Wednesday, June 27, 2007


By William Fisher

Sometime this summer, Congress will again address the question of whether “war-on-terror” prisoners should have access to Federal courts to question the basis for their detention. The debate promises to be as bitterly contentious as the current battles over immigration and Iraq, and raises the question of whether wafer-thin Democratic House and Senate majorities can muster enough votes to override a likely Presidential veto.

Center-stage in the upcoming debate are two pieces of legislation that would amend the Military Commissions Act (MCA) of 2006 to “restore” the habeas corpus rights banned by that law.

In the Senate, Senator Patrick Leahy (D-VT), chairman of the Judiciary Committee, and the Committee’s top Republican, Senator Arlen Specter of Pennsylvania, have introduced the Habeas Corpus Restoration Act of 2007. The measure would restore habeas corpus protections by repealing provisions of the MCA. The legislation was favorably reported out by the Judiciary Committee in May.

In the House, Armed Services Committee Chairman Ike Skelton (D-MO) and Judiciary Committee Chairman John Conyers (D-MI) have introduced legislation that would uphold the principle of habeas corpus by amending the MCA to allow individuals detained, often for many years without formal charges, to have their day in court.

The House bill would allow prisoners to challenge their indefinite detention without trial and permit habeas courts to review the actions of the Military Commissions established under the MCA. . Detainees being held in active combat zones, such as Iraq and Afghanistan, would continue to be barred from filing habeas petitions.

Another bill, titled the "Restoring the Constitution Act of 2007” has been introduced in the Senate by a group of Senate Democrats headed by Presidential hopeful Senator Chris Dodd of Connecticut. That legislation would restore
habeas corpus rights to all detainees in US custody and narrowly define
what it means to be an "enemy combatant" against the United States.

The bill would also prevent the executive branch from making blanket
determinations about who is an enemy combatant and would restrict the
President’s authority to interpret when certain human rights standards apply to
detainees. The legislation would limit the label "enemy combatant" to a person
"who directly participates in hostilities in a zone of active combat against the
United States" or who took part in the terrorist attacks of Sept. 11, 2001.

Congress-watchers speculate that the Dodd legislation will be incorporated into the Leahy-Specter proposal before these measures move to the Senate floor for debate and votes. It is still unclear when either the Senate or the House will schedule floor debates.

The MCA was hurriedly passed by a then Republican-controlled Congress in late 2006, after the Supreme Court dealt a significant blow to the Bush Administration by ruling that, without statutory authority, the President did not have the power to designate people as “unlawful enemy combatants” and hold them indefinitely without charges.

The resulting legislation, signed by President Bush in early 2007, gave the President even greater scope to detain people as enemy combatants, since its provisions applied not only to those “captured on the battlefield” but also to legal aliens living in the US and to American citizens as well.

Jose Padilla became the “poster child” for the latter category of detainees. An American citizen, he was arrested at Chicago’s O’Hare International Airport in (DATE) and held incommunicado in a US Navy brig for three years (CHECK). He was transferred to Federal prison and charged only to head off a Supreme Court case that would likely have ruled his imprisonment unconstitutional.

While public officials such as then Attorney General John Ashcroft used the media to publicly accuse Padilla of conspiring to detonate a radioactive “dirty bomb” in the US, these charges were nowhere to be found in the criminal indictment eventually obtained by the Department of Justice. Padilla is currently on trial in a Federal court in Miami, charged with conspiring to provide material support for terrorism.

In introducing his legislation, Senator Leahy said, “It is urgent that we restore our legal traditions and reestablish this fundamental check on the ability of the Government to lock someone away without meaningful judicial review of its action.”

He added: “The sweep of this habeas provision goes far beyond the few hundred detainees currently held at Guantanamo Bay, and includes an estimated 12 million lawful permanent residents in the United States today.”

Representative Conyers declared, “Habeas Corpus is one of the fundamental touchstones of our constitutional democracy. We cannot preach freedom abroad if we are not willing to give prisoners the ability to establish their innocence; and, we cannot advance the cause of fighting terrorism at home if our government takes constitutionally dubious short cuts.”

His thoughts were echoed by Armed Services Committee Chairman Skelton. “The last thing that we want is to convict an individual for terrorism and then have that conviction overturned because of fatal flaws in the Military Commissions law passed in the previous Congress. Military judges have already dismissed charges against two suspected terrorists because of deficiencies in the legal framework hurriedly adopted last year. Amending the habeas provisions of the Military Commissions Act will significantly improve this law and help us stay true to our nation’s values,” he said.

The principle of habeas corpus, originally contained in the Magna Carta, has been one of the cornerstones of US law since the nation’s founding. It gives a detainee the right to go to court to challenge the authority of the prison or jail warden to continue to hold him or her.

Since the attacks of 9/11, the Bush Administration detention policies have suffered multiple legal setbacks.

In 2004, the Supreme Court in the case of Yaser Hamdi, a US citizen captured in Afghanistan, held that enemy aliens in Guantanamo may file habeas corpus petitions to challenge various aspects of their detention. The Court also noted that enemy combatants could be detained, but that some process would have to be implemented to determine these prisoners’ status and guilt. The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees who are US citizens must have the ability to challenge their detention before an impartial judge.

Two years later, in an even more far-reaching ruling, the Supreme Court struck down the military commissions President Bush established to try suspected members of al-Qaeda. By a 5-3 majority (Chief Justice Roberts recused himself because of prior involvement in this case) the Court rejected the President’s key
anti-terrorism measure and the Administration’s assertion of virtually unlimited executive power.

The Court’s majority ruled that the commissions, which were outlined by Bush in a military order in November 2001, were neither authorized by federal law nor required by military necessity, and ran afoul of the Geneva Conventions.

The Military Commissions set up by the Bush Administration could not try Salim Ahmed Hamdan, a former aide to Osama bin Laden. Detainees at Guantanamo Bay, Cuba, must have courts-martial, the Court ruled, or the president can ask for legislation to proceed differently.

In undertaking to try Hamdan and subject him to criminal punishment, “the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction," Justice John Paul Stevens wrote in the majority opinion.

The Court’s decision addressed only military commissions. But numerous legal scholars said its rejection of unbridled presidential power would likely be applied to other areas such as warrantless wiretapping. Many in the legal and human rights advocacy communities also said the Court’s reference to the Geneva Conventions could provide a basis for new legal claims by detainees held at Guantanamo Bay.

The Hamdan decision led directly to the then Republican majorities in Congress, where the President was able to muster substantial support for enactment of the MCA.

The pending Congressional measures challenging the MCA are strongly supported by most in the legal and human rights advocacy communities, which have been using the courts and the media to wage a relentless battle against what it views as President Bush’s unconstitutional and over-reaching claims of his commander-in-chief authorities in time of war.

The President’s critics include such groups as the American Civil Liberties Union, Amnesty International, Human Rights Watch, Human Rights First, the Center for Victims of Torture, Open Society Institute, and the Center for Constitutional Rights.

Mary Shaw of Amnesty International USA, probably sums up the view of such organizations. She told Truthout, “With passage of the Military Commissions Act human rights violations perpetrated by the Bush administration in the ‘war on terror’ have in effect been given the Congressional stamp of approval. This raises serious questions about the US government's commitment to due process and the rule of law.”

She added, “The ‘war on terror’ must not be used as an excuse to deny the basic human rights of any person. Amnesty International will continue to campaign for US ‘war on terror’ detention policies and practices to be brought into full compliance with international law, and for repeal of any law that fails to meet this test.”

Multiple challenges to the MCA were filed even before President Bush signed the act into law. For example, the case of Ali Saleh Kahlah al-Marri challenged the authority the law gives the President to declare a legal US resident as an ‘enemy combatant’ and jail him forever without pressing charges.

In another rebuke to the Bush administration, a divided federal appeals court ruled that Al-Marri -- held in a US Navy brig in South Carolina for four years in military custody – cannot be detained indefinitely without being charged.

The 2-1 decision by the 4th US Circuit Court of Appeals in Virginia said the accused terrorist can instead be given a criminal trial in a civilian court.

“The president cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention,'' the court said. Al-Marri, a citizen of Qatar, “can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely.''

Al-Marri was in the US legally when he was arrested in December 2001 during the investigation of the Sept. 11 attacks. He was the first terrorism defendant labeled an illegal enemy combatant by the government.

The Supreme Court declined to review the lower court decision.

Many other suits were also filed even before the MCA officially became law, with defense lawyers asking federal judges to strike down key parts of the measure as unconstitutional.

For example, one suit was filed on behalf of a Guantanamo detainee, Majid Khan, one of the 14 so-called high-value Al Qaeda suspects transferred to Guantanamo from secret Central Intelligence Agency prisons. He was expected to be among the first to be tried under the new law.

The Khan suit says that despite being held in secret CIA detention for 3-1/2 years, Khan, whose family lives in Baltimore, has never had a hearing before a neutral judge or military panel to determine the legality of his detention.

It claims that as a CIA prisoner, Khan was subjected to torture and cruel, inhuman, or degrading treatment, and coerced into making false and unreliable statements.

Before Khan’s suit could make it to a civilian Court, his case was referred to a Combatant Status Review Tribunal (CSRT), a body set up by the military to determine whether a detainee should be tried by a Military Commission.

According to the Center for Constitutional Rights (CCR), which represents Khan, “The transcript of the CSRT hearing contains statements by witnesses refuting much of the unsupported government allegations presented against Majid and written and oral statements detailing his torture while imprisoned at the CIA prison and at Guantanamo. Majid continued to demand to see his attorneys and proclaim his innocence, stating that statements he made under torture while imprisoned by the CIA are “definitely not true.” Majid stated that he had “nothing to hide” and, in addition to refuting all of the government’s unclassified allegations, Majid twice volunteered to take a lie detector test.”

The CCR is demanding that Khan be granted immediate access to his attorneys to address his claims of innocence and his abusive treatment at the hands of US officials. CCR also calls for an independent investigation into their client’s
“torture and abuse both at CIA secret prisons and at Guantanamo.”

Suits like these join more than 400 other detainee cases filed on behalf of prisoners at Guantánamo that are currently pending before US district or appeals court judges in Washington.

Bush administration officials contend that the suits are a major distraction in the war on terror. They argue that Al Qaeda suspects are no more entitled to litigate legal claims against the US in American courts than were German POWs in World War II.

The defense attorneys say the new tribunal rules have put them at a disadvantage even before the trials begin. They claim that one of their greatest obstacles is their inability to speak with clients unless they travel to Guantanamo.

Marine Lt. Col. Colby Vokey, an attorney for one 20-year-old detainee, said his client refused to leave his cell last week, and they were unable to meet during his visit to Guantanamo. He said his client is not told when he visits and likely chose not to move because it is one of his only ways of resisting his jailers.

"Everything about Guantanamo is an obstruction. It's practically impossible to represent somebody down there," said Vokey, adding that he has not been able to show Khadr any evidence because guards have refused to let him bring it into their meetings.

The new rules would also tighten censorship of mail from attorneys and give the military more control over what lawyers can discuss with their clients. The number of face-to-face meetings between defense attorneys and detainees would be limited to a total of four. There are now no restrictions on the number of times they can meet.

The government says current rules have allowed detainees to receive books or articles about terrorist attacks in Iraq, London and Israel, as well as details of the prisoner abuse investigation at Iraq's Abu Ghraib prison.

The Combat Status Review Tribunals (CSRTs) have also been the subject of widespread criticism as “kangaroo courts.” The most recent attack on these bodies has come from Lt. Col. Stephen Abraham, a 26-year veteran of military intelligence who is an Army reserve officer and a California lawyer. He is a former member of a CRST.

In a court affidavit, Abraham wrote that military prosecutors were provided with only “generic” material that didn’t hold up to the most basic legal challenges. Despite repeated requests, intelligence agencies arbitrarily refused to provide specific information that could have helped either side in the tribunals, according to Abraham, who said he served as a main liaison between the Combat Status Review Tribunals and those intelligence agencies.

“What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence,” Abraham said in the affidavit, filed in a Washington appeals court on behalf of a Kuwaiti detainee, Fawzi al-Odah, who is challenging his classification as an “enemy combatant.”

These are some of the issues likely to be fiercely debated when Congress brings the proposed new anti-MCA legislation to the floors of the House and Senate. While Democrats enjoy a tiny minority in the Senate, the habeas corpus issue is sure to face stiff opposition from such Senators as Lindsey Graham, (R-SC), an Air Force Reserve Officer who has served as a military lawyer and judge for many years. Graham does not believe enemy combatants have ever had a right to file habeas writs.

The MCA debate is likely to be even more raucous in the House. While Reps. Conyers and Skelton chair two of the body’s most powerful committees – and both are close allies of Speaker Nancy Pelosi (D-CA) – House members up for reelection in 2008 will be wary of casting any votes that could make them vulnerable to charges of being “soft on terrorism.”

Finally, the White House has signaled its intention to veto any legislation that “weakens” the MCA, and it remains unclear that either body could garner the votes needed to override a veto.