Unbossed.com’s smintheus blasts Associated Press for reporting a Gitmo habeus corpus case almost a month after the ruling was handed down, as if it just happened, and then filing an incomplete report:
Here is an example of astounding incompetence by journalist Pete Yost and the Associated Press. Today he produced a not-very-enlightening report for the AP on a ruling by U.S. District Judge Thomas Hogan in a habeas case brought by a Guantanamo prisoner, Musa’ab Omar al-Madhwani. Yost states – rather vaguely – that the ruling was made “this week”.
That’s false. Judge Hogan made his ruling on December 14, 2009 (PDF). By the next day there were multiple news reports available on the ruling, such as this from the WaPo and this at McClatchy.
I won’t quote from the AP article, but having read all of smintheus’s links, including the pdf of the decision back in December, I think the AP reporter failed badly to convey important details in the ruling.
Here is how McClatchy reported the decision at the time it happened:
On Monday [December 14], U.S. District Judge Thomas Hogan ruled that the Pentagon had acted legally when it took custody of Musaab al Madhwani from Pakistani authorities and sent him to Guantanamo in 2002. It was a rare victory for the U.S. government, which has won only nine of the 41 Guantanamo habeas cases that have been decided.
But then you read the transcript of Hogan’s remarks, obtained by Carol Rosenberg of The Miami Herald, (see her work here), and you have to wonder — did the Pentagon really win?
Yes, Hogan concludes, Madhwani was without doubt a member of al Qaida. By his own testimony, Hogan said, Madhwani acknowledged that he trained and lived with al Qaida for a year. So since the government was authorized by Congress to seize al Qaida prisoners and hold them until the conflict was over, then Madhwani’s detention was legal. But is it just? Hogan doesn’t think so. “I do not accept the rationale that find(ing) the government had shown a basis for (Madhwani’s) detention (that) that means he should not be released,” Hogan said.
Hogan ruled that there was no evidence that Madhwani ever took part in an al Qaida operation, ever plotted to launch an attack, or ever fought with al Qaida or the Taliban. “I see nothing in the record that (Madhwani) poses any greater threat than the dozens of detainees similarly situated who have been transferred or cleared for transfer,” Hogan said.
Judge Hogan’s decision that Madhwani was lawfully detained was made on the basis of three out of 26 documents the government had provided, plus a separate transcript of answers Madhwani gave in the courtroom to questions posed by Hogan. The other documents provided by the prosecution — 23 out of 26 — were tossed out because they relied solely on testimony given by the detainee after being tortured.
In the pdf of the ruling, Judge Hogan describes some of the abuse to which Madhwani was subjected (this is a direct copy and paste from the pdf; hence, the line numbers on the left):
First, it is clear that the petitioner was
15 subjected to harsh interrogation techniques before he was
16 transferred to Guantanamo. At the merits hearing the
17 petitioner provided extensive testimony concerning this
18 harsh treatment he endured, which the court finds to be
19 credible.
20 Now it is uncontested that petitioner was captured
21 on September 11, 2002 by Pakistani officers or officials in
22 a Karachi apartment. At that time he was 22 years old with
23 a high school education; that after five days in a Pakistani
24 prison, he testified that he was handed over to United
25 States forces and flown to a pitch black prison he believes in Afghanistan.In what he called a prison of darkness, aptly
7 named, I believe, petitioner claimed he was sUbject to a
8 variety of harsh interrogation techniques, such as being
9 suspended in his cell by his left hand where he could not
10 sit or stand fully for many, many days. To this day he
11 suffers from pain in his left arm.
12 He alleges the guards blasted his cell with music
13 24 hours a day in extremely high decibels. His sole respite
14 from the deafening noise was the screams from the other
15 prisoners when it was quiet.
16 Under these harsh conditions the petitioner
17 contends he confessed to whatever allegations interrogators
18 made of him. Approximately 30 days later he was transferred
19 to another prison in Afghanistan, where he says the threats
20 and harassment continued.The government has made no attempt to refute the
22 allegations or the statements of the petitioner regarding
23 the treatment that he says he endured. There is no evidence
24 in the record that his description of what he experienced in
25 his confinement is inaccurate. To the contrary, his testimony is corroborated.Petitioner submitted uncontested government
3 medical records describing his debilitating physical and
4 mental condition during the approximately 40 days in
5 Pakistan and Afghanistan, confirming his claims of these
6 coercive conditions.
1
7 The medical report dated October 22nd, 2002, six
8 days before he was transferred to Guantanamo, indicates
9 petitioner then weighed 104 pounds. For comparison, the
10 petitioner is five eight five, weighing close to 150 pounds
11 when he left Yemen the year earlier.
12 The report also lists his diastolic blood pressure
13 as 36, a sigh of severe dehydration which would require
14 hospitalization normally in the United States — the
15 testimony from his doctor who reviewed these records.
16 Incredulously, the medical report indicates that
17 the petitioner appears well, although it is indicated he
18 could be transferred by stretcher.The records also convey when he arrived at
20 Guantanamo that he was suffering from severe mental illness
21 and was in a psychotic state. A psychological evaluation
22 dated October 30, 2002, states petitioner reported a month
23 and half period of increasing sleep disturbance. When he
24 attempts to sleep he experiences recurring thoughts of his
25 family, and during the night he frequently awakens while hearing screaming voices. He feels jittery, occasionally
2 dizziness. Has a heavy head.
3 According to both experts witnesses, the doctors
4 for the government as well as for the detainee, petitioner
5 was likely suffering from posttraumatic stress disorder.
Pete Yost, the AP writer, reported only the core decision: that the judge threw out 23 out of 26 government documents as tainted by torture, but denied Madhwani’s habeus corpus petition on the basis of a very tiny portion of the documentation provided by the government that the judge considered to be uncoerced and that did, in his opinion, show that it was more likely than not likely that Madhwani received training from and was a member of Al Qaeda. He did not, however, mention the fact that Judge Hogan did not believe Madhwani’s continuing detention at Guantanamo was just or necessary, that Madhwani was not a threat to national security, was a very low-level operative, had never taken part in planning or carrying out any attacks, and was actually less dangerous than many or most of the detainees who had already been released from Gitmo. The bottom line here is that Hogan felt he had no choice but to send Madhwani back to Gitmo because, under the law in his case, the government only had to show, by a preponderance of the evidence, that it was more likely than not that Madhwani had been associated with Al Qaeda, but he did not feel that Madhwani in any way belonged at Guantanamo. If the legal point at issue had been whether Madhwani had ever actually taken part in any act of terrorism, or posed any kind of threat to U.S. national security, Hogan would presumably have ordered that he be released. But his hands were tied (he felt) by the narrowness of what the government legally had to prove in order to continue holding him, despite his belief that justice was not being served by continuing to hold him.
It’s not that anything in Yost’s report was untrue (apart from his identifying the ruling as having been issued in the past week when it actually came out almost a month ago) — but it’s not going to help anyone understand the meaning or significance of the decision.
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