Last Wednesday’s Supreme Court showdown over Guantánamo was billed as “probably the most important habeas corpus case in modern history,” according to Law.com, and “the most important civil liberties case of the past 50 years,” according to the Center for Constitutional Rights (CCR). This was no understatement. At stake was the validity of the administration’s novel contention, first formulated in November 2001, that it can seize foreigners anywhere in the world, designate them as “enemy combatants” — rather than as criminals or prisoners of war — and hold them indefinitely, without charge or trial.
The very fact that the Supreme Court was discussing the detainees’ rights at all was, in itself, astonishing. Three and a half years ago, in June 2004, the Court ruled in Rasul v. Bush that Guantánamo — chosen as a base for the prison because it was presumed to be beyond the reach of the US courts — was “in every practical respect a United States territory,” and that the detainees had the right to challenge the basis of their detention, under the terms of the 800-year old “Great Writ” of habeas corpus, which prohibits the suspension of prisoners’ rights to challenge the basis of their detention except in “cases of rebellion or invasion.”
In spite of this ruling, the detainees were not granted impartial hearings in a US court. Instead, they were subjected to military reviews at Guantánamo — the Combatant Status Review Tribunals (CSRTs) — which were a lamentable replacement for a valid judicial challenge. Although the detainees were allowed to present their own version of the events that led up to their capture, they were not allowed legal representation, and were subjected to secret evidence that they were unable to see or challenge.
In June this year, Lt. Col. Stephen Abraham, a veteran of US intelligence, who worked on the CSRTs, delivered a damning verdict on their legitimacy, condemning them as the administrative equivalent of show trials, reliant upon generalized and often “generic” evidence, and designed to rubber-stamp the detainees’ prior designation as “enemy combatants.” Filed as an affidavit in Al Odah v. United States, one of the cases considered by the Supreme Court last week, Lt. Col. Abraham’s testimony was regarded, by legal experts, as the trigger that spurred the Supreme Court, which had rejected an appeal on behalf of the detainees in April, to reverse its decision (an event so rare that it last happened 60 years ago) and to agree to hear the cases.
To complicate matters, the Supreme Court’s decision in June 2004 has been undermined twice by Congress in the intervening years. In the fall of 2005, the flawed Detainee Treatment Act (DTA) was passed, which, in brief, limited any review of the detainees’ cases to the DC Circuit Court (rather than the Supreme Court), preventing any independent fact-finding to challenge the administration’s allegations, and mandating the judges to rule only on whether or not the CSRTs had followed their own rules, and whether or not those rules were valid.
In the fall of 2006, following a second momentous decision in the Supreme Court, in Hamdan v. Rumsfeld, in which the justices ruled that the proposed trials by Military Commission for those held at Guantánamo (which also relied on the use of secret evidence) were illegal under domestic and international law, the even more flawed Military Commissions Act (MCA) was passed by a barely sentient Congress.
Instantly reviled by concerned lawyers and human rights activists, the MCA reinstated the Military Commissions and also comprehensively stripped the detainees of their habeas corpus rights, stating, explicitly, “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 United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” In a further attempt to stifle dissent, the MCA defined an “enemy combatant” as someone who has either engaged in or supported hostilities against the US, or “has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the secretary of defense.”
With the justices of the Supreme Court not due to deliver their verdict until spring 2008 at the earliest, working out what happened last week has involved experts
— and those less qualified — analyzing their comments during the two-hour hearing, and extrapolating from legal precedents to draw tentative conclusions about which way the judicial axe will fall.
A recording of the oral argument is available here, but for those who have neither the time nor the ability to understand references to a bewildering array of ancient precedents, I shall attempt to summarize the main points. One of the clearest analyses was made by Wells Dixon of CCR, who explained in a column for Jurist that the main claims made on behalf of the detainees — delivered by former Solicitor General Seth Waxman — are that they have a constitutional right to habeas corpus because they have “all have been confined for six years without meaningful notice of the grounds for their detention or opportunity to challenge those grounds,” because the DTA, and its interpretation by the District Court, allows them “no prospect of that opportunity,” and because “all of the prisoners claim they are innocent of any wrongdoing.”
In Wells Dixon’s opinion, a majority of the nine justices “appeared to agree with Seth Waxman that the threshold question of whether the prisoners in Guantánamo have a constitutional right to habeas” had already been decided in June 2004, a judgment which, if confirmed, will have the knock-on effect of indicating that the habeas-stripping provisions of the MCA — which were supposedly justified through an interpretation of Rasul as a statutory issue, rather than a constitutional one — were in fact unconstitutional.
Dixon explained that, following questions from Chief Justice John Roberts and Justice Antonin Scalia, the government’s representative, current Solicitor General Paul Clement, claimed that the detainees had no rights under the DTA and the MCA because they were non-citizens held outside the sovereignty of the United States, but that most of the justices “seemed to reject that argument.” Justice David Souter, for example, remarked that the Court was “past that point” and that the government was attempting to reargue Rasul, and Justice Ruth Bader Ginsburg “noted that the lease agreement granting the United States exclusive jurisdiction and control over Guantánamo was not something that Congress had changed by enacting the DTA and MCA.” Specific mention was made of an extraordinary section of the MCA, which sneakily purported to reverse Rasul by excluding Guantánamo from the definition of territory constituting the United States.
With the detainees’ constitutional right to habeas corpus apparently established through these exchanges, Waxman declared that the principal question facing the Court was whether the DTA’s “limited review” of the CSRTs provides “a constitutionally adequate substitute for habeas.” Waxman argued that it did not, insisting that the CSRTs were “structurally flawed and incapable of being cured through DTA review.” He cited, as an example, the case of Murat Kurnaz, a German resident who was released from Guantánamo in August 2006, but whose detention had been justified because of a claim that he was affiliated with Selçuk Bilgin, an alleged suicide bomber. When Kurnaz was finally allowed access to lawyers, his legal team was able to establish, in just 24 hours, that the “suicide bomber” was actually alive and well and living in Germany, and had, moreover, never been involved with terrorism. This exculpatory evidence was not included in his CSRT, however, and Waxman pointed out that the limited review allowed by the DTA explicitly prevented its disclosure.
Waxman could have added that Murat Kurnaz was not the only detainee whose innocence was established by lawyers working outside the narrow parameters of the CSRTs and the DTA review process. To cite just one example, an allegation that the Moroccan chef Ahmed Errachidi (released in April 2007) attended an al-Qaeda training camp in August 2001 was only dismissed when his lawyers investigated his story independently, and were able to confirm that, as Errachidi had maintained all along, he was working as a cook in a hotel in London’s Bond Street when he was supposed to have been wielding a Kalashnikov in Afghanistan.
According to Wells Dixon, several of the justices were as skeptical of the DTA’s “limited review” of the CSRTs as Seth Waxman. Justice John Paul Stevens “questioned the neutrality of CSRT participants and the prisoners’ lack of counsel during the hearings,” and Justice David Souter “questioned whether meaningful DTA review is possible because the CSRT panels were not neutral and had denied prisoners the remedy of release.” Citing an issue raised by Lt. Col. Abraham in his affidavit — and demonstrating quite how significant Abraham’s testimony was — Souter referred to the case of Ali, one of 22 Uyghurs at Guantánamo (Muslims from the persecuted Chinese outpost of Xinjiang province), who was subjected to a second CSRT after his first cleared him of being an “enemy combatant.” He might have added, as I reported here, and as Lt. Col. Abraham made clear, that the same thing happened to Abdul Hamid al-Ghizzawi, a Libyan shopkeeper, and that lawyers for the Uyghurs have pointed out that repeat CSRTs were conducted in the cases of two more of their clients.
What happened next was reported by NPR’s Nina Totenberg. Focusing on the detainees’ claims that they are innocent, Justice Stephen Breyer asked where, in the current appeals process, a detainee could make this claim. “I’m not sure that he can make that argument,” Clement replied. “If he cannot make that argument,” Breyer continued, “then how does this become an equivalent to habeas, since that happens to be the argument that a large number of these 305 people [the remaining detainees] would like to make?” Clement then said that prisoners of war had never had the right to challenge their detention through a habeas corpus petition in the US courts, prompting Justice Souter to respond, “The problem with your prisoner-of-war point is, the United States is not treating them as prisoners of war. That argument, on the government’s part, is entirely circular.”
From here, the justices moved on to discuss, as Wells Dixon described it, “whether DTA review, if found to be a constitutionally inadequate substitute for habeas, could be cured of any defect by the DC Circuit.” The issue was raised by Justice Anthony Kennedy, whose vote, as Dixon noted, “will likely be critical to the prisoners’ challenge.” He added that, at this point, the government appeared “almost to abandon its argument” that the detainees “have no constitutional right to habeas,” asking the justices to remand the cases to the DC Circuit Court, and to “allow that court to supply any constitutionally required guidance to the CSRTs.”
As the prospect of more long years of legal maneuvering loomed, Justice Breyer cut short a potentially meandering discussion by pointing out, “Habeas is supposed to be speedy, and yet people have serious arguments that they’re being held for six years without even having those arguments heard. Is there anything, in your opinion, that this court could say by way of remedy that could get the DC Circuit or the others to decide this and the CSRT claims there are 305 people [and] to do this quickly in a matter of months rather than six more years?” The Supreme Court, Clement replied, could instruct the lower court to expedite the appeals process, but Justices Kennedy and Souter observed that, according to the statute passed by Congress, they had no jurisdiction in these cases. “How can we say that?” Justice Souter asked. “Your position is that we have no jurisdiction here. If you win, we never get to these issues.”
While observers concluded from the hearing that the justices appeared to be split 4-4, with Justices Clarence Thomas and Samuel Alito joining Chief Justice Roberts and Justice Scalia on the government’s side, and Justice Kennedy holding the tie-breaking vote, it seems to me that Kennedy’s opinion about the sidelining of the Supreme Court with regard to its lack of jurisdiction could swing the decision in the detainees’ favor, although whether the administration would respond honorably remains to be seen.
A hint of what may be to come occurred during the hearing after Justice Alito asked, “If the court holds that the DTA is not an adequate substitute for habeas, what will happen? Will these petitioners then have access to all of the procedures that normally apply in habeas proceeding under [Section] 2242 [of the Judicial Code]? The same right to discovery, subpoena, witnesses, access to classified information, presence in court?” In response, Paul Clements stated, “The government will certainly take the position that they are not entitled to those things. Presumably, the petitioners will be arguing that they are entitled to those things. And there will be difficult questions that will need to be worked out.”
Noticeably, however, the warning bells triggered by this comment are nowhere near as disturbing as the implications of a comment made by Justice Breyer, the maverick who gave the go-ahead for the MCA by pointing out, during the Hamdan judgment, that “Nothing prevents the President from returning to Congress to seek the authority he believes necessary” to reinstate the Military Commissions. Seemingly offering the government another escape route from the self-made hole into which it has dug itself over the last six years, Breyer mentioned on three separate occasions that it might be possible for Congress to enact a law that would provide a rock-solid basis for holding the detainees indefinitely without trial, under “some special statute involving preventive detention and danger, which has not yet been enacted.”
While Justice Breyer’s comments seem, pragmatically, to be directed at those detainees — perhaps the 80 proposed for Military Commissions, perhaps more — whom the administration will he hoping to keep “out of the loop” should the Supreme Court rule in their favor, the very idea that “preventive detention” could be enshrined in law to replace the dictatorial lawlessness of the last six years is enough to send a shiver down the spine of anyone who realizes what its introduction would actually mean: destroying 800 years of law in a manner that is even more chilling than the denial of habeas corpus, by attempting to justify the imprisonment of people not for what they have done, but for what they may do in the future. It doesn’t even bear thinking about.
ANDY WORTHINGTON is a British historian, and the author of ‘The Guantánamo 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: www.andyworthington.co.uk
He can be reached at: email@example.com