[Ppnews] The Military Commissions Act, Gitmo Detainees and Habeas Corpu

Political Prisoner News ppnews at freedomarchives.org
Wed Feb 28 12:54:41 EST 2007


February 28, 2007

The Military Commissions Act, Gitmo Detainees and Habeas Corpus

Why the Boumediene Case Was Wrongly Decided


Last week, in Boumediene v. Bush, two judges on a 
three-judge panel of the D.C. Circuit Court of 
Appeals upheld the provision of the Military 
Commissions Act of 2006 that strips the rights of 
all Guantanamo detainees to have their habeas 
corpus petitions heard by U.S. federal courts. If 
that decision is left to stand, the men and boys 
detained at Guantanamo can be held there for the 
rest of their lives without ever having a federal 
judge determine the legality of their detention. 
In my opinion, this appellate decision will 
likely be overturned by the Supreme Court next term.

A little background:

In November 2001, President Bush established 
Military Commissions to try non-citizens accused of war crimes.

In June 2004, the Supreme Court decided Rasul v. 
Bush, which upheld the right of those detained at 
Guantánamo to have their petitions for habeas 
corpus heard by U.S. courts, under the federal habeas statute.

The ink was barely dry on Rasul when Bush created 
the Combatant Status Review Tribunals, ostensibly 
to comply with the Rasul ruling. But, as I will 
explain, setting up these tribunals was really an 
end-run around Rasul. They were established to 
determine whether a detainee is an unlawful enemy 
combatant. They are not criminal courts, like the military commissions.

On December 31, 2005, Congress passed the 
Detainee Treatment Act, which included the famous 
McCain "anti-torture" amendment. But it also 
stripped habeas corpus rights from Guantánamo 
detainees who had not already filed habeas 
petitions before December 31, 2005. Some 200 detainees had pending petitions.

At the end of last term, the Supreme Court struck 
down Bush's military commissions in Hamdan v. 
Rumsfeld because they did not comply with due 
process guarantees in the Uniform Code of 
Military Justice and the Geneva Conventions.

Then, in October of last year, in another end 
run, this time around Hamdan, Bush rammed the 
Military Commissions Act of 2006 through a 
Congress terrified of appearing soft on terror in 
the upcoming midterm elections. The Act does many 
things, but it notably strips statutory habeas 
corpus rights from all Guantánamo detainees, even 
those whose petitions were pending on December 31, 2005.

The two-judge majority in Boumediene upheld the 
Military Commissions Act's stripping of statutory 
habeas jurisdiction that the Supreme Court had 
recognized in Rasul. (Congress had passed the 
original habeas statute, and amended it in the 
Military Commissions Act). The Boumediene 
decision found the Act's elimination of habeas to be constitutional.

Art. I of the Constitution contains the 
Suspension Clause, which says that Congress can 
suspend the right of habeas corpus only in times 
of rebellion or invasion when the public safety 
may require it. As the dissenter in Boumediene 
pointed out, Congress has only suspended habeas 
corpus four times before, and made findings of 
rebellion or invasion in each case. We are not 
now in a state of invasion or rebellion, and 
Congress did not make such a finding.

The two-judge majority in Boumediene said: (1) in 
the absence of a statutory habeas right (which 
Congress had eliminated in the Military 
Commissions Act), the Constitution only protects 
the right of habeas corpus that was recognized at 
common law in 1789; (2) the law in 1789 did not 
provide the right of habeas corpus to aliens held 
by the government outside of the sovereign's 
territory; and (3) Guantánamo is outside U.S 
territory for constitutional purposes, even 
though the U.S. has complete control over it.

This reasoning is erroneous for three reasons:

First, the Supreme Court held in INS v. St. Cyr 
that the Constitution protects the writ as it 
existed in 1789 "at the absolute minimum." The 
Supreme Court in Rasul cited St. Cyr.

Second, although the Boumediene majority relies 
on the treaty that says Cuba, not the U.S., has 
sovereignty over Guantánamo, the Supreme Court 
rejected that argument in Rasul, when it said: 
"By the express terms of its agreements with 
Cuba, the United States exercises 'complete 
jurisdiction and control' over the Guantánamo Bay 
Naval Base, and may continue to exercise such 
control permanently if it so chooses. . . Aliens 
held at the base, no less than American citizens, 
are entitled to invoke the federal courts' authority under §2241."

Third, although the Rasul Court was analyzing the 
pre-Military Commissions Act habeas statute, it 
also cited Johnson v. Eisentrager, which 
construed the constitutional right of habeas 
corpus. The Supreme Court in Eisentrager denied 
habeas jurisdiction to German citizens who had 
been captured by U.S. forces in China, and then 
tried and convicted of war crimes by an American 
military commission in Nanking.

The Eisentrager court cited six factors to 
determine whether an alien is entitled to 
constitutional habeas jurisdiction in U.S. 
courts. These factors were cited in Rasul, which said:

In reversing that determination, this Court [in 
Eisentrager] summarized the six critical facts in the case:

"We are here confronted with a decision whose 
basic premise is that these prisoners are 
entitled, as a constitutional right, to sue in 
some court of the United States for a writ of 
habeas corpus. To support that assumption we must 
hold that a prisoner of our military authorities 
is constitutionally entitled to the writ, even 
though he (a) is an enemy alien; (b) has never 
been or resided in the United States; (c) was 
captured outside of our territory and there held 
in military custody as a prisoner of war; (d) was 
tried and convicted by a Military Commission 
sitting outside the United States; (e) for 
offenses against laws of war committed outside 
the United States; (f) and is at all times 
imprisoned outside the United States."

On this set of facts, the [Eisentrager] Court 
concluded, "no right to the writ of habeas corpus appears."

The Rasul court said:

Petitioners in these [Guantánamo] cases differ 
from the Eisentrager detainees in important 
respects: They are not nationals of countries at 
war with the United States, and they deny that 
they have engaged in or plotted acts of 
aggression against the United States; 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.

Not only are petitioners differently situated 
from the Eisentrager detainees, but the Court in 
Eisentrager made quite clear that all six of the 
facts critical to its disposition were relevant 
only to the question of the prisoners' 
constitutional entitlement to habeas corpus.

Congress can suspend habeas corpus if there is an 
adequate substitute for it. In Boumediene, the 
Bush administration asked the Court of Appeals to 
review the Combatant Status Review Tribunals. But 
the court declined, saying it had an inadequate record before it.

The Combatant Status Review Tribunals do not 
provide a meaningful opportunity to challenge 
detention. The prisoner is not entitled to an 
attorney, only a "personal representative," and 
anything the detainee tells his personal 
representative can be used against him. After 
reviewing the cases of 393 detainees, a Seton 
Hall legal team found that in 96 percent of the 
cases, the government had not produced any 
witnesses or presented any documentary evidence 
to the detainee before the hearing. Detainees 
were allowed to see only summaries of the 
classified evidence offered against them, and 
that evidence was always presumed to be reliable 
and valid. Requests by detainees for witnesses were rarely granted.

In addition, the personal representatives said 
nothing in 14 percent of the hearings and made no 
substantive comments 30 percent of the time. Some 
personal representatives even advocated for the 
government's position. In three cases, the 
detainee was found to be "no longer an enemy 
combatant," but the military continued to convene 
tribunals until they were found to be enemy 
combatants. These detainees were never told of 
the favorable ruling and there was no indication 
they were informed or participated in the second or third hearings.

The Combatant Status Review Tribunals are not an 
adequate substitute for habeas corpus.

The suspension of habeas corpus will certainly 
have profound effects on non-citizen detainees. 
Consider the case of Abu Bakker Qassim, an Uighur 
from China who was held at Guantánamo for four 
years. He wrote in the New York Times: "I was 
locked up and mistreated for being in the wrong 
place at the wrong time during America's war in 
Afghanistan. Like hundreds of Guantánamo 
detainees, I was never a terrorist or a soldier. 
I was never even on a battlefield. Pakistani 
bounty hunters sold me and 17 other Uighurs to 
the United States military like animals for 
$5,000 a head. The Americans made a terrible mistake."

How did Qassim obtain his release from 
Guantánamo? "It was only the country's 
centuries-old commitment to allowing habeas 
corpus challenges that put that mistake right-or 
began to. In May, on the eve of a court hearing 
in my case, the military relented, and I was sent 
to Albania along with four other Uighurs," Qassim said. He added:

Without my American lawyers and habeas corpus, my 
situation and that of the other Uighurs would 
still be a secret. I would be sitting in a metal 
cage today. Habeas corpus helped me to tell the 
world that Uighurs are not a threat to the United 
States or the West, but an ally. Habeas corpus 
cleared my name-and most important, it let my 
family know that I was still alive.

Rasul v. Bush was a 6-3 decision. Justices 
Stevens, Souter, Ginsburg, Breyer, O'Connor and 
Kennedy voted with the majority. The dissenters 
were Justices Scalia, Thomas and Rehnquist.

I predict the Supreme Court will reverse the 
Court of Appeals decision in Boumediene, probably 
in a 5-4 vote with Chief Justice Roberts and 
Justice Alito voting with the dissent. I doubt 
whether the Court will decide that Bush has 
succeeded in placing the detainees beyond the 
reach of our federal courts by sending them to 
Guantánamo. It will likely decide that the 
Combatant Status Review Tribunals do not provide 
an adequate substitute for constitutional habeas corpus.

Marjorie Cohn is a professor at Thomas Jefferson 
School of Law, president of the National Lawyers 
Guild, and the U.S. representative to the 
executive committee of the American Association 
of Jurists. Her new book, Cowboy Republic: Six 
Ways the Bush Gang Has Defied the Law, will be published in July.

This article originally appeared on the <http://jurist.law.pitt.edu/>Jurist.

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