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The Supremes and Guantanamo

by ELAINE CASSEL

On November 10, the U.S. Supreme Court agreed to hear whether or not prisoners in Guantanamo Bay, Cuba may challenge the legality of their detentions as enemy combatants in U.S. courts. The Supreme Court has limited the appeal to that very specific and narrow issue. The U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the District of Columbia both summarily dismissed the petitions for writ of habeas corpus filed in behalf of 12 Kuwaitis, 2 Brits, and 2 Australians, 16 of the 650-plus prisoners captured in Pakistan and Afghanistan and interned in Cuba for going on two years.

The government’s position is disingenuous, that the prisoners are not on sovereign U.S. territory, therefore the federal courts are closed to them. But the lease between the Cuban and U.S. governments specifically holds otherwise. In effect since the end of the Spanish-American war in 1903, the pertinent provision for the lease of the 45 square mile area that makes up the U.S. Naval Base says that “the United States shall exercise complete jurisdiction and control over and within said areas with the right to acquire . . . for the public purposes of the United States any land or other property therein by purchase or by exercise of eminent domain.” The lease gives the U.S. civil and criminal jurisdiction over all persons located therein. On its official web site, the U.S. Navy describes Guantanamo as “a Naval reservation, which, for all practical purposes, is American territory. Under the [lease] agreements, the United States has for approximately [one hundred] years exercised the essential elements of sovereignty over this territory, without actually owning it.”

While it should be noted that earlier legal precedent ruled that a base in Bermuda was not “sovereign” U.S. territory, that case did not deal with a prison camp presided over by military guards. To suggest that the U.S. can create a law-free zone where it may imprison whomever it wants whenever it wants for as long as it wants–and never charge or try them–is an astoundingly absurd proposition from any government, let alone one that purports to live by the rule of law.

The prisoners’ petitions for writs of habeas corpus asked for modest relief-that they have the opportunity to challenge the basis for their detention as enemy combatants. On November 13, 2001, the President issued a Military Order entitled “Detention, Treatment, and Trial of Certain Non-Citizens in The War Against Terrorism” (the “Military Order”). 66 Fed. Reg. 57, 833-36. (Nov. 16, 2001). Section 1(e) of the Military Order states that, “[t]o protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant to section 2 hereof to be detained. . . . ” Section 2 provides that any non-citizen of the United States may be detained if the President determines “in writing” that “there is reason to believe” he or she “is or was a member of the organization known as al Qaida” or has engaged in or supported terrorism or other acts aimed at injuring the United States.

The prisoners’ attorneys insist that they have the right, under international law, to see the evidence against them, and to have the rights guaranteed prisoners of war under the Geneva Conventions. These include the right to be charged with crimes or released and, if charged, to have legal counsel and fair tribunals. Intelligence experts have conceded that no more than a handful of the men could have any real intelligence value or could have been involved with al Qaeda. Most are likely there because others turned them in order to get huge money bounties. The U.S. was handing out fistfuls of dollars to people in the street who would name names, promising “snitches” enough money to take care of their families for a lifetime.

The lower federal courts also went far afield from their stated case precedent, Johnson v. Eisentrager, a 1950 Supreme Court case that arose out of World War II. There, Germans who had been tried and convicted by military tribunals wanted to challenge their convictions in federal court. The Supreme Court ruled that they could not. But these men had at least the semblance of due process-they were charged, given attorneys, and tried. For the District of Columbia trial and appellate court to jump from those facts to foreclose the Guantanamo prisoners from judicial review was a huge leap unsupported by the facts or the law.

The Bush Administration pleaded with the Supreme Court not to grant the appeal. It warned the court that waging war was the President’s business, not the Court’s. This was also an argument so absurd and frightening that alarms ought to be clanging in the hearts and minds of every American. Since when does the President tell the Supreme Court what cases to take? Since when is the Supreme Court not the supreme law of the law-the last word in all things legal and judicial? Before he was President, Bush thought the Court could anoint him President. The Court agreed. Now, he thinks that same Court cannot consider, merely consider (the Court may well agree with the lower courts, but I doubt it) whether courts might have jurisdiction over prisoners in Guantanamo so that his detention orders might be subject to some modicum of judicial oversight. That arrogance alone-even if the policy at issue were not so terrifying-justifies taking down this Administration a peg or two.

I would bet that the Supreme Court will decide that Guantanamo is enough of a U.S. territory that the prisoners detained there are allowed to have access to the courts. In a year from now, if the case finds its way back to the U.S. District Court in the District of Columbia, we will see plenty of stonewalling by the administration, much like it has done in the Moussaoui case. You don’t think they are going to play by the book, do you? Of course, the “book” is a lot better for them in D.C. then in front of Judge Brinkema in Virginia. The D.C. trial and appellate courts are highly conservative and beholden to the Bush administration. And if Bush gets his way, the mad woman Janice Brown, the judicial nominee who does not even know the meaning of the term “supremacy clause” (she stumbled badly with Sen. Arlen Specter asked her about it in the Senate judiciary committee hearing that just recommended her for a full vote) and who thinks the 14th Amendment has nothing to do with the states, will be sitting on the D.C. appeals court.

It is too early to get excited and think that justice will be done for the prisoners in the black hole of Guantanamo. But it is some consolation that the Supreme Court, for once, has said no to Bush, no to Rumsfeld, and no to Solicitor General Theodore Olson. “We will have a look at this case, ” they said. For now, we have this small gesture, the tiny glimmer of hope, for which to be grateful.

ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. She can be reached at: ecassel1@cox.net

 

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