Neo-Conned! Again

by D Liam O'Huallachain

  ………

  Amnesty International

  IN THE SPACE of two weeks in January 2005, two diametrically opposed responses to the same question of law were handed down by judges on the same federal court in Washington, D.C. The first displayed a troubling degree of deference to attempts by the executive branch to ignore its human rights obligations, while the second showed a welcome respect for human rights. The U.S. administration supports the former ruling and rejects the latter. It should change direction.

  Responses to Habeas Corpus Petitions

  Each of the two judges in question – Judge Richard Leon and Judge Joyce Hens Green of the District Court for the District of Columbia – was faced with petitions from detainees labeled as “enemy combatants” and held in indefinite executive detention in Guantánamo. The petitions were asking the judges to issue writs of habeas corpus so that the detainees could challenge the lawfulness of their detention, a basic protection under international law against arbitrary arrest, torture and “disappearance,” also explicitly provided in the U.S. Constitution (Article 1, Section 9).1 The petitions had been filed following the U.S. Supreme Court's decision of 28 June 2004, Rasul v. Bush, which held that the federal courts “have jurisdiction to consider challenges to the legality of the detentions of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantánamo Bay.”2 The decision was widely welcomed as a first step to restoring the rule of law to Guantánamo,3 but the U.S. administration has sought to drain it of real meaning, and to keep any review of the detentions as narrow and as far from a judicial process as possible.

  In a press release issued immediately after the Rasul ruling, the U.S. Justice Department interpreted it as holding that “individuals detained by the United States as enemy combatants have certain procedural rights to contest their detention.”1 The Department's use of the word “procedural,” rather than “substantive,” is telling. It would later argue in the D.C. District Court that the Guantánamo detainees had no grounds under constitutional, federal or international law on which to challenge the lawfulness of their detention. In other words, according to the administration's Kafkaesque vision for Guantánamo, the Rasul ruling should be interpreted as mandating no more than a purely procedural right – the detainees could file habeas corpus petitions, but only in order to have them necessarily dismissed. Any further action would be an “unprecedented judicial intervention into the conduct of war operations, based on the extraordinary, and unfounded, proposition that aliens captured outside this country's borders and detained outside the territorial sovereignty of the United States can claim rights under the U.S. Constitution.”2 This was the same position the administration had adopted before the Rasul ruling.

  The administration has done nothing to facilitate the Guantánamo detainees' access to legal counsel so that they can file petitions to challenge the lawfulness of their detention. Moreover, in the cases where individuals do have lawyers for their habeas corpus appeals, there is concern that the authorities have tried to undermine the relationships between detainees and their counsel. In addition, it would appear that the detaining authorities have offered little or no practical advice to the detainees about how they might go about seeking a lawyer.

  Ten days after the Rasul ruling, the Department of Defense announced the formation of the Combatant Status Review Tribunal (CSRT) to “serve as a forum for detainees to contest their status as enemy combatants.”3

  The Pentagon asserted that the CSRT's procedures were intended to “reflect the guidance the Supreme Court provided” in Rasul v. Bush coupled with another ruling issued on the same day, Hamdi v. Rumsfeld.1 The latter decision concerned Yaser Esam Hamdi, a U.S. citizen captured in the armed conflict in Afghanistan and held without charge or trial as an “enemy combatant” on the U.S. mainland. The plurality in the split Hamdi decision said that “due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.” The Hamdi plurality held that “the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen's core rights to challenge meaningfully the government's case and to be heard by an impartial adjudicator.”

  With this reference to “military operations” in mind, it should be stressed that the CSRT was not devised to conduct battlefield determinations of the status of detainees. It was devised more than two years after detentions began, for use thousands of miles away from the point of capture, regardless of whether that capture occurred on the battlefield of an international conflict long since over or on the street of a city in a country not at war in the first place.

  Meanwhile, in Afghanistan, where some detainees have been in U.S. custody for more than a year, not even the CSRT process is being applied. Once detainees in the custody of the U.S. Department of Defense in Afghanistan are designated as an “enemy combatant,” they have an initial review of that status by a commander or designee within 90 days of being taken into custody. After that, “the detaining combatant commander, on an annual basis, is required to reassess the status of each detainee. Detainees assessed to be enemy combatants under this process remain under DoD control until they no longer present a threat.”2

  The administration's penchant for secrecy and disregard for the fundamental rights of detainees is further displayed in the rules for the Combatant Status Review Tribunal. The detainees had no access to legal counsel (only to a “personal representative” – a military officer) or to classified evidence to assist them in the CSRT process, yet the burden was on the detainee to disprove his “enemy combatant” status:

  Following the hearing of testimony and the review of documents and other evidence, the Tribunal shall determine in closed session by majority vote whether the detainee is properly detained as an enemy combatant. Preponderance of the evidence shall be the standard used in reaching this determination, but there shall be a rebuttable presumption in favor of the government's evidence.1

  The CSRT – a panel of three “neutral” military officers – was “free to consider any information it deems relevant and helpful,” including “hearsay evidence, taking into account the reliability of such evidence in the circumstances.” Evidence extracted under torture or other coercion was not excluded. As the principal deputy associate attorney general of the U.S. Justice Department argued to Judge Richard Leon:

  If in fact information came to the CSRT's attention that was obtained through a non-traditional means, even torture by a foreign power, I don't think that there is anything in the due process clause [of the U.S. Constitution], even assuming they were citizens, that would prevent the CSRT from crediting that information for purposes of sustaining the enemy combatant classification].2

  The July 7, 2004, order establishing the CSRT was intended “solely to improve management within the Department of Defense concerning its detention of enemy combatants at Guantánamo Bay Naval Base, Cuba, and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law, in equity, or otherwise by any party against the United States ….”3 Guantánamo began receiving “war on terror” detainees following legal advice from the Justice Department that “a district court cannot properly entertain an application for a writ of habeas corpus by an enemy alien detained at Guantánamo Bay Naval Base, Cuba.”4 The Rasul ruling showed otherwise, but the administration has refused to admit that this legal advice, like the legal advice on torture contained in other previously secret administration memorandums, disregarded international law and fundamental human rights standards. The CSRT process is an improvised, minimalist response to the U.S. Supreme Court's rulings designed to keep the lawfulness of the detentions away from judicial or other external scrutiny for as long as possible.

  The CSRT Order added that nothing contained in it should be construed to “limit, impair, or otherwise affect” the President's Commander-in-
Chief powers. This has been reflected in the subsequent statistics. On 29 March 2005, the authorities announced that they had completed all the CSRTs for the current detainees in Department of Defense custody in Guantánamo.

  Of the 558 CSRT decisions finalized by March 29, 2005, all but 38 (93 percent) affirmed that the detainee was indeed an “enemy combatant” as broadly defined by the Order.

  Amnesty International's review of 60 cases filed in the D.C. District Court by April 2005 reveals that most were decided inside a single day, and that in all 58 cases which gave the voting details, the CSRT panel was unanimous in finding the detainee to be an “enemy combatant.” These 58 cases were all finalized in late 2004.

  Eighty-four percent of the cases (32 out of 38) where the detainee was found not to be an “enemy combatant” were decided later than February 1, 2005, after Judge Joyce Hens Green ruled that the CSRT process was inadequate and unconstitutional, but before the appeal against her decision was heard. In its April 27, 2005, brief appealing to the U.S. Court of Appeals for the District of Columbia Circuit to overturn Judge Green's ruling, the government emphasized these 38 cases as a sign of a constitutionally fair system. The brief did not point out – or explain whether it was pure coincidence – that all but six of them had been decided after Judge Green's finding that the CSRT process was unlawful.1

  This sudden and marked increase in findings that a detainee was no longer an “enemy combatant” also coincided with a period during which the Pentagon was said to be looking to reduce the number of detainees held at the base in the wake of the administration's losses in the courts, including by “outsourcing” detentions to other countries.

  Creating procedures that bypass international norms and avoiding judicial scrutiny for its actions should be unacceptable to any government which believes that fundamental human-rights principles are non-negotiable, as the U.S. claims to. As Judge Green said in her recent ruling on the Guantánamo detainees:

  Of course, it would be far easier for the government to prosecute the war on terrorism if it could imprison all suspected “enemy combatants” at Guantánamo Bay without having to acknowledge and respect any constitutional rights of detainees. That, however, is not the relevant legal test …. Although this nation unquestionably must take strong action under the leadership of the Commander-in-Chief to protect itself against enormous and unprecedented threats, that necessity cannot negate the existence of the most basic fundamental rights for which the people of this country have fought and died for well over two hundred years.

  For consistency's sake, it had been agreed to have a single judge, Judge Joyce Hens Green, a senior judge appointed to the court in 1979, resolve issues common to the Guantánamo cases.1 Thus, when the government filed its motion to dismiss the petitions for a writ of habeas corpus, the motion being common to all the cases, other judges on the court transferred this issue to Judge Green. However, Judge Richard Leon declined to participate in this arrangement. He subsequently became the first judge to issue a ruling interpreting the Rasul decision.2 He sided with the government and dismissed the petitions.

  On January 19, 2005, just over three years after the Guantánamo detentions began, Judge Leon in essence determined that whereas under the Supreme Court ruling Guantánamo detainees have the right to petition federal courts for a habeas corpus writ, they nevertheless do not have the right to obtain such writs. He ruled that there was “no viable legal theory” by which he could issue writs of habeas corpus to foreign detainees held without charge or trial in the naval base. In Judge Leon, appointed to the court by President George W. Bush in 2002, the administration found an ally for its position that the “war on terror” is a global armed conflict and that under the President's Commander-in-Chief powers, individuals broadly defined as “enemy combatants” could be picked up by the U.S. anywhere in the world and be subjected to executive detention for the duration of the “war.” He agreed with the government that the detainees have no rights under constitutional law to challenge the lawfulness of their detention because they are non-resident foreign nationals captured abroad and held in a naval base whose “ultimate sovereignty” was Cuba's.1 Similarly, he concluded that they had no rights under federal or international law. He seemed satisfied to give the government the benefit of the doubt on the question of torture and ill-treatment, despite the mounting evidence of such abuses by U.S. forces in the “war on terror.”2

  A Judge with Security Credentials Takes a More Critical View

  Judge Joyce Hens Green, who stressed that she had served as the chief judge of the United States Foreign Intelligence Surveillance Court, “the focus of which involves national security and international terrorism,” cast an apparently far more critical eye over the situation.3 Her decision, handed down on 31 January 2005, offered the detainees and their families hope that justice will yet be done and their legal limbo ended.1

  Judge Green noted that the Guantánamo detainees seeking habeas corpus relief included men taken into custody as far away from Afghanistan as Gambia, Zambia, Bosnia and Thailand. She wrote that “although many of these individuals may never have been close to an actual battlefield and may never have raised conventional arms against the United States or its allies, the military nonetheless has deemed them detainable as 'enemy combatants.'” She noted that the government had chosen to submit to the court as factual support for the detentions only CSRT records, despite claiming that the detainees' cases had been subjected to unspecified “multiple levels” of administrative review. The “nature and thoroughness” of these alleged multiple levels of review, she said, must be called into “serious question.”2 CSRT proceedings had only commenced from late July 2004, at which point most of the detainees had already been held for more than two years.3

  Unlike Judge Leon, Judge Green rejected the government's argument that the detainees have no substantive rights, concluding that they must have more than just the procedural right “to file papers in the Clerk's Office.” She rejected the government's notion – which lay behind its choice of Guantánamo as a location for “war on terror” detentions – that because Cuba retains “ultimate sovereignty” over Guantánamo, U.S. Supreme Court precedent meant that the detainees have no rights under the U.S. Constitution. On this point, she noted the irony that, while the Cuban government had claimed that the U.S. was violating the human rights of the Guantánamo detainees and had demanded their humane treatment, the U.S. government “does not appear to have conceded the Cuban government's sovereignty over these matters.” The executive will only point to Cuba's “sovereignty” over the base when it suits the U.S. agenda.

  In the Rasul ruling, the Supreme Court majority had said in a footnote:

  Petitioners' allegations – that, although they have engaged neither in combat nor in acts of terrorism against the United States, they have been held in Executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing – unquestionably describe custody in violation of the Constitution or laws or treaties of the United States (emphasis added).

  The government argued to Judge Leon that “it is not for us to speculate … on the basis of mood music from the [Rasul] opinion.”1 In his subsequent ruling dismissing the Guantánamo detainees' petitions, Judge Leon characterized the reliance of the petitioners on the footnote as “misplaced and unpersuasive.”

  Judge Green, however, adopted a different stance, writing that “it is difficult to imagine that the Justices would have remarked that the petitions 'unquestionably describe custody in violation of the Constitution or laws or treaties of the United States' unless they considered the petitioners to be within a territory in which constitutional rights are guaranteed.” Thus, Judge Green ruled, “it is clear that Guantánamo Bay must be considered the equivalent of a U.S. territory in which fundamental constitutional rights apply.” Specifically, she held that the detainees had the Fifth
Amendment right not to be deprived of liberty without due process of law.

  Judge Green said that a relevant factor in the Guantánamo cases is the potential length of the incarcerations. She noted that the administration was asserting the right to hold “enemy combatants” until the “war on terror” is over or the executive determines that the individual no longer poses a threat to national security. She noted that the government had been unable to inform her of how long it believed the “war on terror” might last, or even how it will determine when it has ended. She continued:

  At a minimum, the government has conceded that the war could last several generations, thereby making it possible, if not likely, that “enemy combatants” will be subject to terms of life imprisonment at Guantánamo Bay. Short of the death penalty, life imprisonment is the ultimate deprivation of liberty, and the uncertainty of whether the war on terror – and thus the period of incarceration – will last a lifetime may be even worse than if the detainees had been tried, convicted, and definitively sentenced to a fixed term.

  At the end of his Combatant Status Review Tribunal on 1 September 2004, Yemeni national Fahmi Abdullah Ahmed said:

  Just know that I have been here for three years and have [not] been in touch with my family. I don't think this is just and it's not right for the American legal system to not allow people to talk to their families. It is a very small right that is allowed to all detainees around the world.1

  The tribunal president responded that “we are here today to determine your enemy combatant status, and that alone is what we focus our attention on today.” On that same day, the panel of three military officers unanimously decided that Fahmi Abdullah Ahmed was an “enemy combatant,” as has been done in 519 other cases. He remains held without charge or trial or access to his relatives.2