Modest Improvements Cannot Save an Inherently Flawed Process at Guantanamo
Commentary

Last week, the U.S. Court of Appeals for the D.C. Circuit issued its decision in Bismullah v. Gates, the first case interpreting the new statutory review procedures created to replace habeas corpus for Guantánamo detainees.

While the court rejected several of the government's main arguments, the result is only a modest improvement upon what remains an inherently flawed system.

The Bismullah Decision: The Holding and the Parties' Contention

In Bismullah, the D.C. Circuit addressed the statutory procedures governing appeals of Combatant Status Review Tribunal (CSRT) decisions classifying detainees as "enemy combatants." Congress established these procedures under the Detainee Treatment Act of 2005 ("DTA") when it first eliminated habeas corpus for Guantánamo detainees. (Congress eliminated habeas corpus a second time in the Military Commissions Act of 2006, after the Supreme Court ruled in Hamdan v. Rumsfeld that the DTA's habeas repeal did not cover pending cases).

The government claimed that the DTA sharply curtailed judicial review over detention decisions, and justified imposition of severe restrictions on counsel's access to detainees and information in the government's possession. However, the detainees in Bismullah (and the consolidated case of Parhat v. Gates) countered that the government misconstrued the statute and sought to render its review scheme a nullity.

The Government Arguments the D.C. Circuit Rebuffed

The D.C. Circuit rejected some, but not all, of the government's arguments. It refused to confine its review to the CSRT record, holding instead that the record on appeal consisted of all evidence "reasonably available" to the government, including evidence that was not put before the CSRT.

The court explained that it was necessary to look beyond the CSRT record to determine, as the DTA required, whether the CSRT's conclusion was supported by a preponderance of the evidence, and whether the CSRT had considered exculpatory evidence about a detainee.

The D.C. Circuit also refused to give the government sweeping authority to restrict counsel's access to classified information, finding that such a restriction would impede its review. As the court explained, "[c]ounsel cannot argue, nor can the court determine, whether a preponderance of the evidence supports a [CSRT's] determination without seeing all the evidence."

The Government Arguments the D.C. Circuit Accepted

Yet, the D.C. Circuit also accepted several of the government's proposed restrictions on counsel. For example, it found that the government, upon a proper showing to the court, could limit a detainee's attorney's access to "highly sensitive information" or "information pertaining to a highly sensitive source."

This ruling could have a very negative effect: It creates a potential loophole that could allow the government to shield information gained through torture and other illegal interrogation techniques.

The court also restricted topics counsel could discuss with their clients (precluding, for example, any discussion of where a detainee might be sent if released from U.S. custody), and held that the government could inspect attorney-client mail.

These rulings jeopardize counsel's ability to effectively represent their clients, and threaten to erode the trust at the heart of the attorney-client relationship.

No Blank Check for the Executive

In the end, Bismullah is a mixed decision - the product of an increasing skeptical Judiciary and an irredeemable Executive Branch process designed to shelter detention decisions from genuine scrutiny.

Bismullah demonstrates judges' growing concern about the CSRT process and their recognition of the need for meaningful judicial review. Indeed, the D.C. Circuit's refusal to limit this review to the CSRT record amounts to a judicial vote of "no confidence" - however qualified -about the Executive's process for classifying detainees as "enemy combatants."

The court's refusal to give the government unilateral power to deny attorneys information about their clients bespeaks a similar lack of confidence in the government's handling of detentions, as the court refused to cede authority to the government to determine what information was relevant to the cases before it.

However, if the goal is to check the unlawful exercise of executive power, Bismullah ultimately and necessarily fails. As described above, the decision imposes significant limits on counsel access, thereby undermining Fifth Amendment and habeas rights (rights another panel of the D.C. Circuit previously held in Boumediene v. Bush that the detainees do not have). Also, it leaves the government an opening to continue hiding exculpatory information from both detainees' counsel and the court itself, by claiming that the information is not "reasonably available."

Even more importantly, review under the DTA can never rectify the inherent flaws of the CSRT - a one-sided process that denies detainees access to counsel, relies on secret evidence, and considers evidence gained by torture and other coercion, despite both that evidence's lack of reliability and the fact that it is the direct result of rights-violations.

Expanding the record to include more government information than was originally before the CSRT itself will not redress these underlying structural problems. As Judge Janet Rogers explained in her concurring opinion in Bismullah, the record on appeal under the DTA will necessarily be incomplete, because it was compiled without affording the detainees a meaningful opportunity to be heard and to rebut the allegations against them. When basic due process guarantees are not respected, the cost can be real but invisible; such violations create their own cover-ups.

But, then again, the CSRT was never intended to be fair or to produce accurate results. Instead, it was deliberately designed to preclude court review and to legitimize prior Executive branch determinations that the detainees were "enemy combatants" (or, as former Defense Secretary Donald Rumsfeld labeled them, "the worst of the worst"). The result: garbage in, garbage out.

Bismullah's Significance to the Overall Guantánamo Detainee Litigation

The procedures set forth in Bismullah will govern all other Guantánamo detainee appeals under DTA. But those procedures will only be relevant if the Supreme Court upholds the DTA review scheme itself in Boumediene v. Bush, scheduled to be heard next term. (Interested readers may consult the appeals court decision in Boumediene here.)

Boumediene involves a separate challenge to Congress's repeal of habeas corpus jurisdiction, on the ground that it constitutes an unlawful suspension of the writ. A central argument is that the DTA review procedures fail to provide an adequate or effective substitute for habeas, because they deny prisoners the meaningful opportunity to challenge their executive detention that habeas has historically provided.

Bismullah powerfully reinforces that argument. It underscores that the DTA inherently limits a court's power to inquire into the basis for a prisoner's detention and can never provide what habeas provides: the opportunity to meaningfully consider evidence from the prisoner himself.

The D.C. Circuit's ruling in Bismullah, though it expanded the record on appeal beyond what the government had proposed, cannot substitute for the review habeas affords in checking illegal executive detention, because it still does not provide a prisoner with a real chance to contest the accusations against him. Bismullah thus shows that the DTA, even if interpreted broadly, unavoidably falls short of honoring basic due process and habeas corpus rights.