Supreme Court Rewards Administration's Delay and Obfuscation Strategy on Guantanamo
*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.
