The George W. Bush administration's legal justification
for continuing to hold prisoners without charges at the US naval base at Guantánamo
Bay, Cuba will be back in the US Supreme Court yet again early next
And the decision of the nine justices could bring the entire administration's
detention policy down in flames or not.
On Dec. 5, the high court will hear oral arguments in a case known as Boumediene
v. Bush and al-Odah v. USA. Boumediene and al-Odah have been held in indefinite
executive detention at Guantánamo since 2002 without charge or trial.
Boumediene and al-Odah are Algerian-born Bosnian citizens who were detained
in Bosnia in 2001 on the basis of a diplomatic note delivered by the US embassy
in Sarajevo to the Bosnian government. Though the note did not allege any supporting
evidence, it asked the Bosnian government to arrest the men because of fears
that they were involved in a plan to attack the embassy.
After an extensive investigation yielded no evidence to justify the arrests,
the Bosnian Supreme Court ordered the men released for lack of evidence. But
they were then immediately arrested and transferred to Guantánamo.
Their case has been bouncing around the US courts ever since. Earlier this
year, after a series of lower court losses, the detainees sought review of their
case by the US Supreme Court. In April, the high court declined to review
the case. But two months later, in an unusual action taken only three times
since the founding of the United States, the Supreme Court reversed its own
decision, agreeing to hear the case the third time it will consider a case
concerning the rights of detainees.
The core issue before the court is whether the Military Commissions Act (MCA),
hurriedly pushed through the Republican-controlled Congress and signed into
law by President Bush in October 2006, violates the US Constitution by stripping
the courts of jurisdiction to consider habeas corpus petitions from the Guantánamo
The government will tell the high court that current law provides "a fully
adequate substitute for habeas corpus in this extraordinary wartime context."
Habeas corpus, or "The Great Writ," is one of the most fundamental
protections of individual liberty guaranteed by the US Constitution. It has
its origins in common law dating back to the time of the Magna Carta in 1215,
and is a remedy that protects fundamental human rights, including the right
not to be subjected to enforced disappearance, secret detention, arbitrary detention,
unlawful transfer, torture and other cruel, inhuman or degrading treatment,
and the right to a fair trial by an independent and impartial tribunal established
Several US presidents have suspended this ancient right, including Abraham
Lincoln during the US Civil War. But it has always been restored by the judicial
branch of government.
Embedded in the controversy over the Military Commissions Act is the legality
of executive bodies known as Combatant Status Review Tribunals (CSRTs), which
were established to determine whether the detainees held at Guantánamo
were "properly detained" as "enemy combatants." The CSRTs
were authorized by an order from the then Deputy Secretary of Defense Paul Wolfowitz
in 2004 some two and a half years after detentions began at Guantánamo.
Combat Status Review Tribunals consist of panels of three military officers
who can consider any information, including information that is hearsay, classified,
or that has been obtained under torture or other ill-treatment, in making their
determinations. The detainee, held thousands of miles from home (or any battlefield)
and virtually cut off from the outside world, does not have a lawyer or access
to any classified evidence used against him.
Critics charge that there is a presumption in favor of the government's information
presented to the tribunal.
"The current system of legal tribunals suggests a lack of independent
review, no guarantee of legal counsel, use of secret evidence that may be been
obtained through unlawful methods such as torture, and no meaningful way for
a defendant to confront the government's case against him," Mary Shaw of
Amnesty International USA told IPS. "It's a no-win situation."
The CSRTs were established following one of the Bush administration's major
legal defeats. In 2004, in a case known as Rasul v. Bush, the Supreme Court
ruled that the US courts had jurisdiction to consider habeas corpus petitions
filed on behalf of the Guantánamo detainees.
Brian J. Foley, visiting associate professor at Drexel University College of
Law, believes that the CSRTs serve "no purpose other than to expand executive
"The CSRT simply rubber-stamps the executive's earlier decision to imprison
and interrogate suspects, by making it practically impossible for a prisoner
to prove he is not an 'enemy combatant'," he said in an interview.
The administration's prisoner detention policies have suffered a number of
other legal setbacks. Arguably the most important case was known as Hamdan v.
Rumsfeld. In 2004, Salim Ahmed Hamdan, the captured and detained former driver
for Osama bin Laden, filed suit for a habeas corpus hearing in US court. In
2005, the Supreme Court ruled in favor of Hamdan.
The aggregate result of these various legal setbacks is that to date none of
the more than 300 detainees still held in Guantánamo has had his detention
reviewed in court. None of the over 400 detainees freed from the base to release
or further custody in their own or other countries was transferred by judicial
order. And there have been no trials of detainees. There has been one "conviction,"
based on a plea deal by an Australian detainee, who was quickly transferred
back to his home country.
The CSRT process has also come in for harsh criticism by an Army reserve officer
who served as a member of one such panel. In an affidavit, Lieutenant Colonel
Stephen Abraham said the process is deeply flawed, relying on vague evidence
prepared by poorly trained personnel, and is subject to undue pressure from
the military chain of command.
Under the Detainee Treatment Act (DTA), passed by Congress in 2005, judicial
review of CSRT decisions is limited to a single court, the US Court of Appeals
for the District of Columbia.
Many in the legal and human rights communities see the upcoming arguments as
potentially the first step in restoring one of the country's founding tenets
applying the rule of law even to those whose goal might be to destroy the
"If our detentions of enemy combatants are ever to be accepted as legitimate
by the rest of the world, we must be willing to conform our actions to basic
principles of due process and fundamental fairness," Prof. David Cole of
Georgetown University Law Center told IPS. "Thus far, we have failed."
Cole's view is echoed by Prof. Peter Shane of the University of Ohio Law School.
He told IPS, "When President Bush issued his November 2001 'Notice,' which
set in motion the military commissions at Guantánamo, the administration plainly
hoped that the approach would provide a rough-and-ready version of 'Adjudication
Lite' that, without anyone's interference, could provide the appearance of adhering
to the rule of law without treating too fastidiously the rights of Guantánamo
Marjorie Cohn, president of the National Lawyers Guild, expressed a similar
opinion. She told IPS that the Supreme Court should "determine that the
judicial review of the decisions of CSRTs do not provide an adequate substitute
for constitutional habeas corpus."
(Inter Press Service)