The Evolution of Gitmo Part 3

February 23, 2009 by pfeifer

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The Evolution of Guantanamo Bay Part 3
By William L. Pfeifer, Jr.

This is the third 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.

When President Bush instituted the use of Guantánamo Bay as a detention camp for foreign citizens captured by the military as alleged terrorists, he attempted to operate outside of the law of the United States. Bush believed he could incarcerate or “detain” non-citizens indefinitely by holding them on foreign soil at the U.S. Naval Base in Cuba, denying them the right to challenge their detentions in court. Although the right of habeas corpus – the right to challenge the lawfulness of one's detention before a judge – has existed for centuries in American and European law, the Bush Administration argued that non-citizens held outside the United States by the military did not have this right.

In 2006, the United States Supreme Court rejected the Bush Administration's claim that the detainees did not have the right to habeas corpus relief. In the case of Rasul v. Bush, the Court held it was not necessary for a prisoner to be physically present within the United States to obtain habeas review. The writ of habeas corpus acts not upon the person in custody, but upon the person who holds him or her there. Although the Court did not directly address whether the detentions were lawful, it held that the detainees could challenge their detention in federal court.

That same year, the Supreme Court directly addressed the legality of Bush's system of using military commissions as a replacement for the courts. The case of Hamdan v. Rumsfeld involved Salim Ahmed Hamdan from Yemen, who was captured in Afghanistan and, after two years of detention in Guantanamo, charged with the offense of conspiracy. Petitions for writ of habeas corpus and for writ of mandamus were filed on his behalf challenging the Bush's Administration's plan to have his trial conducted by a military tribunal. Hamdan argued that the President did not have the authority to conduct trials in this manner because neither Congress nor precedent in the common law of war support the use of trial by commission for the charge of conspiracy. Hamdan asserted that the offense of conspiracy was not even a violation of the law of war. Further, Hamdan argued Bush's system violated the basic tenets of military and international law, such as the principle that a defendant be allowed to see and hear the evidence against him.

While the case was pending, Congress passed the Detainee Treatment Act of 2005. The Detainee Treatment Act was an attempt to undermine the ability of the court system to hear cases involving Guantanamo detainees. It provided procedural protections for personnel who engaged in improper interrogation techniques, and repealed federal authority to hear habeas corpus petitions involving the prisoners.

The Supreme Court ruled the Detainee Treatment Act of 2005 could not be applied retroactively to Hamdan (whose petition was filed prior to its enactment) to deny him the right to assert a habeas corpus claim. Further, the Court held that Hamdan's alleged offense of conspiracy was not triable by a commission under the law of war. The jurisdiction of military commissions is restricted to cases involving overt acts or actual attempts, not mere intentions, and conspiracy to violate the law of war in itself is not a violation of the law of war. Further, the Bush Administration failed to satisfy the basic prerequisite of showing a military necessity for using military commissions.

The Supreme Court went on to hold that regardless of whether the offense itself was triable by military commission, Bush's military commission structure was illegal and did not have the power to conduct the proceedings. The Uniform Code of Military Justice requires if the President utilizes military commissions, he must comply with American common law, the Uniform Code of Military Justice, and the law of nations (such as the Geneva Convention). Bush failed to meet that standard in numerous ways. Among the more egregious failings of the commissions, the Court cited the rule that the accused can be excluded from portions of the trial and precluded from knowing what evidence was presented against him. The Court also criticized the admission of hearsay evidence, evidence obtained through coercion, the admissibility of unsworn testimony and unsworn witness statements, concealing from the defendant any “protected information” being used against him in his trial, and the lack of a need for a unanimous verdict. At a minimum, Hamdan was entitled to the same protections afforded to someone charged in a court-martial. Since the commission rules did not afford those protections the commissions were illegal. Finally, Hamdan was entitled to at least some of the protections of the Geneva Convention, which required that he be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

As a result of the Supreme Court's decisions, Congress again attempted to undermine and circumvent the courts by passing the Military Commissions Act of 2006. The Act sought to strip the courts of their ability to act on issues related to the detainees by creating a system for trials by military commissions. Among other provisions, the legislation repealed the right of the detainees to a speedy trial, stripped them of the protection against “compulsory self-incrimination,” and denied alien enemy combatants the right to assert claims under the Geneva Convention. The right to a trial was replaced with a hearing before a Combatant Status Review Tribunal.

In essence, the Military Commissions Act of 2006 took the system Bush had created and turned it into a legislative act. Amnesty International described the Military Commissions Act of 2006 as “turning bad policy into bad law.” Congress's intent in passing the law was to circumvent the courts in order to keep detainees from asserting rights or challenging the procedures of the system. Defenders of the military commission system argued the federal courts were not designed to deal with the special circumstances that arise in the capture of terrorists, and that much of the evidence would not be admissible in the courts. Critics described the Act as a blatant and irresponsible violation of the Constitution that could never be upheld in the courts.

Not surprisingly, new court challenges were raised to the new legislation. A lawsuit was filed on behalf of Lakmar Boumediene and other detainees, alleging the Military Commissions Act of 2006 was unconstitutional. The Boumedine case, subsequent developments in the law, and the current status of the Guantanamo detainees are discussed in the next article in this series.

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

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