– 2007-12-08 23:08:39
Guantanamo and the Supreme Court:
The Most Important Habeas Corpus Case
In Modern History
Andy Worthington / CounterPunch.org
WASHINGTON (December 8, 2007) — 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 Guantanamo 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 Guantanamo, and also stripped the US courts of their right to hear habeas corpus petitions filed by the Guantanamo 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 Guantanamo prisoners had the right to challenge the legal limbo in which they were held, and demolished the administration’s long-cherished belief that Guantanamo (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 Guantanamo, 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 Guantanamo 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 Guantanamo 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 Guantanamo, many of whom are about to start their seventh year of imprisonment without charge or trial, but also to the government’s assertion that it is entitled to pursue these policies without any significant judicial oversight.
As Britain’s Financial Times noted in a recent editorial, “American democracy is based on the optimistic notion that all three branches of government will not do the wrong thing, all at the same time. The president and even Congress might step over the line — but if they do, the US Supreme Court is there to restore the rule of law over the mistakes of men.”
Although the Bush administration has attempted to shift the Supreme Court to the right, and to its own point of view, in its two most recent appointments, the justices have repeatedly shown, as Suzanna Sherry, a professor at Vanderbilt University Law School, explained, that their job is “to balance the need to prevent terrorism with individual rights.”
They are also clearly aware of their own right not to be shunted aside by an executive that demands the freedom to operate without any restraint whatsoever. Dennis Hutchinson, a professor at the University of Chicago Law School, summed up this attitude in a single line that those campaigning for the detainees’ rights must be hoping is particularly applicable: “The Court doesn’t like to be told, ‘You don’t have a role to play here.'”
Andy Worthington is a British historian, and the author of The Guantanamo 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: andyworthington.co.uk. He can be reached at: firstname.lastname@example.org.
Copyright 2007. All rights reserved. CounterPunch is a project of the Institute for the Advancement of Journalistic Clarity.
Man Held by CIA Says He Was Tortured
William Glaberson / The New York Times
WASHINGTON (December 8, 2007) — The first of the so-called high-value Guantánamo detainees to have seen a lawyer claims he was subjected to “state-sanctioned torture” while in secret CIA prisons, and he has asked for a court order barring the government from destroying evidence of his treatment.
The request, in a filing by his lawyers, was made on Nov. 29, before officials from the Central Intelligence Agency acknowledged that the agency had destroyed videotapes of interrogations of two operatives of Al Qaeda that current and former officials said included the use of harsh techniques.
Lawyers for the detainee, Majid Khan, a former Baltimore resident, released documents in his case on Friday. They claim he “was subjected to an aggressive CIA detention and interrogation program notable for its elaborate planning and ruthless application of torture” to numerous detainees.
The documents also suggest that Mr. Khan, 27, and other high-value detainees are now being held in a previously undisclosed area of the Guantánamo prison in Cuba he called Camp 7.
Those detainees include 14 men, some suspected of being former Qaeda officials, who President Bush acknowledged were held in a secret CIA program. They were transferred to military custody at Guantánamo last year.
Asked about Mr. Khan’s assertions, Mark Mansfield, a CIA spokesman, said, “the United States does not conduct or condone torture.” He said a small number of “hardened terrorists” had required what he called “special methods of questioning” in what he called a lawful and carefully run program.
The documents were heavily redacted by government security officials, and none of Mr. Khan’s specific assertions of torture could be read. One entire page was blacked out.
In addition to the court filing, Mr. Khan’s lawyers at the Center for Constitutional Rights in New York released recently declassified notes of their first meetings with Mr. Khan, in October. The notes asserted that he had symptoms of post-traumatic stress disorder because of his treatment, including memory problems and “frantic expression.” They said he was “painfully thin and pale.”
A Pentagon spokesman, Cmdr. Jeffrey D. Gordon, declined to respond to the assertions about Mr. Khan’s condition, saying that most detainees at Guantánamo gain weight.
Pentagon officials have said they believe that Khalid Shaikh Mohammed, the mastermind of the Sept. 11 attacks, selected Mr. Khan, who grew up in the suburbs of Baltimore, to study the feasibility of blowing up gasoline stations and poisoning reservoirs in the United States. But he has not been charged with any offenses.
His lawyers said Mr. Khan, while living in Pakistan, was “forcibly disappeared” and that he had “admitted anything his interrogators demanded of him, regardless of the truth.”
Lawyers who represent Guantánamo detainees agree to stringent restrictions that bar them from disclosing information from their clients until it is cleared by government security officials.
The notes that were declassified from Mr. Khan’s lawyers, Gitanjali S. Gutierrez and J. Wells Dixon, say he “lives in Camp 7” and imply that he has contact with at least one other high-value detainee, Abu Zubaydah.
Officials at Guantánamo have not discussed the existence of a Camp 7. They often say publicly that the most recent center constructed there is Camp 6, a modern maximum-security building.
Commander Gordon, citing security concerns, declined to comment on the indication that there may be a secret detention unit, and added that “we do not disclose the exact location of detainees within Guantánamo.”
The request for an order barring the government from destroying any evidence of torture was filed in the United States Court of Appeals for the District of Columbia Circuit, which is considering a challenge by Mr. Khan to his detention.
Mr. Khan’s lawyers claim that “there is a substantial risk that the torture evidence will disappear.” They did not specify what evidence they believe may exist.
An intelligence official speaking on the condition of anonymity said the CIA’s interrogations of Mr. Khan were not videotaped.
Mr. Dixon, one of Mr. Khan’s lawyers, said Saturday that the admission that officials had destroyed videotapes of interrogations showed why such an order was needed.
“They are no longer entitled to a presumption that the government has acted lawfully or in good faith,” Mr. Dixon said.
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