Today the Supreme Court will hear arguments in yet another case concerning the right of men held at Guantánamo prison to appeal for their freedom. The Military Commissions Act, rushed through last year by the Republican Congress, was drafted so as to deny them the right. The Court has earlier ruled, in Rasul and again in Hamdan, that the prisoners had to be given the right to challenge their detention, which the Bush administration has sought to frustrate by various devices.
The MCA is only the latest such stunt. It denies the prisoners’ habeas corpus rights by stripping courts of jurisdiction to hear their appeals, and substituting a new ad hoc military court system. In these Military Commissions the accused has very limited rights and cannot appeal for his freedom even if the prosecution fails to win its case.
The appeal before SCOTUS today, backed by a broad coalition of liberal, conservative, and libertarian groups as well as many distinguished lawyers, represents a last attempt to force the Bush administration to permit the prisoners to seek justice.
Two cases, Boumediene v. Bush and Al Odah v. United States, have been consolidated into one and brought on behalf of 37 foreigners who remain among the approximately 300 detainees at Guantanamo Bay. All were captured on foreign soil and have been designated enemy combatants. They proclaim their innocence and for years have asked federal courts for a writ of habeas corpus, the ancient right allowing prisoners to challenge their detentions.
It is an exceptionally important case in a variety of ways, some of them quite fundamental for the relationship between the Executive, Legislative, and Judicial branches. The legal issues are admirably summarized by Marty Lederman:
There are three primary questions before the Court in the Boumediene case to be argued on December 5th. The first question has gotten the lion’s share of the attention; and the third is the most important. But, more than likely, the primary focus of the Supreme Court argument, and of the Court’s opinions, will be on the second question.
The first question, stated most simply, is whether aliens who are being indefinitely detained by the military at Guantanamo have a constitutional right to challenge the legality of their detention in federal court. The Court will probably answer this question “yes,” at least if its 2004 decision in Rasul, and Justice Kennedy’s concurrences in Rasul and Verdugo-Urquidez, are any indication.
The Court will need to answer the second question only if, as expected, it answers the first question in the affirmative. That second question is whether Congress has provided an adequate alternative process for reviewing the legality of detentions, in lieu of the habeas procedure to which the petitioners would otherwise be entitled. In other words, does the appellate procedure established by the Detainee Treatment Act and Military Commissions Act—providing for a limited review of Pentagon detention determinations in the Court of Appeals for the District of Columbia Circuit—give the petitioners all of the protections the Constitution requires, or does it fall materially short of the review they would receive in a habeas proceeding? In this exchange, I suspect we will focus least of all on this second question, but our readers should be aware that it is likely to play a prominent role in the case itself.
The third question is the substantive merits issue that is perhaps the most important single question arising from the Bush Administration’s treatment of the so-called “war on terror”—namely, has Congress authorized the Executive branch to detain persons based upon the broad definition of “enemy combatant” that the Bush Administration has employed? In other words: Who, exactly, may the Executive detain indefinitely in the armed conflict with al Qaeda? The Boumediene petitioners have specifically asked the Court to reach this issue (See Part II of their opening brief. [Disclosure: I consulted on the Boumediene petitioners' briefs.] Because the court of appeals has not yet addressed that issue directly, the Government asked the Supreme Court not to grant cert. on it; but the Court granted the petition in its entirety.
I’ll leave the larger legal issues aside, however. What I want to consider is the background in which this case arose. These questions can easily be overlooked, but they’re very telling: What is the nature of the allegations against Boumediene and Al Odah? What is the actual evidence? And inevitably, these resolve themselves into this question: Why should the Bush administration any longer be trusted?
Consider how the Bush administration frames the issue as one in which the prisoners at Guantánamo have been granted, if anything, too many rights.
US Solicitor General Paul Clement counters that the administration has worked with Congress to enact an unprecedented array of legal safeguards at Guantánamo. "The detainees now enjoy greater procedural protections and statutory rights to challenge their wartime detentions than any other captured enemy combatants in the history of war," Mr. Clement writes in his brief.
On the face of it, this is both preposterous and obnoxious. As published reports have stated for several years, and as Wells Dixon, an attorney for the Center for Constitutional Rights, confirmed to me just the other day, large numbers of prisoners at Guantánamo are suffering from the most extreme psychological degradation imaginable. Their minds are disintegrating. They are becoming so distant from reality that it is harder and harder for them to cooperate with counsel in their own defense. Many initially believed that the American justice system would right the wrong of their imprisonment in short order. And as years have dragged on, without any apparent progress, they have lost all hope. They see no future for themselves, except as playthings of an indifferent and amoral system of oppression.
But let’s pretend for a moment that the administration actually believes what it is pleading in court (a ridiculous notion in many instances, I know, but bear with me). And let’s measure Mr. Clement’s assertion against the facts. The BBC provides profiles of their cases. First there is Fawzi al Odah, a Kuwaiti who traveled to Afghanistan in August of 2001 to do charity work. Caught up in the chaos during the fall invasion of that country, he hid out and then fled to the Pakistan border.
He had then joined other people crossing the mountains to Pakistan, where he had handed himself in to the border guards, he added.
Mr Odah said he expected to be escorted to the Kuwaiti embassy, but had instead been handed over to US forces.
To be more precise, Al Odah was captured by “bounty” hunters and sold to the US. Like so many other prisoners, he is essentially a victim of an idiotic system created by the Bush administration to offer “bounties” for any unspecified “terrorists” whom people in remote areas in e.g. Afghanistan might seize and hand over. This created a market for humans. What quickly arose, inevitably, was a human-trafficking network. Mr. al Odah was essentially enslaved by “bounty” hunters who were grabbing any “foreigner” they could lay their hands on.
So Mr. Clement’s claim that he is a “captured enemy combatant” really ought to be put to the test in a court of law, don’t you think?
As for Mr. Boumediene:
In October 2001, the US embassy in Sarajevo asked the Bosnian government to arrest them because of a suspicion they had been involved in a plot to bomb the embassy.
The six men were duly arrested. But after a three-month investigation, in which the Bosnian police searched their apartments, their computers and their documents, there was - according to a report by the New-York-based Center for Constitutional Rights - still no evidence to justify the arrests.
Bosnia's Supreme Court ordered their release, and the Bosnian Human Rights Chamber ruled they had the right to remain in the country and were not to be deported.
However, on the night of 17 January 2002, after they were freed from Bosnian custody, they were seized and rendered to Guantanamo.
Yet another prisoner whose seizure cannot remotely be associated with “combat”.
But then, Professor Mark Denbeaux’s study at Seton Hall long ago demonstrated conclusively that only a tiny proportion of prisoners at Gitmo were actually captured by American personnel. The rest were handed over or sold to the US. This study is a reference point for any discussion of Guantánamo prison, a topic of almost endless debate for years now.
It’s a great shame so few Americans have actually read it.
Update: A superb diary on these cases was posted by The Maven, who modestly describes it (in the comments) as a "complement to this piece". It provides an overview of the development of the cases and links to the briefs submitted to the Court. Top notch work from an outstanding diarist.
