[NYTr] Guantanamo and the Supreme Court

[All the News That Doesn't Fit]

Counterpunch - Dec 4, 3007
http://www.counterpunch.org/worthington12042007.html


Guantánamo and the Supreme Court

The Most Important Habeas Corpus Case in Modern History

By ANDY WORTHINGTON

As the Supreme Court prepares once more to consider whether the
detainees at Guantánamo have habeas corpus rights -- a cornerstone of
civilization and a principle established 800 years ago in England,
giving prisoners the right to challenge the basis of their detention in
court -- Andy Worthington looks at the key arguments in what Law.com
has described as "perhaps the most important habeas corpus case in
modern history."

On December 5, the nine justices of the Supreme Court will hear
arguments from the government, represented by a team led by US
Solicitor General Paul D. Clement, and from lawyers for the detainees,
whose cases -- Al Odah v. United States and Boumediene v. Bush -- will
be put forward by Seth P. Waxman, a former US Solicitor General, who is
now a partner in the law firm Wilmer Cutler Pickering Hale and Dorr.
The detainees' main briefs are backed up by more than two dozen amicus
briefs looking at various aspects of the cases, which have been filed
by a wide range of legal experts, including such veterans of the
Guantánamo legislation as Michael Ratner of the Center for
Constitutional Rights, and Tom Wilner of Shearman and Sterling.

At stake is whether or not Congress acted unconstitutionally in passing
the Military Commissions Act of 2006 (MCA), which established Military
Commissions to try "enemy combatants" held at Guantánamo, and also
stripped the US courts of their right to hear habeas corpus petitions
filed by the Guantánamo detainees.

The MCA was itself a response to two previous Supreme Court decisions:
Rasul v. Bush, in June 2004, and Hamdan v. Rumsfeld, in June 2006. In
Rasul, the justices ruled, by a majority of 6-3, that the Guantánamo
prisoners had the right to challenge the legal limbo in which they were
held, and demolished the administration's long-cherished belief that
Guantánamo (which was specifically chosen as the venue for a "War on
Terror" prison because it was presumed to be beyond the reach of the US
courts) did not count as US territory. "They are not nationals of
countries at war with the United States," the judges declared, "and
they deny that they have engaged in or plotted acts of aggression
against this country; they have never been afforded access to any
tribunal, much less charged with and convicted of wrongdoing; and for
more than two years they have been imprisoned in territory over which
the United States exercises exclusive jurisdiction and control."

In his majority opinion, Justice John Paul Stevens emphasized the
importance of habeas corpus, citing a 1945 case in which it was
described as "a writ antecedent to statute ... throwing its roots deep
into the genius of our common law," and a 1953 case dealing
specifically with the detention of aliens in US custody: "Executive
imprisonment has been considered oppressive and lawless since John, at
Runnymede, pledged that no free man should be imprisoned, dispossessed,
outlawed or exiled save by the judgment of his peers or by the law of
the land. The judges of England developed the writ of habeas corpus
largely to preserve these immunities from executive restraint."

In Hamdan v. Rumsfeld, which focused on the case of Salim Hamdan, a
Yemeni who was one of Osama bin Laden's drivers in Afghanistan, the
Supreme Court delivered an equally damning verdict on the legitimacy of
putting the detainees forward for trial by Military Commission. This
system of show trials was dreamt up by Vice President Dick Cheney and
his advisors, including David Addington, and established in a document
known as Military Order No. 1, which was approved with no Congressional
oversight whatsoever in November 2001. It authorized indefinite
detention without due process for "enemy combatants," and established
ground rules for the Commissions that drew widespread criticism from
lawyers and human rights activists, for several obvious reasons. These
included the fact that the juries and presiding officers would be
hand-picked by the administration, that evidence obtained through
hearsay or torture would be allowed, and that both the accused and his
lawyers could be prevented from seeing certain evidence.

By a majority of 5-3, the justices ruled that that the Military
Commissions were illegal under US law and the Geneva Conventions.
Concluding that Common Article 3 of the Geneva Conventions, which
forbids "cruel treatment and torture" and "outrages upon personal
dignity, in particular humiliating and degrading treatment," was
"applicable" to Hamdan and others facing Military Commissions, Justice
Stevens stated that it was Hamdan's right to be tried by a "regularly
constituted court affording all the judicial guarantees which are
recognized as indispensable by civilized peoples." By confirming the
importance of Common Article 3, the Supreme Court struck at the heart
of the administration's novel and unprecedented flight from domestic
and international law. Justice Anthony Kennedy spelled out this
position even more clearly, warning the administration that "violations
of Common Article 3 are considered 'war crimes,' punishable as federal
offences, when committed by United States nationals and military
personnel."

In the case of Rasul v. Bush, the government responded by allowing the
detainees to have access to lawyers, for the first time in over two and
a half years of isolated detention, but ignored the main thrust of the
verdict -- that they should have access to the US courts -- by
establishing military reviews at Guantánamo, known as Combatant Status
Review Tribunals (CSRTs), which were blatantly unlawful. Designed to
review whether the detainees had been correctly designated as "enemy
combatants" when they arrived in US custody (mostly between 2001 and
2003, and mostly delivered by the US military's allies in Afghanistan
and Pakistan at a time when bounty payments for al-Qaeda and Taliban
suspects were prevalent), the CSRTs prevented the detainees from being
represented by lawyers, and, like the Commissions, relied on classified
evidence, which was not revealed to the detainees and which, moreover,
was just as readily obtained through the torture, coercion and bribery
of other detainees.

In response to Hamdan v. Rumsfeld, the government seized on a comment
made by Justice Stephen Breyer -- "Nothing prevents the President from
returning to Congress to seek the authority he believes necessary [to
reestablish the Commissions]" -- by doing just that, pushing the MCA
through a supine Congress just three months later, reestablishing the
reviled Military Commissions and, for good measure, stripping the
detainees of their habeas rights.

Although the MCA was challenged in April this year, when the justices
of the Supreme Court chose to delay judgment on the cases, allowing
time for a limited review of the detainees' cases to proceed under the
terms of the Detainee Treatment Act (another flawed piece of
anti-terror legislation, passed in 2005), the road to Wednesday's
momentous Supreme Court hearing opened up just two months later, when,
reversing itself for the first time in 60 years, the Supreme Court
agreed to hear the detainees' arguments once more. Commentators
credited this extraordinary change of heart to the explosive
revelations contained in an affidavit filed in Al-Odah v. United States
by Lt. Col. Stephen Abraham, a military intelligence officer with 20
years' experience, who was involved in compiling the "evidence" for the
CSRTs.

In a comprehensive hatchet job, Lt. Col. Abraham described the
tribunals as severely flawed, relying on intelligence "of a generalized
nature -- often outdated, often 'generic,' rarely specifically relating
to the individual subjects of the CSRTs or to the circumstances related
to those individuals' status." In addition, he insisted that the
process was designed to rubber-stamp the detainees' prior designation
as "enemy combatants," and this was confirmed when it became apparent
that several detainees had been subjected to repeat CSRTs when the
verdict in the first did not meet with the administration's approval.
Lt. Col. Abraham later revealed that two of his former colleagues had
supported his statements, and in September another whistleblower, an
Army major who had been a tribunal member on 49 of the 558 CSRTs, also
spoke out, confirming Abraham's complaints about both the gathering of
intelligence and the reconvening of tribunals.

The revelations of Lt. Col. Abraham and his colleagues have returned
the issue of the detainees' indefinite detention to center stage, just
as it was three and a half years ago in Rasul v. Bush. In his argument
on Wednesday, Seth Waxman will explain that the MCA is
unconstitutional, and will point out that rulings made by the Supreme
Court back in the summer of 2004 are still applicable. His brief states
that, in Rasul, "this court ruled that noncitizens detained by the
United States military at Guantánamo Bay have access to the writ of
habeas corpus, a conclusion informed by the Court's analysis of the
common law writ," and that the government has offered "no persuasive
rebuttal to the Court's reading of history." Waxman's brief also
refutes "the government's reliance on cases declining to grant habeas
relief" as they relate to "prisoners of war," and he reiterates the
point made by the Supreme Court in Rasul: "Petitioners maintain that
they are not enemy soldiers subject to military detention. Unlike
prisoners of war in traditional armed conflicts -- where it is usually
clear or undisputed that the prisoners are in fact detainable enemy
soldiers -- Petitioners are civilians from a friendly nation who were
abducted by the government far from any theater of war and have never
engaged in armed hostilities against the United States."

Whilst it seems from this argument that the Supreme Court will have no
choice but to reiterate its 2004 verdict, Joanna Mariner, Terrorism and
Counterterrorism Director at Human Rights Watch, has pointed out that
the justices are in fact being asked to decide "whether prisoners at
Guantánamo 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 they agree that habeas
corpus is a constitutional right -- as the Constitution's Framers
clearly intended it to be, ruling that it can only be suspended in
"cases of rebellion or invasion" -- Mariner notes that they may then
assess not only whether Congress "meant to suspend the right," but
whether, indeed, the nation's politicians actually "had the power to do
so." Mariner also observes that the justices may rule on whether
Congress, in allowing for limited federal court review of the CSRTs (in
the Detainee Treatment Act), has provided the detainees with an
"adequate substitute" for the right of habeas corpus, which, as she
adds, is where "kangaroo courts" -- the tribunals, as demolished by Lt.
Col. Abraham -- "come into the picture."

Although no decision is expected before spring 2008, tomorrow's hearing
is indeed of colossal importance, not only to the detainees in
Guantánamo, many of whom are about to start their seventh year of
imprisonment without charge or trial, but also to the government's
assertion that it is entitled to pursue these policies without any
significant judicial oversight. As Britain's Financial Times noted in a
recent editorial, "American democracy is based on the optimistic notion
that all three branches of government will not do the wrong thing, all
at the same time. The president and even Congress might step over the
line -- but if they do, the US Supreme Court is there to restore the
rule of law over the mistakes of men."

Although the Bush administration has attempted to shift the Supreme
Court to the right, and to its own point of view, in its two most
recent appointments, the justices have repeatedly shown, as Suzanna
Sherry, a professor at Vanderbilt University Law School, explained,
that their job is "to balance the need to prevent terrorism with
individual rights." They are also clearly aware of their own right not
to be shunted aside by an executive that demands the freedom to operate
without any restraint whatsoever. Dennis Hutchinson, a professor at the
University of Chicago Law School, summed up this attitude in a single
line that those campaigning for the detainees' rights must be hoping is
particularly applicable: "The Court doesn't like to be told, 'You don't
have a role to play here.'"

[Andy Worthington is a British historian, and the author of 'The
Guantánamo Files: The Stories of the 774 Detainees in America's Illegal
Prison' (to be published by Pluto Press in October 2007). Visit his
website at: http://www.andyworthington.co.uk He can be reached at:
andy at andyworthington.co.uk ]