'Nuff said

(Taking context-optional note of thought-provoking quotes)

Thus, at least for now, extension of the writ to overseas detention has stopped at Guantánamo.

-- Faiza Patel (left), Director of Planning and Counsel at the Brennan Center for Justice, New York University School of Law. The sentence concludes her ASIL Insight analysis of the Bagram-related decision last month in Maqaleh v. Gates (D.C. Cir. 2010), about which IntLawGrrls guest/alumna Daphne Eviatar also posted. A Supreme Court nose count is the basis of Patel's prediction that the decision -- which she terms "striking" for its emphasis on the decades-old Johnson v. Eisentrager (U.S. 1950), rather than the recent Boumediene v. Bush (U.S. 2008) -- will stand for the time being.

News from Guantánamo, more on detention

This has been a busy period for news related to Guantánamo and other detention sites.
► Yesterday Army Col. Stephen Henley, a military judge, granted a delay of the trial by military commission of 5 detainees charged in the terrorist attacks of September 11, 2001. His decision came after the passing on Thursday of the deadline of the second 120-day postponement of the military commissions, requested by the Obama administration in May of this year. The administration had made its first request for a 120-day delay in January (along with announcing the closure of Guantánamo, on which we posted here and here), when President Obama took office. Rather than resume operations in full, however, the administration announced this past Wednesday that it would request a third delay -- this time for 60 days -- in the 10 pending military commissions cases, which include the so-called "high-value" 9/11 detainees.
The administration continues to maintain the position that it will prosecute detainees for war crimes under the military commissions originally put in place by President George W. Bush and then passed by Congress in the Military Commissions Act of 2006. The Obama administration says, however, that it intends to revamp the commissions, a task for which it plans to enlist the help of Congress.
► In one of dozens of habeas cases before the D.C. district courts, Judge Colleen Kollar-Kotelly (left) recently ordered the release of Fouad al-Rabiah. This brought the tally in the habeas cases to 30 habeas petitions granted versus 7 petitions denied. Though the full opinion is sealed (the unclassified version to be released soon), this IntLawGrrl learned from an inside source that the government's case relied almost entirely on coerced confessions of al-Rabiah, which apparently drew ire from the judge: She questioned why the new administration was relying on statements obtained through torture and abuse.
Good question.
► In the habeas case involving Bagram detainees, Maqaleh v. Obama, the government filed its brief with the D.C. Circuit Court. Recall that on April 2, 2009, D.C. District Court Judge John D. Bates (right, a Bush nominee) ruled that the three individuals who had been "captured" outside of Afghanistan and brought to the U.S. detention center at Bagram were entitled to file habeas petitions based on the Supreme Court's guidelines in Boumediene v. Bush (2008) (prior posts).
The government appealed that ruling, raising the spectre of Johnson v. Eisentrager (1950) for the hundredth time since 2002, and arguing that there was already a military administrative-type process in place to review whether an individual should be detained. (The Department of Defense review process is in the addendum at the end of the brief). These procedures look a lot like the Combat Status Review Tribunals and the Administrative Review Boards used at Guantánamo, which the Boumediene court concluded were not an adequate substitute for habeas.
► Last but not least in detention-related news, the United States closed Camp Bucca, the largest U.S.-run detention center in Iraq, moving the detainees to other camps and back to the custody of Iraq, all in anticipation of its plan under the new U.S.-Iraq Agreement (prior post) to withdraw from Iraq.

Europe to take "innocent" Guantánamo detainees

European countries reached agreement Thursday in Luxembourg to accept "innocent" Guantánamo detainess ("cleared for release" in American lingo. Each will decide what status to accord former detainees: refugee, asylum seeker, long-term visa holder, etc. The agreement signals progress, as not so long ago, only 5 EU countries had agreed to accept any former detainees (France is now home to Lakhdar Boumediene (credit for photo, right, 2 weeks after his arrival in Paris) of Boumediene v. Bush). But the agreement makes it clear that the 30-60 potential transferees (of 240 or so detainees) may have their right to free circulation within the EU limited if any of the close to 30 states parties to the Schengen acquis (which dispenses with internal borders and allows free movement within the 27 EU member states, except the UK and Ireland, as well Switzerland, Norway and Iceland) believes such a limitation necssary to avoid any ex-detainee from "compromising public order and national security."
This is certainly an improvement over outright refusal to take anyone, but there remains a problem of independent determination of any of the detainees' real dangerousness. Three countries, Germany, Austria and Italy, have made it quite clear they wlll not accept any detainees the US suspects of terrorist activities, which means they're leaving it up to US authorities to make a key determination. Gilles de Kerchove, the EU antiterrorism chief, stated the obvious when he excused the agreement's limitations: Guantánamo is a source of radicalization. But so are French jails. So here again, we're punishing people for dangerousness rather than guilt. While the 1951 Refugee Convention allows states to refuse to accept people who would be a threat to national security and/or have engaged in terrorist activities, a more independent inquiry or a higher level of proof might be more in keeping with the spirit of the convention.

Refuse/Refuge

This dispatch from Le Monde will sober anyone hoping that the news of France's willingness to take in a Guantánamo detainee opened the way for global resettlement of inmates who cannot go home again:

According to the Paris paper's special correspondent in Luxembourg, French President Nicolas Sarkozy "did announce that 'France was ready to accept an ex-detainee from Guantánamo,'" but with the intention of "'putting him in prison.'" That kind of "acceptance" would mirror the fate of the 6 ex-detainees who stood trial in France after their release from Guantánamo in 2004 and 2005.

Still more sobering is the reporter's observation that only 4 other countries besides France -- Britain, Italy, Portugal, and Spain -- have shown any such inclination. "For the most part," he wrote, "the ministers of interior and justice from the 27 European Union countries meeting in Luxembourg showed reticence to accept ex-detainees."

No doubt complicating diplomatic efforts at resettlement is the United States' unwillingness so far to take in any detainees itself. Last October, as we posted, the U.S. District Court ordered the release into the United States of 17 Uighur detainees, Chinese Muslims whom the government admits are not enemy combatants but who are likely to be persecuted if returned to China. But the Court of Appeals for the District of Columbia Circuit overturned that decision in February, and so yesterday the matter found its way to the U.S. Supreme Court. The petition for certiorari in Kiyemba v. Obama raises the critical issue, as SCOTUSblog reporter Lyle Denniston's superb analysis points out, of whether it is "unconstitutional to continue to hold in some form of custody an individual who has been found not to be dangerous and who has not been charged with any crime." The answer to that question would affect not only the Uighurs, but potentially many more of the 241 persons remaining at Gitmo. (Indeed, if last week's opinion extending Boumediene to 3 Bagram detainees survives appellate review, its scope could be even greater.)

One hopes that the new administration will not wait for the Court to act, but rather will decide on its own to accept the Uighurs, as Attorney General Eric Holder hinted the United States might do. As a policy matter, this could make other detainees more welcome in more other countries, as IntLawGrrl Beth Van Schaack posted. As a legal matter, it would comport with our traditions, as I've written in a New York Times Room for Debate exchange:

These men cannot expect safety back home in China. No other country has welcomed them. It is time for the United States to do just that – to grant the Uighurs asylum within U.S. borders. We should learn that this result is a foreseeable consequence of denying such persons their rights under the law.

Understanding the enemy combatant cases

I've been reading through the habeas corpus case results in Guantánamo litigation in an effort to construct a framework for how the courts (as compared, where possible, to the Combatant Status Review Tribunals or the Administrative Review Boards) are defining enemy combatancy.
By way of background:
In the aftermath of the U.S. Supreme Court’s decision in Rasul v. Bush (2004) (holding that Guantánamo detainees had statutory rights to habeas corpus), lawyers representing Guantánamo detainees filed habeas petitions in the U.S. district courts of the District of Columbia. Ultimately, no action was taken on these petitions, because the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA) purported to strip the federal courts of habeas jurisdiction. (The Supreme Court in Hamdan v. Rumsfeld (2006) declined to apply the DTA retroactively to suspend jurisdiction only over pending habeas petitions; the MCA more explicitly denied habeas jurisdiction in all present and future cases). Once the Supreme Court decided Boumediene v. Bush (2008) (holding that Guantánamo detainees had constitutional rights to habeas corpus that could not be suspended by statute), brought by Lakhdar Boumediene (right) and other detainees, lawyers revived these petitions. So far, the district courts have adjudicated a dozen or so cases. Most decisions, but not all, have resulted in continued detention.

In these proceedings, the courts must determine — by a preponderance of the evidence — whether the continued detention of the individual is lawful. By the time the court decides the issue, it will have seen:
► the detainee's petition;
► the government's factual return (usually in two parts to accommodate classified information); and
► the petitioner's traverse (often in two parts as well).
Discovery is conducted throughout the process, but is often most intense following the revelation of factual return.

The government has generally argued that these individuals are lawfully detained because they constitute “enemy combatants” who can be held pursuant to:
► the Authorization to Use Military Force, a joint resolution that Congress adopted a week to the day after the terrorist attacks of September 11, 2001; and
► the Commander-in-Chief provisions of Article II of the Constitution.
The definition of “enemy combatant” remains the subject of litigation. U.S. District Judge Richard Leon (left), for one, adopted the definition of “enemy combatant” set forth in the order establishing the Combatant Status Review Tribunals. See Boumediene v. Bush, 2008 U.S. Dist. Lexis 87133, at *6 (Oct. 27, 2008). This definition provides:

An “enemy combatant” is an individual who was part of or supporting Taliban or Al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

The elements of this definition are:
► The individual was part of or supporting:
► Either:
► ► the Taliban,
► ► Al Qaeda or
► ► "associated forces" engaged in hostilities against the United States or its coalition partners.
Other judges (e.g., Judges John D. Bates, Thomas Hogan, and Gladys Kessler) have requested briefing on the issue from the parties.

The Obama administration has to date declined to “refine” the definition of enemy combatant, but has urged the courts to not address the question in the abstract before reaching the merits of individual petitions. See Hamlily v. Obama, Civil Action No. 05-763, Government’s Response to the Court’s Order of January 22, 2009 Regarding the Definition of Enemy Combatant at 2. This is a bizarre and untenable position, as any litigator will attest: How does one address the merits without knowing the operative standard? Not surprisingly, the courts have rejected this approach, but have solicitously given the government additional time to review the cases or to file their factual returns. See Hamlily v. Obama, Order (Feb. 11, 2009). Because Judge Leon has an operative definition of “enemy combatant,” his cases have progressed farther than the others. As a result, this survey is not yet representative.

The following factors have been gleaned from the existing case law. It is inherently incomplete in that much of the relevant evidence has been deemed classified and, as such, is only obliquely discussed in the rulings. In these opinions, the courts have considered a number of factors to be relevant to whether the individual constitutes an enemy combatant. At the same time, the courts are looking at the totality of the circumstances, so it is difficult to glean which factors — standing alone — would be sufficient and which are mere makeweight arguments. The key factors are as follows:

► 1. Engaging in combat, or providing support for fighting forces engaged in combat, against the United States after October 2001, when the United States initiated the post-9/11 counter-assault it named Operation Enduring Freedom. Several detainees were with their units at the battle of Tora Bora in December 2001, and so were engaged in combat directly against the United States. Others, however, were billeted elsewhere, but were engaged in combat during this international armed conflict period on behalf of the Taliban or other fighting forces and against the Northern Alliance.

► 2. So far, no cases have been adjudicated involving individuals exclusively engaged in combat prior to either 9/11 or 10/7. Courts have cited as relevant to determining enemy combatancy the fact that an individual "remained with his unit" post 9/11-10/7.

► 3. Unsurprisingly, individuals need not engage in combat per se to be qualified as an enemy combatant. Providing support (such as by being a kitchen aide) for a fighting force during this period has been deemed sufficient.

► 4. Indeed, noncombat “support” in the definition of enemy combatant has been broadly defined. Individuals who have assisted Al Qaeda outside of any situation of armed conflict (e.g., by being a courier outside of Afghanistan) have also been denied habeas relief. Even individuals who appear to have been given support (financial or logistical) by the Taliban or Al Qaeda (e.g., a stay at a guest house) have qualified as enemy combatants, even though there is no public evidence of them having provided support or undertaken any overt act in support of either group.

► 5. Attending a training camp run by either the Taliban or Al Qaeda is enough to establish enemy combatancy. This is true even where individuals never saw combat and, by their testimony, sought training with the intention of doing battle elsewhere.

► 6. The courts also cite mere affiliations with known Al Qaeda members as evidence of enemy combatancy. The government often presents evidence that the individual stayed at an al Qaeda- or Taliban-affiliated guest house where known enemy combatants stayed, for example. There is no case, however, based on such evidence alone.

Several of the cases that have proceeded early are somewhat easier cases, such as the Tora Bora cases. There are other cases in the pipeline whose facts are less clear-cut.
Stay tuned.

1st court-released Gitmo detainees go home

This week has seen the end of a long and painful journey for three of Guantánamo Bay’s most well-known detainees.
This Tuesday Mustafa Ait Idir (right), Hadj Boudella, and Mohamed Nechla returned to their adopted homeland of Bosnia and Herzegovina after spending six years in U.S. custody as “enemy combatants.” The men, together with their compatriots Saber Lahmar, Lakhdar Boumediene and Belkacem Bensayah, were at the center of the U.S. Supreme Court’s latest rejection of the Bush administration’s executive detention policies. In that case, Boumediene v. Bush (discussed earlier here), the Court upheld the petitioners’ right to challenge their detention under the constitutional privilege of habeas corpus and ruled that the government’s Combatant Status Review Tribunals were inadequate substitutes for habeas review. In remand proceedings last month, Judge Richard Leon, of the U.S. District Court for the District of Columbia, ordered the government to release all but Bensayah, on the ground that there was insufficient evidence to justify their continued detention.
The U.S. Department of Defense announced the transfer of Idir, Boudella and Nechla in a terse statement this Tuesday, after which the men were flown to the Sarajevo airport. There they were debriefed by local authorities and reunited with their families, with whom they have had no contact for at least six years.
Upon his return to Bosnia, Idir had this to say about his detention in Guantánamo:

For almost seven years, I was at the end of the world, at the worst place in the world. It would have been hard even if I had done something wrong (but) it is much harder if one is totally innocent.

All six men had been transferred to U.S. custody in 2002, under suspicion of plotting to attack the U.S. embassy in Sarajevo -- despite the fact they they had been acquitted of those very same charges just months earlier by the Supreme Court of Bosnia and Herzegovina. Unhappy with that outcome, in 2002 U.S. officials pressured Bosnian authorities to surrender the men or risk losing American presence in their country. Three of the six men had remained in continued executive detention until Tuesday.

Boumediene (right) and Lahmar are still at Guantánamo, awaiting release.

Detainee petitions Inter-American Commission

Guantánamo detainee Djamel Ameziane has complained to the Inter-American Commission on Human Rights (IACHR) that his 6-and-1/2-year-detention at Camp Delta, without charge or judicial review, violates several rights protected by the 1948 American Declaration of the Rights and Duties of Man, to which the US is a party. The US has also recognized the IACHR, though is not in the habit of listening when it suggests that the US is violating the Declaration. As Beth Van Schaack pointed out, the Commission has several times reiterated precautionary measures that have gone unheeded with respect to US detention of "enemy combatants" at Guantanamo, CSRT proceedings and refoulement of prisoners. Like the proceedings seeking those measures, Ameziane's complaint was filed by the Center for Constitutional Rights (CCR): since the Supreme Court's June 2008 ruling in Boumediene v. Bush recognizing Guantanamo detainees' right to challenge their detention, "neither Mr. Ameziane nor any other Guantánamo detainee has yet had a hearing on the merits of his case." Under such circumstances, Ameziane may well satisfy the IACHR procedural rule requiring exhaustion of domestic remedies, except where unavailable as a matter of fact or law, i.e., where domestic legislation doesn't afford due process of law or the petitioner has been denied access to or prevented from exhausting the remedies that do exist, or where there has been unwarranted delay. Given the lack of attention the US has paid to the IACHR throughout the "war on terror," a decision in favor of Ameziane might be for naught. But what if the president who takes office in January decides to provide hope even to Guantanamo detainees and introduce real change, that is, follow IACHR recommendations?

Gitmo & the Inter-American Commission

The central question facing the U.S. Supreme Court (left) in Boumediene was:
To what extent does the privilege of the writ of habeas corpus extend to foreign nationals detained within the unique jurisdictional circumstances of Guantánamo?
This question is situated within a larger inquiry about the extent to which various provisions of the Constitution apply extraterritorially as exemplified by such cases as United States v. Verdugo-Urquídez (1990) (finding that the warrant clause of the 4th Amendment does not apply extraterritorially). In Boumediene, the Court answered the genus question regarding habeas rights, which no doubt will shed light on the larger question in future cases.
One key factor underlying the Court’s ruling in Boumediene that petitioners are entitled to enjoy the privilege of habeas corpus was the degree of control exercised by the United States over Guantánamo (below left & right). The Court determined that although “ultimate sovereignty” over Guantánamo continues to reside in Cuba, the United States exercises “complete jurisdiction and control” (Slip Op. 23 & 25). This control is “absolute” and “indefinite” (Slip Op. 38), such that Guantánamo is within the “constant jurisdiction” of the United States (Slip Op. 39). It was also dispositive that no other law applies on Guantánamo: “[n]o Cuban court has jurisdiction to hear these petitioners’ claims, and no law other than the laws of the United States applies at the naval station” (Slip Op. 21). Indeed, the Court was confident that an order from a federal court would be obeyed at Guantánamo. In so holding, the Court rejected the Government’s contention that “de jure sovereignty is the touchstone of habeas corpus jurisdiction” (Slip Op. 25).
In focusing not on “the formal legal status” of Guantánamo, but rather on “the objective degree of control the United States asserted over it” (Slip Op. 24), the Court’s reasoning mirrored the functional approach adopted by many human rights tribunals that have addressed similar questions of the extraterritorial application of their constitutive treaties. In particular, the Court’s ruling largely vindicated the determinations made by the Inter-American Commission on Human Rights in an ongoing proceeding against the United States. (The Inter-American Commission on of Human Rights has jurisdiction over the United States by virtue of its membership in the Organization of American States (below right) for violations of the American Declaration of the Rights and Duties of Man.)
In these proceedings, petitioners—Guantánamo detainees represented by the Center for Constitutional Rights—had sought precautionary measures (a protective mechanism like a preliminary injunction employed to preclude the imminent perpetration of human rights violations) against the United States. Employing the lexicon from Article 5 of the Geneva Conventions, the detainees sought in particular a determination from a “competent tribunal” of their legal status, as well as of the rights and protections to which they are entitled under U.S. domestic and international law. The Commission determined that a state’s responsibility for violations of international human rights committed against a particular individual

turns not on that individual’s nationality or presence within a particular geographic area, but rather on whether, under the specific circumstances, that person fell within the state’s authority and control.

The Commission determined that because doubt existed as to the detainees’ prisoner-of-war status, they should be accorded access to a competent tribunal to determine their legal rights.
These precautionary measures were reiterated several times as new information emerged about:
► detainee mistreatment;
► the potential use of evidence extracted by torture in legal proceedings before military commissions; and
► instances of refoulement to places where detainees risked further mistreatment.
Eventually, the Commission amplified the precautionary measures when it urged the U.S. to

take all necessary steps to conduct independent, impartial and effective investigations into the allegations of the torture or cruel, infamous and unusual treatment of detainees under its custody and control, and, where such treatment is found to have occurred, to prosecute those responsible, including those who may be implicated through the doctrine of superior responsibility.

In a subsequent communication, the Commission determined that the proceedings before the Combatant Status Review Tribunals (CSRTs) and the Administrative Review Boards (ARBs) did not adequately respond to the concerns underlying the Commission’s request for precautionary measures.
In finding that the United States’ obligations under the American Declaration apply wherever it exercises "authority and control,” the Commission echoed the findings of other human rights institutions to consider the question of extraterritorial application of treaty obligations.
With the exception of a short foray into the multifaceted nature of state sovereignty, the Boumediene majority opinion is devoid of any reference to international law, as the questions presented were fully able to be resolved through a determination of the constitutional reach of the privilege of habeas corpus. Indeed, the Boumediene opinion provides a definitive history of the writ of habeas corpus—its origins (Magna Carta, left), profound purpose, vulnerabilities, and safeguards. Nonetheless, there are openings in the Court’s opinion where the universal human right to judicial review might have entered the Court’s consideration. In particular, the Court eschewed a purely originalist or historical approach to understanding the contemporary reach of habeas rights by noting the potential for the protections of the Suspension Clause to expand along with post-1789 developments (Slip Op. 15-16). The codification of rights to habeas corpus and its equivalents (e.g., amparo) in the omnibus human rights treaties represents one important modern development that provides international law fortification to the Court’s ruling. The Supreme Court's ruling demonstrates a high degree of convergence with rulings from international human rights institutions as they have grappled with similar questions about the extraterritorial reach of human rights treaties, as I have elaborated upon here.

(Partially cross-posted and expanded on Jurist's hotline.)

'Nuff said ... "isn't it?"

(Occasional item taking context-optional note of thought-provoking quotes.)

BOULTON: [T]here are those who would say, look, let's take Guantanamo Bay and Abu Ghraib and rendition and all those things, and to them that is the, you know, the complete opposite of freedom.
THE PRESIDENT: Of course if you want to slander America, you can look at it one way. But you go down -- what you need to do -- I think I suggested you do this at a press conference -- if you go down to Guantanamo and take a look at how these prisoners are treated -- and they're working it through our court systems. We are a land of law.
BOULTON: But the Supreme Court have just said that -- you know, ruled against what you've been doing down there.
THE PRESIDENT: But the district court didn't. And the appellate court didn't.
BOULTON: The Supreme Court is supreme, isn't it?

-- Sky News Political Editor Adam Boulton speaking in London with U.S. President George W. Bush. (photo credit) Full interview here.

1 out of 3 is bad

Hot on the heels of last week's decision in Boumediene, about which we've posted here, comes a McClatchy Newspapers series highly critical of detention at Guantánamo.
The 1st installment of the series entitled "Guantanamo: Beyond the Law" includes these passages:

[T]op Bush administration officials knew within months of opening the Guantanamo detention center that many of the prisoners there weren't 'the worst of the worst.' From the moment that Guantanamo opened in early 2002, former Secretary of the Army Thomas White said, it was obvious that at least a third of the population didn't belong there.
...
Many detainees were 'swept up in the pot' by large operations conducted by Afghan troops allied with the Americans, said former Army Secretary White ....

That at least 1 of every 3 detainees didn't belong is not news to anyone who's kept a close eye on things at GTMO. What is news is that someone who held high government office is owning up to the fact. (credit for photo of White, at far left)

Follow the 5-day series -- the result of an 8-month investigation in 11 countries on 3 continents -- all this week here.

Boumediene & extraterritoriality

(Many thanks to IntLawGrrl Beth Van Schaack for her thoughtful posts here and here on Thursday's decision in Boumediene. My initial cut, below , was cross-posted at Slate's Convictions blog, where at the moment it's all Boumediene all the time, with a dash of Munaf for good measure.)

In holding that the reach of the Constitution is to be measured functionally, not formally, a majority in Boumediene resolves a question previously muddled by plurality opinions.
Whether U.S. agents must adhere to the U.S. Constitution when acting outside U.S. territory is a question various Courts have answered in different ways. As I'd outlined here when Rasul was pending (pp. 295-99), a line of splintered decisions that I've called "maximalist" indicated that the Constitution always constrained agents abroad. A "minimalist" line indicated the opposite, and neither expressly overruled the other.
A close reader of Justice Anthony M. Kennedy's concurrence in one of the latter cases, United States v. Verdugo-Urquidez (1990), might have expected that when give the chance he would reconcile the 2 lines with a midway approach; that is, by taking the lead of Justice John Marshall Harlan in Reid v. Covert (1956) (concurrence), and hold that whether the Constitution applied in a particular extraterritorial instance required careful reviews of all the circumstances.
And today, that is exactly what Kennedy did as he wrote for the Court that "practical considerations" compelled extension of the constitutional privilege of habeas corpus to noncitizens detainees held at Guantánamo.

Long Live Habeas

Just a quick overview of the Supreme Court’s recent and remarkable ruling in Boumediene v. Bush (consolidated with Al-Odah v. United States). No doubt others on this list will have thoughts about the case's implications going forward.
In both cases, petitioners are detained on Guantánamo (left and below right--photo credit). None is a citizen of a nation at war with the United States. Some were detained on the battlefield in Afghanistan (the Al Odah petitioners), whereas others were detained far from the battlefield (the Boumediene petitioners). Each petitioner received a hearing before a Combatant Status Review Tribunal (CSRT). (The Department of Defense established the CSRTs in response to Hamdi v. Rumsfeld to determine whether the detained individuals were indeed “enemy combatants.”) In each case, the CSRT determined that the petitioners were enemy combatants. Each petitioner then sought a writ of habeas corpus before the District Court for the District of Columbia.
On appeal, the Circuit Court denied them the right to seek the writ, citing the 2005 Detainee Treatment Act (§1005) and the 2006 Military Commission Act (§7). These twin statutes provide the legislative backdrop for the present challenges. Both statutes sought to strip federal courts of habeas jurisdiction over cases brought by Guantánamo detainees. (In Hamdan v. Rumsfeld, the Supreme Court ruled that the DTA applied only to cases that had not yet been filed, so Congress made the MCA expressly retroactive to cover then-pending cases).
In light of this background, the cases presented two over-arching questions:
► 1) Are petitioners detained on Guantánamo entitled to seek the Constitutionally-grounded writ of habeas corpus (and, derivatively, to invoke the protections of the Suspension Clause)?
That clause (Art. I, §9, cl. 2) states:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

► 2) If so, is the limited review of the Combatant Status Review Tribunal proceedings before the D.C. Circuit an adequate substitute to habeas review?
In order to answer the first question, the Court undertook a detailed historical review of the history of habeas corpus that demonstrates that the Founders embraced the writ—and made it exceedingly difficult to suspend—as a tool to protect citizens from arbitrary detention. This exegesis revealed no clear answer to the precise question presented in these cases—“whether foreign nationals, apprehended and detained in distant countries during a time of serious threats to our Nation’s security, may assert the privilege of the writ and seek its protection” (p. 15). The Court thus conceded that a strictly originalist approach yields a situation of non liquet (“it is not clear”).
Drawing on its extraterritoriality jurisprudence, the Court ruled that three factors governed the question of the extraterritorial reach of the Suspension Clause:

(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.

Applying this tripartite framework, the Court determined that:
► 1) Petitioners are enemy aliens who have received only “limited” process through the CSRT hearings that “fall[s] well short” of the procedural protections and adversarial mechanisms that would eliminate the need for habeas corpus review (p. 37). The Court focused here primarily on the detainees’ lack of a true advocate during the CSRT process, the inability to fully rebut the government’s evidence, the presumption of validity given to the government’s evidence, and the lack of a complete appellate review.
► 2) Petitioners were apprehended and are detained outside of the United States, but they are now on territory over which the U.S. exercises plenary control, even though de jure sovereignty still vests in Cuba. In this regard, the Court significantly distinguished Johnson v. Eisentrager, the case the government cited most frequently in support of its denial of habeas rights to petitioners.
► 3) While the Court acknowledged that there would be costs associated with providing habeas to petitioners and their brethren, including the diversion of military personnel from other pressing tasks, these concerns were not “dispositive” (p. 39). This was especially true given that the base is not situated within an active theatre of war, which might introduce the sort of practical difficulties presented in Eisentrager that justified withholding the writ.
Thus, with respect to the first question presented, the Court determined that the petitioners are entitled to seek the writ of habeas corpus. This finding actuated the second inquiry facing the Court: was the limited review made available before the D.C. Circuit an adequate substitute for habeas?
On this question, the Court also sided with petitioners. The Court noted that the very purpose of the DTA/MCA was to eliminate the option of habeas and substitute a more summary procedure. Although the Court declined to undertake a full comparative analysis of what would be required as an adequate surrogate, it did highlight several grounds on which the DTA process fell well short of what habeas would offer—“a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law” (p. 50 quoting Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289, 302 (2001)).
Most importantly, the Court highlighted that the judicial officer must have adequate authority to make his or her determination in light of the relevant law and facts and must have the power to order the release of the individual. In addition, the Court noted that the need is more pressing for a vigorous habeas process in situations in which the individual is detained by the executive, and not pursuant to prior adversarial proceedings before an independent and disinterested tribunal (p. 54). Given the procedural limitations discussed above, the Court concluded that the existing procedures were no substitute for habeas and in fact gave rise to a considerable risk of error. It concluded:

And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore.

With these interlinked holdings, the Court ruled that Congress in passing the MCA unconstitutionally suspended the writ of habeas corpus in violation of the Suspension Clause.
The immediate effect of the ruling is obvious: existing habeas petitions will be revived and new petitions will be filed. It also seems clear that the government will redouble its efforts to release those detainees who are no longer deemed a security threat, against whom little probative, admissible, or legitimate evidence exists, and who may have credible charges of severe mistreatment and torture. (This is assuming, of course, the government can find a state that will take these men and not mistreat them further).
Other impacts are less clear. For example, the Court provides little guidance on whether existing military commission proceedings must be stayed. Moreover, there is language in the opinion that could be read to cover other detention sites around the world where leases similar to the Cuban all-but-de-jure-sovereignty lease are at issue.
The Court also quite self-consciously dodged two issues that had been at least partially briefed, but were not essential to the present holding:
► The first concerns the conditions of treatment and confinement and whether claims of this nature can be raised in the subsequent habeas proceedings (p. 64).
► The second concerns what law will govern the determination of whether the detention is justified (p. 69). The instant opinion was entirely silent as to international law given that the questions presented turned on the availability of habeas review under the circumstances. International law is likely to be quite relevant to the question of whether the U.S. has the authority to detain these individuals.
And so the litigation continues....

News flash: Supremes hold for detainees

Detainees at Guantánamo may challenge detention in U.S. District Courts, the Supreme Court held this morning. Justice Anthony M. Kennedy wrote for 5 members of the Court: "We hold these petitioners do have the habeas corpus privilege."

The Court unanimously held in a separate case that persons held by U.S. forces in Iraq have habeas rights as well.

You can find the full opinion inthe 1st case, Boumediene, here; in the 2d, Munaf, here.

News from Guantánamo

A roundup of what's up with cases arising out of Gitmo:
Gates v Bismullah
In an attempt to limit the information it must provide the D.C. Circuit Court when the court reviews an enemy combatant determination of a Guantanamo detainee under The Detainee Treatment Act, the government filed a petition for certiorari with the U.S. Supreme Court appealing the Circuit Court’s decision to deny rehearing en banc of its initial decision that the court must review all of the evidence regarding a detainee’s enemy combatant status and not just the evidence presented to the Combatant Status Review Tribunal as proposed by the government. After the denial, the government requested a stay of the court’s decision and filed the cert. petition, requesting SCOTUS to either accept the case with expedited review or defer action until the Court ruled on the Al Odah/Boumediene case, which has been pending since the Court heard oral arguments on December 5, 2007.

The Military Commissions
In the case of USA v Omar Khadr, the defense recently had several pre-trial motions denied by military judge Peter Brownback. Most significant was a motion to dismiss the charges and specifications on the grounds that the Military Commissions Act of 2006 is a Bill of Attainder -- prohibited by Art. I, § 9(3) of the U.S. Constitution -- for the reason that the Act essentially legislates punishment without trial. Judge Brownback disagreed, notwithstanding the fact the military commissions trials have been called a sham, rigged and unjust by defense JAG attorneys, and more recently characterized as ‘politicized’ by former military commissions prosecutor Colonel Morris "Moe" Davis. Davis, who quit the prosecutor's post a few months ago, has just announced that he will testify on behalf of a Gitmo detainee. Explaining his departure, Colonel Davis stated, “I concluded that full, fair and open trials were not possible under the current system.” And as posted, the Colonel reminded a couple weeks ago that Brigadier General Thomas Hartmann, legal adviser for the military commissions, refuses to rule out using evidence obtained by waterboarding.
In light of these circumstances, even the most hardened tough-on-crime conservative should be concerned about the recent swearing of charges against the ‘high-value six’ detainees, which includes Khalid Sheik Mohammed and Mohamed al Kahtani. The six are being charged with numerous crimes the government alleges are war crimes based in part on conduct that occurred well before 9/11. The government seeks the death penalty. Apparently, the government has already forgotten the decision of the Supreme Court in Hamdan, which holds that a precondition for a military tribunal’s exercise of jurisdiction is that ‘it is limited to trying offenses committed within the convening commanders field of command, within the theater of war and that the offense charged must have been committed during, not before or after the war.’

Now, I have no sympathy for terrorists and I am not opposed to military tribunals when imbued with due process. But how can anything good come of trying an individual in a ‘politicized’ ‘sham trial,’ for faux war crimes, on the basis of evidence procured by torture, in front of a tribunal that is all but ordered to obtain convictions, and then executing him?

Oh, and did I mention that such trials would be a gross violation of international law?

(photo from Camp Delta, Guantánamo Bay, courtesy of Center for Constitutional Rights)

Justice Antonin Scalia on "so-called torture" and rights, if any, of Guantánamo detainees

Just broadcast on BBC Radio 4's half-hour weekly program, "Law in Action," an interview conducted with U.S. Supreme Court Justice Antonin Scalia during a recent visit to London. (photo credit)
As you can hear here, the interview ranges widely, from originalism to abortion, from the plaintiffs' bar to BMW, from capital punishment to collegiality on the Court. Of particular interest to readers of this blog no doubt will be Scalia's comments regarding detention, interrogation, and -- his words -- "so-called torture." The issue of conduct during interrogation is at the heart of just-announced Gitmo prosecutions, as Elena Baylis' post yesterday demonstrated. And as also posted, the question of what rights the Constitution affords Gitmo detainees is at issue in Boumediene v. Bush, now pending before the Court on which the Justice sits.
Here's the exchange, between the BBC's Clive Coleman and Justice Scalia, on those issues:

BBC: If you look at the U.S. Supreme Court’s actions in relation to Guantánamo Bay, people might say, “Well, it took a very long time for you to come down and do the right thing."
SCALIA: Well, now you’re talking about a different issue, Guantánamo Bay, I’m talking about the United States Constitution. The United States Constitution gives rights to Americans wherever they are, and to foreigners who are in America, who are in the United States. It doesn’t give rights to everybody in the world. I don’t, I don’t have a warrant to go investigating the actions of my country throughout the world, to see whose rights they violated. I mean, there may be some natural law up there in the sky, but the American Constitution doesn’t give rights to these people. And that was the principal issue in Guantánamo, whether indeed Guantánamo Bay wasn’t within the United States, and our courts had no jurisdiction there. Just because you would like it to be so does not make it so, it seems to me. You have to consult the text of the document, and the text of the Constitution does not confer rights on people of the world.
BBC: Tell me about the issue of torture. We know that cruel and unusual punishment is prohibited under the 8th Amendment. Does that mean that the issue is a kind of, if it comes up before the Court, is a no-brainer?
SCALIA: Well, a lot of people think it is, but I find that extraordinary. To begin with, the Constitution refers to cruel and unusual punishment. It is referring to punishment for crime. For example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime. But a court can do that when a witness refuses to answer, can just commit them to jail until you will answer the question, without any time limit on it, as a means of coercing the witness to answer as the witness should. And I suppose it’s the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face, to find out where he has hidden the bomb that is about to blow up Los Angeles, is prohibited by the Consti- .... because smacking someone in the face would violate the 8th Amendment in the prison context, you can’t go around smacking people about. Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to the society? I think it is not at all an easy question, to tell you the truth.
BBC: It’s a question that’s been raised by Alan Dershowitz and other people, this idea of ticking-bomb-torture. You know. But it’s predicated on the basis that you’ve got a plane with nuclear weapons, that’s flying toward the White House, you happen to have in your possession – hooray – the person who has the key information that can put everything right, and you stick a needle under his fingernail, you get the answer, and that should be allowed.
SCALIA: And you think it shouldn’t.
BBC: I, I ....
SCALIA: All I’m saying is ...
BBC: ... think about it, it’s a bizarre scenario, because the fact is, it’s very unlikely you’re going to have the one person who can give you that information. And so if you use that as an excuse to permit torture, then perhaps that’s a dangerous thing.
SCALIA: It seems to me, you have to say, as unlikely as that is, it would be absurd to say that you, you, can, I don’t know, something under the fingernails, smack him in the face – it’d be absurd to say that you can’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be, and how severe can the infliction of pain be? I don’t think these are easy questions at all, in either direction. But I certainly know that you can’t come in, smugly and, and, uh, with great self-satisfaction and say, “Oh, it’s torture, and therefore, it’s, it’s, uh, no good.” You would not apply that in some real-life situations. It may not be a ticking bomb in Los Angeles, but it may be, “Where is this group that we know is plotting some very painful action against the United States? Where are they and what are they currently planning?"
BBC: If you look at countries with a common law tradition, of which we are one, and you are another, but also, lots of other countries around the world, and in the developing world – if they look at decision of the Supreme Court which affirm the death penalty, and which perhaps affirm torture, although that hasn’t happened yet, does that not set a moral tone?
SCALIA: Well, I urge them not to do that. I don’t look to their law. Why should they look to mine? I don’t purport to be prescribing some universal moral law. I am interpreting the meaning of the text of my Constitution, which was adopted at a certain time by my people, and had a meaning to those people at the time. That’s all I’m doing. I’m not charged with, with figuring out the content of the natural law. If you want to look at our decisions, what you could derive from it is what a wonderful Constitution we have. Or, if you don’t like it, you can say what a terrible Constitution we have. But we don’t pretend to be moral, you know, some Western mullahs, who what decide what is right and wrong for the whole world.
BBC: Well, you don’t, perhaps, but many Americans do pride themselves on living in a country that’s the leader of the free world.
SCALIA: We hope to be the leader of the world. But that is set forth not primarily in our judicial opinions, it’s set forth in our laws. To put all of the praise for that, or the blame, if you want to call it blame, on the Supreme Court, is really quite foolish.

News From Guantánamo

This last week has seen two developments in Guantanamo litigation, both in the U.S. federal court and in the U.S. Military Commissions:
United States v. Jawad (Mil. Comm. Jan 31, 2008)
The Defense Department announced that charges were referred to a military commission in the case of Mohammed Jawad by the Convening Authority, Office of Military Commissions, Susan J. Crawford. Jawad was charged with attempted murder in violation of the law of war and intentionally causing serious bodily injury. It is alleged that he attempted to commit murder and cause serious bodily injury by throwing a hand grenade into the passenger compartment of a vehicle transporting two U.S. Army military personnel and their interpreter with the intent to kill them. In accordance with the Military Commissions Act of 2006 and the Manual for Military Commissions, Jawad will be brought before the military trial judge for arraignment within 30 days of the service of charges. Within 120 days of the referral, the military trial judge will assemble the military commission.
Brig. Gen. Thomas Hartmann, legal advisor to the convening authority, claimed that these war crime proceedings will continue to move forward in open trials and with more due process than any alleged war criminal has historically received. Many JAG defense lawyers assigned to represent Guantanamo detainees charged with war crimes and the international legal community contend that the military commissions procedures are inherently unfair and contrary to international law and military justice.
Of the 275 detainees at Guantanamo, approximately 80 are expected to face trial by military commission.
Bismullah v. Gates (D.C. Cir. Feb. 1, 2008)
The D.C. Circuit denied en banc review in Bismullah, the lead case with respect to D.C. Circuit review of the Combatant Status Review Tribunal determinations of enemy combatant status (the adequacy of which is a central issue before the Supreme Court in Boumediene). The Circuit split 5 to 5 on the question of whether to grant rehearing en banc, and thus denied the petition. Chief Judge Douglas Ginsburg issued an opinion, essentially restating the position, articulated in the panel opinion at issue, that a DTA (Detainee Treatment Act) revoew requires the Circuit to have access to all of the information in the government's possession relating to the detainee’s status as an enemy combatant, not just the information the Tribunal reviewed in finding the detainee to be an enemy combatant, in order to determine whether the CSRT Recorder discharged his duty to assemble such information. Judges Henderson and Randolph each wrote dissenting opinions, joined by Sentelle and Kavanaugh, arguing that the D.C. Circuit’s review of a CSRT determination should not require production of information that was not part of the record before the CSRT itself, or at least that this question should be decided by the full circuit.
For a more detailed explanation of how the Detainee Treatment Act and the Military Commissions Act affect the Combatant Status Review Tribunals and the Administrative Review Boards (two military procedures that the Guantanamo detainees have been provided during their detention), read "Standards and Procedures for Classifying 'Enemy Combatants': Congress, What Have You Done?" by yours truly, IntLawGrrl and Professor Kristine A. Huskey.

Gitmo, round 3

Today the U.S. Supreme Court embarked on its 3d voyage in 3 years to Guantánamo Bay.
Justices convened at 10 to hear an hour of oral argument in Boumediene v. Bush, the title for consolidated cases brought by many of the noncitizens whom executive officials seized abroad in the years since 9/11 and then transported to the naval base that the United States has operated for more than a century at the southeastern corner of the island of Cuba.
Arguing on behalf of detainees were Seth P. Waxman, who served as Solicitor General, the United States' chief appellate attorney, from 1997-2001 and is now a D.C.-based private practitioner. Arguing on behalf of the government was Paul D. Clement, the current Solicitor General.
As detailed in briefs about which IntLawGrrl and amicus author Beth Van Schaack* has posted, discussion promised to cover both jurisdictional and merits issues. Preargument, these seemed like likely key concerns:
1st, may U.S. courts consider legal challenges brought by these detainees? In Rasul v. Bush (2004), 1 of 3 judgments in the 1st round of Gitmo litigation, the Court ruled that nothing in the federal habeas statute precluded so extending the "privilege of litigation." Congress responded by rewriting the statute, not just once but, after the Court rebuffed the 1st attempt in Hamdan v. Rumsfeld (2006) -- Gitmo, round 2 -- twice. With regard to that 2d effort, contained in the Military Commissions Act, the Court will determine whether Congress indeed intended to curtail federal litigation and, if so, whether the Constitution permits such curtailment.
2d, assuming that the litigation may go forward, do the special military panels set up in the wake of the 2004 judgments satisfy legal requirements for reviewing the lawfulness of detention? Evidence supporting petitioners' contention that the panels are procedurally deficient and unduly skewed toward the government's side have come from a number of sources, among them the Denbeaux studies of CSRT transcripts and, at the appendix to this filing, an affidavit from officer who served on those panels.
UPDATE: The Court's now released to the internet both an audio tape and written transcript of this morning's argument. For a roundup on commentary so far, see SCOTUSblog.

* Other IntLawGrrls with a hand in today's arguments: Amicus author Jenny S. Martinez, and Kristine A. Huskey, whose representation of certain detainees is described here. Have I forgotten anyone?

On November 13, ...

... 1950, the Government of Tibet complained to U.N. Secretary-General Trgve Lie that it was the victim of Chinese aggression. The complaint by Tibet (flag at left) stated that even as international troops resisted aggression in Korea, "[s]imilar happenings in remote Tibet are passing without notice."

... 2001, President George W. Bush issued a Military Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism. Announcing a plan to detain captives in the "war on terror" that Bush'd declared in the wake of the terrorist attacks on September 11 of that year, the Order asserted the power "to ... detai[n], and, when tried, to ... tr[y] for violations of the laws of war and other applicable laws by military tribunals" any person whom "there is reason to believe":

(i) is or was a member of the organization known as al Qaida;
(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or
(iii) has knowingly harbored one or more [such] individuals ....

Executive detention at home and abroad of persons who came to be called "enemy combatants" -- among them 2 U.S. citizens, José Padilla and Yaser Esam Hamdi, as well as many noncitizens -- soon followed. The Supreme Court invalidated aspects of that policy in its 2004 decisions in Rasul v. Bush and Hamdi v. Rumsfeld, and in its 2006 decision in Hamdan v. Rumsfeld. It is due again to consider detention, in Boumediene v. Bush, on December 5, 2007.