Bad News For The President’s Indefinite Detention Idea

(9:00PM EST – promoted by Nightprowlkitty)

The Dog writes about law a lot, mostly because it fascinates him, the way it evolves and changes based on new information or new ways of viewing our basic Constitutional rights. One of the areas of particular concern is, of course, the torture of prisoners and the holding of them without charge or trial, whether they are designated as “enemy combatants” or not. On May 21st the President gave a policy address about the closing of Guantanamo Bay prison camp. In this speech he mentioned there were likely to be prisoners who, in his words could not be released but also could not be tried.

Originally posted at

This has many of those who prioritize the return of the Rule of Law as primary very concerned. Read on its face is seems the President is planning for some kind of indefinite detention without trial or charge for some of the prisoners held at our base in Cuba. The problems being some of these prisoners were tortured by the United States. They also are rated as bad guys by the Government. This means we can’t try them in court, but we don’t want to let them go either. His intention, as stated in that speech is to work with the Congress and the DOJ to come up with some sort of wizardry which would allow this clearly unconstitutional idea to pass High Court muster.

Unfortunately for the President, the law moves at its own speed and just this last week it moved in a direction which makes this tactic of indefinite detention even less likely to succeed. Over at SCOTUSBlog Lyle Denniston details the newest developments of in the case of Abdul Razak al Ginco (who goes by Janko) a Syrian national who was captured in Afghanistan in 2002 but US forces and has been held in Guantanamo Bay ever since.

The things about Janko is when he was captured by US forces, he was in prison, under the orders of the Taliban. Al Ginco went to Afghanistan in 2000 and was trained to fight by the Taliban. The reason the Government has given for holding him is that he was part of the Taliban or al Qaeda and as such is a dangerous man who must be kept. The problem here is Janko was a prisoner of the Taliban and had been tortured in his 18 months of captivity prior to becoming a US prisoner!

Now, we come to a very interesting fact. The District Court Judge hearing this case is Judge Richard Leon, who in the past was the only District Court Judge to completely uphold the Bush Administrations detention policy. Other judge’s upheld parts or overturned parts, but Judge Leon thought the whole thing was sound and ruled that way. While he has not changed his mind on that part of the policy, his new ruling is a real problem for any administration who would try to hold prisoners who could not be tried because of torture, or for that matter hold prisoners indefinitely on the theory they are a threat to the United States.

This week Judge Leon granted Al Ginco’s habeas petition and ordered the Federal Government must make all efforts to release him “forthwith”. Judge Leon writes:

Here, the Government contends that petitioner Janko was “part of’ al Qaeda

and/or the Taliban prior to his being imprisoned and tortured, as evidenced by his travel to Afghanistan, stay at a certain Taliban guesthouse for approximately five days, and his attendance at the notorious al Parouq training camp for two-plus weeks. (Unclassified Oral Arg. Tr. 31.) The Government also contends, in essence, that the extreme treatment Janko was subjected to over a substantial period of time thereafter was not sufficient to vitiate that relationship. As such, the Government contends he was still “part of’ those organizations when he was ultimately taken into custody by the U.S. forces some two years later. I disagree!

To determine whether a pre-existing relationship sufficiently eroded over a

sustained period of time, the Court must, at a minimum, look to the following factors: (1) the nature of the relationship in the first instance; (2) the nature of the intervening events or conduct; and (3) the amount of time that has passed between the time of the preexisting relationship and the point in time at which the detainee is taken into custody. A fair application of these factors to the circumstances here overwhelmingly leads this Court to conclude that the relationship that existed in 2000 – such as it was – no longer existed whatsoever in 2002 when Janko was taken into custody

For those that don’t read court decisions very often, it is exceptionally rare for any jurist to use an exclamation mark. In fact until today the Dog had never seen it. To say this expresses the Judges displeasure at the Governments arguments in this case is an understatement on the order of calling the burning of the Library of Alexandria a minor casualty of a property dispute.

The judge is making the point in a decision which other District Court judges are likely to use that torture or time out of contact with the Taliban or al Qaeda is sufficient to negate the usefulness of the “part of a terrorist organization” which has been the basis of indefinite detention since the Bush Administration. The only reason Judge Leon did not order the immediate release of Janko was a previous denial by the Bush administration that the DC District Court had the power to do so. That case goes before the Supreme Court this week.

If this test is adopted by more Courts, it basically means the end of any attempt at holding prisoners indefinitely. There will be nothing between them and the habeas writs releasing them for lack of charge. This will mean if we can not try a prisoner because of our treatment of them, they will have to be released!

This is how the rule of law looks people. It is a slow process some times, but when a Judge who ruled we could lock up people based on “enemy combatant” status starts to put limits on that power, it is the system reining itself in. Does this mean the system does not need further help in returning to what would commonly be understood as rule of law? Hell no! It however does show our system of justice, though slow, does come to the right conclusions over time.

This gives the Dog a lot of hope. Hope our nation will do the right thing on torture, hope we will not try to betray our ideals and the very foundations of our system by holding prisoners without trial and without hope of release or recourse. Hope the Rule of Law is still the bedrock of our Republic and while it is damaged it has not been destroyed.

The floor is yours.


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  1. great to see the law starting to work as it should!  

  2. trying to read Worthington today on this topic.

    However, while President Obama has done far too little to counter these groundless and unprincipled claims, judges in the District Courts, empowered to review the prisoners’ cases after a Supreme Court ruling last June confirmed that they had habeas corpus rights (the right to ask a judge why they are being held), have been slowly but surely demolishing the false, self-serving rhetoric of Cheney and the hysteria of the blinkered politicians.

    The judges have not been aided by the Justice Department, which has followed the lead established under the Bush administration, and has, under Attorney General Eric Holder, done all in its power to disable the habeas reviews by preventing the prisoners’ defense teams from having access to exculpatory material – or any other material essential to mounting a meaningful defense. However, despite the obstruction – which has been so severe in some cases that judges have taken the unprecedented step of dismissing the government’s lawyers – two judges have ordered Yemeni prisoners to be released, and in the most recent example, that of Alla Ali Bin Ali Ahmed, the judge, Gladys Kessler, “paint[ed] a disturbing picture of unreliable allegations made by other prisoners who were tortured, coerced, bribed or suffering from mental health issues, and a “mosaic” of intelligence, purporting to rise to the level of evidence, which actually relied, to an intolerable degree, on second- or third-hand hearsay, guilt by association and unsupportable suppositions.”

    On Monday, Judge Richard Leon, who demolished the Bush administration’s case against five Algerians and Guantánamo’s youngest prisoner, a Chadian named Mohammed El-Gharani, before Obama took office, dealt what may well be the most savage blow yet to Dick Cheney and his supporters, for their lies and distortions about the men still held, and also to Barack Obama and Eric Holder, for pursuing habeas cases that were doomed to fail.

    • Edger on June 25, 2009 at 04:11

    for absolute support of Bush’s treatment of the detainees rejecting the Obama DoJ’s arguments?

    What judge will rule on torture prosecutions that are never begun by Obama’s DoJ?

  3. but I think Glenn Greenwald hits the nail on the head when writing about how Obama will seek to work within the structures of the laws until he doesn’t get what he wants. Then, he writes executive orders and signing statements. {sigh}

    He writes, of the pattern he sees:

    We’ll go to court and work with Congress so we can pretend that we’re not like those bad people in the last administration, but if we don’t get what we want by doing that, we’ll just do it anyway through unilateral Presidential action, using the theories that the last administration so helpfully left behind and which we’ve been aggressively defending in court.

    Such a Supreme Disappointment.

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