[NYTr] The Supreme Court Faces the Kangaroo Courts

[All the News That Doesn't Fit]

sent by MichaelP 

FindLaw - Dec 3, 2007
http://writ.lp.findlaw.com/mariner/20071203.html

The Supreme Court Faces the Kangaroo Courts

By JOANNE MARINER
                       
This week, the Supreme Court will consider--again--whether prisoners
held at Guantanamo have the right to go to court to challenge their
detention. At oral argument on Wednesday in the consolidated cases of
Boumediene v. Bush and Al Odah v. U.S., the Court will hear opposing
views as to the constitutionality of the Military Commissions Act of
2006, which purports to bar the courts from hearing habeas corpus
petitions brought by detainees on Guantanamo.

CONSTITUTIONAL QUESTIONS

In Rasul v. Bush, decided in 2004, the Court held that the habeas 
jurisdiction of the federal courts extends to Guantanamo. However, 
Congress attempted to overrule the impact of that decision in passing
the Military Commissions Act last year.

The first and most basic question that the Court must now address is 
whether prisoners at Guantanamo enjoy a constitutional right of habeas 
corpus (in other words, whether the Rasul decision was grounded in the 
Constitution, or whether it had mere statutory grounds). If the Court 
finds that such a constitutional right exists, then it may assess
whether Congress meant to suspend the right, and whether Congress had
the power to do so.

Another issue that the Court may reach is whether Congress, in allowing 
for federal court review of the status proceedings that detainees
receive at Guantanamo, has provided them with an "adequate substitute"
for the right of habeas. That's where kangaroo courts come into the
picture.

After the Court's 2004 decision in Rasul, the administration began
holding Combatant Status Review Tribunal proceedings, or CSRTs, to
determine whether individual detainees were properly detained. The
proceedings, however, are deeply flawed.

"STILL" A COMBATANT, OR "NO LONGER" ONE?

Unlike habeas proceedings, where the government must show that a
detention is lawful, CSRTs, in practice, put the burden of proof on the
detainee. Although the CSRT rules formally state that the government
bears the burden of proof, what the detainee is told--that that he can
"contest [his] status as an enemy combatant"--suggests the opposite.

The rules stipulate, moreover, that each detainee was previously 
determined "to be an enemy combatant through multiple levels of review
by military officers and officials of the Department of Defense."
Indeed, the CSRTs are instructed to ask whether the detainee is "still"
an enemy combatant, not whether he ever merited the label in the first
place. And in a bizarre formulation, though one that is perfectly
characteristic of the CSRTs' approach, any detainee who manages to
convince his panel that he is being wrongly held is deemed "no longer"
an enemy combatant, rather than simply "not" an enemy combatant.

What has the greatest impact in shifting the effective burden of proof
is, at any rate, the tribunals' overwhelming reliance on secret
evidence. This classified evidence is not only withheld from the
detainee but, under the CSRT rules, it is also considered presumptively
valid. Detainees are left helpless: They cannot meaningfully challenge
evidence that they are not allowed to see. And unable to challenge the
evidence, they have no ability to rebut its presumptive validity.

The CSRTs have a host of other basic procedural defects. Detainees have
no access to counsel, almost no access to exculpatory witnesses or
evidence, and little practical ability to carry out research in support
of their claims. Besides allowing secret evidence and hearsay, the U.S.
government has made it clear the evidence can include testimony
"obtained through a non-traditional means, even torture." Although the
decisions reached by CSRTs may be reviewed in federal court, the court
is limited to the CSRTs' own factual record--severely constraining the
possibility of a meaningful assessment of the detainee's eligibility
for release.

WHAT IS THEIR PROOF?

Reading a description of the CSRT process is one thing, but to get a 
fuller understanding of the proceedings it helps to read the
transcripts of some hearings. Transcripts of the hearings of hundreds
of tribunals were released last year; they suggest just how unfair the
proceedings actually were.

Numerous detainees were utterly bewildered at being asked to rebut 
evidence that was kept secret from them. "From where did they come up
with this?" one man asked, when faced with the allegation that he had
fled Afghanistan with a group of armed men. "What proof do they have
for this? Did they see me or see somebody that was with me? What is
their proof?"

Another asked the tribunal, quite logically, "If there is a secret
witness that testified against me and secret information how can I
defend myself if I don't know what this information is?"

Detainees expressed particular frustration at not being informed of the 
source of the testimony against them. One man, told that an "Al Qaeda 
leader" had claimed to have known him at a terrorist camp in Georgia, 
demanded to know who the person was. "Is he Arab, Caucasian, European?" 
the man asked, but he was told that the person's name and personal
details were classified.

One man tried hard to explain to the tribunal why he needed to confront 
the source of the accusations against him, in order to test their 
veracity. Told that a senior Al Qaeda lieutenant had recognized him in
a photo, the detainee explained: "sometimes when you look at pictures,
you think that you are sure that this is the right person. But you need
to see the person physically and you realize that [he] is not. That's
why I'd like to meet this person and see if he can see, and show him
that it's not me."

Some detainees seemed to give up--to throw themselves at the mercy of
the tribunal, for lack of a better option. Asked if he had any evidence
to present, one man said that all he had was his biography. "I am a
very correct person," he explained, who never had problems with the
government. Asked again if he had anything to show the tribunal, he
simply said, "I have no proof. I have been here for two years. I don't
have anything."

THIS IS NOT A COURTROOM

Getting straight to the point, one detainee asked his CSRT panel, "is
this a regular court, or is it just hocus pocus?"

But most detainees who appeared before the tribunals were clearly
hoping to receive a fair hearing. The following session is paradigmatic:

TRIBUNAL PRESIDENT: "Abdenour, would you not play with your chains
because the noise is interfering with the translations."

DETAINEE: "Yes. I am just nervous that was why. I have never been in a 
courtroom. I am not a person who goes to court."

TRIBUNAL PRESIDENT: "This is not a courtroom, but I understand your
being nervous."

DETAINEE: "It is not a court to you, you are saying it is not a court.
But to me it is a court."

TRIBUNAL PRESIDENT: "I understand."

The Tribunal President was right: CSRTs are not real courts. But Sameur 
Abdenour, the Algerian detainee whose freedom was at stake, was right, 
too: for him, they serve as courts, since they represent the only legal 
process that he and other detainees have been granted in nearly six
years at Guantanamo.

Abdenour remains in detention. If the Supreme Court decides
Boumediene/Al Odah correctly, he may someday get the chance to enter a
real American court.