Guantanamo Detainees Fight To Challenge Their Detention In Civilian Courts

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Protest outside the US embassy in London on January 11th this year, 5 years since the first prisoner was interned in Guantanamo Bay
Protest outside the US embassy in London on January 11th this year, 5 years since the first prisoner was interned in Guantanamo Bay

The US Supreme Court addressed a landmark case over the rights of Guantanamo Bay detainees on Wednesday, deliberating on whether the military prison camp’s inmates can challenge their detention in civilian courts.

The case, which has drawn attention from rights activists and governments around the world, centres on whether it is constitutionally legal for the US Congress to block detainees from attempting to fight their detentions in non-military courts.

According to US rights group, the Center for Constitutional Rights (CCR), which is coordinating the defence for Guantanamo detainees, it is ‘the most important case of the decade’.

CCR lawyer Seth Waxman said the detainees want and deserve ‘a fair notice of the facts, a fair opportunity to challenge them with the assistance of counsel before a neutral decision maker’.

The Supreme Court took up the issue of Guantanamo inmates in 2004 and again in 2006, ruling both times that detainees had a statutory (legal but not constitutional) right to contest their indefinite detention before an independent judge, a legal process known as habeas corpus.

But last year Congress, urged by the Bush administration, passed new legislation that forbids them from seeking justice in a federal court until they are judged by a special military tribunal.

Wednesday’s hearing focused on whether Congress overstepped its power in passing the new law denying prisoners any habeas corpus rights under the constitution, and the justices also made their opinions known.

Former Solicitor General Seth Waxman in his oral arguments on behalf of CCR and others said: ‘This case will decide whether federal courts have any say in checking the power of the Executive Branch to hold men at Guantanamo indefinitely and outside of the law.

‘All have been confined at Guantanamo for almost six years yet not one has had meaningful notice of the factual grounds of their detention.’

CCR added: ‘Thirty-six of the 37 detainees involved in this suit have been in detention for more than five years without ever having faced formal charges or having a fair hearing before a civilian court.’

Vincent Warren, executive director of CCR, which has organised legal representation for Guantanamo detainees since the prison opened in January 2002, said: ‘We have been back and forth in the courts as the government has tried one manoeuvre after another to avoid the Supreme Court’s past rulings – that the detainees are entitled to challenge their detention in US courts.

‘We hope the Supreme Court will end this travesty once and for all and provide full, fair and prompt hearings, which are the very foundation of a free society.’

The Court ruled in favour of the detainees in Rasul v. Bush (2004) and in Hamdan v. Rumsfeld (2006).

CCR stressed: ‘Following the Hamdan decision, Congress passed the Military Commissions Act, which has kept Guantanamo prisoners in legal limbo.’

CCR President Michael Ratner said: ‘The precedent set in past Guantanamo Supreme Court cases – that every person detained has the right to a fair hearing, including those jailed at the detention centre for almost six years – is a necessity for any country calling itself a nation under law.’

The Court received more than two dozen amicus curiae (‘friend of the Court’) briefs on behalf of the men and boys held at Guantanamo.

Former military officials and diplomats, former Congressmen of both parties and a bipartisan group of non-government organisations showed their support of granting habeas rights.

CCR’s ‘Beyond Guantanamo’ campaign is working to bring national awareness to the issues surrounding this landmark case. Notably, television ads have been running this week on CNN and MSNBC, as well as a print ad in the Wall Street Journal.

CCR’s ad was rejected, though, by the Fox News Channel.

The CCR outlined what the Supreme Court will consider in Al Odah v. United States:

‘1. Did the D.C. Circuit err in relying again on Johnson v. Eisentrager, 339 US 763 (1950), to dismiss these petitions and to hold that Petitioners have no common law right to habeas protected by the Suspension Clause and no constitutional rights whatsoever, despite this Court’s ruling in Rasul v. Bush, 542 US 466 (2004), that these Petitioners are in a fundamentally different position from those in Eisentrager, that their access to the writ is consistent with the historical reach of the writ at common law, and that they are confined within the territorial jurisdiction of the United States?

‘2. Given that the Court in Rasul concluded that the writ at common law would have extended to persons detained at Guantanamo, did the D.C. Circuit err in holding that Petitioners’ right to the writ was not protected by the Suspension Clause because they supposedly would not have been entitled to the writ at common law?

‘3. Are Petitioners, who have been detained without charge or trial for more than five years in the exclusive custody of the United States at Guantanamo, a territory under the plenary and exclusive jurisdiction of the United States, entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions?

‘4. Should section 7(b) of the Military Commissions Act of 2006, which does not explicitly mention habeas corpus, be construed to eliminate the courts’ jurisdiction over Petitioners’ pending habeas cases, thereby creating serious constitutional issues?

‘What the Supreme Court will consider in Boumediene v. Bush:

‘1. Whether the Military Commissions Act of 2006 validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay.

‘2. Whether Petitioners’ habeas corpus petitions, which establish that the United States government has imprisoned Petitioners for over five years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits.’

Analysis on the Center for Constitutional Rights’ Argument: ‘Petitioners in Al Odah argue that the precedent set by the Supreme Court in Rasul v. Bush in 2004 precludes the D.C. Circuit Court of Appeals’ conclusion that Guantanamo detainees have no common law right to habeas corpus protected by the Suspension Clause.

‘The Suspension Clause, Article 1, Section 9, Clause 2 of the United States Constitution, provides that habeas corpus, such as it existed at common law, may be suspended by Congress only in cases of “rebellion or invasion.”

‘Furthermore, Petitioners challenge the D.C. Circuit’s reliance on Johnson v. Eisentrager to dismiss the detainee habeas corpus petitions, given that in Rasul, the US Supreme Court ruled that the Petitioners are differently situated to those in Eisentrager, and are confined within an area in the exclusive territorial jurisdiction of the United States. Petitioners argue further that they are entitled to the writ of habeas corpus at common law, such as it existed historically, outside the definitions of the federal habeas statute, and thus are protected from any unlawful suspension of habeas by the Suspension Clause.

‘In addition, Petitioners argue that they are entitled to Fifth Amendment rights under the US Constitution to not be deprived of liberty without due process of law, and to the protections of the Geneva Conventions.

‘The Petitioners have been detained without a judicial hearing for well over five years, within an area under the exclusive control and jurisdiction of the United States. Petitioners further argue that any substitute procedures – and the review of those substitute procedures by the D.C. Circuit Court – that have been created are so limited and narrowly defined, as well as fraught with error – are no substitute for habeas corpus and due process.

‘Thus, Petitioners argue, the Military Commissions Act of 2006 cannot have validly and Constitutionally stripped Petitioners of their right to the writ of habeas corpus at common law.

‘In response, the Executive argues that “as aliens held outside the sovereign territory of the United States, (the detainees) enjoy no rights under the Suspension Clause.

‘ “Second, even if they could invoke the Suspension Clause, it would not entitle them to relief because they seek an expansion of the writ well beyond its historic scope. And third, the (Detainee Treatment Act) in any event provides an adequate alternative to any habeas rights (these detainees) may have.”

‘In reality, Petitioners have been held for nearly six years at a US Naval Base, in a territory under the exclusive control and jurisdiction of the United States, without any judicial process or hearing, despite the clear mandate of the Rasul court.

‘They are not citizens of enemy nations, but citizens of our closest allies who maintain that they are innocent of any wrongdoing. Furthermore, they have been denied any meaningful process for a period that now stretches to six years – and threatens to continue indefinitely.

‘Two military officers who sat on Combatant Status Review Tribunals have stated in affidavits that the panels relied on shoddy evidence in order to reach preordained results – no substitute for habeas corpus at law.’

The Supreme Court is expected to deliver its verdict in late June 2008.