The Evolution of Gitmo Part 2

February 11, 2009 by pfeifer

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The Evolution of Guantanamo Bay Part 2
By William L. Pfeifer, Jr.

This is the second in a series of articles tracking the developments at the Guantánamo Bay Detention Camp, where the United States government has been holding detainees from foreign countries since shortly after the terrorist attacks of September 11, 2001.

Shortly after the terrorist attacks of September 11, 2001, Congress passed a resolution authorizing the President to use military force “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” or against those who harbored such organizations and persons. Among other actions, President Bush used this authority to invade Afghanistan to combat the Taliban and al Qaeda.

As part of his “war on terror,” Bush ordered the United States Naval Base at Guantánamo Bay, Cuba, to construct a detention camp to house foreign citizens captured by the military. Prisoners began arriving in January of 2002. Over the next several years a total of 779 prisoners would be incarcerated there at one time or another. Defense Secretary Donald Rumsfeld justified the government's conduct by describing the detainees as the “worst of the worst.” Yet as early as 2002, the CIA reportedly concluded that a large percentage of the detainees had no connection with terrorism, and that as many as a third were there by mistake.

Major General Michael Dunlavey, the military commander of Guantánamo at the time, reportedly suggested that up to half of the detentions were in error. A study by Seton Hall University Law School concluded that over half of the detainees had never engaged in hostile acts against the United States. It is unknown whose estimations were correct. What is known is that over 500 of the detainees were eventually released, most without ever being charged with a crime.

Among the early detainees at Guantánamo were two British citizens, two Australian citizens, and 12 Kuwaiti citizens captured in Afghanistan by various militia groups and villagers, who turned them over to the U.S. military. No charges were filed against them, they were not allowed access to their families or to lawyers, and they were not given hearings before courts or even a tribunal. President Bush asserted that he could hold these people indefinitely without filing charges against them because they were non-citizens being held by the military outside of the United States. He further claimed they were not entitled to the rights afforded to prisoners of war under the Geneva Convention (such as not being subjected to torture), and they did not have the right to challenge their detentions in court.

The families of the detainees did not find Bush's arguments for his right to torture and incarcerate their loved ones to be persuasive. In 2002, they filed lawsuits in the United States District Court for the District of Columbia. The lawsuits asserted various but similar claims challenging the legality of the detentions at Guantánamo Bay. The families, acting on behalf of the detainees, demanded to be informed of the charges, to be allowed to meet with attorneys, to be free from interrogations, and to be given access to a court or tribunal.

Although the right of habeas corpus – the right to challenge the lawfulness of one's detention before a judge – has existed for centuries in Western civilization, the Bush Administration argued that non-citizens held outside the United States by the military did not have this right. The District Court sided with the Bush administration and dismissed all of the lawsuits for lack of jurisdiction, accepting the Bush argument that non-citizens in military custody in territory where the United States is not sovereign do not have the right to litigate claims in the federal courts.

Lawyers for the detainees appealed the cases to the United States Supreme Court. Since the cases all presented the same legal issue of whether the detainees had the right to challenge their detention in the federal courts, they were consolidated for argument before the United States Supreme Court in the case of Rasul et al. v. Bush, President of the United States, et al. The two British detainees (Shafiq Rasul and Asif Iqbal) were released from custody before the Supreme Court reached its decision.

The Bush administration based its legal argument on the World War II case of Johnson v. Eisentrager, a United States Supreme Court case from 1950 which held that aliens detained outside the sovereign territory of the United States could not petition for a writ of habeas corpus. On June 28, 2004, the Supreme Court rejected Bush's argument in a 6-3 vote in an opinion written by Justice Stevens.

The Supreme Court distinguished the Guantánamo detainees from the German prisoners at issue in Eisentrager. In Eisentrager, the prisoners were German citizens captured by the United States military in China, who were convicted of war crimes by a military commission in Nanking and then incarcerated in a prison in Germany. On the other hand, the Guantánamo detainees were not citizens of countries at war with the United States, they were not brought before any tribunal or charged with any wrongdoing, and at the time of the Court's ruling they had been incarcerated for two years in a territory over which the United States had exclusive jurisdiction and control.

Additionally, the Court stated the Eisentrager case dealt with the Constitutional right to habeas review due to a gap in the coverage of the federal habeas statute. The Court stated that subsequent decisions had filled that gap, and that it was no longer necessary for a prisoner to be physically present within territorial jurisdiction of the district court to obtain habeas review. The writ of habeas corpus acts not upon the person in custody, but upon the person who holds him or here there. Consequently, if the custodian can be reached by service of process, the court can exercise jurisdiction under the federal habeas corpus statute. The Bush administration conceded that the federal habeas statute would give an American citizen held at the base the right to challenge his or her detention in court, and the Supreme Court stated that the statute draws no distinction between Americans and aliens held in federal custody.

Although a footnote to the Court's opinion indicated that if the detainees assertions are proven true then the detentions would be unlawful, the decision did not directly address the merits of any of the claims. Rather, the issue was whether the detainees had the right to assert claims in court at all. The Rasul decision firmly established that the detainees had the right to petition the federal courts for their release from custody. The actions taken by the President and Congress in the aftermath of this decision are addressed in the next article in this series.

About the Author: William L. Pfeifer, Jr., is an attorney and freelance writer. For more information, visit his website at www.williampfeifer.com or his firm website at www.pfeiferjensen.com.

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