on detainee rights that it issued on the same day, June 12, 2008 — Boumediene v. Bush, and Munaf v. Geren.


The government pursued an emergency appeal of that order, as it did an earlier temporary order by Kessler. Each time, the Circuit Court summarily reversed the judge — that is, it acted without full briefing and oral argument.

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Obama DOJ heads to appeals court hearing Thursday to fight to maintain Congress’s (judge-defined-and-enjoined Bill of Attainder) ACORN funding ban

As originally posted in the reader-diary section of; the post’s 2010 comment thread is available at that link. On Friday, August 13, 2010 [“As Corrected” September 7, 2010 (see Appendix A)], the Second Circuit appellate panel of Roger J. Miner, José A. Cabranes, and Richard C. Wesley overturned Judge Nina Gershon’s findings below, by unanimously declaring that the Congressional singling-out of ACORN – on a regular annual basis, to bar it and its undefined “affiliates, subsidiaries, or allied organizations” even from consideration for federal funding programs – did not qualify as legislative “punishment” or an Unconstitutional Bill of Attainder. [The panel then “…remand[ed] for further proceedings as to the plaintiffs’ First Amendment and due process claims.”] A judgement with which the Harvard Law Review, for one, laudably disagreed, in this January, 2011 review of the ACORN case and Second Circuit opinion [HLR: “In holding that the denial of funds was not punitive in this case, the Second Circuit relied on Congress‘s implicit conclusion that ACORN had committed the acts of fraud and mismanagement of which it was accused [without formal indictment], a judgment Congress is not entitled to make.45 Extrapolating from past acts, the court also assumed that ACORN’s allegedly fraudulent conduct would continue, and that the instances of mismanagement could be imputed to ACORN’s various affiliates and subsidiaries,46 many of which carried out tasks wholly unrelated to the charges of fraud. […] Had Congress not determined that ACORN was guilty of fraud and misconduct, there would have been no reason to bar the organization from receiving federal funding.55 This species of legislative action is exactly the evil that the Bill of Attainder Clause aims to prevent: congressional pandering to popular whims and the subversion of separation of powers for the sake of political expediency.” (emphasis added)]. Yet, without explanation, on November 23, 2010, the Second Circuit as a whole declined ACORN’s petition for an en banc review of the panel decision.  Subsequently, on February 22, 2011, ACORN, working with the Center for Constitutional Rights, filed a petition for a writ of certiorari of the Second Circuit panel decision with the Supreme Court. But the Supreme Court couldn’t be bothered to address this rare and important Bill of Attainder case, and, on June 20, 2011 (after twice granting the government month-long extensions of time in which to file its response to ACORN’s petition), refused to hear or review ACORN’s case, thus rebuffing ACORN’s plea for justice in the American courts, and dismissing out-of-hand Judge Gershon’s two careful, thoughtful rulings. Like the Supreme Court, Congress didn’t convene, or invite ACORN to, even a single public hearing to allow the ACORN organization to respond to the wild and highly-politicized accusations that Members of Congress were making against it, before depriving ACORN, and ACORN alone (at least until the next animosity-fueled passionate impulse sweeps through Congress and a cowed presidency, this time with advance Judicial Branch blessing), of the opportunity to even be considered for taxpayer-financed federal funding opportunities for which it might like – or have liked – to apply.

Specifically, government counsel from the Obama DOJ, and ACORN and its attorneys from the Center for Constitutional Rights (CCR), head to:

United States Court of Appeals for the Second Circuit [in New York City]
[Ceremonial Courtroom (9th Floor)]

on Thursday, June 24, 2010 (sometime late in the morning) in

ACORN, et al
United States of America, et al

Docket numbers 09-5172-cv and 10-0992-cv


Roger J. Miner, Senior Circuit Judge
José A. Cabranes, Circuit Judge
Richard C. Wesley, Circuit Judge

Background of the case, from Federal Judge Nina Gershon’s final ruling on March 10, 2010:

While there are minor disputes about factual matters, the parties agree that there are no material issues of fact that prevent resolution of this case without a trial.


ACORN’s critics consider it responsible for fraud, tax evasion, and election law violations, and members of Congress have argued that precluding ACORN from federal funding is necessary to protect taxpayer money. ACORN, by contrast, while acknowledging that it has made mistakes, characterizes itself as an organization dedicated to helping the poor and argues that it has been the object of a partisan attack against its mission. This case does not involve resolution of these contrasting views. It concerns only the means Congress may use to effect its goals. Nor does this case depend upon whether Congress has the right to protect the public treasury from fraud, waste, and abuse; it unquestionably does. The question here is only whether Congress has effectuated its goals by legislatively determining ACORN’s guilt and imposing punishment on ACORN in violation of the Constitution’s Bill of Attainder Clause.


Section 163 [of the Continuing Resolution Congress passed last fall to temporarily fund government agencies because of its failure to pass the appropriations bills for FY 2010 before the year began on October 1, 2009] provides that:

None of the funds made available by this joint resolution or any prior Act may be provided to the Association of Community Organizations for Reform Now (ACORN), or any of its affiliates, subsidiaries, or allied organizations.

The Continuing Resolution containing Section 163 went into effect on October 1, 2009, and was extended on October 31, 2009 to December 18, 2009.


Plaintiffs [ACORN] filed suit in this court on November 12, 2009, arguing that Section 163 is an unconstitutional bill of attainder and that it violates their rights under both the First Amendment and the Due Process Clause. In their initial complaint, plaintiffs alleged that, as a direct consequence of Section 163, agencies have refused to review their grant applications; that grants they were told they would receive have been rescinded; that previously-awarded grants have not been renewed; and that HUD had refused to pay on its contractual obligations even for work already performed. Plaintiffs also alleged that other organizations, such as private corporations and foundations, have cut ties to them as a result of Section 163.


Plaintiffs sought emergency relief on November 13, 2009, arguing that Section 163 was an unconstitutional bill of attainder and that it violated their rights under both the First Amendment and the Due Process Clause. On December 11, 2009, I preliminarily enjoined then-defendants the United States, Peter Orszag, in his official role as Director of OMB, Shaun Donovan, in his official role as Secretary of HUD, and Timothy Geithner, in his official role as Secretary of the Treasury, from enforcing the provision, on the grounds that plaintiffs had shown irreparable harm and a likelihood of success on the merits of their claim that Section 163 is a bill of attainder.[Footnote 3] ACORN I, 662 F. Supp. 2d at 299-300.

[Footnote 3:] The government appealed that decision on December 16, 2009, but has not moved in the Second Circuit to expedite the appeal. By letter dated February 12, 2010, the government asked for a due date of May 13, 2010 for its opening brief in the Court of Appeals, which request was “so ordered” on February 17, 2010.

On December 16, 2009, President Obama signed into law the 2010 Consolidated Appropriations Act. Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, 123 Stat. 3034 (2009). This Act, described by the government as a “minibus” Act, is a consolidation of various appropriations acts for Fiscal Year 2010.

Several of the consolidated acts contain provisions prohibiting the award of funding to ACORN.


Following the enactment of the minibus bill, Congress passed and the President signed into law the final outstanding appropriations bill, the Department of Defense Appropriations Act of 2010, which prohibits distribution of funds under the act to ACORN or “its subsidiaries.” Department of Defense Appropriations Act, Pub. L. No. 111-118, Section 8123, 123 Stat. 3409, 3458 (2009). Once this final appropriations act was passed, the Continuing Resolution, and thus Section 163 included in it, expired.

On consent of the government, plaintiffs filed a second amended complaint including all five Fiscal Year 2010 appropriations provisions that prohibit funding to ACORN as well as Section 163. Plaintiffs named three new defendants: Lisa P. Jackson, Administrator of the Environmental Protection Agency (“EPA”); Gary Locke, Secretary of Commerce; and Robert Gates, Secretary of Defense.

Plaintiffs and defendants agree that, for the purposes of the bill of attainder argument, the challenged provisions should be analyzed as one statute. Although several of the full year appropriations acts use language slightly different from that of Section 163, neither plaintiffs nor defendants have suggested that any of these differences is significant, either practically or legally.


Plaintiffs acknowledge that HUD, pursuant to the OLC memorandum [requested by HUD, and issued privately on October 23, 2009 and publicly in late November, 2009] has paid, or has agreed to pay, for work already performed under existing contracts. […]

The defendants recognize that ACORN has been singled out by Congress and that there has been no judicial trial at which ACORN has been found guilty and deserving of punishment, but argue that the challenged legislation is not a bill of attainder because it does not impose punishment. The government relies heavily on Section 535 of Division B of the 2010 Consolidated Appropriations Act, which directs the United States Government Accountability Office (“GAO”) to “conduct a review and audit of the Federal funds received by [ACORN] or any subsidiary or affiliate of ACORN” to determine

(1)whether any Federal funds were misused and, if so, the total amount of Federal funds involved and how such funds were misused; (2) what steps, if any, have been taken to recover any Federal funds that were misused; (3) what steps should be taken to prevent the misuse of any Federal funds; and (4) whether all necessary steps have been taken to prevent the misuse of any Federal funds.

Commerce, Justice, Science, and Related Agencies Appropriations Act, 2010, Pub. L. No. 111-117, Div. B, Section 535, 123 Stat. 3034, 3157-58 (2009). Section 535 directs that within 180 days of enactment of the Act, the Comptroller General “shall submit to Congress a report on the results of the audit…, along with recommendations for Federal agency reforms.” Id. Plaintiffs do not challenge the Section 535 provision as a bill of attainder, but the government relies on the investigation to argue that Congress had a non-punitive reason for passing the challenged provisions.

The mandated GAO review and audit of ACORN

The said GAO review and audit was issued in preliminary form last week:

The Consolidated Appropriations Act, 2010, directed us to issue a report on ACORN within 180 days (by June 14, 2010).3 We also received three request letters from a total of 23 members of Congress asking that we provide information on federal funding provided to ACORN and oversight of the use of this funding.


Given that our analysis related to these objectives is ongoing, the information in this report is preliminary and subject to change. We plan to issue a report later this year with our final results related to ACORN and potentially related organizations.


Scope and Methodology

To identify funding awarded to ACORN or potentially related organizations and its purpose, we asked 31 federal agencies to identify funding (grants, contracts, or cooperative agreements) awarded to ACORN or potentially related organizations from fiscal years 2005 through 2009 and, to the extent possible, any funding that may have gone to ACORN or a potentially related organization as a subaward (subgrant or subcontract) during this period.8 We requested information on federal funding that was awarded to ACORN or potentially related organizations, regardless of whether the funding had been dispersed to or expended by the organizations.


To identify the monitoring processes for funds awarded to ACORN or potentially related organizations, we obtained and compared the agencies’ monitoring protocols with documentation of the steps agencies took to monitor these awards.10 We interviewed and obtained documentation from grant program managers and staff from six of the nine agencies that reported providing funding to organizations on the CRS [Congressional Research Service] list: NeighborWorks, the Election Assistance Commission (EAC), the Corporation for Public Broadcasting (CPB), the Environmental Protection Agency (EPA), the Department of the Treasury (Treasury), and the National Endowment for the Arts (NEA).11 We discussed their monitoring processes and how they decided which mechanisms to apply for particular awards. We also asked grant program managers and staff to identify any problems that agencies found through the oversight process and explain how these were resolved. […]

For our third objective, we reviewed information from DOJ—including the Federal Bureau of Investigation (FBI) and DOJ litigating divisions12—as well as the 31 agencies within the scope of our review and the investigative components of the IGs of those 31 agencies to identify any investigations or prosecutions they have conducted of ACORN or potentially related organizations since fiscal year 2005.


We conducted this performance audit from December 2009 through June 2010 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Results in Brief

Nine agencies—HUD, DHS, DOJ, EAC, NeighborWorks, CPB, EPA, Treasury, and NEA—identified approximately $37.5 million in direct federal grants and at least $2.9 million in subawards (i.e., grants and contracts awarded by federal grantees) to ACORN or potentially related organizations, primarily for housing-related purposes during fiscal years 2005 through 2009. […]

Agencies employed several mechanisms—ranging from reviews of progress reports submitted by grant recipients to on-site monitoring—to oversee the eight direct grants for which we received documentation on their oversight process; agencies generally did not identify any problems with seven of the eight grants.15 Agency officials said that they considered the grant amount and availability of personnel and resources as factors in deciding what type of monitoring to conduct. Agency monitoring efforts identified and resolved a problem with one of eight direct grants to ACORN or potentially related organizations for which we obtained information on oversight. Specifically, NeighborWorks determined that ACORN Housing Corporation had not provided a description of what it planned to accomplish under the grant, as required. After NeighborWorks brought this to the attention of ACORN Housing Corporation officials, these officials subsequently provided the documentation.


In addition to their routine grant oversight, all six of the agencies included in our review that have provided funding directly to ACORN or potentially related organizations since fiscal year 2005 have initiated either IG or internal reviews of these organizations’ use of federal funds in response to congressional requests or at the agency’s own initiative. The DOJ IG completed its review in November 2009 and the CPB, DHS, EAC, and HUD IG reviews, as well as the NeighborWorks review, were ongoing as of May 24, 2010. Table 4 includes the information we obtained from these agencies regarding their reviews.

Distinct from routine grant oversight and monitoring efforts, which are intended to assess whether grantees are meeting the purposes of the grant program and spending funds appropriately, federal agencies may also conduct investigations of an organization or an employee of an organization to determine whether the organization or employee violated federal law. In the closed matters, closed investigations, and prosecutions since fiscal year 2005 provided by the FEC, the FBI, and EOUSA, ACORN and four potentially related organizations (Project Vote, Citizens Consulting, Inc., Citizen Services Inc., and SEIU Local 100) or their employees were involved to varying degrees in the investigated allegations, as detailed in the tables below. The allegations involved generally related to voter registration fraud and election fraud. IGs can also conduct investigations to determine whether an organization or individual violated federal law. However, of the 31 IGs that we contacted, 29 stated that they had no ongoing or closed investigations of ACORN or potentially related organizations since fiscal year 2005.26 Officials from TIGTA stated that they could not comment on whether their office had conducted any investigations of any ACORN or potentially related organizations since 2005 because section 6103 of the Internal Revenue Code prohibits the disclosure of taxpayer information by the Internal Revenue Service, except in specifically enumerated circumstances.27 The HUD IG’s Office of Investigations declined to comment on whether it had any open or closed investigations involving ACORN or potentially related organizations.


The FEC identified four closed matters that involved allegations that ACORN or potentially related organizations violated the Federal Election Campaign Act.28 For each of these matters, the FEC determined that there was no evidence that such violations occurred. These matters are summarized in table 5.


EOUSA identified six closed cases that involved employees of ACORN. The charges filed did not allege wrongdoing by ACORN or any potentially related organizations. The six cases generally involved alleged voter registration fraud; all but one of these cases resulted in a guilty plea by the defendant. These cases are summarized in table 7.


Five of the federal agencies—DOJ, HUD, NEA, Treasury and NeighborWorks—did not provide formal written comments to be included in this report, but instead provided technical comments, which we incorporated as appropriate. In an email received June 8, 2010, the EPA liaison stated that EPA had no comments on the report and on June 9, 2010, CPB and DHS’s liaisons said that their agencies had no comments on the report. In an email received June 9, 2010, EAC’s Director indicated that the draft report accurately reflected the agency’s grants to Project Vote and their management, and had no further comments.


According to ACORN and Project vote officials, the organizations provided information to local election officials that helped initiate prosecutions against their employees who may have been involved in voter registration fraud. We are working to verify this information and will include the results of our efforts in our final report on ACORN to be issued later this year. ACORN and Project Vote officials also stated that they have a comprehensive quality control system in place designed to identify voter registration fraud.

Yup, sounds like a real “federal case” outlined there, all right…

No wonder the House and Senate jumped all over it last year, instead of focusing their collective attention on or meaningfully tackling egregious and ongoing matters like this, which was being publicly reported last November just as the screws were being put to ACORN:

“U.S. taxpayer dollars are feeding a protection racket in Afghanistan that would make Tony Soprano proud,” [Representative John] Tierney said, referring to the fictional mob leader in the TV series “The Sopranos.”

Military authorities in Afghanistan have only been concerned that the supplies reach their destination and the warnings they received from the trucking companies about extortion payments “fell on deaf ears,” said Tierney, who chairs the House Oversight and Government Reform national security subcommittee.

Army Lt. Gen. William Phillips, a senior Pentagon acquisition official, said he was unaware of the allegations that U.S. tax dollars may be indirectly bankrolling the insurgency and promoting instability in Afghanistan.


Members of the subcommittee weren’t impressed. “Warlord Inc.,” a report released Monday by the panel’s Democratic staff, noted that a military task force has been examining allegations since last year of extortion and corruption stemming from the contract. But the report paints the inquiry as slow moving and unfocused.

“There seems to be very little indication the Department of Defense is doing anything,” said Rep. Jeff Flake of Arizona, the subcommittee’s top Republican.


Nearly $700,000 per day is spent on average moving supplies throughout Afghanistan, Phillips said.

– Richard Lardner, Associated Press, June 22, 2010

The GAO report, moreover, is only the latest in a string of independent investigations that have cleared ACORN of wrongdoing since the middle of last year. ACORN itself hired a former Massachusetts Attorney General to do an internal investigation, and the District Attorney for Kings County, New York spent five months looking into ACORN operations after Congressionally-trumpeted doctored hidden-camera videos surfaced last September. The Congressional Research Service also investigated, and was unable to document any wrongdoing on ACORN’s part in a report issued to little notice during the holiday season last December.

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"He Was Tortured, But He Can't Sue": David Cole's utterly-damning account of our Judicial Branch's denial of justice for Canadian Maher Arar

As originally posted in the reader-diary section of; the post’s 2010 comment thread is available at that link.

An invaluable summary and incisive account of the Maher Arar case was published Tuesday by Arar Attorney David Cole on the blog of the New York Review of Books, in response to the United States Supreme Court’s refusal to even hear the Arar appeal. Arar’s appeal was an ultimately-unsuccessful six-year-long effort to simply be heard in an American courtroom on the merits of his rendition-to-torture allegations against high public officials in our nation’s Executive Branch of government.

The Supreme Court’s refusal to even hear Arar’s case may have resulted from Justice Sotomayor’s recusal from the debate and vote on hearing his appeal – a recusal apparently made just because Sotomayor, while sitting on the Second Circuit Court of Appeals (whose decision Arar was appealing to the Supreme Court), publicly did no more than to participate in the court’s en banc Arar appeal oral argument (having left the court months before the 2nd Circuit’s November, 2009 Arar decision was rendered). [The December, 2008 en banc Arar oral argument in the Second Circuit, which lasted for more than two hours, in which Sotomayor participated by video feed, may be viewed in its entirety here.]

The short version, from Cole’s account, of how the incumbent American President acts to "faithfully execute the Office of President" and "to the best of [his] ability, preserve, protect, and defend the Constitution" – under the Presidential oath of office Article II, Section One, Clause Eight of our Constitution demands:

In President Obama’s May 2009 speech on national security and American values, he opposed a commission to investigate torture by arguing that there were proceedings in the courts that could provide accountability. Yet in the Arar case—as in every other civil case that has sought accountability for torture—the Obama administration argued that the courts were not an appropriate forum. To the Obama administration, defending government officials from suit, regardless of the gravity of the allegations, is evidently more important than holding individuals responsible for complicity in torture.

As to the torture claims of Syrian-born Canadian resident and citizen, Maher Arar, Cole elaborates:

[…] When they finally permitted him to see a lawyer, on a Saturday ten days into his detention, the government hastily scheduled an extraordinary hearing for the next night—Sunday evening—and only "notified" Arar’s lawyer by leaving a voicemail on her office answering machine that Sunday afternoon. They then falsely told Arar that the lawyer had declined to participate, and questioned him for six hours, until 3 a.m. Monday.

When Arar’s lawyer retrieved the voicemail message later that Monday morning, she immediately called the Immigration and Naturalization Service. They told her falsely that Arar was being moved to New Jersey, and that she could contact him there the next day. In fact, he remained in New York until late that night, when he was put on a federally chartered jet and spirited out of the country. US officials never informed Arar’s lawyer that he had been deported, much less that he had been delivered to Syrian security forces.

Arar was beaten and tortured while Syrian officials asked him questions virtually identical to those US officials had asked him in New York. He was locked up for a year without charges and in complete isolation, most of the time in a cell the size of a grave. After a year, Syria released him, finding no evidence that he had done anything wrong.


In addition, the United States did not dispute that if, as was his legal right, Arar had been able to get his claim before a court while he was being detained in the United States—before he was sent to Syria—the federal courts would have entertained his case and could have stopped his rendition. Congress has expressly authorized the courts to review immigration decisions and to bar removal of foreign nationals to any country where they face a risk of torture. Knowing that, US officials made sure Arar could not get to court—denying his initial requests for a lawyer, lying to him and his lawyer, and then flying him out of the country in the dead of night before he or his lawyer could file anything. Arar therefore sought the only remedy left—damages for his injuries. The Second Circuit never explained why Arar’s case, which indisputably could have been adjudicated had he been able to seek review before he was removed, suddenly became too "sensitive" once Arar sought damages for injuries incurred as a result of that removal.

Absent enforcement, "the law" is a cruel joke…

Bush administration officials sent Arar to be tortured, and Bush administration lawyers initially sought to have his damages suit dismissed. But nothing changed when President Obama took office. The Obama administration [through its Deputy Solicitor General] aggressively defended the Second Circuit’s decision to throw Arar’s case out of court. It opened its brief to the Supreme Court with a paragraph reiterating that torture is never permissible, but then went on to argue at length that federal officials accused of torture should not be held accountable.

– Attorney David Cole, June 15, 2010

Be sure to read the whole thing.

Yet even while powerful abusers on the public payroll egregiously skate from the consequences of their actions, the powerless among us continue to be persecuted by government actors, on multiple fronts.

ACORN Persecution

From the latest in a series of at least four independent investigations undertaken and concluded on the same subject since the middle of last year, none of which have unearthed any wrongdoing:

When a duo of right-wing provocateurs posing as a pimp and prostitute released selectively-edited videos trying to impugn the community activist group ACORN, both Democrats and Republicans condemned the organization. Congress then voted to cut off federal funding for the group (a decision that was later ruled unconstitutional [as a Bill of Attainder]). Following negative press and Congress’ vote, ACORN effectively disbanded Apr. 1 and reorganized under new names.

But a just-issued report by the Government Accountability Office that reviewed ACORN’s federal funding at the behest of Congress found little grist for the mill for politicians or right-wing bloggers looking to bash the now-defunct advocacy group for the poor.

The 38-page report surveyed over 31 federal agencies, probing how ACORN used federal funds and whether adequate controls on spending existed.

The report found no evidence of fraud, lax oversight or misuse of federal funds.

By at least March 12th of this year, after Federal District Judge Nina Gershon had issued her permanent injunction striking down the unConstitutional Congressional ban on consideration of federal funding applications from ACORN – a ruling now under appeal by the Obama administration in the Second Circuit – that was already quite clear:

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District Judge Robertson’s Slahi Guantanamo habeas decision exposes the defiant federal-power-centralizing agenda behind the Al Bihani habeas ruling of D.C. Circuit Judges Brown & Kavanaugh

As originally posted in the reader-diary section of; the post’s 2010 comment thread is available at that link.

In a clear and thoughtful decision issued March 22, 2010, that was declassified with redactions this Friday, April 9, Federal District Judge James Robertson granted the habeas corpus appeal of Guantanamo detainee Mohamedou Ould Slahi (referred to in the decision as Mohammedou Ould Salahi), a Mauritanian who has been imprisoned at Guantanamo Bay Naval Base since 2002.

But not just “imprisoned,” as Andy Worthington points out, helpfully filling in some of the censored and undetailed portions of the record, beside a rare photograph of Slahi:

Noticeably, however, Slahi was subjected to several years of torture, which began soon after he was taken in by the Mauritanian authorities on November 20, 2001, at the request of the Bush administration. “My country turned me over, shortcutting all kinds of due process of law, like a candy bar to the United States,” he said in his Combatant Status Review Tribunal at Guantánamo in 2004.

After he was seized, he was transferred by the US to Jordan — one of at least 15 prisoners rendered to Jordan by the CIA between 2001 and 2004 — where he was held for eight months, and where, he said, what happened to him was “beyond description” and he was tortured “maybe twice a week, a couple times, sometimes more.” He was then transferred to the US prison at Bagram in Afghanistan for two weeks, and arrived in Guantánamo on August 4, 2002.

As the “highest-value detainee” at Guantánamo — in the days before Khalid Sheikh Mohammed and 13 other “high-value detainees” were flown in from secret CIA prisons in September 2006 — Slahi was again subjected to torture, which included prolonged isolation, prolonged sleep deprivation, beatings, death threats, and threats that his mother would be brought to Guantánamo and gang-raped. This program, which was implemented in May 2003, and augmented with further “enhanced interrogation techniques” authorized by defense secretary Donald Rumsfeld, culminated, in August 2003, in an incident when Slahi was taken out on a boat, wearing isolation goggles, while agents whispered, within earshot, that he was “about to be executed and made to disappear.” As Der Spiegel explained in an article in 2008, “He was so terrified that he urinated in his pants.”

After this, as Slahi himself described it (in a letter to his lawyers dated November 9, 2006), “I yes-sed every accusation my interrogators made. I even wrote the infamous confession about me was planning to hit the CN Tower in Toronto based on SSG [redacted] advise. I just wanted to get the monkeys off my back.”

However, his treatment was so severe that, in May 2004, Lt. Col. Stuart Couch of the Marine Corps, who had been assigned his case as a prosecutor the year before, resigned rather than pursuing the case. In a meeting with the chief prosecutor, Army Col. Bob Swann, Lt. Col. Couch “told Col. Swann that in addition to legal reasons, he was ‘morally opposed’ to the interrogation techniques ‘and for that reason alone refused to participate in [the Slahi] prosecution in any manner.'”

In the process of ordering Slahi’s release from American military custody, D.C. District Judge Robertson exposed the twisted logic and misinformed reasoning of a key, but clearly erroneous as to the laws of war, political agenda-driven January 5, 2010 holding of the majority on a three-judge panel of the D.C. Circuit Court of Appeals, in the Al Bihani Guantanamo habeas corpus appeal. [That’s the appellate decision where a panel majority of Janice Rogers Brown and Brett M. Kavanaugh brazenly asserted that the presidential war powers authorized and invoked by Congress, via the 2001 Authorization for Use of Military Force, are not limited or governed by the international laws of war, and that went so far as to claim that “the international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts. . .therefore while the international laws of war are helpful to courts, [they] lack controlling legal force.”]

Old Bailey photo by John Linwood, at

Justice atop the Old Bailey in London

Judge Robertson deftly exposed the mendacity of the Al Bihani decision’s reasoning, even as he himself was forced to adher to that flawed higher court precedent. A flawed appellate court precedent that – unless and until overturned – now governs all habeas corpus appeals brought by Guantanamo prisoners, who may only be heard in the district court in Washington, D.C. that’s governed by the D.C. Circuit Court of Appeals – and thus by the specious reasoning of such unsound and unjust opinions as that of the Brown/Kavanaugh Al Bihani panel majority. Their decision to uphold as lawful the detention of Al Bihani (a citizen of Yemen, likewise detained since 2002 at Guantanamo Bay) was concurred in as to the result, but challenged as to its dismissive interpretation and understanding of the law of war, by Senior Circuit Judge Stephen F. Williams.

Robertson’s carefully-balanced decision, while acknowledging that Slahi himself admits to having been a sworn member of Al Qaeda in the early 1990s, found – more than six months after the first merits hearing on Slahi’s appeal, which itself took place years after Slahi first officially challenged the basis of his detention in federal court – that the Executive Branch failed to prove that it was simply more likely than not that Slahi is and was legally detained by the United States government, resulting in an order for the release of Slahi, which the Obama administration immediately moved to appeal in the D.C. Circuit.

Some of the important logic and reasoning of Robertson’s decision: Read the rest of this entry »

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"You will not leave this place innocent." Even if you are. Just ask our Senators and Representatives, who preach that UCMJ-violative DOD detention, alone, proves the guilt of detained foreigners

As originally posted in the reader-diary section of; the post’s 2009 comment thread is available at that link.

In a court declaration this spring, Kuwaiti citizen Fouad Al Rabiah, a 20-year airline employee, father of four, and college graduate from universities in Scotland and the United States, who has been held prisoner since 2002 without formal charge, or review by a Geneva Convention-compliant Article 5 tribunal, as a de facto non-POW war fighter and/or war criminal, in the off-limits-to-visitors American military prison at Guantanamo Bay Naval Base in Cuba, and coercively interrogated throughout his imprisonment, wrote:

…a senior [redacted] interrogator came to me [in Guantanamo, in 2002] and said: “There is nothing against you. But there is no innocent person here. So, you should confess to something so you can be charged and sentenced and serve your sentence and then go back to your family and country, because you will not leave this place innocent.”

That March 17, 2009 declaration by Al Rabiah for his habeas corpus court hearing only came into being because, six years after Al Rabiah filed his habeas petition on May 1, 2002, the Supreme Court – in its vital role as part of our third, independent Judicial/Article III Branch of government – in June, 2008 belatedly ordered an end to the severe and unprecedented breach of Constitutional limits by abusive federal military and police authorities, that had been selectively implemented since September, 2001 against foreign Arabs and practicing Muslims at the behest of both the Executive/Article II and Legislative/Article I Branches of our government. As a result, a year after the Supreme Court’s order in Boumediene, a federal district judge this year finally heard and ruled on the merits of Al Rabiah’s 2002 appeal, which asked simply to have the Executive Branch’s reason for its unilateral military imprisonment of Al Rabiah made known to a neutral Judicial Branch magistrate, and accepted or rejected as valid under American law and the law of armed conflict.

Following Al Rabiah’s August, 2009 merits hearing (in anticipation of which his March declaration was filed) – held seven years after it should have been, largely because of the abdication of oversight by Members of Congress of the wars they launch (or, these days, the wars they simply dangerously rubberstamp the launching/expansion of), and because of the many venal authoritarian followers in Congress who politicize and subvert justice for personal gain or personal spite, while refusing to question the far-reaching actions of the largely self-directed Pentagon and CIA – Judge Colleen Kollar-Kotelly ruled in a comprehensive and clearly-explained opinion, on September 17, 2009:

If there exists a basis for Al Rabiah’s indefinite detention, it most certainly has not been presented to this Court. Al Rabiah’s petition for habeas corpus is GRANTED.


The Court shall issue an Order requiring the Government to take all necessary and appropriate steps to facilitate Al Rabiah’s release forthwith.

That’s coming from a judge who knows far more than the average Member of Congress about the highly-classified actions of our government in its pursuit of suspicious foreign agents inside the U.S., Kollar-Kotelly having been the presiding judge of the Foreign Intelligence Surveillance Court for most of the Bush/Cheney reign.

This, on the other hand, is coming from one of the most powerful, plugged-in legislators in the House of Representatives – Dave Obey of Wisconsin, chairman of the House Appropriations Committee, and Ex Officio member of all 12 of its subcommittees, which fund every agency of the Executive Branch, speaking on the House floor Thursday, October 1, 2009:

Now, this country has a problem. After September 11 we picked up a lot of bad and dangerous characters and shipped a lot of them to Guantanamo. We also picked up, on the basis of bad information, some who didn’t belong there. From what I can tell, it would appear like virtually every single person there now deserves to be there.

To anyone actually trying to pay attention to what the Congress of the United States has allowed to transpire in our military prisons – with essentially no oversight from either its Armed Services (chaired by Carl Levin and Ike Skelton) or Foreign Relations (chaired by John Kerry and Howard Berman) Committees – it’s obvious that Dave Obey, among many, many others in our federal legislature, is not even trying to pay attention to the many horrific consequences of the Congressionally-authorized-and-unleashed years-long Executive Branch use of violent armed force abroad.

To his credit, Obey was actually attempting, without sufficient facts in hand, to rebut [link broken, 2/2012; a search of the Appropriations Committee’s two websites – segregated by Party – failed to retrieve the document] unproven and disproven racism-tinged accusations by Harold “Hal” Rogers of Kentucky about our military’s Arab prisoners in Guantanamo Bay. Before I quote some of the wild-eyed, specious claims of Rogers, though, and for the information of Obey and others, including our AWOL media, here’s how things now stand, after the first independent analyses by another branch of government of the Executive Branch’s claims about its military prisoners have finally been undertaken, post-Boumediene, as explained by Harper’s Scott Horton on October 1, 2009:

Seton Hall Law School students and faculty issued a series of impressive reports surveying the available evidence, and they suggested that perhaps as many as 80% of the total inmate population of Gitmo were innocent people, swept up as a result of generous bounty payments the United States offered to Afghan warlords and Pakistani security officials.

Now, as habeas corpus cases are processed, we finally have a basis to judge the Bush-Cheney claims about the Gitmo prisoners. The “judging” is being done by federal judges in Washington, nearly all of them conservative Republicans and quite a few appointed by George W. Bush himself. The results? The process is still ongoing. But at this moment, decisions have been rendered in 38 cases. The government was found to have had a tenable basis to hold eight Gitmo prisoners, and to have no basis in 30 cases. So far at least, the court judgments are remarkable in their coincidence with the numbers from the Seton Hall study. The judicial reviews—which have gotten far less press coverage than the scatter-shot attacks of Dick Cheney and his daughter–can be summarized this way: “Worst of the worst? Not so much.”

Here’s the roll call, with the status, the prisoner involved, the judge who ruled, and the prisoner’s nationality:

Freedom granted—30 (20 of whom are still in custody)

17 Uighurs—Urbina (4 released to Bermuda)

5 Bosnian-Algerians—Leon—(4 released—3 to Bosnia and 1 (Lakhdar Boumediene) to France)

Mohammed el Gharani (Chadian)—Leon (released to Chad)

Yasim Muhammed Basardah—Huvelle (Yemeni)

Alla Ali Bin Ali Ahmed—Kessler (Yemeni)

Abd al Rahim Abdul Rassak Janko—Leon (Syrian)

Khalid Abdullah Mishal Thamer Al Mutairi—Kollar-Kotelly (Kuwaiti)

Mohammed Jawad—Huvelle (Afghan; released to Afghanistan)

Mohammed Al-Adahi– Kessler (Yemeni)

Fouad Al Rabiah—Kollar-Kotelly (Kuwaiti).

Freedom denied—8

Belkacem Bensayah (Bosnian)—Leon

Hisham Sliti (Tunisian)—Leon

Muaz Al Alawi (Yemeni)—Leon

Ghaleb Nassar Al Bihani (Yemeni)—Leon

Hammamy (Tunisian)—Leon

Waqas Mohammed Ali Awad (Yemeni)—Robertson

Fawzi Al Odah (Kuwaiti)—Kollar-Kotelly

Sufyian Barhoumi (Algerian)—Collyer

As for what lead to those decisions, here’s the burden of persuasion, quoting Judge Kollar-Kotelly in her Al Rabiah decision, that the entire resources of the American military and Executive Branch of government could be called on to meet to win those 38, and any future, cases, in order to keep legitimate armed conflict fighters detained (whether or not they committed any recognized offenses against the law of war) for the duration of the conflict:

Pursuant to the Amended Case Management Order that the Court adopted in this case on December 22, 2008, the Government bears the burden of proving by a preponderance of the evidence that Al Rabiah is lawfully detained.


The Government must come forward with evidence demonstrating by a preponderance of the evidence that he is lawfully detained, and if the Government fails to meet this burden, the Court must grant Al Rabiah’s petition for habeas corpus.

That’s all. Not “beyond a reasonable doubt.” Not a jury conviction. Simply by “a preponderance of the evidence,” in the judgement of one judge, that the years-long detention by our military of the prisoner at issue is and was lawful under our Constitution, the 2001 AUMF, and the law of armed conflict. If that low standard can’t be met, with all the odds and classified intelligence in the government’s favor, the detainee wins his case – as 30 of 38 have finally succeeded in doing since June, 2008, thanks to the help of many volunteer civilian defense counsel, and many principled active military JAG officers who are quietly working to resist and undo the unjust abuses perpetrated by their own branch of government.

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