For most of 2008, the media's interest in Guantánamo
has focused not on the majority of the 273 prisoners who are still held there
without charge or trial and largely unknown to the outside world, but on the
13 who have been plucked from the grinding obscurity of indefinite detention
to face trial by "military commission," an innovation unrelated to
either the U.S. courts or the U.S. military's own judicial processes that was
conceived in November 2001 by Vice President Dick Cheney and his close advisers.
I have written at length about the stumbling progress of the military commissions,
most recently here,
where I ran through the problems that have beset the proposed trials in the
last month alone. These include boycotts by the prisoners themselves and the
sudden and unexplained decision to drop charges against Mohammed al-Qahtani,
one of six prisoners initially charged
in connection with the 9/11 attacks. This was almost certainly because he,
unlike the others, was tortured not in a secret prison run by the CIA (who
cannot be compelled to provide evidence to the commissions), but in Guantánamo
itself, where no such exclusions apply.
The setbacks in the last month also include a blistering attack on the system
by Col. Morris Davis, the former chief prosecutor of the commissions, who accused
his superiors of pressing ahead with politically motivated trials and of seeking
to allow evidence obtained through torture, which, he pointed out, were destroying
the trials' credibility. So persuasive was Davis' testimony (in the case of
Salim Hamdan, a Yemeni who was once one of Osama bin Laden's drivers), that
on May 9, the judge in Hamdan's case, Navy Capt. Keith Allred, prohibited Davis'
former boss, Brig. Gen. Thom Hartmann, from playing any further part in Hamdan's
All these setbacks reflect badly on the integrity of the commissions, of course,
but until last Friday, discussions about the role of the Supreme Court in determining
the prisoners' status had been overlooked. This was understandable in one way,
as it is now nearly eleven months since the Supreme Court decided
to look once more at the prisoners' rights (along the way reversing itself
for the first time in 60 years), but was completely incomprehensible in another,
as the Supreme Court's pending decision has been the elephant in the room since
last December, when former Solicitor General Seth Waxman (for the prisoners)
and the soon-to-retire
current Solicitor General Paul Clement (for the government) presented
their cases in what was rightly billed
at the time as "the most important habeas corpus case in modern history."
Throughout this year, therefore, those who have been following developments
at Guantánamo have been aware that a crucial decision has to be made
before the Supreme Court's current session ends in the summer. However, it
was not until Allred spoke up on Friday, following on from his recently established
notoriety with regard to Hartmann, that the justices were once more pushed
back to center stage.
Postponing the start date for Salim Hamdan's trial from June 2 to July 21,
Allred stated that this will give the prosecutors and defense "the benefit
of a decision that may well change the tenor or conduct of the trial,"
as the Associated
Press reported. He added that a delay will avoid the "potential embarrassment,
waste of resources, and prejudice to the accused," if, as the AP put it,
"the Supreme Court ruling forces a halt to the proceedings mid-trial."
While Andrea Prasow, one of Hamdan's lawyers, said that the defense team was
"very pleased that the judge agrees that all parties will benefit from
the Supreme Court's guidance regarding the applicability of the Constitution
to detainees held at Guantánamo," it was more noticeable that Allred
had, for the second time in a week, humiliated the government simply by taking
his job seriously. It appears, moreover, that he has been studying his calendar
closely, as he is more aware of the cycles of Supreme Court decisions than
Although subsequently rebuffed by the executive and Congress, the Supreme
Court has twice delivered rulings that have dealt severe blows to the administration's
credibility at the end of June.
On June 26, 2004, in Rasul v. Bush, the first challenge to Guantánamo
that made it to the Supreme Court, the justices ruled 6-3 that the prisoners
had habeas corpus rights – in other words, the right to challenge the legal
limbo in which they were held – and demolished along the way the executive's
long-cherished belief that Guantánamo did not count as U.S. territory,
and was therefore beyond the reach of the U.S. courts.
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 non-citizens
in U.S. 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."
The second Supreme Court decision, on June 29, 2006, was just as significant,
and the identity of its plaintiff was certainly not lost on Allred. In Hamdan
v. Rumsfeld, the justices ruled 5-3 that the military commissions were
illegal under U.S. 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."
On both occasions, the executive managed, one way or another, either to neutralize
or otherwise dilute the Supreme Court's decision, confirming that the nation's
leaders (and Dick Cheney in particular) believed that the executive branch
of government was beyond the law – or, at least, had the right to redefine
the law without necessarily being answerable to either Congress or the judiciary.
Although lawyers were finally allowed access to the prisoners, and were enabled
to begin filing habeas petitions, the executive behaved as though these were
minor irritants rather than fundamental reforms of the existing system.
Within a month of the decision in Rasul v. Bush, military reviews –
the "combatant status review tribunals" – were introduced to justify
the prisoners' continued detention without charge or trial. Empowered to rely
upon secret evidence – including hearsay and information obtained through torture,
coercion, and bribery – the tribunals, which also prevented the prisoners from
being represented by lawyers, were, as former insider Lt. Col. Stephen Abraham
last year, manifestly unjust, consisting of information that was, for the most
part, generalized, generic, and badly-researched, and was, moreover, primarily
designed to rubber-stamp the administration's prior designation of the prisoners
as "enemy combatants" without rights.
While the tribunals – and their equally unjust successors, the annual "administrative
review boards" – were busy behaving in a parallel world to that conceived
by the Supreme Court, the executive then turned to Congress in an attempt to
nullify the justices' ruling in Rasul, hijacking the Detainee Treatment
Act (DTA) of 2005, an anti-torture bill proposed by Sen. John McCain, by not
only excluding the CIA from legislation designed to prevent the use of torture
by U.S. forces, but also, through a peculiarly aberrant amendment to the bill,
managing to strip the Guantánamo prisoners of their right to file habeas
The executive's response to the ruling in Hamdan v. Rumsfeld was even
swifter. Perhaps perturbed that Justice Anthony Kennedy had warned that "violations
of Common Article 3 are considered 'war crimes,' punishable as federal offenses,
when committed by or against United States nationals and military personnel,"
the executive responded to the implications of the justices' ruling by removing
14 "high-value detainees" from the CIA's secret prisons and transporting
them to Guantánamo in September 2006, and then pressed Congress to revive
the commissions in the Military Commissions Act, which, for good measure, contained
provisions designed to prevent the executive – or any of its agents – from
ever being prosecuted for war crimes, and also reinforced the habeas-stripping
terms of the DTA.
It remains to be seen what the Supreme Court will decide in its third ruling
on Guantánamo, which, unlike Rasul and Hamdan, appears
to be too close to call. The hope of all those who are shocked by the seemingly
unending legal limbo in which the majority of the Guantánamo prisoners
are held is that the Supreme Court will tackle both the excesses of the executive
and the shortcomings of Congress by ruling that the prisoners have constitutional
habeas corpus rights.
Whatever the eventual outcome, however, Allred is to be commended for not
only reminding the world that a Supreme Court decision is expected imminently,
but also for reflecting on its importance, and applying it, correctly, to halt
the rush to justice – or rush to injustice – that typifies those driving the
military commissions toward hoped-for conclusions.
I doubt that he's a popular figure in either the White House or the Pentagon
at present, not just for postponing Salim Hamdan's trial, but also because,
in response to his ruling against Hartmann, lawyers for the five "high-value
detainees" in the planned 9/11 trial have taken his lead to complain that
the date set for their clients' arraignment – June 5 – is unduly premature.
On Monday, Army Maj. Jon Jackson, the lawyer for Mustafa al-Hawsawi, who is
accused of helping to finance the 9/11 attacks, sought to delay Hawsawi's arraignment,
arguing, as the Associated
Press described it, that he has only met his client twice, that he "has
been barred from discussing those meetings with his assistant defense counsel,
Navy Lt. Gretchen Sosbee, because the military has not yet given her security
clearance," that he "has not received any potential evidence against
al-Hawsawi supporting charges that 'allege a complex conspiracy spanning several
years,'" and that he and the other defense lawyers "have no place
to store work product, discuss classified material, or prepare for their case
while in Cuba," because, as the AP put it, "construction of a secure
facility in Washington – which was to have been completed by the end of 2007
– has not even begun."
In the days to come, details of other lawyers' challenges will no doubt be
made public, but for now it's worth noting that Capt. Allred's interventions
are a shining example of one component in the system of checks and balances
that is supposed to ensure justice in U.S. society – the judiciary, albeit
in an unlikely venue – acting as a necessary restraint on both Congress and