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Guantanamo Detainees' Fate at Stake

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    Guantanamo Detainees Fate at Stake Boumediene v. Bush hearing at the Supreme Court by Prof Marjorie Cohn December 5, 2007 marjoriecohn.com
    Message 1 of 1 , Dec 5, 2007
      Guantanamo Detainees' Fate at Stake
      Boumediene v. Bush hearing at the Supreme Court

      by Prof Marjorie Cohn
      December 5, 2007

      The Supreme Court will hear arguments on Wednesday in Boumediene v.
      Bush. Most of the 34 detainees whose fate hangs in the balance in this
      case were brought to Guantánamo after being picked up by bounty
      hunters or tribesmen in Afghanistan and Pakistan. Yet the Bush
      administration has fought hard to keep them away from any independent
      court where they could contest the legality of their confinement.

      In February, two judges on a three-judge panel of the D.C. Circuit
      Court of Appeals upheld the provision of the Military Commissions Act
      of 2006 that strips the statutory rights of all Guantánamo detainees
      to have their habeas corpus petitions heard by U.S. federal courts.
      The Supreme Court will decide in Boumediene whether these men still
      have a constitutional right to habeas corpus.

      If the lower court decision is left to stand, they can be held there
      for the rest of their lives without ever having a federal judge
      determine the legality of their detention.

      Background on the Guantánamo cases

      In June 2004, the Supreme Court decided Rasul v. Bush, which upheld
      the right of those detained at Guantánamo to have their petitions for
      habeas corpus heard by U.S. courts, under the federal habeas statute.

      The ink was barely dry on Rasul when Bush created the Combatant Status
      Review Tribunals, ostensibly to comply with the Rasul ruling. But
      these tribunals amounted to an end-run around Rasul. They were
      established to determine whether a detainee is an enemy combatant.

      At the end of last term, the Supreme Court struck down Bush's military
      commissions in Hamdan v. Rumsfeld because they did not comply with due
      process guarantees in the Uniform Code of Military Justice and the
      Geneva Conventions. Military commissions are criminal courts to try
      prisoners for war crimes.

      Then, in October of last year, in another end run, this time around
      Hamdan, Bush rammed the Military Commissions Act of 2006 through a
      Congress terrified of appearing soft on terror in the upcoming midterm
      elections. The Act does many things, but it notably amends the habeas
      corpus statute to strip statutory habeas rights from all Guantánamo

      Do detainees retain constitutional right to habeas corpus?

      The two-judge majority in Boumediene upheld the Military Commissions
      Act's stripping of statutory habeas jurisdiction that the Supreme
      Court had recognized in Rasul.

      Art. I of the Constitution contains the Suspension Clause, which says
      that Congress can suspend the right of habeas corpus only in times of
      rebellion or invasion when the public safety may require it. We are
      not now in a state of invasion or rebellion, and Congress did not make
      such a finding.

      The two-judge majority in Boumediene said: (1) in the absence of a
      statutory habeas right (which Congress eliminated in the Military
      Commissions Act), the Constitution only protects the right of habeas
      corpus that was recognized at common law in 1789; (2) the law in 1789
      did not provide the right of habeas corpus to aliens held by the
      government outside of the sovereign's territory; and (3) Guantánamo is
      outside U.S territory for constitutional purposes, even though the
      U.S. has complete control over it.

      This reasoning is erroneous for three reasons.

      First, the Supreme Court held in INS v. St. Cyr that the Constitution
      protects the writ as it existed in 1789 "at the absolute minimum." The
      high court in Rasul cited St. Cyr.

      Second, although the Boumediene majority relies on the treaty that
      says Cuba, not the U.S., has sovereignty over Guantánamo, the Supreme
      Court rejected that argument in Rasul, when it said: "By the express
      terms of its agreements with Cuba, the United States exercises
      'complete jurisdiction and control' over the Guantánamo Bay Naval
      Base, and may continue to exercise such control permanently if it so
      chooses. . . Aliens held at the base, no less than American citizens,
      are entitled to invoke the federal courts' authority under §2241."

      Third, although the Rasul Court was analyzing the pre-Military
      Commissions Act habeas statute, it also cited Johnson v. Eisentrager,
      which construed the constitutional right of habeas corpus. The Supreme
      Court in Eisentrager denied habeas jurisdiction to German citizens who
      had been captured by U.S. forces in China, then tried and convicted of
      war crimes by an American military commission in Nanking.

      The Eisentrager court listed six factors to determine whether an alien
      is entitled to constitutional habeas jurisdiction in U.S. courts.
      These factors were cited in Rasul, which said:

      "In reversing that determination, this Court [in Eisentrager]
      summarized the six critical facts in the case:

      "We are here confronted with a decision whose basic premise is that
      these prisoners are entitled, as a constitutional right, to sue in
      some court of the United States for a writ of habeas corpus. To
      support that assumption we must hold that a prisoner of our military
      authorities is constitutionally entitled to the writ, even though he
      (a) is an enemy alien; (b) has never been or resided in the United
      States; (c) was captured outside of our territory and there held in
      military custody as a prisoner of war; (d) was tried and convicted by
      a Military Commission sitting outside the United States; (e) for
      offenses against laws of war committed outside the United States; (f)
      and is at all times imprisoned outside the United States."

      "On this set of facts, the [Eisentrager] Court concluded, "no right to
      the writ of habeas corpus appears."

      The Rasul court continued:

      "Petitioners in these [Guantánamo] cases differ from the Eisentrager
      detainees in important respects: They are not nationals of countries
      at war with the United States, and they deny that they have engaged in
      or plotted acts of aggression against the United States; they have
      never been afforded access to any tribunal, much less charged with and
      convicted of wrongdoing; and for more than two years they have been
      imprisoned in territory over which the United States exercises
      exclusive jurisdiction and control.

      "Not only are petitioners differently situated from the Eisentrager
      detainees, but the Court in Eisentrager made quite clear that all six
      of the facts critical to its disposition were relevant only to the
      question of the prisoners' constitutional entitlement to habeas corpus."

      Combatant Status Review Tribunals not adequate substitute for habeas

      In Boumediene, the Bush administration asked the Court of Appeals to
      review the Combatant Status Review Tribunals. But the court declined,
      saying it had an inadequate record before it.

      The Combatant Status Review Tribunals do not provide a meaningful
      opportunity to challenge detention. The prisoner is not entitled to an
      attorney, only a "personal representative," and anything the detainee
      tells his personal representative can be used against him. After
      reviewing the cases of 393 detainees, a Seton Hall legal team found
      that in 96 percent of the cases, the government had not produced any
      witnesses or presented any documentary evidence to the detainee before
      the hearing. Detainees were allowed to see only summaries of the
      classified evidence offered against them, and that evidence was always
      presumed to be reliable and valid. Requests by detainees for witnesses
      were rarely granted.

      In addition, the personal representatives said nothing in 14 percent
      of the hearings and made no substantive comments 30 percent of the
      time. Some personal representatives even advocated for the
      government's position. In three cases, the detainee was found to be
      "no longer an enemy combatant," but the military continued to convene
      tribunals until they were found to be enemy combatants. These
      detainees were never told of the favorable ruling and there was no
      indication they were informed or participated in the second or third

      As the dissenter in Boumediene pointed out, the procedure set up in
      the Detainee Treatment Act for reviewing decisions of the Combatant
      Status Review Tribunals "is not designed to cure these inadequacies.
      The court may review only the record developed by the CSRT to assess
      whether the CSRT has complied with its own standards. Because the
      detainee still has no means to present evidence rebutting the
      government's case - even assuming the detainee could learn of it
      contents - assessing whether the government has more evidence in its
      favor than the detainee is hardly the proper antidote."

      The suspension of habeas corpus will certainly have profound effects
      on non-citizen detainees. Consider the case of Abu Bakker Qassim, an
      Uighur from China who was held at Guantánamo for four years. He wrote
      in the New York Times: "I was locked up and mistreated for being in
      the wrong place at the wrong time during America's war in Afghanistan.
      Like hundreds of Guantánamo detainees, I was never a terrorist or a
      soldier. I was never even on a battlefield. Pakistani bounty hunters
      sold me and 17 other Uighurs to the United States military like
      animals for $5,000 a head. The Americans made a terrible mistake."

      Rasul v. Bush was a 6-3 decision. Justices Stevens, Souter, Ginsburg,
      Breyer, O'Connor and Kennedy voted with the majority. The dissenters
      were Justices Scalia, Thomas and Rehnquist.

      The Supreme Court should reverse the Court of Appeals decision in
      Boumediene, probably in a 5-4 vote with Chief Justice Roberts and
      Justice Alito voting with the dissent. Surely the Court will not
      decide that Bush has succeeded in placing the detainees beyond the
      reach of our federal courts by sending them to Guantánamo. It should
      also conclude that the judicial review of the decisions of Combatant
      Status Review Tribunals does not provide an adequate substitute for
      constitutional habeas corpus.

      Marjorie Cohn is a professor at Thomas Jefferson School of Law and the
      President of the National Lawyers Guild. She is the author of "Cowboy
      Republic: Six Ways the Bush Gang Has Defied the Law." Her articles
      are archived at www.marjoriecohn.com.

      Marjorie Cohn is a frequent contributor to Global Research. Global
      Research Articles by Marjorie Cohn



      • Nov. 13, 2001: President Bush signs an executive order establishing special military tribunals for al-Qaeda suspects captured by U.S. forces in Afghanistan and elsewhere. Also, based on Congress' resolution allowing Bush to use "all necessary and appropriate force against those" involved in the Sept. 11 attacks, Bush begins designating some terrorist suspects as "enemy combatants" to be held without charges or hearings.

      • June 28, 2004: The Supreme Court rules that Guantanamo detainees must have access to federal courts to challenge their imprisonment, based on a long-standing federal law that allows prisoners to challenge their confinement by seeking a writ of habeas corpus (Rasul v. Bush). The court also rules that U.S. citizens who become terrorist suspects and are designated "enemy combatants" must get a hearing on the accusations and evidence (Hamdi v. Rumsfeld).

      • June 29, 2006: After the Pentagon begins military trials and detainees claim they fail to provide sufficient safeguards to ensure fairness, the Supreme Court rules that Bush lacked the power to set up tribunals without Congress' approval. The court declares the current procedures do not meet the standards of the U.S. Military Code of Justice and the Geneva Conventions, which are intended to protect prisoners of war (Hamdan v. Rumsfeld).

      • Oct. 17, 2006: Bush signs the Military Commissions Act, which Congress passed to meet the requirements of the court's June decision. The act provides new rules for tribunals and also dictates that no detainee at Guantanamo may seek a hearing in federal court to challenge his imprisonment. Congress tried to strip the Guantanamo detainees of any opportunity for a writ of habeas corpus, a fundamental part of Anglo-American tradition that enables a prisoner to contest his confinement before a judge.

      • April 2, 2007: The Supreme Court rejects a challenge to the part of the Military Commissions Act that denies Guantanamo prisoners a habeas hearing. Justices John Paul Stevens and Anthony Kennedy suggest in a concurring statement that the prisoners should first try to go through lower-court channels to challenge the law.

      The prisoners claim the habeas right comes not only from federal law but also from a historic constitutional protection. The prisoners argue that returning to a lower court is pointless because they had been previously rejected there (Al Odah v. United States; Boumediene v. Bush).

      • June 29: Asked by the prisoners to reconsider its April order, the court reverses itself. It says it will hear the claim that Congress improperly halted the fundamental right to habeas corpus. The action marks the first time in modern history that the justices reconsidered an earlier rejection of a petition.

      • Dec. 5: Justices are scheduled to hear arguments in Al Odah v. United States and Boumediene v. Bush.


      Court to decide detainees' rights
      By Brennan Linsley, AP

      A Guantanamo detainee walks past cell doors at the detention facility on Guantanamo Bay U.S. Naval Base in Cuba in October.

      WASHINGTON — Supreme Court justices will hear a dispute next week over the rights of Guantanamo detainees that presents a fundamental question of prisoners' ability to be heard in court. The case arises as the justices increasingly exert their authority in terror-related clashes.

      In recent years, the Supreme Court and President Bush have engaged in a contentious series of chess moves over the legal rights of foreigners held at Guantanamo and detainees elsewhere. Three times since 2004, the court ruled against Bush detention policies. In opinions and statements from the bench, the justices have shown particular impatience with administration efforts to keep detainees' cases from federal judges.

      "The court doesn't like to be told, 'You don't have a role to play here,' " University of Chicago law professor Dennis Hutchinson says.

      At the same time, Hutchinson and other legal experts observe, the justices have voiced concern over the administration's power to deal with terrorist threats. "I think that many of the justices have approached these cases pragmatically," Vanderbilt law professor Suzanna Sherry says. "There is no clear right answer. They are trying to balance the need to prevent terrorism with individual rights."

      Court reconsiders

      One signal of the justices' interest in monitoring terrorism cases was their handling of the dispute they will hear Dec. 5. In April, the justices declined to intervene in the case. On June 29, in an unprecedented order, they reconsidered and announced they would decide the Guantanamo prisoners' basic rights after all.

      Justice John Paul Stevens, 87, a World War II veteran who earned the Bronze Star, has taken the lead on recent court actions against the administration. Stevens, appointed by President Gerald Ford in 1975, was a law clerk at the Supreme Court in the late 1940s as justices considered disputes lingering from World War II.

      Sherry says the court seems keenly aware of its role now and some missteps during that era. She cites a case in 1944 in which the court upheld an order forcing Japanese-Americans to leave their homes in California and other Western states after Japan attacked Pearl Harbor. In that case, Korematsu v. United States, the court agreed with the U.S. government that the war justified targeting Americans based on their race. The ruling has been widely criticized in the decades since.

      "The court as an institution learned something from the mistake it made," Sherry says.

      The new dispute plays directly into tensions over judges' role in prisoners' cases. It tests whether foreigners at the U.S.-run naval base at Guantanamo Bay, Cuba, have a right to challenge their imprisonment by seeking a writ of habeas corpus.

      For centuries in the Anglo-American tradition, prisoners could obtain the writ to assert they should not be locked up. A writ of habeas corpus (Latin for "you have the body") requires whoever holds the prisoner to allow him to make his case of unlawful confinement. The Constitution says a writ of habeas corpus, called the "Great Writ," may be suspended only "in cases of rebellion or invasion."

      In October 2006, in response to a Supreme Court ruling and at the administration's urging, Congress passed a law saying no Guantanamo prisoner could seek a writ.

      The U.S. Court of Appeals for the District of Columbia Circuit rejected a challenge to the law by two groups of detainees and ruled in February that the law properly stripped federal courts of authority over the detainees.

      The court majority relied in part on a 1950 case for the principle that U.S. judges cannot hear claims outside the USA from foreign detainees. In the opinion by Judge Raymond Randolph, the appeals court narrowly interpreted a Supreme Court decision in 2004 that the Guantanamo detainees can get into U.S. court based on a long-standing federal law.

      In dissent, Judge Judith Rogers said the majority was "ignoring the Supreme Court's well-considered" views from that 2004 case, Rasul v. Bush. Congress should have provided a sufficient alternative to a habeas proceeding, Rogers said, or established the grounds for suspending the writ.

      When the detainees appealed, the high court, over the dissent of three of the nine justices, spurned the petitions.

      However, two justices who joined in rejecting the appeals (Stevens and Anthony Kennedy) said the issues were important and signaled that they would watch developments. By late June, a majority had decided to intervene and announced the court would hear the twin cases of Boumediene v. Bush and Al Odah v. United States.

      Military reviews

      The court's decision came amid increasing public questions about the adequacy of military reviews set up for the prisoners and rising domestic and international pressure to close the Guantanamo prison.

      In one of the paired cases, the lead challenger is Lakhdar Boumediene, an Algerian who was arrested in Bosnia in 2001 in connection with a suspected plot to attack the U.S. Embassy in Sarajevo. The other lead challenger is Khaled Al Odah, a Kuwaiti citizen who was captured in Pakistan in 2002.

      U.S. Solicitor General Paul Clement stresses that the prisoners "were captured abroad in the course of an ongoing military conflict and … have at all times been detained outside the sovereign territory of the United States." He says they do not qualify for a writ of habeas corpus but even if they did, the combatant-status reviews are a sufficient substitute.

      Seth Waxman, a former U.S. solicitor general in the Clinton administration who represents Boumediene and will argue for all the detainees involved, said the military screening is not enough.

      "Habeas is a judicial remedy; it cannot be replaced by a process that … is ultimately controlled by the jailer," Waxman said, noting that the reviews are conducted by military officials, not independent judges. He said the process does not allow prisoners to have lawyers or to present their own evidence.

      The cases have drawn extensive "friend of the court" briefs since they first came to the justices last spring, overwhelmingly on the side of the detainees. Among them was one from former federal judges, diplomats and others, including Karen Korematsu-Haigh, daughter of Fred Korematsu, whose challenge to the orders forcing Japanese-Americans from their homes was spurned in 1944.

      She signed a brief that said, "The Constitution entrusts to the courts the ultimate protection of individual liberty — especially in times of national anxiety and stress."



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