Blog
Detainee Policy
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.
Aziz Huq: "A Symbol of 'Extraordinary Rendition' Returns to the U.S." (pdf)
Tags: Justice, Liberty & National Security, Detainee Policy
By Aziz Huq – 11/14/06
*Cross-posted from The Huffington Post
Oversight is the rallying cry of the new Democrat Class of '06. But
there's a danger that the policy area most obviously in need of real
accountability - our domestic national security agenda - will get short
shrift in the rush to address the Iraq debacle.
Legislators moved quickly on Iraq. Legislation to revive the Special Inspector General for Iraq Reconstruction has already been flagged
for the lame-duck Congress. Inquiry into the myriad iniquities that
make out America's Iraq policy is a no-brainer for the new Congress.
And Rumsfeld's "resignation" is a sure sign that the Administration is
battoning down the hatches in preparation for some heavy weather.
While Iraq is of unquestionable importance, there's also a pressing
need for oversight on domestic security issues: How are our
intelligence agencies and military behaving closer to home? So far, too
little attention has been paid to this question.
For at least the past three years, the American public has been
hearing stories of torture, the "extraordinary rendition" of suspects
to torture, disappearance, detention, and warrantless surveillance. But
to date, Congress has conducted no substantial inquiry into the full
facts around any of these policy areas. In consequence, the executive
branch has been able to control the narrative.
For example, with respect to torture, a plethora of internal
executive branch investigations have produced fragmentary, and likely
misleading, reports on the connection between political appointees in
Washington, who developed legal justifications for torture, and
interrogators out in the field, who put those justifications into
practice. There is a need for sustained oversight that goes beyond the
current quagmire in Iraq. We need to know not only how we have gone
wrong - and violated core individual rights - of innocent men and women
over the past five years, but also how we can avoid those same mistakes
in the future.
This oversight is especially important because the policies at issue
- torture, "extraordinary rendition," wiretapping - were fashioned
without congressional input or oversight: So they will likely continue
unabated, with the attendant harms this causes, until Congress steps in.
At a minimum, we need serious and substantial inquiries soon into the following topics:
- The activities of all military intelligence
gathering agencies in the United States. It's not just the NSA we need
to worry about. Several months ago, Walter Pincus of the Washington
Post wrote a series of superlative articles about a military agency
called CIFA, or the "Counter-Intelligence Field Activities." This
agency had been collecting reams of data on civilians in the United
States, including anti-war protesters. There has never been a full
accounting of CIFA's role or responsibilities - let alone the kind of
synoptic overview of what military intelligence is doing in the United
States, which the American public are long overdue.
- The actual interrogation policies of the CIA, and any
military intelligence agencies that are engaged in detention and
interrogation policies. Startling, the White House continues to resist
disclosure of even the most generic documents on this matter, documents
whose disclosure poses no risk of compromising national security. For
example, there is an August 2002 Justice Department memo, a sibling to
the infamous "torture memo" of the Office of Legal Counsel, which
analysis a series of specific interrogation tactics (Waterboarding?
Cold cell? "long time standing"? Is this where the Vice President gets
his impression that waterboarding is just dandy--and legal?). Did the
Justice Department find these tactics all legal? Ethical? Did it even
ask the ethical question? We don't know until we see the memo and see
how it was operationalized.
- Our relations with foreign intelligence
agencies: The Who's, the What's, and the How's. It is by now clear that
the United States maintains standing relationships with the world's
most brutal and anti-democratic intelligence agencies, including
Syria's, Egypt's, and Jordan's. There has been virtually no disclosure
- and scant public debate - about what we are doing supporting the
least democratic elements in countries we are supposed to be supporting
democracy in.
These are the tips of the proverbial iceberg. Finding out how deep
the iceberg runs is the task of oversight. It's about time we started
getting some answers.
Aziz Huq: "Who Watches the Home Front?" (pdf)
Tags: Justice, Liberty & National Security, Checks & Balances, Detainee Policy, Privacy & Profiling
By Aziz Huq – 10/06/06
*Cross-posted from The Huffington Post
Two weeks ago, the White House led a chorus baying for the blood of
anyone who stood in the way of the President's Military Commission Act
stood in the way of defending America. After five years' inaction on
detainees and interrogation issues, the White House discovered a need
for speedy action. But a week after the House and Senate voted on the
bill, the enrolled bill is still sitting on President Bush's desk... No
law has changed--yet. As thousands hit the streets to protest
Congress's endorsement of cruel and inhumane interrogation techniques,
and detention without end, it's worth asking: Why the delay? What does
it tell us about the legislation, or the upcoming election campaign?
First and foremost,
the delay illustrates a simple fact: There was no pressing need to act.
The only pressing need driving enactment of the Military Commissions
Act--with its frontal assault on rules against torture, indefinite
detention, and fair trials--was the prospect of November elections.
The Administration pointed to two pressing needs in its campaign for
the legislation: First, it wanted President Bush's "program" of
coercive interrogations in secret CIA prisons around the world to go
forward. Second, it wanted trials by new military commissions for those
held at the Guantánamo Bay to begin again.
But were either of these needs in fact pressing? The Administration's own behavior suggests not.
A senior intelligence official quoted in the Washington Post
explained that "there is no one in CIA custody today" who could be
subject to the coercive techniques allowed by the Act. Setting aside
the question whether torture works as a means of securing accurate
intelligence--it doesn't--it thus appears that the CIA is not now
holding anyone who might have information to prevent an incipient
attack. Like many previous announcement about incipient terrorist
threats, the timing of the White House's warnings had more to do with
politics than threat predication.
The idea that there's a pressing need to begin military commissions
is even more transparently false. According to Defense Department
spokesman Bryan Whitman, no trials are imminent. It will take at least
until next year to rewrite rules, assign judges, and make the necessary arrangements for trials.
This legislation, in other words, had nothing to do with an
immediate need. Instead, we now have repeated confirmation that the
Administration, when confronted by real evidence of threats to American
civilians, has simply failed to act. From the aching minutes that
President Bush first took to register and respond to the news of the
9/11 attacks to the painful and disastrously inadequate response to
Katrina, this Administration's record speaks for itself.
Recent revelations confirm this. Bob Woodward's new book State of
Denial thus exposed the fact that CIA chief George Tenet and Cofer
Black (who faced off against bin Laden in Sudan) warned Condoleezza
Rice in the starkest terms of the looming assault--in a meeting the
Secretary of State cannot even recall.
Woodward's revelation echoes Ron Suskind's account in The One-Percent
Solution of the CIA's desperate effort to warn President Bush in August
2001 of the impending crisis--only to be completely blown off by the
vacationing Chief Executive.
Repeatedly, we learn that our leaders failed to respond to the
threats. Repeatedly, these same leaders are all too ready to conjure
those same threats for narrow, partisan purposes untethered from the
true security needs of the nation.
This year's election season will bring a slew of claims and
counter-claims about who is "toughest" on national security. But
there's little point in hanging tough if you are facing the wrong way.
The Military Commissions Act that sits on President Bush's desk is the
worst sort of political showmanship: For reasons I have explained earlier,
it will do little to keep us safer in the face of any imminent threat.
It is rather a naked attempt to distract us from the gamut of real
problems that today go unaddressed by haphazard, heavy-handed, and
ineffectual executive branch approaches to national security.
Aziz Huq: "Hurry Up and Wait: The Torture Legislation and the November Elections" (pdf)
Tags: Justice, Liberty & National Security, Detainee Policy
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, Detainee Policy
By Jonathan Hafetz – 05/09/06
Cross posted from the American Constitution Society
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 Guantanamo 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.
Jonathan Hafetz: "The Runaway Executive: Trying to Escape Accountability Once Again" (PDF)
Tags: Justice, Liberty & National Security, Detainee Policy
By Aziz Huq – 04/06/06
*Cross-posted from The Huffington Post
A federal district
court in Washington, DC yesterday issued the first judicial
interpretation of the Military Commissions Act of 2006 in the very same
legal case that the Supreme Court ruled on in June.
The case is Hamdan v. Rumsfeld,
in which one of the Guantánamo detainees challenged the President's
November 13, 2001 executive order creating deeply unfair "military
commissions" to try allegations of war crimes. The detainee, Hamdan,
won in the Supreme Court.
The President's response, on September 6, was to urge Congress to
enact a new statute that established anew military commissions and, oh,
by the way, terminated detainees' rights to mount meaningful challenges
to their detentions and trials by these new commissions. A pre-election
Congress, cowed by the prospect of the kind of attack-ads that dogged Max Cleland in 2002,
representatives of both parties almost fell over themselves in the
haste to curtail detainees ability to enter court and make the simple
claim that they had been picked up by mistake.
Yesterday, on remand from the Supreme Court, Hamdan's claims are being booted out of court.
Yesterday's ruling will only be the first move in a complicated
series of judicial opinions that explore the consequences of Congress's
sweeping effort at jurisdiction-stripping: The courts will have to
plunge into detailed debates about the origins and consequences of the
Constitution's Habeas Suspension Clause;
they will have to decide complex issues of retroactivity; and they will
have to make fine-grained distinctions about the nature and scope of
the United States' international law obligations.
It's noteworthy the congressional sponsors of these
jurisdiction-stripping efforts, such as Senator Lindsay Graham, argued
that federal court review needed to be cut short because it imposed
unnecessary costs and delay. Quite the opposite will be true: The
legislation in fact forces courts into direct confrontation with some
of the most intractable issues of constitutional law. The law will be
in litigation for years to come, a Jarndyce v. Jarndyce for the post-9/11 era.
In Hamdan yesterday, the district court held that Hamdan
lacks a "substantial connection" with the United States. By way of
explanation, Hamdan was captured in the course of U.S. military
operations in Afghanistan--not, notably, on a battlefield; indeed, his
detention is hard to justify in terms of the traditional laws of war.
The court recognized that "Hamdan's lengthy detention beyond
American borders but within the jurisdictional authority of the United
States is historically unique." Indeed, this is the first time in
American history that the nation has established a global system of no-process seizure and detention. And it is the first time we have swept up individuals not only off foreign battlefields, but also from countries that neighbored
the battlefield, and claimed the authority to hold them without any
process whatsoever--indeed without even bothering with the abbreviated
battlefield hearings used since World War II to determine whether a
person has been correctly picked up.
The role of the federal courts has historically been to apply the fundamental principles enshrined in the federal Constitution--first
principles of equality and liberty--to shifting circumstances. Fidelity
to the Constitution, that is, does not mean a slavish and mechanical
devotion to tests and doctrines devised for other ages: It means asking
what the deep-rooted principles and values that the nation holds dear,
and that were embodied at the Founding.
Yesterday's ruling from the Washington district court does leave
Hamdan with no redress, but it may well eliminate his opportunity to
make a meaningful showing that he was wrongly picked up. As the rest of
the world looks at Guantánamo and asks why it is the United States
seems determine to keep holding literally hundreds of people who may
well have absolutely no connection to terrorism, it is worth asking
ourselves quite how the nation's first principles are being respected
and advanced by today's ruling.
Aziz Huq: "The First (and Quite Bad) Legal Interpretation of the Military Commissions Act of 2006" (pdf)
Tags: Justice, Liberty & National Security, Detainee Policy
By Jonathan Hafetz – 03/30/06
*Cross-posted from ACSBlog
On March 28, the Supreme Court heard arguments in the high-stakes
legal challenge to the military commissions established by the
President to try suspected terrorists at Guant√°namo. The case, Hamdan v. Rumsfeld,
raises a plethora of complex questions of constitutional, military, and
international law. If Petitioner Salim Ahmed Hamdan wins, which he
should, it will not just be because he is right on the law. It will
also be because the administration has offended deeply rooted values in
its continuing quest for unchecked executive power.
Judicial Independence. The threshold question in the case
is whether the Supreme Court still has the power to hear Hamdan's
appeal in light of the recently enacted Detainee Treatment Act of 2005
("DTA"). That act purports to eliminate jurisdiction over habeas corpus
petitions filed by detainees at Guantanamo, while providing for
limited review of "final decisions" of military commissions. Hamdan
argues that Congress did not divest the Supreme Court of jurisdiction
over his case and, moreover, could not do so without raising a serious
constitutional problem under the Suspension Clause.
The Supreme Court has resisted previous assertions of executive power that threaten its jurisdiction. In Rasul v. Bush,
decided almost two years ago, the Court squarely rejected the
government's claim that federal courts lacked habeas jurisdiction over
detentions at Guantanamo. It affirmed that detainees there, including
Hamdan, have the right to test the legality of their confinement.
After Rasul, a district court granted Hamdan's challenge to
the military commissions. The District of Columbia Circuit reversed
that decision. Then, two days after the Supreme Court announced it
would hear Hamdan's appeal, Senator Lindsey Graham, with the Bush
administration's backing, introduced legislation in Congress intended
to strip the Supreme Court of jurisdiction over the case. The ensuing
skirmish evoked the specter of Ex parte McCardle, a much-criticized Reconstruction-era case in which Congress eliminated the Court's jurisdiction over a pending habeas appeal.
The
legislation that emerged, while not a model of clarity, supports the
conclusion that Congress did not intend to eliminate habeas corpus in Hamdan
or any other pending case by a Guantanamo detainee. But canons of
statutory construction aside, the Court will likely view the DTA as an
attempted assault on its independence, an effort by the administration
to take away its power to decide a case it feared it might lose, just
like the President's eleventh hour decision to indict Jose Padilla
after more than three years of military detention in an effort to
short-circuit Supreme Court review of his case. Further, if
jurisdiction in Hamdan were limited to the DTA, it could
forever foreclose review of the very questions now before the Court:
whether the commissions are authorized and whether they violate the
Geneva Conventions. Because the DTA constitutes such an affront to the
Court's institutional role in preserving the separation of powers, the
Court should reject the government's jurisdictional and abstention
arguments, and reach the merits.
Rule of Law. The government's main contention in Hamdan
rests on a fundamental contradiction. The government claims that the
laws of war authorize military commissions, but refuses to acknowledge
that those same laws impose constraints on such commissions. The
government relies on a provision of the Uniform Code of Military Justice
(UCMJ) which preserves the jurisdiction of military commissions
concurrent with courts-martial. That provision, however, expressly
limits a military commission's jurisdiction to "offenders or offenses
that by statute or the law of war may be tried by military
commissions."
The President has charged Hamdan only with conspiracy. Yet, both the
War Crimes Act of 1996 and every war major war crime tribunal in the
past half-century make clear that conspiracy alone does not violate the
laws of war. The reason is simple: conspiracy is a notoriously elastic
charge and, if used as the basis for war crimes trials, would
inevitably lead to prosecutorial abuses.
The President similarly seeks to avoid the procedural safeguards of the laws of war. The Geneva Conventions (and the military's own regulations
implementing them) require that a prisoner be afforded a hearing before
a competent tribunal to determine his status. If he is determined to be
a prisoner of war, he may not be tried by a military commission.
Hamdan, however, has not been provided that threshold hearing. In
addition, the laws of war mandate that if Hamdan is to be tried, it
must be by "a regularly constituted court" that "affords all the
judicial guarantees which are recognized as indispensable by civilized
people." The commissions flunk that test because, among other things,
they deny Hamdan and other defendants the right to be present
throughout their trial and to confront the witnesses and evidence
against them.
Hamdan's arguments on these points appeared to have significant
traction with a number of Justices, and for good reason. The President
cannot invoke the laws of war to accrete power but discard them
whenever they impose constraints on the exercise of that power. The
rule of law, in short, means that the President cannot make up or bend
the law to serve his purposes.
Fairness. Hamdan argues that the military commissions
violate the UCMJ because they do not conform to the procedures of
courts-martial. The government asserts that only those procedures
specifically made applicable in the UCMJ to military commissions apply
to those commissions. The Court's construction of the UCMJ's text will
likely be colored by its underlying assessment of whether Hamdan (or
any one else) can ever get a fair trial before these tribunals.
The commissions are flawed in numerous respects, but perhaps most
significantly by denying a defendant the right to be present for his
trial and to confront the witnesses against him. The Court, through
Justice Scalia, has previously described the right of confrontation as
a "principle of the common law, founded on natural justice." That right
is guaranteed not only in civilian trials but in military trials under
the UCMJ as well. Further, Justice Scalia explained that this right was
designed to prevent the use of ex parte statements made
during custodial interrogations, precisely the type of evidence the
government seeks to use to bolster its case against Hamdan and others.
In a speech he gave two weeks ago in Switzerland that prompted calls for his recusal from Hamdan,
Justice Scalia said combatants captured during wartime are not entitled
to a jury trial in civilian courts. The appropriateness of those
comments aside, they miss the mark. The question is not whether Hamdan
must necessarily be tried by jury in a civilian court instead of by
military commission; rather, it is whether he can lawfully be tried by
the current military commissions at Guant√°namo which, among other
failings, deny Hamdan the right of confrontation. The district court
believed Hamdan could not be tried before such a commission, and the
Supreme Court should not uphold a trial that deprives any defendant of
a right it has said is founded on natural justice.
Tradition. The commissions also offend tradition. The history of military commissions is relevant in Hamdan
because it provides evidence of what the laws of war have authorized
over time. But history is important for another reason, one that cannot
help but escape the Court's notice. Military commissions have typically
been used as emergency measures, gap-fillers for occupied territory or
situations when the civilian courts were not open and functioning. On
the rare occasion in which military commissions have exceeded those
narrow limits, as in Ex parte Quirin, they have been severely
criticized. The current commissions forebode something very different:
the unilateral creation by the President of a new, ad hoc,
and open-ended military justice system, unfettered by the established
protections of civilian criminal trials or courts-martial, with
jurisdiction to try a virtually limitless class of non-citizens in an
amorphous "war on terrorism" that the administration says could last
generations. With the rest of the world watching, the Court should be
very reluctant to sanction such a dramatic break with tradition, at
least not without the inter-branch checks, procedural safeguards, and
other guarantees that the commissions lack.
Jonathan Hafetz: "A Question of Values: Why Hamdan Should Win" (PDF)
Tags: Justice, Liberty & National Security, Detainee Policy
By Jonathan Hafetz – 03/28/06
*Cross-posted from ACSBlog
Does a federal court have the power to consider evidence that a
Guantanamo prisoner is a chicken farmer who was mistaken for a Taliban
minister because he had a similar name? That was the basic issue before
the U.S. Court of Appeals for the District of Columbia Circuit at the
March 22 oral argument in cases affecting the approximately 500
detainees at Guantanamo.
The court of appeals is now reviewing the impact of recent legislation, the Detainee Treatment Act of 2005
("DTA"), on cases challenging detentions at Guantanamo. The statute
purports to eliminate district court habeas corpus jurisdiction while
creating a new "exclusive review" mechanism in the circuit that, unlike
habeas, provides no inquiry into the facts. The appeals court must
decide whether the DTA applies retroactively to eliminate habeas corpus
in pending cases. Beneath the nuances of statutory construction, lays a
question as old as the common law writ of habeas itself: can an
individual be deprived of his liberty indefinitely without a meaningful
opportunity to contest the government's accusations?
The government evidently thinks so, and designed Guantanamo
precisely to avoid judicial scrutiny into its detention decisions. For
over two-and-a-half years, the government argued vigorously that no
federal court could review the lawfulness of a prisoner's military
confinement at Guant√°namo. In June 2004, the U.S. Supreme Court
rejected that argument, ruling in Rasul v. Bush that Guantanamo detainees have the right to file habeas corpus petitions in federal district court.
Nine days after Rasul was decided, the Defense Department created the Combatant Status Review Tribunal
(CSRT), establishing a mechanism to determine whether a prisoner is an
"enemy combatant." But the CSRT is a perfect storm of substantive
overbreadth and procedural inadequacy. First, the CSRT expanded the
Supreme Court's narrow definition of "enemy combatant" in Hamdi v. Rumsfeld,
limiting that term to persons who engaged in combat against the United
States or its allies on an Afghani battlefield. The CSRT, by contrast,
defines an "enemy combatant" to include mere affiliation with al Qaeda
or associated groups, and enlarges the battlefield from Afghanistan to
the rest of the world. Second, the CSRT denies fundamental safeguards,
including the right to see and confront the government's evidence, to
present witnesses, to the assistance of counsel, and to an independent
decisionmaker.
Hoping to short-circuit a judicial inquiry into the facts, the government moved to dismiss the habeas cases. Despite Rasul,
the government argued that the detainees had no constitutional or legal
rights to enforce through habeas and, in any event, that the CSRT
satisfied any rights they had. In January 2005, District Judge Joyce
Hens Green, who had been designated by the other judges to coordinate
proceedings and rule on common issues, denied the motion.
Judge Green found that the CSRT violated the Due Process Clause of the
Fifth Amendment because it permitted secret evidence and evidence
secured by torture; denied access to counsel; and used a vague and
overly broad definition of enemy combatant that would encompass even
"[a] little old lady in Switzerland who writes checks to what she
thinks is a charity that helps orphans in Afghanistan but [what] really
is a front to finance al-Qaeda activities." Judge Green further found
that the Geneva Conventions protected members of the Taliban. But
another district judge, Richard J. Leon, had decided to hear the two
habeas cases assigned to him separately. He granted the government's motion,
finding the detainees had no protections under the Constitution, laws,
or treaties of the United States, and dismissed the petitions. Judge
Leon's decision prompted a stay in the district court habeas litigation
pending appellate resolution of disputed legal issues.
The circuit court heard argument in the appeals of the two district
court decisions in September 2005. Then, following the DTA's passage in
December, the panel ordered additional briefing and scheduled last
week's argument to address the statute's impact on the pending cases.
The circuit court's construction of the DTA will turn in part on its
understanding of habeas corpus. It should conclude that the DTA does
not eliminate habeas jurisdiction in pending cases. Statutes are
presumed not to apply retroactively when they speak to the substantive
rights of the parties - in this case, the petitioners' habeas corpus
rights against indefinite executive detention. Further, construing the
DTA to eliminate habeas without providing an adequate substitute for
its searching factual inquiry into executive detention would raise a
serious constitutional question.
As the Supreme Court has explained,
the Suspension Clause of the Constitution, at a minimum, protects the
writ of habeas corpus as it existed in 1789. At common law, and as
codified by statute two years before the Bill of Rights was adopted, a
habeas petitioner had the right to contest the executive's allegations
and to submit evidence demonstrating his detention was illegal. That
core protection is what prevented the king from locking a prisoner in
the tower without an opportunity to prove his innocence, and it is what
makes the Great Writ so vital to Guantanamo today.
During the argument, the panel questioned the government about the
review available to the detainees if habeas were eliminated. The
government acknowledged that the circuit court could decide the legal
question of whether the detainees had any enforceable rights (which it
maintained they did not). But it argued that the court could not, under
any circumstances, consider evidence submitted by a detainee, even if
it proved he was innocent or had made statements under torture.
The circumstances surrounding the Guantanamo detainees' capture
underscore the importance of the meaningful factual inquiry habeas
corpus guarantees. A recent study
shows that most detainees were seized amid the post-September 11 chaos
in Afghanistan and Pakistan, where United States forces dropped
leaflets offering "millions of dollars [to help] the anti-Taliban
forces capture al Qaida and Taliban murderers." An astounding
eighty-six percent of detainees were handed over to the United States
by Pakistan or the Northern Alliance during that time, when the United
States offered large bounties for capture of suspected enemies.
The factual basis for continued detention in many cases appears flimsy at best. A 2002 CIA report
concluded that "a substantial number of the detainees appeared to be
either low-level militants . . . or simply innocents in the wrong place
at the wrong time." According to the government's own data,
fewer than half of all Guantanamo detainees committed any hostile act
against the United States and only 8 per cent were classified as al
Qaeda fighters. One prisoner, for example, remains at Guant√°namo
simply because he owns a type of cheap watch supposedly favored by al
Qaeda. Another prisoner is a farmer arrested for wearing an olive green
military jacket, a remnant from Afghanistan's constant wars over the
past decades. Yet, all of the Guantanamo detainees may be held for
life, without ever facing charges or trial in a military or civilian
court.
These problems are compounded by the CSRT's reliance on evidence
obtained through torture or other forms of coercion. The CSRT permits
consideration of any evidence "relevant and helpful to resolution of
the issue before it," which the government says includes evidence
obtained by torture. For example, Mohammed al-Qahtani,
a Guantanamo detainee whose prolonged physical and psychological abuse
is documented in a government interrogation log, implicated not only
himself but 30 fellow prisoners as well.
Under the government's view of the DTA, no court will ever hear
evidence that a prisoner or government informant was tortured. No court
will ever consider evidence exonerating a prisoner
even though the CSRT said that evidence was "unavailable." No court, in
short, will be able to look behind the government's accusations to the
facts showing an innocent man has been wrongly imprisoned, potentially
for life.
Much more is at stake than the fate of individual detainees. By
guaranteeing a searching factual and legal inquiry into the basis for
prisoner's confinement, habeas corpus checks the arbitrary exercise of
executive power and ensures that the government remains accountable for
its detention decisions. If this inquiry is eliminated, there is little
hope for the rule of law at Guantanamo or elsewhere.
Tags: Justice, Liberty & National Security, Detainee Policy
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