Brennan Center for Justice

*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.