The Evolution of Gitmo Part 4

March 5, 2009 by pfeifer

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The Evolution of Guantanamo Bay Part 4
By William L. Pfeifer, Jr.

This is the final installment in a series of four 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.

In the case of Hamdan v. Rumsfeld, the Supreme Court handed the Bush Administration another defeat. The Court ruled that Bush did not have the authority to conduct the Guantanamo detainees' trials by military commission, and that the prohibition against writs of habeas corpus in the Detainee Treatment Act of 2005 could not be applied retroactively to Hamdan. As a result of this ruling, Bush's Congress made another attempt to undermine the courts by passing the Military Commissions Act of 2006.

The Military Commissions Act of 2006 sought to strip the courts of their authority over the detainees by creating a system for trials by military commissions. The legislation repealed the right of the detainees to a speedy trial, stripped them of the protection against “compulsory self-incrimination,” and denied alien enemy combatants the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 or to petition for writ of habeas corpus. The right to a trial was replaced with a hearing before a Combatant Status Review Tribunal. In essence, Congress took Bush's system that had been ruled unlawful by the Supreme Court, and attempted to make it lawful by legislative act.

Lakhdar Boumediene, an Algerian captured in Bosnia and turned over to the U.S. government, was among the Guantanamo detainees with habeas corpus petitions fighting their way through the court system. Boumediene argued that the Military Commissions Act of 2006 was a violation of the Suspension Clause of the U.S. Constitution. The Suspension Clause, found in Article I, Section 9, states: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

The Supreme Court agreed with Boumediene, giving a lengthy history of the right of the writ of habeas corpus, and holding that the procedures created by the Military Commissions Act of 2006 did not create an adequate substitute for the writ. Consequently, the ban on habeas petitions in the Military Commissions Act of 2006 was an unconstitutional suspension of the writ of habeas corpus and was unenforceable. The detainees could not be denied the right to seek habeas relief merely because an executive order had designated them as enemy combatants or because they were incarcerated at Guantanamo Bay.

When the Boumediene case returned to the federal district court, Judge Richard J. Freon conducted a seven day hearing on Boumediene and five other Algerian detainees. It was the first time any of the detainees at Guantanamo had been given an actual hearing on the merits of their detentions. At the conclusion of the trial, Judge Freon (who originally ruled the detainees did not have the right to seek habeas relief before being reversed by the Supreme Court) ruled that the government had unlawfully detained five of the six men for over seven years. While one was ordered to remain in custody, the other five were ordered released from Guantanamo. Judge Freon noted the entire case against the five to be released was based on information obtained from a single unnamed source. Freon found that the government had failed to produce credible evidence to justify the detentions, and even took the unusual step of asking the government not to appeal his decision.

As of January of 2009, approximately 245 detainees remained in Guantanamo. On January 22, 2009, within hours of taking the oath of office, President Obama signed executive orders directing the close of Guantanamo Bay detention facilities within a year and ordered a suspension of all detainee prosecutions until the cases could be reviewed. He ordered the closure of CIA secret prisons and that CIA interrogators be restricted to using Army Field Manual interrogation techniques. It is expected that President Obama will ultimately close the detainee center at Guantanamo, and the detainees will either be released or given court trials.

However, concerns have arisen as to how significantly Obama intends to change Bush's policies. His ban on the use of torture included loopholes that apply in the case of emergency situations, and the ban only applies to those captured during “armed conflict” - not those captured in counterterrorism operations. During confirmation hearings, Obama's nominee for Solicitor General, Elena Kagan, asserted the position that individuals who help finance Al Qaeda should be subject to “battlefield law,” where they can be detained indefinitely without a trial – even if they were not captured in a physical battle zone. Others in the administration have voiced similar views. Thus, while detentions at Guantanamo Bay seem certain to end, there are questions as to whether the underlying policy of indefinite detentions will continue.

Ahmed Ghappour, a lawyer who has represented some of the Guantanamo detainees, has claimed the abuse at Guantanamo has gotten worse since Obama was sworn into office. According to a report in USA Today, Ghappour speculated that the guards are “trying to get their kicks in right now for fear that they won't be able to later.”

In recent litigation concerning habeas petitions filed by prisoners detained by the military in Afghanistan, the Obama administration has adopted the same position as Bush. After the Supreme Court's ruling in the Boumediene case, detainees being held at the Bagram Air Base in Afghanistan filed petitions challenging their detentions as “enemy combatants.” The Bush Administration asserted the same arguments as before, that the detainees had no right to challenge their detentions in the U.S. Courts. After Obama took office, the federal judge hearing the case gave the Obama Administration a month to determine whether they wished to stand by the Bush argument or assert their own legal position. In a two-sentence court filing, Obama's Justice Department shocked human rights groups by advising the court that they were standing by Bush's legal theory, taking the position that the prisoners did not have the right to challenge their detentions in court.

Many questions regarding Obama's plans remain unanswered. Closing the detention camp at Guantanamo Bay will be a major step towards repairing America's image in the world. However, the possibility of continuing the underlying program of indefinite detentions of foreign citizens without charges or trials still seems to be under consideration. Whether Obama's closure of Guantanamo Bay Detention Camp will be a major change in U.S. policy or merely a cosmetic change in appearance remains to be seen.

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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