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Shayana Kadidal: Indefinite detention gives the appearance of a due process, lets administration get away with not trying people

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I’m Paul Jay in Washington. The Obama administration is preparing an executive order that will allow authorities to detain prisoners in Guantanamo for life. That’s without any further due process, assuming they got any due process to begin with. This is certainly contrary to what people thought this administration would do, with promises to close Guantanamo more than a year ago. Now joining us to give his take on this issue is Shane Kadidal. He’s the senior managing attorney of the Guantanamo Global Justice Initiative at the Center for Constitutional Rights. He’s also worked on a number of significant cases in the wake of 9/11, including the Center’s challenges to the detention of prisoners at Guantanamo. Thanks very much for joining us, Shane.


JAY: So, first of all, tell us the significance of this order.

KADIDAL: Well, you know, people hear about this order and they think it’s another level of process that the administration is creating, right? So, you know, first of all, indefinite detention is already happening at Guantanamo. It means, you know, people are being detained with no time limit on that detention. And they aren’t being charged either, right? They’re not being charged and given a trial in some sort of criminal court, whether in a military commission or a regular federal court, right? So all of the 172-odd people at Guantanamo right now are in indefinite detention. So one of the premises of this order and the stories that have been written about it has been that it’s designed for people who lose their habeas cases, right? So the Supreme Court in 2008 said if you’re indefinitely detained at Guantanamo, you can challenge whether your detention is illegal in a habeas case in federal court. Right? But what do you do with the people who lose? Do they just stay there forever if the administration decides not to charge them [inaudible]

JAY: Just for everyone watching that may not know, losing a habeas case means you lost a case saying you didn’t get due process.

KADIDAL: Right. Right. Well, we think of “due process” as meaning access to the court. So it would mean that you had gone to the court and said, I’m unlawfully detained, they don’t have the right to hold me; and the court would have said in response, well, maybe they do have the right to hold you. You know. And typically the grounds here would be something like, you fought with the Taliban or with al-Qaeda against our forces on the ground.

JAY: So we’re talking now about people who are in this category that gets discussed quite a bit, where they don’t think there’s enough evidence to take them in front of a military tribunal, even that. But they don’t want to let them out, either.

KADIDAL: The so-called, you know, difficult to charge or impossible to charge but too dangerous to release. And we’ve always contended that this is a nonexistent category. You know, people who actually were fighting against, you know, Americans on the ground, if they weren’t sort of part of the legitimate sort of army of Afghanistan, if they were in fact, you know, fighting with a terrorist organization like al-Qaeda, well, they could easily be charged with material support or something like that. But the reality is that 95 percent of the people who have ever been at Guantanamo were not captured by US Armed Forces. The vast majority were sold to us by warlords or by Pervez Musharraf’s corrupt police and intelligence services. Right? So it has nothing to do–they’re not anywhere close to the traditional prisoner of war who you can hold in nonpunitive detention for as long as the hostilities are ongoing.

JAY: So first of all, then, is this a straight breaking of a promise, a campaign promise, or not?

KADIDAL: Well, I think it facilitates a breaking of the campaign promise, right, because remember, the whole of 2009, President Obama had this huge task force with millions of dollars of resources dedicated to sorting out the intelligence and deciding, you know, what should be done with the people who are left at Guantanamo. So most of them went into a box that were, you know, safe to release, and some of those people have been released, although there are still 90 people who were cleared for release at Guantanamo who are still sitting there indefinitely.

JAY: Okay, stop for one second here. Why are these 90 still sitting there if they’ve been cleared for release?

KADIDAL: Well, a lot of it is that about 60 of them are Yemeni and the US just doesn’t seem to want to send anyone back to Yemen after the underwear bomber incident, where that guy, the Nigerian guy who supposedly tried to blow up an airplane going into Detroit in Christmas ’09, was supposedly trained in Yemen. So there’s this perception, its a lawless place.

JAY: So are they still living under–they’re still living under conditions as if they are still just prisoners at Guantanamo, those 90 that are supposed to be released. I mean, why don’t they, like, get them a hotel room on a Cuban beach or something?

KADIDAL: Right. I mean, you know, the conditions have improved a great deal at Guantanamo from where they were at the end of the Bush administration, but they’re not great. And yeah, there’s no special treatment once it’s decided that you are safe to release. They’re just sitting there with the rest of the prison population.

JAY: Well, given that they’re safe to release and given that they’ve never been convicted of anything, if they can’t be sent back to Yemen, doesn’t the US have some obligation to either let them into the US or pay them compensation or something? I mean, these are essentially innocent people.

KADIDAL: M’hm, you would think so, right? And, you know, the problem with this executive order, or this proposed executive order, is not just that it recognizes a class that we don’t think exists, this, you know, can’t charge but too dangerous to release class, but also that it would facilitate moving people out of one of the other categories, which is there were 36 people who it was determined, you know, ought to stand trial, that the US had enough evidence against them to send them to trial, and that it–you know, what they had done, supposedly, or what they’re accused of doing was culpable enough that it made sense to prosecute them. And I think by creating this executive order the president really allows–you know, it’s–really facilitates papering over the fact that those people aren’t going to be tried, because remember, they probably wanted to bring most of them to the United States for trial. And yet the Republicans have picked up on this as a sort of ridiculous, you know, political football, right, this idea that these guys are dangerous terrorists, and somehow it’s dangerous even to bring them in shackles into the United States to face justice.

JAY: Well, if you thought you could bring them to the United States to face a court and you’re giving up on that, at the very least why can’t they put them in front of a military tribunal?

KADIDAL: Exactly, you know, though I think, you know, this, again, may facilitate that. You know, the problem is the military tribunal system has been more of a mess for the prosecutors than even the federal court system, right? You know, the federal courts have proved pretty adept at holding terrorism trials since 9/11. There have been, you know, dozens and dozens of cases tried successfully without, you know, any harm to the public resulting from the fact that the trials were ongoing here in the US, and also with a lot of convictions–not that that’s necessarily the measure of success.

JAY: Okay. When you say you don’t think this class exists, I mean, the government’s position is there are people here that they are convinced that if released will go back to doing what they claim they were doing, which is essentially organizing some kind of terrorist attack against the US or a US ally.


JAY: You don’t think there are such people there that, if released, would do that kind of activity?

KADIDAL: Let me put it this way. There aren’t people who can’t be charged who–where there is evidence of that kind of proclivity, right?

JAY: But they’re afraid that if they charge them, they’re going to lose it if there’s any legitimate due process, “they” being the government.

KADIDAL: Well, I mean, I think, you know, that it’s been pretty easy for the government in domestic trials to convict people for plotting terrorism, even when those plots had barely gotten off the ground, or even when–what was, you know, described as merely an attempt to go get military training at a training camp or something like that. And that really characterizes a lot of what the government, you know, alleges against, you know, the people we all assume that they want to charge. I really suspect–and they haven’t released names for either the group they want to charge or the group of about 47 that they just want to sit on, this indefinite detention batch who they don’t want to charge, but I suspect a lot of the people in the latter group are really just people who have reacted badly to their detention, you know, who have screamed and yelled at their guards, people who have thrown, you know, sort of feces at their guards, people who’ve yelled at their interrogators and threatened their interrogators over the years, you know, almost, basically, disciplinary problems in prison. That’s my anecdotal sense. But, again, since they haven’t released names and accusations, we have no way of knowing.

JAY: Yeah, I mean, that’s a pretty thin motivation to give up any due process for 47 people. It makes the United States and the administration look rather terrible on human rights to the world.

KADIDAL: Yeah, and it makes the country look weak, also.

JAY: What other motivation would they have? If you’re saying it’s fairly easy for these guys to get convictions, then I don’t understand. Why aren’t they doing it?

KADIDAL: Well, you know, why haven’t the 9/11 plotters been convicted? I mean, by all accounts it seems like these guys are willing to sort of fall on their swords and plead guilty. They just haven’t had a competent forum to do it in, right? So there’s the example par excellence.

JAY: They have had military tribunals in Guantanamo, so why not put the 47 in front of them? I don’t get what their motivation would be for not doing it.

KADIDAL: Right. I think that, again, the problem with the military tribunals is that like any system created from scratch, there’s a tremendous number of growing pains, and there have been horrible missteps along the way as that system has been used for the first time, as will happen with any complicated system that’s used for the first time. I mean, one of the advantages of the federal system is that it’s been trying cases for 220 years, right?

JAY: Okay. So what’s the significance of this, then? So let’s say they do this executive order and they say, okay, we now can say we don’t owe due process to these people. What precedent does it set? What does it mean for everybody else?

KADIDAL: Well, I think in one way it’s an acknowledgment by the administration that the very broad detention standard that the courts have recognized–and the court of appeals in DC, which is the most conservative in the country, they have said that basically if you were staying at a hostel where other people stayed who went to military training camps to fight with the Taliban against the Northern Alliance, even before the US got involved in the war, even before 9/11, that’s pretty much enough. So that’s a very broad standard. And this allows the administration to adopt that standard, to keep detaining people like that, you know, essentially with this veneer of due process. The other thing is that notion that it allows the administration to get away with not trying people where they really could give them trials, right, because this’ll make it appear like they’re giving them some process, and because we don’t know where the boundary line is between those 36 that they’ve said they want to charge and the 47 that they want to keep in this nether category. And it almost allows the administration to shift people from that group that they–where they thought they could charge them into this group that just sits there with this additional process in place, and it makes it a little more politically palatable because it looks like they’re getting some due process.

JAY: So what are the lawyers who have been fighting on this front going to do next?

KADIDAL: I mean, I think the main alternative we’ve got left is fighting in the courts. But like I said, it’s difficult because the courts have acknowledged a very broad detentions standard. Being at one of these hostels, a “guest house”, quote-unquote, or ever having attended a training camp seems to be enough. So a lot of marginal cases are going to go that way. You know, another big problem, though, is that the courts have been unwilling to hear cases from people who were cleared for release. So if you’re in that group of 90 who were cleared for release, almost in every case the government has successfully sought to stay the case, because what they say is this: they say that–court of appeals has said the court doesn’t have any–any court doesn’t have the power to ultimately order release into the United States or otherwise, right? They can just urge the government to take its best steps diplomatically to find a country, a safe country to send someone to, right? So if that’s the case, the government says, well, why should you, the court, hear a case once we have decided that we already want to release the person? Right? Yet we know those 90 people cleared a year ago are still sitting there. So it’s really very difficult to get the courts to move. And really the only court we’ve ever won in is the Supreme Court. And the problem is, with Justice Kagan there, she’ll almost certainly recuse herself for the next two years from any case involving detainee affairs, because she was involved in formulating policy on these cases in the solicitor general’s office at her last job. But I suspect that was a big plus.

JAY: It seems absolutely bizarre that you can have the US government grab somebody or buy somebody–as you said, sometimes from quasi bounty hunters–they turn out to be innocent, according to any due process, and then they sit there and they can’t sue anybody for false imprisonment. It seems–.

KADIDAL: Right, and the reason they can’t sue is precisely because the government has said, we should let you go. It’s the worst of ironies. And you understand why people down there don’t really put faith in anything that the US government does, whichever branch it is, Obama, Congress, or the courts.

JAY: Thanks for joining us, Shane.

KADIDAL: Thanks for having me.

JAY: And thank you for joining us on The Real News Network. And don’t forget, there’s a donate button somewhere around this player frame here, and we need you to push that for us to keep doing this. Thank you.

End of Transcript

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Shayana Kadidal is senior managing attorney of the Guantánamo Global Justice Initiative at the Center for Constitutional Rights in New York City. He is a 1994 graduate of Yale Law School and a former law clerk to Judge Kermit Lipez of the United States Court of Appeals for the First Circuit. In his twelve years at the Center, he has worked on a number of significant cases arising in the wake of 9/11, including the Center's challenges to the detention of prisoners at Guantánamo Bay (among them torture victim Mohammed al Qahtani and former CIA ghost detainee Majid Khan), which have twice reached the Supreme Court, and several cases arising out of the post-9/11 domestic immigration sweeps.

He was also counsel in CCR's legal challenges to the "material support" statute (Holder v. Humanitarian Law Project, decided by the Supreme Court in 2010), to the low rates of black firefighter hiring in New York City, and to the NSA's warrantless surveillance program. Along with others at the Center, he currently serves as U.S. counsel to WikiLeaks publisher Julian Assange. On behalf of plaintiffs including Assange, Glenn Greenwald, and other journalists, he led litigation that ultimately resulted in public release of over 550 previously-withheld documents during the court-martial of Pvt. Bradley (now Chelsea) Manning.