Sympathy but No Court Win for Released Detainee
By BRITAIN EAKIN
Shawali Khan was repatriated to Afghanistan in December 2014, but the former detainee claims to suffer ongoing harm from having been designated as a member of Hezb-e-Islami, an al-Qaida and Taliban affiliate.
For one, the Afghan government seized the deeds to his family’s fruit orchard when he was captured in 2002. Khan argues that a successful outcome in Washington with his petition for habeas relief would help him persuade the Afghan government to return that land.
Khan also says Afghan government officials provided The New York Times and CNN with his photo, after which both identified him as Mullah Abdul Rauf Khadim, a recruiter for the Islamic State group in Afghanistan whom the United States killed in an airstrike.
Lastly, travel restrictions that Khan faces from the Afghan government prevent him from going to India where he can be treated for hearing loss he sustained from “loud blaring music” while in CIA custody, before he got to Guantanamo.
U.S. District Judge John Bates voiced sympathy but found the alleged injuries too speculative to warrant the court’s jurisdiction.
“Even if the court assumes that these instances of mistaken identity were caused by Khan’s detention at Guantánamo Bay, any reputational harm that flows from that is not ‘susceptible to judicial correction,'” the Oct. 25 ruling states.
Looking specifically at Khan’s inability to get a passport from the Afghan government, Bates said his hands are tied.
“The court is sympathetic to the pickle in which Khan seemingly finds himself: he is unable to receive medical treatment for injuries allegedly sustained while in U.S. custody because of his history of being held in U.S. custody,” the 10-page ruling states. “However, this injury is not redressable by a federal court.”
Bates acknowledged that there is increasing evidence of harms Guantanamo detainees experience from their detention. In the ruling, the judge cited a recent New York Times article detailing mental health issues plaguing some former detainees.
Discussing the ruling in an interview, J. Wells Dixon with the Center for Constitutional Rights said he found this interesting.
“The District Court acknowledges that with the passage of time there is ever more evidence of the harm caused by the stigma of Guantanamo,” Dixon said. “That’s unique. That is a judicial recognition of actual harm to these men simply by having been detained at Guantanamo. The problem is, the government manipulated the proceedings in this case in order to avoid a ruling that might have favored Mr. Khan.”
Neither Khan’s attorney, Leonard Goodman, nor the Justice Department opted to comment on Tuesday’s ruling.
Khan won his release in December 2014 after the government disclosed information to his attorneys.
The United States argued that freeing Khan mooted his habeas case.
Bates declined to address whether the government’s “delay in disclosing exculpatory evidence could ever defeat mootness.”
“Here, it is sufficient to note that the government appears to have made a good faith effort to keep the court and Khan’s counsel informed about new evidence as it became available,” the ruling states. “Thus, even if the court were to assume that an intentional delay could defeat mootness in some circumstances, it certainly does not do so here.”
When the D.C. Circuit upheld Khan’s habeas denial in 2011, the judge who signed the unanimous opinion was future Supreme Court nominee Merrrick Garland.
Dixon with the Center for Constitutional Rights said the use of that secret evidence still matters.
“If the government had not withheld evidence for so many years, and if the case had not been decided on the basis of secret evidence initially, then the case might have been decided differently, and Shawali Khan might have been released with a court ruling clearing his name,” Dixon said in an interview.
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Yemen, the poster child for drone-based foreign policy, has collapsed on itself.
The unraveling of Yemen should be a wake-up call for Obama loyalists. Obama was elected in large part because of his opposition to the disastrous Iraq War and his promise of a smarter Middle East policy, one less reliant on invasion and occupation. Nevertheless, in office, Obama has supported the occupation of Afghanistan and the NATO-led overthrow of Libya’s Muammar Gaddafi, which led to chaos.
Still, as Obama explained in a September 2014 foreign policy speech, the centerpiece of his strategy in the Middle East has been a more long-distance approach: “taking out terrorists who threaten us, while supporting partners on the front lines.” In other words: air strikes, drones and military aid. He touted the success of this strategy in Yemen and Somalia.
Indeed, Yemen has been the poster child for Obama’s Middle East strategy. Using the U.S. military bases that surround Yemen, we have propped up the corrupt and repressive regimes of President Ali Abdullah Saleh and his successor, Abdu Rabbu Mansour Hadi (i.e., our “partners on the front lines”). In exchange, they let us incinerate alleged militants. And when we slaughter innocents (like 35 women and children in a 2009 bombing, or 12 members of a wedding party in a 2014 drone strike), our partners help cover up our crimes, even jailing the Yemeni journalist who exposed the U.S. role in the 2009 attack.
Of course, the cover-up was effective only in the United States, where most of our news comes from corporate sources that almost never challenge official pronouncements about military or CIA missions. The Yemeni people know all too well our criminal acts. Last September, 13-yearold Mohammed Tuaiman al-Jahmi told the Guardian that “he lived in constant fear of the ‘death machines’ in the sky that had already killed his father and brother” in 2011, as they were out herding the family’s camels. In February, Mohammed himself was killed by a U.S. drone.
The Obama “success story” in Yemen had already come to an end in January, when Houthi rebels took control of the presidential compound in Sanaa, ousting Hadi, his prime minister and his entire cabinet. The motto of the new leaders is “Death to America, death to Israel, curse on the Jews, victory to Islam.” On February 10, the State Department confirmed that it had closed the U.S. embassy in Yemen, the third in an Arab country since 2012.
In truth, Obama’s foreign policy is similar to George W. Bush’s. The war contractors want to keep the rivers of taxpayer cash flowing into their coffers, while multinational energy firms want the U.S. to keep supporting brutal, undemocratic regimes that keep their boots on the necks of restive citizens who might object to foreign firms exploiting national resources. And as long as our laws permit corrupt ties between corporate interests and politicians, we will continue to see disastrous failure after failure of our foreign policy.
In February, Obama led a three-day summit on countering violent extremism. The president’s remarks at this summit, of course, made no mention of our odious drone policy. No citizens of Yemen or Pakistan were invited to speak about how living with the constant anxiety caused by armed drones buzzing in the sky drives residents to join anti-U.S. terror groups. Nor was there any talk of the blowback caused by the U.S. military bases which garrison the greater Middle East, or of the corrupt, repressive regimes that those U.S. bases support. Instead, leaders of some of those regimes attended the summit.
Obama did offer empty rhetoric about how we are not at war with Islam. Such words are unlikely to impress Muslims outside the United States, who know that it’s Muslims who populate Obama’s kill list, who are indefinitely detained at Guantánamo without charges and whose systematic torture by the CIA was swept under the rug by Obama.
Americans, who are ill-informed about our actions overseas, will hear Obama’s empathetic rhetoric and quite rationally conclude that the reason we are losing in places like Yemen, Libya, Iraq and Afghanistan is because Obama is too soft. Perhaps our next president will be someone who promises to get tougher on Muslim extremists. But until we end the partnership between government and corporate power, three things will remain constant: Our foreign policy will be expensive for U.S. taxpayers, profitable for the war contractors and disastrous for everyday people.
Leonard Goodman is a Chicago criminal defense lawyer and Adjunct Professor of Law at DePaul University.
Read it at In These Times: http://inthesetimes.com/article/17762/obamas-drone-policy-crashes-and-burns
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