JUSTICE DELAYED, JUSTICE DENIED

By William Fisher

The human rights community responded angrily today to the Supreme Court’s decision not to hear the cases of detainees at Guantanamo Bay, Cuba, until they have exhausted all other legal avenues.

The effect of the high court’s decision is to deny civil judicial review to the 300-plus prisoners still held at the controversial U.S. military base until their cases have gone through the process set up by the 2005 Detainee Treatment Act (DTA), which allows limited civil court appeals of decisions reached by military review panels.

Reaction from human rights and legal advocacy groups was quick and scathing.

Vincent Warren, executive director of the Center for Constitutional Rights – the group that filed the petition on behalf of three Guantanamo detainees – said, "The Supreme Court has once more delayed the resolution of the fate of these detainees - three quarters of whom the military admits it will never charge - who have languished without any meaningful way to challenge their detention for more than five years."

He added, "The processes the government put in place are a sham -- they allow the use of evidence obtained through torture and no real review of the facts. DTA review is not an adequate substitute for the right of habeas corpus. We hope our clients survive until they finally get their day in court."

The Center for Constitutional Rights represents many of the detainees at Guantánamo and coordinates the work of nearly 500 pro bono attorneys.

Gabor Rona, International Legal Director of Human Rights First, told IPS, “After having endured up to five years of waiting in vain for justice, Guantanamo detainees, many of whom have never been charged with any hostile act against Americans but all of whom have endured severe and abusive conditions and treatment in violation of international law, are now told to take their claims back to the very same lower courts that have denied their right to even file a judicial challenge to their detention. With justice repeatedly delayed and thus denied, it is all the more important that Congress step in with a fix that restores America's commitment to its traditional values of a fair hearing for all whose freedom is denied. Not only for the sake of the detainees, but more importantly in the fight against terrorism, in order to heal our self-inflicted wounds.”

His view was echoed by other legal scholars and advocacy groups. Mary Shaw of Amnesty International USA told IPS, “The so-called ‘war on terror’ has become a war on human rights. And Monday's Supreme Court decision is another disturbing consequence of the Military Commissions Act, which turned bad administration policy into bad law. Amnesty International urges Congress to take immediate action to restore habeas corpus rights to all detainees in U.S. custody.”

The two justices who issued the statement, Kennedy and Stevens, wrote that they wanted to see the process put in place by the DTA played out to determine if it is an adequate substitute for habeas corpus before they rule. The DTA allows detainees to challenge in the Court of Appeals the decisions of the Combatant Status Review Tribunals (CSRT's) determining they are so-called "enemy combatants."

CCR attorneys called the CSRT's “a sham process where the government controls what evidence and witnesses are permitted, evidence obtained by torture is permissible, and the detainees have no lawyer representing them and no guarantee of due process. The DTA review in the Court of Appeals only allows review of whether the government adhered to its own rules, and contains no provision for considering additional facts not allowed to be considered in the CSRT process. The scope of whom the president can label an "enemy combatant" is ever-shifting and virtually without limit.”

CCR lawyers pointed out that “Some detainees were sent through the CSRT process as many as three times until they were found guilty-the process is designed to get the government the results it wants.”

Monday’s denial was not a ruling on the merits of the cases brought, but on the question of whether the Court should take up the cases at this moment. Justices Stevens and Kennedy issued the following warning:

"If petitioners later seek to establish that the Government has unreasonably delayed proceedings under the Detainee Treatment Act of 2005…or some other and ongoing injury, alternative means exist for us to consider our jurisdiction over the allegations made by petitioners before the Court of Appeals."

Justice Breyer wrote in his dissent, "It is unreasonable to suggest that the D.C. Circuit in future proceedings under the DTA will provide review that affords petitioners the rights that the Circuit has already concluded they do not have."

The Supreme Court has twice affirmed the detainees' right to habeas corpus review, first in a landmark case known as Rasul v. Bush in 2004, and later in Hamdan v. Rumsfeld in 2006.

In Rasul v. Bush, the high court held in June 2004, that foreign nationals imprisoned without charge at the Guantanamo Bay interrogation camps were entitled to bring legal action challenging their captivity in U.S. federal civilian courts. A five-justice majority ruled that the military commissions, which were outlined by Bush in a military order on Nov. 13, 2001, were neither authorized by federal law nor required by military necessity, and ran afoul of the Geneva Conventions.

The court thus rejected a signature Bush anti-terrorism measure and the broad assertion of executive power upon which the president had based it.

In its Hamdan decision, the court ruled that no military commission can try Salim Ahmed Hamdan, the former aide to Osama bin Laden whose case was before the justices, or anyone else, unless the president does one of two things he has resisted doing for more than four years: operate the commissions by the rules of regular military courts-martial, or ask Congress for specific permission to proceed differently.

President Bush responded by pressing congress to pass the Military Commissions Act (MCA) of 2006. Like its predecessors, the MCA denies detainees any right to habeas corpus suits.

The MCA is itself the subject both of pending litigation and also of action in congress to repeal sections of it. The Democratic chairman and ranking Republican on the Senate Judiciary Committee, Sens. Pat Leahy of Vermont and Arlen Specter of Pennsylvania, have introduced legislation to repeal the MCA.

The Detainee Treatment Act contains the so-called “McCain Amendment”, named for its chief proponent, Sen. John McCain, an Arizona Republican who is one of the leading contenders for the 2008 presidential nomination. The McCain Amendment cites the U.S. Army's Field Manual on interrogation as the authoritative guide to interrogation techniques. But in December 2006, the New York Times reported that the Army Field Manual had been rewritten by the Pentagon. Previously, the manual's interrogation techniques section could be read freely on the Internet. But the new edition's includes 10 classified pages in the interrogation technique section.

The McCain Amendment's anti-torture provisions were modified by the Graham-Levin Amendment, which was also attached to the $453-billion 2006 Defense Budget Bill. The Graham-Levin Amendment permits the Department of Defense to consider evidence obtained through torture of Guantanamo Bay detainees, and expands the prohibition of habeas corpus for redetainees, which subsequently leaves detainees no legal recourse if they're tortured. It is named for Republican Sen. Lindsey Graham of South Carolina and Democrat Sen. Carl Levin of Illinois.

Critics contend that these two actions deflate the McCain Amendment from having any real power in stopping torture by the U.S. Government, and claim that these were the true reasons President Bush "conceded" to McCain's demands.

Amnesty International claims that the amendment's loopholes actually signal that torture is now official U.S. policy.

The Detainee Treatment Act was further complicated by a “signing statement” issued by President George W. Bush after he approved the bill. A signing statement is an official document in which a president lays out his interpretation of a new law.

After signing the DTA into law, Bush wrote:

"The executive branch shall construe (the section of the Act), relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President… of protecting the American people from further terrorist attacks."

The Boston Globe quoted an anonymous senior administration official saying, "Of course the president has the obligation to follow this law, (but) he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case. We are not expecting that those two responsibilities will come into conflict, but it's possible that they will."

Critics of the president have charged that Bush’s numerous signing statements have the effect of allowing the president to decide which parts of what laws he intends to comply with.