WASHINGTON: The legal battle over the rights of the hundreds of men held as enemy combatants at Guantanamo Bay has lasted more than five years, including two rounds in the Supreme Court. Now, as the parties prepare for their next Supreme Court confrontation this fall, the arguments have come full circle to where they began: over the role of the federal courts.
The Military Commissions Act of 2006, which Congress passed in its final weeks under Republican control in order to negate the Supreme Court’s most recent ruling on behalf of a Guanta’namo detainee, stripped all courts of jurisdiction “to hear or consider” challenges to any alien detainee’s continued detention. In a surprising about-face the day after it concluded its term in June, the Supreme Court accepted renewed appeals on behalf of two groups of detainees and agreed to decide whether the measure is constitutional.
Lawyers for the detainees and for dozens of organizations and individuals supporting them filed their briefs late last month. Two dozen briefs poured into the court. The government’s brief and those of any supporting groups are due by Oct. 9, with the argument likely to be scheduled less than two months later.
The Supreme Court, of course, is only one forum among several in which the fate of the Guanta’namo detainees is being debated. Democrats in Congress have tried, without success so far, to restore the federal courts’ jurisdiction to hear the detainees’ challenges to their confinement. And voices within the Bush administration have urged consideration of closing the detention camp altogether.
The new case, Boumediene v. Bush, presents only one of the numerous legal issues raised by the administration’s approach. A challenge to the military commissions, before which detainees who have been formally charged with crimes are due to be placed on trial, is proceeding on a separate track and is not at issue in this case.
Nonetheless, it is clear from the briefs filed so far that this case, for the coming months at least, provides the lens through which the interested world will view Guanta’namo Bay.
A brief filed by 383 European parliamentarians tells the justices that the case “boils down to the simple, but crucial, question of whether the system of legal norms that purports to restrain the conduct of states vis-a-vis individuals within their power will survive the terrorist threat.”
A brief filed on behalf of bar associations in the 53 countries of the British Commonwealth asserts that if Guanta’namo Bay were under British rather than U.S. control, there is no doubt that “it would be the English courts and not the executive which would be responsible for determining any issue relating to any ‘enemy’ status alleged against the detained persons.” That view of the ancient writ of habeas corpus had jelled in the English legal system by the mid-18th century.
Those filing briefs represent a fairly broad range of the political spectrum, from civil liberties and human rights groups like the American Civil Liberties Union and Amnesty International to the Cato Institute, a libertarian research organization. Cato urges the court to “begin with first principles” and to view habeas corpus in the context in which it evolved: as a judicial check on executive power and thus a core component of the separation of powers.
A petition for a writ of habeas corpus is a jurisdictional vehicle that brings a prisoner before a judge to contest the validity of his confinement.
From the start, the availability of habeas corpus has been at the heart of the debate over the legal status of the Guanta’namo detainees. The administration chose the U.S. Navy’s base in Cuba in the first place because it assumed that the federal courts would not view their jurisdiction as extending to a foreign country.
But the Supreme Court ruled otherwise in Rasul v. Bush in 2004, finding that the terms of the lease on the naval base gave the United States a degree of control that made the property the functional equivalent of U.S. territory and thus gave federal courts the jurisdiction to rule on habeas corpus petitions filed by those detained there.
The Rasul decision, a major setback for the administration, has led by incremental steps, three years later, back to the Supreme Court’s door. The detainees’ lawyers argue that Congress, by removing habeas corpus jurisdiction, and the federal appeals court in Washington, in upholding that action by a 2-1 decision in February, both defied the Supreme Court’s ruling.
The Military Commissions Act, the lawyers maintain, amounted to a “suspension” of habeas corpus without meeting the conditions set by the Constitution for such a drastic action. Article I, Section 9, which consists of a list of actions that Congress is forbidden to take, says that habeas corpus “shall not be suspended” except in “cases of rebellion or invasion.” Such conditions existed in 1863, when Congress suspended the writ during the Civil War, but no one argues that they exist today.
The Supreme Court has taken a somewhat more flexible view of the “suspension clause,” ruling in two 20th-century cases that there could be acceptable substitutes for habeas corpus as long as the substitutes offered remedies “commensurate” with those that prisoners could receive from a traditional writ. A central legal issue in the new case is whether an acceptable substitute in fact exists.
In July 2004, nine days after the Rasul decision, the Pentagon set up a procedure, known as a combatant status review tribunal, for determining whether a detainee had been properly classified as an enemy combatant. Detainees, who are not represented by lawyers before these tribunals, may file an appeal of the determination at the federal appeals court here. The administration has argued in earlier phases of the case that this process is an adequate substitute.
The recently filed briefs argue strenuously that the tribunals and their review process fall far short by, among other shortcomings, failing to give detainees access to the evidence needed to rebut the government’s charges. A brief filed by retired senior military officers calls the process “little more than a facade” that violates basic principles of military law.
Perhaps the most striking of all the briefs is the one filed by Senator Arlen Specter, Republican of Pennsylvania. The withdrawal of habeas corpus, he tells the justices, “is anathema to fundamental liberty interests,” and the combatant status review tribunal process is so deeply flawed that it “demands robust habeas review.”
Specter was chairman of the Judiciary Committee when the Military Commissions Act was passed. He was, in fact, one of the 65 senators who voted for it.