06/22/12 – Marjorie Cohn – The Scott Horton Show

All right, so it is anti-war radio.
I'm Scott Horton.
And next up on the show is Marjorie Cohen.
She is professor of law at Thomas Jefferson School of Law and past president of the National Lawyers Guild.
She's the editor of the book, The United States and Torture, Interrogation, Incarceration and Abuse.
Welcome to the show, Marjorie.
How are you doing?
Fine, Scott.
How are you?
I'm doing good.
I'm sorry.
I think I mispronounced your last name and put an E in there that it's not really there, huh?
That's okay.
Cone, like ice cream cone.
Cone.
There you go.
Marjorie Cone.
Sorry about that.
That's okay.
We'll get it right next time, anyway.
Hope dies at Guantanamo.
Ouch.
Jurist.org.
This is in reference to a story that didn't get too much play.
The headline is, well, you made a good headline out of it, but the headline really, you know, news-wise, newspaper-wise is just Supreme Court refuses to hear case of some nobody.
So who cares about that?
But in fact, this is the center of gravity in the universe.
If you ask me, an extremely important thing here, the way you put it is that one of the most important Supreme Court decisions of the Bush era, when the Bush-Cheney claimed powers over all life on Battlefield Earth, I guess, came down to it.
The Supreme Court in the Bomedian decision said, these men at Guantanamo Bay, they get a writ of habeas corpus, which means they have the right to go before a federal judge at least once to try to plead their case to some degree.
And you say that this, that the Supreme Court's recent refusal to hear this case of this man, Lateef, basically means that Bomedian is a dead letter and habeas corpus actually will not be in play, not in any meaningful sense for the men left at Guantanamo Bay.
Is that correct?
That's correct, Scott.
At Guantanamo, they have kangaroo courts known as combatant status review tribunals to determine not whether somebody committed a crime, but whether he's an enemy combatant.
And these kangaroo courts don't allow a person to have an attorney.
They give them what's called a personal representative, who's basically a military officer who many times represents the government's interest, not the client.
You're not allowed to attend the hearing or see the evidence against you.
And yet, in almost all cases, this kangaroo court finds that the person is an enemy combatant.
And we know that the overwhelming majority of people who went through Guantanamo, some 800 men and boys, were innocent of anything.
They were picked up by the Northern Alliance or tribal lords, tribal chiefs, and sold as bounty to the U.S. military.
But finally, the Bush administration had said, look, Guantanamo is on a foreign soil.
It's in Cuba.
It's not in the United States.
So the men at Guantanamo don't have a right, basically, to appeal this kangaroo court's decision that they're enemy combatants and go into a U.S. court.
Well, the Supreme Court finally said that's not true.
And they actually said it in two different cases, Rasul and Boumediene, that these detainees at Guantanamo are still entitled to habeas corpus.
That means they're entitled to go into a neutral, independent judge and say, look, I'm innocent.
Here's the evidence.
Please set me free.
And four years ago, in Boumediene v.
Bush, the Supreme Court said that these detainees have to have a meaningful opportunity to challenge the lawfulness of their detention, a meaningful opportunity.
So many of them did file petitions for writ of habeas corpus.
And about two-thirds of them have been granted by the federal trial courts.
But not one detainee has been released as a result of a judicial order.
Some of them have been sent back by the Obama administration, sent to various countries.
But there are still 169 men at Guantanamo.
Eighty-seven of them have had their release approved by military review boards, and yet they still have not been released.
But back to this Boumediene decision.
So they would file petitions for writ of habeas corpus in the federal trial court.
It's called the federal district court.
And in this particular case, which is Mr. Latif, Adnan Latif, he and six other detainees went to federal district court for a writ of habeas corpus.
And the judge, Judge Kennedy, Judge Henry Kennedy, actually granted their petition for habeas corpus, and said that what the government used to determine in this particular case, in Mr. Latif's case, that he was an enemy combatant, was based upon an interrogation report, much of which was blacked out.
But the district court judge, Judge Kennedy, said it could not give credit to this information in the report, because there's a serious question about whether it accurately reported what Latif told them.
The report evidently said that Latif had admitted being recruited for jihad, receiving weapons training from the Taliban, and serving on the front line with Taliban troops.
Latif said, that's not what I said at all, that the interrogators garbled my words, that their summary had no relationship at all to what he actually said.
And what he said consistently, and this was very significant for the federal judge, Henry Kennedy, is that every time, and there were dozens of times that Latif gave the same story, and that was that he denied any involvement with Al-Qaeda or the Taliban, he had a serious head injury from a car accident in Yemen, that's uncontested, because he actually had the medical papers with him when he was picked up, and given over to U.S. custody.
He couldn't pay for the necessary medical treatment, and he hoped that a charitable worker would get him free medical care in Pakistan.
That's why he was traveling.
And he said that over and over again, more than a dozen times.
And yet, the one time that it's on record that he didn't say that, was when this interrogation report was used by the government.
And the interrogation report was, and this is according to the Court of Appeals decision, which I'm going to get to in a minute, was prepared in stressful and chaotic conditions, filtered through interpreters, subject to transcription errors, and heavily redacted.
That means parts were blacked out.
This is what the judge is saying are the reasons why he doubts its veracity.
This is actually what the, well, no, I mean, that's part of it.
But this actually is admitted by the appellate court, even though they denied his habeas corpus petition later.
They admitted that.
The reason that the district court judge Kennedy said that he could not credit the report, is that there was no corroboration for these incriminating facts in the report, and Lateef had a plausible alternative story.
So then the appellate court agreed with that, but said, no, you get to hold him anyway.
And the reason is, you're right, the reason, and it was two out of three judges on the appeals court for the District of Columbia who said that we admit that this report has problems, but for the first time, this D.C. Circuit appellate court held that government reports must be given a presumption of regularity.
That means that they will be presumed to be true unless the detainee can rebut the presumption.
It's almost impossible to rebut these presumptions.
So they came up with this new cockamamie theory, a presumption of regularity.
And the judge who wrote the majority opinion for those two judges on the appeals court when they overturned the writ of habeas corpus, Judge Janice Rogers-Brown, who used to be in California, she's a radical right-wing judge, she said that she called Boumediene, she said it had airy suppositions, A-I-R-Y, airy suppositions.
She's talking about the Supreme Court case of Boumediene.
And in the Boumediene case, the Supreme Court said that in habeas corpus proceedings that judges could use innovation, they could be innovative.
And so what Janice Rogers-Brown did, the judge on this appeals court, is to twist that around to say, well, the Boumediene Supreme Court said we could use innovation with habeas corpus proceedings.
We're going to presume that this report is true.
Now, there was one judge who dissented from the appeals court decision.
His name was Judge Tattel.
And he said that this presumption of regularity is going to mean basically that courts are going to rubber stamp whatever the government wants when we talk about these detentions.
Okay, now, hold on just one second here, Margie, because I want to make sure I understand this right and nail this point down very closely.
When you talk about this presumption of regularity, that whatever the government report says, it must be true unless you have the burden of proof on you to show otherwise, where this is, I want to know exactly how cockamamie this is.
You're telling me that this phrase was just made up for the first time for this court decision by these judges?
Yes, yes, yes, it was.
Wow, all right.
Yes, it was.
And so Judge Tattel said that this interrogation report in Lateef's case was inherently unreliable, that it contained multiple levels of hearsay.
That means he said, she said, he said, she said.
It's like when you play that game where you sit around in a circle and somebody whispers something to somebody and then they whisper it to the next person and by the time it gets around the circle, it's totally different.
Right, a regular judge would never have it.
That's right, that's right.
And Judge Tattel accused the majority of denying Lateef the meaningful opportunity to contest the lawfulness of his detention that Boumediene guarantees.
So what happened was that Lateef and these other six detainees said, okay, we're going to go appeal this decision to the Supreme Court.
And during the Bush administration, there were four different cases where the Supreme Court basically acted as a check and balance on the executive.
They told the Bush administration, you've gone too far.
And one of those was the Boumediene case.
There was another one, the Hamdi case, where the Supreme Court told the Bush administration, hey, if you arrest a U.S. citizen, if you catch him in the war on terror, you've got to give him due process rights.
And in another case, the Hamdan case, the Supreme Court told the Bush administration that your military commissions violate the Uniform Code of Military Justice in the Geneva Conventions because they deny due process.
So you would think that the Supreme Court would act as a check on these injustices.
But what happened last week is that the Supreme Court refused to even hear the case.
That means that the appellate court decision stands.
And that means that whenever these detainees go into court for habeas corpus, they're going to have to go to the D.C. Circuit Court.
That's the one that is specified for it.
Even if the district court judge, the trial judges in D.C., decide that they should be released because they're not enemy combatants, the D.C. Circuit Court of Appeals, with their new presumption of regularity, is going to uphold the enemy combatant designation whenever the government wants it.
And the Obama administration did argue against Latif.
They argued that he should be kept in custody here.
That's important to keep in mind.
And the Supreme Court is not going to take the case.
And so that means that there's a dead end here.
That means that there is no meaningful opportunity to contest your detention on habeas corpus now, as required by Boumediene, because the Supreme Court that we have now, which is an even more conservative Supreme Court than we had during the Bush administration, is not going to hear the case.
And this is really, really disturbing.
That means that these men, who continue to languish here at Guantanamo, many of whom have been held in cages like animals and tortured, including by being force-fed when they went on a hunger strike, are going to be here, some of them, for the rest of their lives.
Speaking of hunger strikes, Mr. Latif, like many of the men at Guantanamo, felt utterly hopeless.
And so he stopped eating.
He went on a hunger strike.
The only power that they had was to stop eating.
And yet what the military officers did at Guantanamo was to force-feed them.
They would basically put a tube, a plastic tube, into their nose and down into their stomach, which was excruciatingly painful.
Latif said it's like having a dagger shoved down your throat.
And they weren't even sterilized, which means that you could see the blood and the bile from the prior prisoner coming at you as that tube went into your nose and down into your throat.
And in fact, the United States Human Rights Commission, the United Nations Human Rights Commission, called it torture, which is described, there's a chapter in the book you mentioned, The United States and Torture, a chapter by Mark Falcoff, who is Latif's lawyer.
He wasn't allowed to be at the kangaroo court, but he's Latif's lawyer.
And he talks about that case and quotes this.
But keep in mind that in spite of this enemy combatant designation, which, you know, done by these kangaroo courts, very, very few of these men at Guantanamo have been charged with a crime.
And under our law, if there's probable cause to believe somebody committed a crime, you either bring them to trial or you release them.
And that's what should be happening.
It should not be held forever.
And unfortunately, Obama signed the National Defense Authorization Act at the end of last year, which allows the government to hold people indefinitely.
That means the rest of their lives.
Including American citizens.
Including American citizens.
Well, including American citizens under some circumstances.
Now, Obama did attach a signing statement saying that, you know, he had waivers, he could do a waiver, but he hasn't used the waiver.
So there are still these people that are languishing.
Some of them for 10 years at Guantanamo.
And it's an absolute outrage.
And not only that, not only is it outrageous, not only is it illegal, but it makes us less safe.
Because when people in other countries see how we treat people at Guantanamo, and they see the torture that took place during the Bush administration, and they see that the Obama administration is refusing to bring the Bush officials and lawyers to justice for the torture, that makes them hate us even more.
That recruits them for jihad.
That makes them want to do us harm.
So it's actually counterproductive to be treating people this way.
Right.
Like the entire policy in every way.
Alright, well, we're all out of time.
Thank you so much for your time.
Very important story.
I beg people to go and read this article at jurist.org.
Hope Dies at Guantanamo, by Marjorie Cohn.
Thanks again.
Thank you, Scott.
And that's it for Anti-War Radio this evening.
Thanks everybody for listening.
We'll be back here next Friday from 6.30 to 7 Pacific Time, here on KPFK 90.7 FM in Los Angeles.