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Stephen Keim
9 August, 2010  
The ceremony of innocence is drowned

Administration switches tack in long running habeas case … Law of war … Detention without trial continues to flourish … Government lawyers doing their worst … Stephen Keim and Katherine McGree report

imageWilliam Yeats (pic) wrote the poem The Second Coming in the aftermath of the First World War:

“Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned.”

It is equally relevant to the grim aftermath of the September 11 terrorist attacks.

Belkacem Bensayah’s nearly nine-year journey through the web of criminal justice, and the history of his treatment, suggest that the 9/11 aftermath may have drowned appreciation of the presumption of innocence.

Bensayah, an Algerian citizen, was arrested, together with five other Algerian men, in Bosnia in late 2001.

All six were ordered by a Bosnian court to be released after a three-month investigation failed to uncover evidence sufficient to continue their detention or reveal wrong-doing on their part.

Curiously, the men were then turned over to United States authorities.

Bensayah remains in United States detention. He has been detained at Guantanamo Bay since January 2002.

In 2004, Bensayah and the five other men each petitioned the United States District Court for the District of Columbia for writs of habeas corpus.

imageIn 2008, the District Court granted habeas to the other five petitioners.

Bensayah’s petition was denied because (it was held) the evidence showed that it was more likely than not he was a supporter of al Qaeda.

The District Court was prepared to find an allegation that Bensayah (pic) had planned to take up arms against the United States and to facilitate the travel of others to do the same.

These allegations had been dismissed in the case of the other five, but was corroborated by other different allegations against the detainee. (Boumediene v Bush).

On June 28 the US Court of Appeals for the DC Circuit overturned the District Court decision that Bensayah’s detention was lawful and remanded the case to the District Court for rehearing. (Bensayah v Obama.)

The outcome of the Court of Appeals’ decision, in part, reflects some political and legal maneuvering by the Obama administration.

On appeal, the Obama administration eschewed reliance on evidence that had been previously at the centre of its case: that a person to whom Bensayah had been linked was a “senior al Qaeda facilitator”.

In the absence of this claim and the evidence to support it, the government did not present any …

“direct evidence of actual communication between Bensayah and any al Qaeda member, much less evidence suggesting Bensayah communicated with [REDACTED] or anyone else in order to facilitate travel by an al Qaeda member.”

imageThe administration also abandoned the ground that was the sole basis for the District Court’s decision that Bensayah’s detention was lawful – because of the support he rendered to al Qaeda – and, instead, argued that he was “part of” al Qaeda.

The opinion of the Court of Appeals was delivered by Judge Douglas H. Ginsburg (snap), an appointee of President Ronald Reagan.

Ginsburg had been nominated by Reagan to the Supreme Court, but was forced to withdraw because of reports of marihuana use both as a student and a professor. He said:

“The evidence upon which the district court relied in concluding Bensayah ‘supported’ al Qaeda is insufficient … to show he was part of the organization.”

The government prosecutors must now show evidence at the rehearing that Bensayah is “part of” al Qaeda.

Some of the Court of Appeals’ findings will make the prosecution’s task more challenging.

For instance, the court said that “questions” about Bensayah’s whereabouts in the early 1990s at most undermine his own credibility and “in no way demonstrate that Mr. Bensayah had ties to and facilitated travel for al Qaeda in 2001”.

Likewise, the Court found that Bensayah’s experience with fraudulent travel documents is “neither proof of involvement with terrorism nor evidence of facilitation of travel by others”.

However, the detainee faces his own, largely procedural, difficulties in properly preparing his case.

The standard of proof the government must meet in order to defeat a petition of habeas corpus is a mere “preponderance of evidence”.

The government’s obligation to disclose exculpatory evidence is narrowly cast.

Discovery is by “leave of the court for good cause shown” and by “narrow” requests that specify why the request is likely to produce relevant and material evidence to Bensayah’s case.

A request must explain “why the burden on the government to produce such evidence is neither unfairly disruptive nor unduly burdensome”.

These procedural difficulties derive from the need to resort to the habeas corpus process rather than any overt subversion of due process by the Authorization for Use of Military Force Against Terrorists.

However, it is the AUMF that authorises indefinite detention without trial.

imageIt is also the broad terms of the AUMF, with its emphasis on group as opposed to individual responsibility, that frames many of the questions that are relevant to the habeas process.

The AUMF was passed by the US Congress at the height of the post 9/11 panic. It was signed into law one week to the day after the event.

The Obama administration is still relying upon the AUMF as the source of its authorisation to continue the detention of most of the individuals held in its prison at Guantánamo Bay, including Bensayah.

The key part of the AUMF says:

“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.”

It justifies the continuing detention of an applicant for habeas if a court concludes that person was part of the organisation (al Qaeda) that committed the 9/11 attacks.

Individual responsibility or knowledge need not be proved. It is unnecessary to prove any criminal intention or act on the part of the applicant.

It is irrelevant if the detainee was in another country, and knew nothing at all of the attacks, and would have opposed them if he (or she) had such knowledge.

On September 14, 2001, the day that the US Congress passed the AUMF by joint resolution, the US Senate was opened with a prayer:

“Almighty God … You gave us freedom of choice, knowing that there can be no response of love without choice, and also that humankind would abuse this freedom.”

It was followed by a recitation of the Pledge of Allegiance, to the nation “with liberty and justice for all”.

The US Senators were called to consider the “freedom of choice” the day that they, together with the Representatives, passed the AUMF resolution.

Despite the Obama administration’s maneuverings in Bensayah’s matter, its continued failure to exercise its “freedom of choice” in seeking to have Congress rescind the AUMF, or cease to detain individuals pursuant to its authority, suggests that the political courage to renounce the Bush administration’s policy of indefinite detention without trial is not at hand.

Criminal procedure and due process is, or ought to be, a ceremony of innocence.

On September 14, 2001 the ceremonies of Congress that mark the beginning of a sitting day gave voice to noble sentiments.

A continued policy of indefinite detention, based on past membership of a group proved by nothing more than a preponderance of evidence, is not a ceremony of innocence.

Rather, it is a punishment imposed for guilt by association based on something only slightly better than suspicion.

The implementation of the habeas process enforced by repeated decisions of the Supreme Court constitutes an advance on the procedures that the Bush administration sought to apply.

A considerable number of long-term detainees have obtained their freedom as a result of the habeas process.

The courts have acted to rein-in the worst attempts of government lawyers to justify continued detention on the basis of patently unreliable material.

However, the AUMF is a product of a nation in mourning, a decision made with little forethought in anticipation of possible war.

It constitutes an inappropriate formulation to authorise and legitimise, nearly nine years later, continued detention without trial of people, many of whom, like Bensayah, were handed to United States authorities in the absence of evidence of wrong doing and for reasons that don’t withstand scrutiny.

Stephen Keim
Katherine McGree
Australian Lawyers for Human Rights