The groups requested a restraining order just days before the 2010 election to force elections officials to throw out the rules regarding political attire in polling places, but Erickson rejected that request.

The groups refiled the complaints following the election on the grounds that the rules that keep political buttons and t-shirts out of the polling place are unconstitutional.

The plaintiffs argued that elections officials violated their free speech rights by prohibiting the voter ID buttons and Tea Party t-shirts in the polling place. Erickson, however, said that the polling place is not a a public forum and that “the state has a well-established, legitimate interest in providing a safe, orderly, advocacy-free polling place.”

She noted that the advocacy that was being promoted by Minnesota Majority and the Tea Party could be perceived as intimidating to voters.

“The language on the button intimates that government-issued identification should be — or is — required in order to vote in Minnesota,” wrote Erickson. “This intimation could confuse voters and election officials and cause voters to refrain from voting because of increased delays or the misapprehension that identification is required.”

She added, “On this basis alone, the Court concludes that it was reasonable to ban the ‘Please I.D. Me’ buttons.”

Minnesota Majority and the tea party also argued that their buttons and t-shirts were not political but Judge Erickson wasn’t buying that argument.

“As the Court considers this case, there is a proposed legislation that would require voter identification pending in the Minnesota House of Representatives,” she wrote. “In July 2010 the U.S. House of Representatives recognized a Tea Party caucus consisting entirely of Republican members of Congress. Mobilizing public opinion on matters of fiscal or electoral policy, or on the proper reach of government, like persuading and organizing elected representation, is ‘political’ activity by any fair estimation.”

She concluded, “Minnesota’s strong interest in creating a neutral zone where individuals can vote free from external influence is reasonably furthered by restricting the expression of political views within the narrow confines of the polling place.”

Yesterday’s ruling appears to be another case where, like in the case of Mohammed Jawad, the government’s primary evidence was based on coerced confessions following abusive interrogations, according to the detainee’s lawyers. (An unclassified version of the judge’s opinion laying out her reasoning is not yet available.) It’s also the second case in which a Guantanamo detainee who faced a war crimes charge by a U.S. military commission has been ordered freed.

In the habeas corpus petition granted yesterday, Fouad Mahmoud Al Rabiah, a 50-year-old Kuwaiti aeronautics engineer and businessman, claims he went to Afghanistan in 2001 to do charitable work in accordance with the requirements of Islam. But he was kidnapped and held hostage by the Northern Alliance, he says, which turned him over to U.S. authorities, which then sent him to Guantanamo Bay where he was imprisoned and interrogated for the next seven years.

The United States claimed Al Rabiah provided “material support” to the Taliban and al-Qaeda, and had met several times with Osama bin Laden, which Al Rabiah denied. At a hearing last month, according to the Miami Herald, Al Rabiah’s lawyers argued that U.S. soldiers had coerced and abused their client into falsely confessing that he ran a supply depot for al-Qaeda fighters in the Battle of Tora Bora in Afghanistan in December 2001. In fact, they argued, the U.S. military had confused Al Rabiah with another man who shared the same nickname. That man was killed by American air strikes.

Yesterday, Judge Colleen Kollar-Kotelly apparently found the government’s evidence against Al Rabiah unconvincing, and ordered it “to take all necessary and appropriate diplomatic steps to facilitate the release of Petitioner Al Rabiah forthwith.”

I’ll report back with more details when an unclassified version of the judge’s opinion is made available, which she said yesterday should be released by Sept. 25.

Donald Rumsfeld called the Gitmo detainees "the worst of the worst." (Wikimedia Commons)

On Monday a federal court judge ordered the Department of Defense to release a 47-year-old father of two with a heart condition who it has imprisoned at Guantanamo Bay for the past seven years without justification. But like the other Yemeni men cleared for release but still held at the detention facility, it’s not clear when or even if Mohammed al-Adahi will get to go free.

Illustration by: Matt Mahurin

Obama administration officials on Wednesday boasted that they’d secured agreements from six European countries to accept Guantanamo detainees, although the United States itself has still refused to free any Guantanamo prisoners on U.S. soil. But since President Obama’s inauguration in January, the administration has not released a single prisoner to Yemen, although that country is willing to have them back and many would be happy to go there. (Some prisoners from other countries, such as the Uighurs from China, cannot be returned to their home countries for fear of persecution.) The administration has not stated its reasons, but said only that the State Department is negotiating with the Yemeni government over the prisoners’ return. At least three Yemeni prisoners since April have won their petitions for habeas corpus in federal court — meaning a judge has ordered that the government must let them go. (The government has cleared for release an unknown number of others.) So far, though, the Obama administration has not complied with those court rulings.

The United States has long been reluctant to return Guantanamo detainees to Yemen, where al-Qaeda is believed to be active. As a result, of about 550 prisoners released from Guantanamo by Bush officials, only 14 were from Yemen. But that trickle has slowed to a complete halt under the Obama administration, despite court rulings that the government hasn’t shown the men have done anything wrong or present any security risk.

Nearly 100 of the remaining 223 detainees at Guantanamo Bay are from Yemen. A government official on Wednesday said that negotiations are ongoing. Now that two U.S. federal courts have ordered at least three Yemeni prisoners freed, however, it’s not clear under what power the United States can continue to hold them.

“We appreciate that the United States has security concerns about Yemen, but continuing to hold these men without charge is morally wrong, is in violation of court orders, and it’s handing al-Qaeda a recruiting tool,” said Letta Taylor, a researcher for Human Rights Watch who wrote a report on the Yemeni detainees’ situation in March. “It creates its own sets of risks.”

The standoff between the court and the president in the Yemeni prisoner cases is another example of the executive branch ignoring the orders of the federal judiciary. In previous court cases, the government has refused to turn over evidence that it deemed a “state secret,” for example, even after a federal judge ordered the evidence be disclosed.

“The way our system is supposed to work is that if a federal district court orders that a branch of the government do something, they’re supposed to do it,” said John Chandler, a lawyer in Atlanta who represents al-Adahi in his court case and won his order of release on Monday. “I have every hope that they will. But they haven’t done anything yet. And he’s not the first one to be ordered released.”

In April, Judge Ellen Huvelle granted the habeas corpus petition of Yasin Muhammed Basardah, a Yemeni who was known to have provided information — often found to be unreliable — against other Guantanamo detainees. As a result, he faces security risks wherever he’s released.

And in May, Judge Gladys Kessler ordered the release of Alla Ali Bin Ali Ahmed, a Yemeni man arrested seven years ago as a teenager. The Pentagon claimed he was a terrorist based largely on statements from other Guantanamo prisoners whose testimony the judge deemed unreliable, as well as bits and pieces of other circumstantial evidence that Judge Kessler found were too “weak and attenuated” to support his continued detention.
Despite the federal court orders to release them, both men are still at Guantanamo Bay. And many more Yemenis have been cleared for release by the U.S. government, although in a strange twist, the government refuses to say how many and their lawyers are forbidden from divulging this information to the media. Among them is a 38-year-old orthopedic surgeon captured in Afghanistan in January 2002, who the Justice Department announced in March that it had cleared for release. Two more Yemeni prisoners at Guantanamo apparently committed suicide, according to the government.

“The government is designating the very fact of approval for transfer ‘protected’ information, meaning it can’t be disclosed to anyone who has not committed to obeying the protective order – which in turn prohibits the disclosure of ‘protected’ information,” explained David Remes, Executive Director of the nonprofit group Appeal for Justice, and a lawyer representing more than a dozen detainees from Yemen. “All of us are fighting that ["protected"] designation in our cases.”

Al-Adahi, who won his order of release on Monday, was captured by Pakistani troops while fleeing Afghanistan after the U.S. invasion. Because he was on a bus that also carried some wounded Taliban soldiers, the Defense Department claimed he was working for the Taliban and sent him to Camp X-Ray at Guantanamo Bay in January 2002.

An oil worker who lived in Yemen, Al-Adahi was originally suspected of acting as Osama bin Laden’s bodyguard, but he has consistently maintained his innocence. In June, he testified to a closed federal courtroom via video camera from Guantanamo, where he was chained to the prison floor and sweating in the Caribbean heat. Al-Adahi talked about his high blood pressure, and Guantanamo officials have confirmed he has heart problems.

According to declassified portions of the transcript, Al-Adahi testified that he was introduced to Osama bin Laden during the summer before the September 11, 2001 terrorist attacks while he was in Afghanistan, where he was bringing his sister, who the family had arranged to marry a Yemeni man in Kandahar. Bin Laden, then considered the de facto “governor” of Kandahar, was at the wedding celebration. Al-Adahi has consistently maintained that he never worked for bin Laden, and Judge Kessler apparently believed there was insufficient evidence to support the government’s claims. Her written opinion in the case has not yet been declassified, however, so the basis for her findings remain unclear.

“I did not fight the American alliance,” Al-Adahi testified. “I did not deal with Taliban or al-Qaeda. I am a working man in my country. I have never committed a crime.”
The Department of Justice referred questions about the repatriation of Yemeni detainees to the State Department. A State Department spokesman said he cannot comment on the situation of Yemenis who have brought their cases to federal court.

Of the 35 habeas corpus cases heard so far, federal courts have granted the petitions and ordered the release of 29 Guantanamo Bay detainees, finding the government has not produced enough evidence to keep holding them. In addition to the three Yemeni prisoners whose petitions have been granted, the petitions of three others from Yemen have been denied.

Update: Judge Kessler released this unclassified, redacted version of her opinion in the al-Adahi case late on Friday. In the opinion, she says there is no reliable evidence that al-Adahi was ever a member of or fought for al-Qaida or the Taliban, or provided either group any affirmative support.

But chances are that her critics will seize on the speeches and writings pertaining to race and discrimination — the primary source of controversy for this nominee. Like a 1974 letter to the editor of the Daily Princetonian in which, as an undergraduate, she criticized “an institutional pattern of discrimination” at the college, or a letter that criticized the lack of diversity among candidates considered to be a university Dean. Then there’s the 1981 letter to New York Governor Hugh Carey from the Puerto Rican Legal Defense and Education Fund, written while Sotomayor was on the organization’s board, which said that “capital punishment represents ongoing racism within our society.”

Those who have called Sotomayor “racist” will likely charge, based on these and a smattering of other comments in speeches or reports addressing gender or race discrimination during her three decades as a lawyer, that she’s too focused on remedying discrimination and therefore likely to be an “activist” on the Supreme Court supporting race-based remedies.

As I’ve written before, given how much Chief Justice John Roberts has pulled the court in the other direction, Sotomayor’s views based on a more varied background are an important antidote to the powerful right wing of the court. And as Tom Goldstein has pointed out, her opinions on the court of appeals hardly suggest any activism on her part when it comes to race-related claims.

But what her lengthy and detailed responses to the Senate highlight is how minuscule and irrelevant these decades-old expressions of Sotomayor’s personal sentiments really are in the context of her long and illustrious career. While sure to provide continued fodder for talk-show hosts, focusing on these claims and calling them evidence of racism is ultimately a doomed strategy for attacking an obviously qualified candidate. Trying to smear Sotomayor with writings from her student days makes little more sense than did trying to smear President Obama with things former Weatherman Bill Ayers did when Obama was a child.

It’s worth noting, too, that there is one thing that’s not asked in the questionnaire but is actually relevant to her qualifications for the Supreme Court, and which I dug up from her 1997 confirmation hearing. While some conservative pundits have misleadingly batted around her reversal rate by the Supreme Court (about 60 percent, which is typical and even slightly lower than most), far more relevant is her reversal rate as a district court judge, where she alone was deciding a case and the appellate court, unlike the Supreme Court, was required to hear all appeals. That’s where you really see whether a judge’s decisions were correct — or at least, within the mainstream of legal interpretation.

Turns out, in district court cases, Sotomayor’s reversal rate is extraordinarily low:  of 442 rulings, Judge Sotomayor was reversed only six times by a court of appeals. That’s a reversal rate of less than 1.4 percent.

I doubt her critics will be mentioning that.

While some of the guards may indeed be that sensitive, given the complaints of torture and brutality we’ve heard from former Guantanamo prisoners — and recent reports that the abuse has gotten worse — I’m skeptical that they’re all quite so thoughtful.

As Guantanamo detainee defense lawyer David Remes put it to me this morning:  “Had National Geographic been to Abu Ghraib, you’d have had a similarly flattering portrait.”

Check out a clip from National Geographic after the jump.