Blog
Detention & Habeas Corpus
By Jonathan Hafetz – 04/04/07
*Cross-posted from Balkinization
The Supreme Court this week narrowly declined to hear the habeas appeals of the Guantánamo detainees. The detainees had sought review of the D.C. Circuit's decision detainees in Boumediene v. Bush and Al Odah v. United States, upholding the jurisdiction-stripping provisions of the Military Commissions Act of 2006 (MCA). In a joint statement respecting the denial of certiorari, Justices Stevens and Kennedy explained that the detainees should first exhaust their remedies in the D.C. Circuit available under the Detainee Treatment Act of 2005 (DTA). It is too early to assess the long-term impact of the certiorari denial and, as Marty Lederman points out in his excellent summary similar challenges are expected to reach the Court through DTA petitions. Still,
the Court's refusal to hear the cases provides a window into some
troubling legacies of the Guantánamo detainee litigation.
Nearly three years have passed since the Court handed down Rasul v. Bush,
ruling that Guantánamo detainees have the right to habeas relief and
directing district courts to consider their petitions in the first
instance. Though the Court also suggested in Hamdi v. Rumsfeld, decided the same day as Rasul,
that a lawfully constituted military tribunal might provide this
inquiry in the narrow circumstances of a traditional combatant captured
on an actual battlefield (citing, for example, standard hearings
provided under U.S. army regulations), where no such process was
provided, habeas was expected to fill in the gap. Yet, Rasul has become an increasingly distant memory: as much time has passed since Rasul as between Rasul and the arrival of Guantánamo's first prisoners in January 2002. And still no detainee has had anything approaching his day in court.
It is difficult to see a principled basis for exhaustion, especially after more than five years of detention without charge. As the dissent
from the certiorari denial explained, the D.C. Circuit has already held
that the detainees have no constitutional rights, period. So,
until that ruling is reversed by the Court, the underlying Combatant
Status Review Tribunal (CSRT) process that the D.C. Circuit reviews
under the DTA need not comply with basic constitutional safeguards,
including the right to see the government's evidence, to the assistance
of counsel, to be free from detention based on evidence gained through
coercion, and to compel production of exculpatory evidence.
The
Court's refusal to hear the detainee cases highlights the continuing
absence of meaningful review in the new system of indefinite executive
detention that has taken root in the so-called "war on terror." The CSRT, recall, was concocted nine days after Rasul to help avert district court hearings. It
is so deeply flawed that it would pose a challenge for any court to
uphold under even a crimped due process analysis. (Since the D.C.
Circuit found the detainees had no Fifth Amendment rights, it was
relieved from having to try.). The DTA and MCA, in turn, sought to eliminate the basis for those hearings under the habeas statute, described in Hamdi as providing a "skeletal outline" for adjudicating the factual and legal basis for a prisoner's confinement. What
habeas provides – and what the administration most fears – is the
possibility that a federal judge will examine whether a detainee is
actually an "enemy combatant" (even under the CSRT's virtually
limitless definition), an inquiry that, in many cases, would require
assessing whether any statements were wrung by coercion from the
petitioner or from another detainee.
The Court's refusal to hear appeals in Boumediene and al Odah, then, marks
merely the latest chapter in the United States' ongoing failure to
provide a fair and lawful process to those it imprisons. It
is this failure that has made Guantánamo a lightening rod for criticism
and prompted calls for its closure at home and abroad. (Matters reached
a new low in recent weeks with the nakedly political deal struck in the David Hicks case,
the first "conviction" by Guantánamo's military commission, and by the
release of CSRT records redacting allegations of torture in the name of
"national security"). To be sure, the courthouse doors still remain open to the Guantánamo detainees. But it is difficult to see what it is to be gained by subjecting detainees to more delay and to a process intended, as one MCA supporter put it, to "get the lawyers out of Guantanamo." Guantánamo was designed by the Executive to create a prison beyond the law. The
record of the other two branches in coming to grips with the fall-out
from this ill-advised decision has been disappointing at best,
resulting in the human rights debacle that Guantánamo has come to
symbolize.
Tags: Justice, Liberty & National Security, Detention & Habeas Corpus
By Aziz Huq – 04/02/07
*Cross-posted from The Huffington Post
The Supreme Court this morning said that it would not review the
case of the Guantánamo detainees. Three Justices (Souter, Breyer, and
Ginsburg) voted to grant the detainees a hearing. But you need four
votes for a case to be heard (and five votes to win). Justices Kennedy
and Stevens issued a statement saying there was no reason to set aside
traditional rules that require "the exhaustion of available remedies as
a precondition to accepting jurisdiction over applications for the writ
of habeas corpus." What this means is that the detainees--many of whom
have been detained for more than five years without any form of
independent review--have been denied an opportunity to expeditiously
vindicate their constitutional rights.
Generally, when the
Court decides not to hear a case, this has little consequence. That is
not the case here. The Court's decision not to hear this case is a
major blow to human rights values. It leaves on the books a wretchedly
bad (and intellectually dishonest) opinion from the D.C. Circuit Court
of Appeals, and rewards the Administration's deeply nefarious strategy
of delay and obfuscation around Guantánamo.
Readers who haven't been following the rather complex chain of
litigation around Guantánamo may find some background helpful. The
first group of Guantánamo detainees arrived in Cuba in January 2002.
Some had been picked up off the battlefield in Afghanistan, but many
others had been handed in by Afghan or Pakistan allies, keen for the
$5000 bounty offered by the United States. None of them had been
screened through the battlefield hearings required by the laws of war
and the Geneva Conventions.
The Center for Constitutional Rights and a small group of private
lawyers filed habeas suits on the detainees' behalf, arguing that they
had a right to challenge the factual and legal basis of their detention
in federal court. The government, perhaps aware that many of its
detention decisions could not be defended, threw up a series of
barriers, arguing principally that Guantánamo lay outside the
jurisdiction of the federal courts. In 2004, the Supreme Court rejected
this argument, and it looked like the detainees would get their day in
court.
But the Government hadn't emptied its quiver. In short order, it
managed to finagle the passage of first the Detainee Treatment Act and
then the Military Commission Act, both of which purported to strip the
federal courts of power to hear the cases. In February this year, the
Court of Appeals in Washington DC held that the Military Commissions
Act had indeed done so. In an opinion that rested on a distorted and
partial view of history, the D.C. Circuit held that the Guantánamo
detainees had no constitutional rights. Hence, it dismissed their
five-year-old case.
That was the decision that the Supreme Court could have taken for
review. But didn't. The result? The detainees can have recourse to a
narrow and arguably insufficient channel of review left open by the
Detainee Treatment Act: But they must start from scratch with no
guarantee that the channel of review available will be meaningful--or a
sham.
(The question of how future challenges will proceed is complex. The
government successfully argued that review be confined to an appellate
court, which lacks the power to find facts and depends on the Army for
building a record. The best case scenario might be that the
Court of Appeals requires the military to restructure their
fact-finding procedures. But this is a long shot).
This is bitter news. It is deeply unfair and inflicts grave harms
today on the detainees. Five years after their first detention, many of
the detainees, I am told, are at the end of their psychological
tethers. There have been multiple suicide attempts. Given the endless
and the uncertainty of their confinement, this is hardly surprising.
Detention without end, often for no reason at all, is a kind of torture
(even if it doesn't meet the strict legal definition of that term).
I'm happy to field questions about the decision.
Tags: Justice, Liberty & National Security, Detention & Habeas Corpus, Domestic Counterterrorism
By Jonathan Hafetz – 03/16/07
*Cross-posted from The Huffington Post
The United States this week released the transcript of the military hearing for self-proclaimed 9/11 mastermind Khalid Shaikh Mohammed. Initial accounts in the New York Times and Washington Post
described the "confession of a top leader" and detailed Mr. Mohammed's
participation in a laundry list of terrorist plots. Yet, the confession
of Mr. Mohammed (or "KSM" as he is better known) comes as no surprise.
He has long claimed a leadership role in al Qaeda and in the 9/11
attacks, as the 9/11 Commission documented. The real story is not what KSM said but how much the administration is fighting to keep secret.
Although he has been
in U.S. custody for four years, KSM is one of Guantánamo's newest
detainees. In September 2006, he and thirteen, other "high-value"
terrorist suspects were transferred from secret CIA prisons or "black
sites" to Guantánamo. These CIA prisons were established to implement
various "enhanced interrogation techniques," the post-9/11 euphemism
for torture, and to preclude any possibility that a court would review
the actions of Executive branch officials. As Ron Suskind recounts in The One Percent Doctrine,
interrogators subjected to KSM to water-boarding, a technique that
simulates drowning, and threatened to rape and kill his family. Other "enhanced interrogation techniques"
included "cold cell," where prisoners are left to stand naked in a cell
kept near 50 degrees while they are doused with cold water, and "long
time standing," where prisoners are forced to stand, handcuffed and
with their feet shackled to an eye bolt in the floor for more than 40
hours.
The transfer of the 14 "high level" suspects to Guantánamo was prompted by the Supreme Court's June 2006 decision in Hamdan v. Rumsfeld.
Until Hamdan, the administration maintained that detainees were all
"unlawful combatants" in a global "war on terror," and thus fell
outside any legal protections. In Hamdan, the Supreme Court rejected
that position, ruling that al Qaeda members and other that suspected
terrorists are protected at least by Common Article 3 of the 1949 Geneva Conventions.
This provision establishes a baseline of protections for all detainees,
prohibiting torture, cruel treatment and other abuse. And, the federal War Crimes Act
made officials criminally liable for breaches of Common Article 3.
Faced with a rejection of the legal building-block of its CIA "black
sites," as well as the potential liability of government interrogators,
the President announced in a televised speech to the Nation that he was transferring the remaining secret prisoners to Guantánamo. He then engineered passage of the Military Commissions Act of 2006,
which amended the War Crimes Act to help shield CIA and other officials
from prosecution for past abuses while stripping the federal courts of
habeas review over the cases of detainees held as "enemy combatants" at
Guantánamo and elsewhere.
Since then, secrecy has dominated the treatment of KSM and the
other ex-ghost detainees, just as it has pervaded the detention of the
more than 700 hundred other individuals held at Guantánamo since
January 2002.
To begin with, the Combatant Status Review Tribunal hearings (or
"CSRTs") of these detainees are closed to the press. Ironically, the
military permitted the press to attend the CSRT hearings for Guantánamo
detainees in the past. One would have expected the military to want the
hearings of the "biggest fish" at Guantánamo to be open to the public
to demonstrate the strength of its evidence. And, it is precisely in
such cases, that the public's interest to know is strongest. But,
apparently, that calculus is different when evidence has been gained
through torture.
In any event, opening KSM's CSRT to the press would not have solved
the problems of excessive secrecy nor of the kangaroo-court nature of
the CSRTs themselves where detainees have no lawyer or right to see the
evidence against them. KSM's transcript is heavily redacted because his
descriptions of torture and mistreatment were all deemed classified.
The publicly available record thus contains no discussion of
water-boarding, death threats, or other coercion.
This type of excessive secrecy is hardly unique. In another case,
the government has sought to bar the detainee (Majid Khan) from
discussing his interrogation at a CIA prisons with his own lawyer.
Merely talking about torture, the government's argument goes,
jeopardizes national security (even though the government's use of
coercive interrogation tactics is no longer a secret). Avoiding
embarrassment by suppressing discussion and debate about past
illegality contradicts the essential principles of openness and
accountability upon which a democracy depends.
Yet, there is another, more pernicious consequence to suppressing
the truth. KSM explained at his CSRT hearing that he falsely implicated
other detainees as a result of his abuse. These statements are
corroborated by those of CIA officials who, according to Suskind, say
that KSM later recanted prior statements made under duress. Notably,
Mohammad al Qahtani, a Guantánamo detainee subjected to prolonged sleep
deprivation, sexual and religious abuse, the use of painful stress
positions, and other abuses reportedly implicated 30 other detainees
during his interrogations. How many detainees are being held based upon
statements made by KSM, al Qahtani, and others that were obtained by
torture? If the administration has its way, we will never know because
CSRT procedures deny detainees the right to see the evidence, call
witnesses, or otherwise demonstrate they are being wrongly held based
upon information gained by the rack and the screw.
Reliance upon evidence gained by torture violates our most basic principles. As the Supreme Court put it,
imprisoning people based upon coerced statements is "offensive to a
civilized system of justice." It is also inherently unreliable because
we know from centuries of experience stretching back to the middle ages
that prisoners make false statements to avoid extreme physical or
mental pain. Indeed, that is precisely why U.S. army guidelines
- ignored by this administration - prohibit coercive interrogation
techniques, explaining that such techniques "induce the source to say
whatever he thinks the interrogator wants to hear."
Clearly, the American public cannot expect the administration to
come clean about who it is detaining and why. That is precisely the
reason federal courts must retain their historic power to inquire into
the facts through the Great Writ of habeas corpus. Later this month,
the U.S. Supreme Court will decide whether to review a recent decision by a federal appeals court
[pdf] in Washington, D.C. upholding the recent elimination of habeas
corpus for Guantánamo detainees. Unless these court-stripping
provisions are invalidated, and habeas corpus is preserved, America
will for the first time have sanctioned imprisonment based upon
torture. No nation committed to human rights and the rule of law can
accept that result.
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
By Jonathan Hafetz – 12/19/06
*Cross-posted from
The Huffington Post
Last week, a district judge in Washington dismissed the case of Guantanamo Bay detainee Salim Hamdan. In June, Hamdan won a landmark Supreme Court decision
striking down President's jerry-rigged system of military trials at
Guantanamo. Now, thanks to a new law stampeded through Congress in
October, Hamdan cannot even get into court. This decision should alarm
all Americans who care about their country's most basic rights and
values.
The fate of the
remaining 400 prisoners at Guantanamo - now entering their fifth year
in detention without charge - hinges on how other courts interpret this
new law, known as the Military Commissions Act of 2006
("MCA"). Most significantly, the act purports to eliminate these
prisoners' right to habeas corpus simply because the President has
concluded they are "illegal enemy combatants." If appeals courts agree
with the district judge's decision, these prisoners will face potential
life sentences without a judicial hearing, let alone a trial, to
determine their guilt or innocence.
The MCA's harm threatens to spill beyond Guantanamo. The President
has taken the radical position that he can now deprive non-citizens
living in this country of their right to habeas corpus. In his view,
the military can snatch any of the millions of immigrants off the
streets of the United States at any time and jail them forever without
charge or court review. For the first time in the Nation's history,
those who live and work among us can be vanished, just like in a Latin
American dictatorship.
More though is at stake than the fate of individual detainees.
Habeas corpus embodies America's commitment to justice and fairness,
essential principles endangered by the siren call of "national
security."
Why then does the President want to get rid of habeas corpus?
Because for the past five years habeas has provided the one meaningful
check on his power to detain and interrogate suspected terrorists
outside the law.
Long celebrated as the Great Writ of Liberty, the Framers made habeas corpus "the bulwark" against arbitrary government
in our Constitution. The Great Writ has the power to unmask and reveal
abuses of power not through lawyers' arguments but through the power of
a judge - as the phrase habeas corpus or "you have the body" suggests -
to order a prisoner be produced for a hearing to inquire into the
facts.
Habeas, then, is not a get-out-of-jail free card. Instead, it
protects what most Americans rightly understand as justice: the
opportunity for all prisoners to be judged, fairly and openly, in a
court of law.
To be sure, the President claims that Guantanamo detainees are "the
worst of the worst." But, if that is true, why has the President has
not produced any evidence to sustain these allegations? No person
detained as an "enemy combatant" has ever testified in a federal court,
and the administration has thus far successfully blocked hearings in
the hundreds of habeas cases filed since the Supreme Court ruled in 2004
that federal courts must hear the detainees' petitions. Indeed,
whenever confronted with the prospect of meaningful court review, the
administration has chosen to free prisoners rather than face a judge's
scrutiny of its detention operations.
In place of habeas, the administration says determinations must be
made by a Combatant Status Review Tribunal ("CSRT"). The CSRT, however,
merely rubber-stamps decisions made by the Defense Department,
imprisoning people based on secret evidence and evidence gained by
torture. According to a recent report
by Seton Hall law school, most detainees were found to be "enemy
combatants" based on evidence they never saw or had any chance to
respond to. Instead of an attorney, detainees were given "personal
representatives," military officers who typically meet with them once
for 10 minutes before their hearing. In America, a person gets more due
process when he contests a parking ticket than a Guantanamo detainee
gets to prove his innocence before he is condemned to years, if not
decades, of imprisonment.
Often, it is the graphic image that galvanizes the public's
attention, whether it is the picture of a human pyramid of prisoners at
Abu Ghraib or of Jose Padilla in blacked-out goggles at a South
Carolina navy prison. But, perhaps the worst form of torture
perpetrated since September 11, and the one habeas corpus is designed
to prevent, is indefinite imprisonment without charge. Unlike convicted
criminals, individuals detained as "enemy combatants" at Guantanamo and
elsewhere have not been tried or sentenced. They do not know when, if
ever, might be released or charged with a crime. Instead, they remain
in perpetual limbo in an amorphous and never-ending "war on terrorism,"
without access to the courts and isolated from family and the rest of
the outside world.
Fortunately, there is a rising tide of support for habeas corpus
from across the political spectrum. Conservative legal scholars have
joined liberals in opposing limits on habeas corpus. Former federal prosecutors, including former Attorney General Janet Reno, have also denounced the administration's policy of illegal detentions. Meanwhile, the television program Sleeper Cell
has dramatized the creeping horror of time spent in isolation for
millions of Americans. There is a growing sense, then, that
administration has gone too far, alienating even some of its staunchest
supporters, by imprisoning people without access to the courts.
Habeas corpus protects freedom and justice - values that cross party lines. As the Supreme Court explained,
habeas helps maintain the "delicate balance of governance" by "serving
as an important judicial check on the Executive's discretion in the
realm of detentions." With the administration's "war on terrorism" well
into its sixth year, it is essential that the courts and Congress
preserve this proud legal tradition from extinction.
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
By Aziz Huq – 11/25/06
*Cross-posted from The Huffington Post
Tomorrow, a German
man arrives at John F. Kennedy international airport. This seemingly
unremarkable event is in fact a moment of personal bravery that ought
to spur national contrition.
Khaled E-Masri, the
arriving German national, tried to come to the United States once
before. When he arrived, he was hauled aside, imprisoned, and then
promptly deported back to his home in Germany.
His crime? Being a danger to the United States? On one of the
federal government famous (and multitudinous) watch lists? Hardly.
Khaled El-Masri was declined entry because he had been mistakenly
kidnapped by the United States in 2003, taken to a U.S. base in
Afghanistan, brutally interrogated, and detained long after the
government--at its highest levels--knew him to be wholly innocent of
any wrongdoing, or even tangential connection to terrorism. Khaled
El-Masri was refused entry because he was an embarrassment: A public
symbol, renowned across the world outside American borders, of the
wretched consequences of America's "extraordinary rendition" policy.
Despite Secretary of State Condoleezza Rice's promise that
intelligence errors would be addressed, and when necessary remedied
through the federal courts, Mr. El-Masri has been denied any meaningful
acknowledgment of his ordeal. While declining to comment on the
El-Masri case in particular, the American ambassador to Germany has
offered regrets for any mistakes that "may have been made." And the
German government reports that American officials tried to buy Mr.
El-Masri's silence, rather than acknowledging their terrible
incompetence.
The Bush Administration's approach to national security is one of
"take no prisoners, have no regrets." Claims of unfettered executive
power, after all, fit ill with the mounting evidence of incompetence
and sloppiness that the El-Masri case too acutely illustrates.
And since acknowledging its error would undermine its recklessly
unilateral vision of national-security policy-making, the
Administration is twisting other branches of government to hide its
sins.
If Mr. El-Masri is allowed to enter the United States he will have the chance to see his case argued in court. Lawyers from the ACLU
who represent Mr. El-Masri will argue on Tuesday before the United
States Court of Appeals for the Fourth Circuit that Mr. El-Masri is
entitled to a remedy for his nightmare. (Full disclosure: in my
capacity at the Brennan Center, I am counsel for a group of retired
American diplomats who have filed an amicus brief arguing that the
denial of a judicial forum to Mr. El-Masri causes grievous harm to
American standing in the world).
The ACLU lawyers in question are superlative--but they face an
uphill slog. The District Court denied Mr. El-Masri's case on national
security grounds before any discovery had began, and the Government
will argue that it was right to do so.
Before the (notoriously conservative) Fourth Circuit, government
lawyers will contend that any confirmation or denial by the United
States or its officials of the facts in Mr. El-Masri's case will harm
the nation's security.
This is despite the fact that Mr. El-Masri has told his tale to the
world's press without rebuttal from the United States. It is despite a
plethora of physical evidence--including chemicals found in Mr.
El-Masri's hair that prove he was taken to Afghanistan and flight logs
that confirm his tale. Despite the fact that another prisoner held in
Afghanistan has confirmed Mr. El-Masri's story. Despite the fact that
several other governments and the intergovernmental Council of Europe
are conducting active inquiries into his case. Despite all this, the
Government insists that to say one word about this most shameful of
public tales would undercut our collective well-being by violating
"state secrets."
The "state secrets" argument that the Government makes in the
El-Masri case has recently been rejected by three district courts in
litigation concerning the NSA wiretapping. In these case, judges
pointed out that Government cannot take a fact that is squarely in the
public domain and simply recharacterize it as "secret." The same logic
should allow Mr. El-Masri his day in court.
Indeed, the "state secrets" privilege has from its inception been
more about covering up government malfeasance and incompetence than it
has been about protecting national security. Historian Louis Fisher
has recently shown that the 1953 Supreme Court case in which the
government first successfully pressed the "state secrets" privilege
involved no real national security issue: Rather, the privilege was
used to conceal government incompetence that would have been the basis
of tort liability.
More recently, the Government invoked the state secrets privilege
last month in the case of Guantánamo detainee Majid Khan, arguing that
Khan not be allowed to talk to his lawyer because he might reveal the techniques used to interrogate him. State secrets, in other words, is a nice euphemism for "how we torture."
Imagine what it takes for Mr. El-Masri to get on a plane to the
United States--to the country that tore a months-long hole in his life,
that treated him as less than a human being, but something disposable,
something close to a nullity. He deserves better than this. He deserves
better than a "state secrets" argument that adds insult to the injuries
already inflicted, an argument that wrongly discards the human
entitlements of Mr. El-Masri, but also treats the American people, and
the broader world public, as fools and an irrelevance.
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
By Jonathan Hafetz – 10/04/06
*Cross-posted from Balkinization
One of the most significant aspects of the
Military Commissions Act of 2006 (“MCA”) is its repeal of habeas corpus
jurisdiction. Section 7 of the MCA eliminates habeas for 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.” Does this provision violate the
Constitution’s Suspension Clause?
Tags: Justice, Liberty & National Security, Detention & Habeas Corpus
By Jonathan Hafetz – 05/09/06
*Cross-posted from
ACSBlog
The Bush administration's blatant disregard for the legal process
has become so routine that almost nothing it does is surprising at this
point. Its most recent machination is to try to circumvent judicial
review in the case of two Uighurs, an ethnic group from western China,
detained without charge at Guantanamo. The men had been imprisoned for
more than four years even though the government concedes they are
"non-enemy combatants," or, in other words, innocent.
The case, Qassim v. Bush,
was scheduled for oral argument in the U.S. Court of Appeals for the
District of Columbia Circuit on Monday morning, May 8. However, late
the previous Friday afternoon the government moved to dismiss the case as moot, asserting that the two detainees in Qassim,
along with three other Uighurs, had been transferred to Albania for
resettlement as refugees. The government claimed its extensive efforts
to find a safe home for the Uighurs, who could not be returned to China
for fear of torture, had finally "come to fruition."
It is difficult to believe the timing of the release was
coincidental. It is far more likely that the government transferred the
Uighurs to avoid an adverse ruling and to insulate its conduct from
judicial scrutiny. A loss in Qassim would invalidate a key
aspect of the government's detention regime at Guantanamo and
reinforce the vitality of habeas corpus, which guarantees both the
right to test the lawfulness of a prisoner's detention and an
effective remedy where that detention is illegal. Further, the
government feared that the court might order the Uighur's release in
the United States where they could seek asylum, which, as Georgetown
law professor David Luban observes, is the least we owe them after four-plus years' wrongful imprisonment at Guantanamo.
If the government succeeds in mooting the Qassim case, the district's court decision
grudgingly upholding the Uighurs' continued detention would stand, and
the administration would remain free to indefinitely detain the next
group of non-enemy combatants. (There at least four more still in legal
limbo). In short, the system of detention-without-remedy at Guant√°namo
would remain intact.
Such last-minute ploys have become the modus operandi of an Executive branch bent on avoiding accountability for its detention and interrogation policy. In Hamdi v. Rumsfeld,
for example, the Supreme Court rejected the government's contention
that it could detain the petitioner, Yasser Hamdi, without due process,
and ordered that he be given a fair hearing. Then, when confronted with its hearsay allegations being tested in federal court, the government agreed to release Hamdi even though it had previously said he was a dangerous terrorist whose detention was crucial to national security.
More
recently, the government ducked Supreme Court review in the case of
Jose Padilla, an American citizen imprisoned by the military for
three-and-a-half years without charge. Just before its brief opposing
Padilla's petition for certiorari was due, the government announced it
had criminally charged Padilla and sought his transfer to civilian
custody. Even though the Court ultimately declined to review the
legality of Padilla's military detention, three Justices warned the government against any future manipulation of the legal process.
The Executive's attempt to avert a ruling in Qassim is thus part of an
all-too-familiar pattern of circumventing the checks and balances at
the heart of the Constitution. Sure, Congress still has the power to
pass laws, but the President consistently says those laws do not bind
him. As Charlie Savage of The Boston Globe recently reported, President Bush has issued signing statements claiming the authority to disobey more than 750 statutes
since he took office, far more than any predecessor. When taken to
court over its failure to follow the law, the administration simply
moots the case to prevent the Judiciary from invalidating its action.
This way, the President remains accountable to no one but himself.
The D.C. Circuit has granted a continuance of the oral argument in Qassim
to give the Uighurs' counsel an opportunity to investigate the
circumstances surrounding their clients' last-minute transfer to
Albania. But even if the Uighurs' release in Albania is unconditional
and consistent with U.S. obligations under international law (including
the Convention Against Torture), there are good reasons to avoid
dismissing the case on mootness grounds. Clearly, this is a situation
capable of repetition, yet evading review. The government can continue
to detain other concededly innocent detainees, forcing them to conduct
protracted litigation before shipping them off to another country at
the eleventh hour to avert a court order halting the illegal practice.
If that is how the government is permitted to operate, the bedrock
democratic principles of accountability and the rule of law will be
empty slogans.
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus
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