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.)

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?

In the hands of justice

Alberto Fujimori's "in the hands of justice," proclaims today's special edition of the Lima daily La República. Peru's former President arrived on an overnight flight, having been transported from Chile less than a day after a 5-judge chamber of Chile's Corte Suprema ruled that there is sufficient evidence of crime in 7 of the dozen events for which Peru had sought the Fujimori's extradition. In so doing, it overruled another Supreme Court judge's July ruling in favor of Fujimori, and credited instead the June recommendation in favor of extradition by Mónica Maldonado (left), the court's prosecutor. Among the cases now cleared for trial in Peru, the Santiago Times reported,

are two emblematic human rights abuse cases – the Barrios Altos and La Cantuta massacres – which took place in 1991 and 1992 respectively. Twenty-five people, including a small child and a professor, were murdered in the two massacres. The killings are believed to have been carried out by an infamous, government-backed death squad known as the Colina Group. Prosecutors contend that Fujimori had direct knowledge of and may have even ordered the Group’s anti-subversion operations.

"From an international law standpoint," Helena Marambio of Amnesty International Chile said, the court found Fujimori "to be responsible for the character of his time in office. Let’s hope they continue to process him in Peru."
Meanwhile, Peru's Minister of Justice María Zavala (left) insisted at a press conference in Lima that the judges who will try the former President "must not be politicized."

Al-Odah & Boumediene Petitioners

After a flurry of filing on Friday, briefing by Petitioners in the Al-Odah and Boumediene cases (consolidated on certiorari) closed. The merits briefs and a sizable number of amicus curiae briefs are available on the Mayer, Brown, Rowe & Maw website. An impressive array of amici filed briefs in support of Petitioners, including the U.N. High Commissioner for Human Rights; European and Canadian parliamentarians; constitutional, federal jurisdiction, human rights, and humanitarian law experts and scholars, including former ICRC principals; Amnesty International; retired and former federal judges, diplomats, and military officers; the ABA; and the National Institute of Military Justice.
As discussed in prior posts (here, here, here, and here), the case presents the question, among others, of whether the Military Commission Act of 2006 (MCA) unconstitutionally suspended the writ of habeas corpus in violation of the Suspension Clause, which 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.

The MCA purportedly barred the writ for pending cases wherein it states:

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the U.S. who has been determined by the U.S. to have been properly detained as an enemy combatant or is awaiting such determination.

In prior proceedings, the government argued that the historic writ of habeas corpus would not have extended to alien enemy combatants held extraterritorially, so the MCA works no “suspension” within the meaning of the Constitution. This is notwithstanding that the Court in Rasul v. Bush, 542 U.S. 466, 480 (2004), clearly ruled that Guantánamo was within the territorial jurisdiction of the United States and that the writ did extend to Petitioners. Id. at 481-82. In the alternative, the Government has argued that Petitioners—as aliens outside sovereign U.S. territory—have no constitutional rights. Petitioners have responded that the Suspension Clause—situated in Article 1 of the Constitution—creates no individual rights, bur rather is a structural constraint on Congress providing

constitutional protection to a preexisting right founded in the common law: the right to obtain independent judicial review of a detention to ensure that no person is deprived of liberty by the Executive without a satisfactory basis in law and fact.

Al-Odah v. United States, Brief For Petitioners El-Banna et al.
Following the Supreme Court’s holding in Rasul v. Bush, the Department of Defense convened Combatant Status Review Tribunals (CSRTs) to determine whether an individual could be detained as an “enemy combatant.” The Department also established Administrative Review Boards (ARBs) to meet annually to determine whether this designation still holds. The Al-Odah & Boumediene cases also present the question of whether the CSRTs and ARBs provide an adequate substitute for habeas corpus where they provide only limited rights of participation and confrontation, deny the right to counsel, admit evidence procured by torture and coercion, admit hearsay and other evidence that would otherwise be inadmissible, are apparently subject to command influence, and are not subject to plenary review on appeal. Testimony from former CSRT participants about these procedural flaws in the process, including Lt. Col. Stephen Abraham (upper left, photo by Chris Carlson/NPR), probably led to the Supreme Court reversing its original denial of certiorari in the cases.
Stay tuned for the government's briefs....

[by IntLawGrrl Beth Van Schaack, under her pen name Eleanor Roosevelt]