Fox & Friends falsely suggests court order is result of Obama policies

Berntsen: “This is why you need to make sure that we're doing this in military tribunals, not in civilian courts.” Gary Berntsen, a former CIA operative, stated of Judge James Robertson's order, "[Slahi is] a self-admitted member of Al Qaeda that has declared war on the United States. This is why you need to make sure that we're doing this in military tribunals, not in civilian courts. We need to treat these guys like members of a foreign entity that's declared war on us. He's declared war on us." [Fox News' Fox & Friends, 3/23/10]

Scheuer: “Obama is just going to get more Americans killed if he keeps doing this nonsense.” Michael Scheuer, a former CIA analyst and frequent Fox News guest, stated: “Gary is exactly right. These folks are warriors. They're prisoners of war. We should just treat them as such, and then we can release them when we say the war is over. Obama is just going to get more Americans killed if he keeps doing this nonsense.” [Fox & Friends, 3/23/10]

Kilmeade: "[I]f he's in a military tribunal, this doesn't happen." Fox & Friends co-host Brian Kilmeade stated, “It's incredible, because they asked permission to the CIA interrogators to go ahead and use enhanced interrogation practices. Now the judge says that's too much.” Kilmeade later added, “Now, if he's in a military tribunal, this doesn't happen.” [Fox & Friends, 3/23/10]

Prosecutor under Bush halted Slahi military tribunal because he said torture invalidated the evidence, and Slahi has not been charged in civilian court

Bush Pentagon lawyer refused to prosecute Slahi in a military commission because evidence was obtained through torture. The Wall Street Journal reported on March 31, 2007, that Lt. Col. V. Stuart Couch, who was tasked with prosecuting Slahi during the Bush administration, “refused to proceed with the Slahi prosecution” after "[h]e concluded that Mr. Slahi's incriminating statements -- the core of the government's case -- had been taken through torture, rendering them inadmissible under U.S. and international law." The Journal reported that “Col. Couch began his assignment at the Office of Military Commissions in August 2003,” and Slahi's case was one of the first files “he was handed” to work on. The Journal reported that during the course of his investigation into the case, Couch uncovered “evidence the prisoner had been beaten and exposed to psychological torture, including death threats and intimations that his mother would be raped in custody unless he cooperated.” The article further stated: “Col. Couch says he's still frustrated that the actions of the U.S. government helped ruin the case against Mr. Slahi. 'I'm hoping there's some non-tainted evidence out there that can put the guy in the hole,' he says.”

Couch said court order is “consequence” of torture policy. The Wall Street Journal further reported on March 22 that Couch “said Monday's order 'is one of the consequences that the decision-makers should have foreseen when they decided to adopt a policy of cruelty, and the interrogation techniques that flowed from it' ”:

Plans to try him by military commission were derailed after prosecutors learned that Mr. Slahi had been subjected to a “special interrogation plan” involving weeks of physical and mental torment, including a death threat and a threat to bring Mr. Slahi's mother to Guantánamo Bay where she could be gang-raped, officials said.

Although the treatment apparently induced Mr. Slahi's compliance, the military prosecutor, Marine Lt. Col. V. Stuart Couch, determined that it constituted torture and evidence it produced could not lawfully be used against Mr. Slahi.

Col. Couch, in a March 31, 2007, Page One story in The Wall Street Journal, cited legal, professional and moral reasons for declining to prosecute.

Mr. Slahi, who was then viewed as a cooperator by interrogators, was granted various privileges at Guantánamo Bay, including his own quarters and garden to tend.

Col. Couch, now in private practice in North Carolina, said Monday's order “is one of the consequences that the decision-makers should have foreseen when they decided to adopt a policy of cruelty, and the interrogation techniques that flowed from it.”

Obama has not charged Slahi in civilian court. Contrary to the suggestion that the habeas corpus petition resulted from Obama's decision to try terror suspects in civilian court, The Miami Herald noted that “Slahi faces no criminal charges.” The Miami Herald further reported that Slahi has been held at Guantánamo since August 2002 and filed for habeas corpus on March 3, 2005.

Supreme Court, not Obama policy, determined detainees have right to challenge detentions in U.S. courts

Supreme Court ruled in 2004 that Gitmo detainees can challenge their detention in U.S. courts. In the 2004 case Rasul v. Bush, the Supreme Court rejected the Bush administration's argument that, under the law as it existed at the time, Bush could order people to be detained at Guantánamo Bay without the ability to challenge the terms of their detention in federal court. The Supreme Court ruled 6-3 that “the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.”

Supreme Court ruled in 2008 that Gitmo detainees have “the constitutional privilege of habeas corpus.” In 2008, the Supreme Court again reversed administration policies regarding Guantánamo Bay detainees in Boumediene v. Bush. The Court held that the procedures set up by the Bush administration under the Detainee Treatment Act of 2005 to review Guantánamo detainees' status “are not an adequate and effective substitute for habeas corpus.” The Court therefore rejected the Bush administration's argument that the habeas corpus petitions should be dismissed under the Military Commissions Act, which stated that "[n]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." The Court stated, “Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2. We hold these petitioners do have the habeas corpus privilege.”

Slahi is 34^th detainee ordered freed by federal judges. According to ProPublica, 32 detainees have been “found to be unlawfully imprisoned” by federal courts during the Bush and Obama administrations, and 11 of the 32 “remain in indefinite detention.” The Miami Herald reported on March 22 that “Slahi is the 34th Guantánamo detainee ordered freed since the U.S. Supreme Court ruled detainees could challenge their incarceration in federal court.” The Miami Herald further noted that “Justice Department spokesman Dean Boyd said lawyers were 'reviewing the ruling.' The government has appealed some of the habeas release orders.”