Cut the Gordian Knot: The Supreme Court Weighs in on Gitmo (Draft) – The Daily Journal – PDF

2007 Cut the Gordian Knot: The Supreme Court Weighs in on Gitmo (draft)

This month, the Supreme Court heard arguments on whether the writ of habeas corpus should be granted to the men held at Guantanamo. Since there is currently no other adequate legal remedy for those imprisoned at our offshore detention center, it’s up to the court of last resort to remedy almost six years of injustice and grant the Guantanamo detainees a fair hearing before an impartial panel.

First, some background on the cases, Al Odah v. United States and Boumediene v. Bush. Through a series of ill-conceived executive orders and laws written since the beginning of the so-called “war on terror,” Congress and the Bush administration have severely restricted the right of Guantanamo prisoners to test their detentions. The new laws they created, the Detainee Treatment Act (DTA) and the Military Commissions Act (MCA), essentially accept the administration’s broad categorizations of those at Guantanamo as “enemy combatants” and give no real opportunity for that determination to be tested.

The MCA calls for prisoners to undergo Combatant Status Review Tribunals—hearings to confirm what the administration has already has determined, that the prisoners are “enemy combatants.” These proceedings have no resemblance to a fair and constitutional process. Prisoners appear without attorneys. Confessions and other evidence elicited from torture are permissible. Determinations are made on the basis of classified evidence that the detainees never see. And there is no real chance to present evidence or call witnesses. In the few cases where the government doesn’t get its desired result the first time, prisoners may be subjected to more CSRTs until the government finally confirms him as an “enemy combatant.”

We know of the problems of CSRTs from some of the transcripts of those who went before the panels. In one case a detainee was accused of associating with a member of Al Qaeda. When he asked who it was, he was told the name was classified. He then correctly asked the panel how he could respond. The detainee never got the name and was found to be an “enemy combatant” based on that ambiguous association. Kafka is alive and well and sitting on the CSRTs.

Panel members themselves have stepped forward to say that these proceedings are unfair. “All of us [on one CSRT panel] found the information presented to lack substance,” writes Lt. Col. Stephen Abraham. But, he continues, “we were then ordered to reopen the hearing to allow the Recorder to present further argument as to why the detainee should be classified as an enemy combatant.”

What is this next sentence—a quote? From abraham

If at first you don’t succeed, you can eventually deem the prisoner an “enemy combatant.”

But what of the argument that we are at war facing a real enemy? Doesn’t our “war on terror” mean that habeas can be suspended, just like it was during the Civil War?

The Suspension Clause does say that habeas may be suspended “in cases of rebellion or invasion.” But this “war” is not a rebellion like Civil War, and no armies or throngs of individuals are poised to invade our borders. Even the administration does not so argue; rather, it claims Guantanamo is outside the U.S. and there is no habeas there for non-citizens because they are outside the U.S.

That issue was already decided, however, in Rasul v. Bush — the first time a petition from Guantanamo detainees reached the Supreme Court. In Rasul, the Court upheld statutory habeas rights but in doing so pointed out that executive detentions have been anathema since King John signed the Magna Carta in 1215. Further, Justice Kennedy himself noted in his opinion that Guantanamo is under the complete jurisdiction and control of U.S. That’s strong indicator that those held at Guantanamo are protected by the Constitution.

Habeas at its core is about the underlying constitutional right to challenge arbitrary detention—if that were not the case, we’d be living in an authoritarian state. And that’s surely not what the Framers had in mind.

We know from the oral arguments that the administration is still holding fast to its bogus new laws and would like to remand DTA and MCA appeals to the D.C. Circuit — meaning that a lower federal court will rule on whether the CSRTs merely comply with the DTA and the MCA and not on whether those laws are viable to begin with. But even if the D.C. Circuit weighs in, it is a meaningless exercise, as we know from those who served on the CSRT panels, that those proceedings are shams.

The government’s desire to keep the CSRTs in the lower courts complements its wish to keep prisoners at Guantanamo as long as possible. It’s an effort to hide illegalities and gross missteps in its “war on terror.”

After six years of delaying justice, the administration is looking to avoid a national embarrassment. They don’t want to concede that the vast majority of the men imprisoned at Guantanamo should never have been plucked from their homes to begin with. Based on published reports (and the government’s own estimates), the vast majority of almost 300 habeas petitions would not even get to the stage of a hearing since there is so little evidence. For the few that will get to a hearing, it is unlikely that there is enough independent evidence to hold them in detention. The government will do anything to avoid conceding its new laws are not a substitute for habeas and that the improper imprisonments have tarnished our national reputation.

The legal questions of Guantanamo underlie a moral question, as well. Not too long ago, our country could claim that it was a nation guided by laws. But even that basic assertion is hollow now.

The government’s actions show us to be a nation lacking the moral authority needed to be the world’s only superpower. But this recent hearing before the Supreme Court has shown those of us guided by a code of ethics, and a code of laws, are not without hope.

Perhaps the Supreme Court will make the decision required of it. Perhaps the six years will weigh on the Court as it has on the Guantanamo detainees. Perhaps, after all this time and two prior favorable decisions, the Court will cut the Gordian knot that the executive branch and Congress have been unwilling to untie.

Perhaps we will see the end of the nightmare that is Guantanamo.