Wednesday, November 21, 2007


By William Fisher

The Bush Administration's legal justification for continuing to hold prisoners without charges at the US naval base at Guantanamo Bay, Cuba, will be back in the U.S. Supreme Court - again - early next month.

And the decision of the nine Justices could bring the entire Bush Administration's detention policy down in flames - or not.

On December 5, the High Court will hear oral arguments in a case known as Boumediene v. Bush and al-Odah v. USA. Boumediene and al-Odah have been held in indefinite executive detention at Guantanamo since 2002 without charge or trial.

Boumediene and al-Odeh are Algerian-born Bosnian citizens who were detained in Bosnia in 2001 on the basis of a diplomatic note delivered by the U.S. Embassy in Sarajevo to the Bosnian government. Though the note did not allege any supporting evidence, it asked the Bosnian government to arrest the men because of fears that they were involved in a plan to attack the Embassy. After an extensive investigation yielded no evidence to justify the arrests, the Bosnian Supreme Court ordered the men released for lack of evidence. But they were then immediately arrested and were transferred to Guantánamo.

Their case has been bouncing around the U.S. courts ever since. Earlier this year, after a series of lower court losses, the detainees sought review of their case by the U.S. Supreme Court. In April, the high court declined to review the case. But two months later, in an unusual action taken only three times since the founding of the US, the Supreme Court reversed its own decision, agreeing to hear the case -- the third time the High Court will consider a case concerning the rights of detainees.

The core issue before the Court is whether the Military Commissions Act (MCA), hurriedly pushed through the Republican-controlled Congress and signed into law by President George W. Bush in October 2006, violates the U.S. Constitution by stripping the courts of jurisdiction to consider habeas corpus petitions from the Guantánamo detainees.

The government will tell the high court that current law provides "is a fully adequate substitute for habeas corpus in this extraordinary wartime context."

Habeas corpus, or "The Great Writ," is one of the most fundamental protections of individual liberty guaranteed by the U.S. Constitution. It has its origins in common law dating back to the time of the Magna Carta in 1215, and is a remedy that protects fundamental human rights, including the right not to be subjected to enforced disappearance, secret detention, arbitrary detention, unlawful transfer, torture and other cruel, inhuman or degrading treatment, and the right to a fair trial by an independent and impartial tribunal established by law. Several U.S. presidents have suspended this ancient right, including Abraham Lincoln during the U.S. Civil War. But it has always been restored by the judicial branch of government.

Embedded in the controversy over the Military Commission Act is the legality of executive bodies known as Combatant Status Review Tribunals (CSRTs), which were established to determine whether the detainees held at Guantanamo were "properly detained" as "enemy combatants". The CSRTs were authorized by an order from the then Deputy Secretary of Defense Paul Wolfowitz in 2004 -- some two and a half years after detentions began at Guantánamo.

Combat Status Review Tribunals consist of panels of three military officers who can consider any information, including information that is hearsay, classified, or that has been obtained under torture or other ill-treatment, in making their determinations. The detainee, held thousands of miles from home (or any battlefield) and virtually cut off from the outside world, does not have a lawyer or access to any classified evidence used against him. Critics charge that there is a presumption in favor of the government's information presented to the tribunal.

The CSRTs were established following one of the Bush Administration's major legal defeats. In 2004, in a case known as Rasul v. Bush, the Supreme Court ruled that the U.S. courts had jurisdiction to consider habeas corpus petitions filed on behalf of the Guantánamo detainees.

The Bush Administration's prisoner detention policies have suffered a number of other legal setbacks. Arguably the most important case was known as Hamdan v Rumsfeld. In 2004, Salim Ahmed Hamdan, the captured and detained former driver for Osama bin Laden, filed suit for a habeas corpus hearing in U.S. court. In 2005 the Supreme Court ruled in favor of Hamdan.

The aggregate result of these various legal setbacks is that to date none of the more than 300 detainees still held in Guantánamo has had his detention reviewed in court. None of the over 400 detainees freed from the base to release or further custody in their own or other countries was transferred by judicial order. And there have been no trials of detainees. There has been one "conviction", based on a plea deal by an Australian detainee, who was quickly transferred back to his home country.

The CSRT process has also come in for harsh criticism by an Army reserve officer who served as a member of one such panel. In an affidavit, Lieutenant Colonel Stephen Abraham said the process is deeply flawed, relying on vague evidence prepared by poorly trained personnel, and is subject to undue pressure from the military chain of command.

Under the Detainee Treatment Act (DTA), passed by Congress in 2005, judicial review of CSRT decisions is limited to a single court, the U.S. Court of Appeals for the District of Columbia.

Many in the legal and human rights communities see the upcoming arguments as potentially the first step in restoring one of America's founding tenets -- the rule of law - even to those whose goal might be to destroy the country.

Prof. David Cole of Georgetown University Law Center told IPS, "If our detentions of enemy combatants are ever to be accepted as legitimate by the rest of the world, we must be willing to conform our actions to basic principles of due process and fundamental fairness. Thus far, we have failed."

Cole's view is echoed by Prof. Peter Shane of the University of Ohio Law School. He told IPS, "When President Bush issued his November 2001 'Notice,' which set in motion the military commissions at Guantanamo, the Administration plainly hoped that the approach would provide a rough-and-ready version of 'Adjudication Lite' that, without anyone's interference, could provide the appearance of adhering to the rule of law without treating too fastidiously the rights of Guantanamo detainees."

Marjorie Cohn, a professor at the Thomas Jefferson School of Law and president of the National Lawyers Guild, expressed a similar opinion. She told IPS that the Supreme Court should "determine that the judicial review of the decisions of CSRTs do not provide an adequate substitute for constitutional habeas corpus."

Brian J. Foley, visiting associate professor at Drexel University College of Law, agrees. He told IPS that the CSRTs serve "no purpose other than to expand executive power. The CSRT simply rubberstamps the executive's earlier decision to imprison and interrogate suspects, by making it practically impossible for a prisoner to prove he is not an 'enemy combatant'."

The overwhelming view of the human rights community was expressed by Mary Shaw of Amnesty International USA. She told IPS, "The current system of legal tribunals suggests a lack of independent review, no guarantee of legal counsel, use of secret evidence that may be been obtained through unlawful methods such as torture, and no meaningful way for a defendant to confront the government's case against him. It's a no-win situation."

Some legal observers think there is another factor that might result in a ruling against the government. One source, who declined to be identified because he is not authorized to comment on the issue, told IPS, "The Supreme Court has an institutional aversion to being told by Congress or by the President which cases it can consider and which ones it can't. It's in the high court's DNA."