[Ppnews] Guantánamo and the Supreme Court

[Political Prisoner News]

http://www.counterpunch.org/worthington12042007.html

December 4, 2007


The Most Important Habeas Corpus Case in Modern History


Guantánamo and the Supreme Court

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 
'<http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga>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/>www.andyworthington.co.uk

He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk





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