Judging Guantanamo: The Court, Congress, and the White House
Updated: January 24, 2008
Introduction
The status of the suspected terrorists detained by the United States in Guantanamo Bay, Cuba continues to test the balance between the executive, judicial, and legislative branches of the U.S. government. In late 2007 the Supreme Court heard oral arguments in the cases of Boumediene v. Bush and Al Odah v. United States, both of which challenged the suspension of habeas corpus—the right to challenge one's detention—and pondered what role, if any, U.S. courts should play in prosecuting the Guantanamo detainees. But it was not the first time the Supreme Court considered the legality of the Bush administration’s detention of so-called enemy combatants. In 2004’s Hamdi v. Rumsfeld (PDF), the Court ruled the White House does not have a “blank check” to indefinitely hold and deny legal access to detainees who are U.S. citizens.
The Supreme Court ruled against the Bush administration again in 2006, when it determined the White House’s decision to try detainees at Guantanamo Bay in military tribunals is illegal, in large part because they lacked congressional sanction. The decision in that case, Hamdan v. Rumsfeld, found military commissions did not comply with U.S. military law, the laws of war, or the Geneva Conventions, which protect the rights of detainees during wartime. The opinion was projected to have far-reaching consequences for the detainees at Guantanamo Bay, which has emerged as a lightning rod of criticism for human rights advocates and foreign governments. Congress intervened in late 2006 by passing a law that endorsed military tribunals. But the tussle over jurisdiction between the three branches of government continues.
The White House’s Opening Arguments
White House lawyers have said military commissions are required because of the security threat posed by these prisoners, whom they define as “unlawful” or “enemy” combatants, and the sensitivity of the evidence presented, which could endanger U.S. personnel in the field and hinder intelligence gathering. Some legal experts say these arguments are problematic. “If, in a particular case, the introduction of evidence is a serious and a demonstrated threat, that's for court and judge to address in a case-by-case basis,” says Deborah Pearlstein, who founded Human Rights First's U.S. Law and Security Program. Peter Danchin, an international law expert at the University of Maryland, suggests the White House may favor military tribunals because the bar there is set lower for conviction than in courts-martial or criminal courts, which require more evidence to convict. In 2006, Congress passed the Military Commissions Act, which legalizes military commissions to try terrorist suspects at Guantanamo Bay; allows the continuation of “alternative interrogation practices” by the Central Intelligence Agency (CIA); and bans defendants from filing habeas corpus claims in U.S. federal courts. The legality of these and other measures are at the heart of the Boumediene and Al Odah cases.
A Legal Battle Begins
The legal jockeying over Guantanamo began with the capture of Salim Ahmed Hamdan, a Yemeni bodyguard and driver for Osama bin Laden, in Afghanistan in November 2001. Hamdan was charged in July 2004 with conspiracy to attack civilians and commit acts of terrorism, and has been held at Guantanamo Bay since 2002. He claims he is innocent and has called into question his status as an “enemy combatant.” “The fundamental concept is: What did [Hamdan] do that violated some principle of international law?” asks Raymond M. Brown, an expert on international humanitarian law at Seton Hall University. “Proximity to bin Laden? They don't seem to be able to link him to some violation of the laws of war, which is what they need to do.” Hamdan's lawyers claim the military commissions are unlawful under Article III of the Geneva Conventions and do not uphold basic military justice protections for wartime detainees. A U.S. Court of Appeals, which included current Supreme Court Chief Justice John G. Roberts Jr., rejected an appeal by Hamdan in 2005, claiming that the Geneva Conventions do not apply to members of al-Qaeda.
The High Court Weighs In
The Supreme Court, however, disagreed. Writing for the majority, Justice John Paul Stevens concluded, “The rules specified for Hamdan's trial are illegal.” The court found that the proposed military commissions comply neither with the U.S. military's Uniform Code of Military Justice nor the Geneva Conventions’ Article III, which guarantees certain rights for prisoners of war. Stevens added that the proposed commissions did not uphold the defendant’s right to be present at the proceeding. Also at issue was what the court determined to be a lack of proper Congressional oversight or judicial review. “The Court's conclusion ultimately rests upon a single ground: Congress has not issued the executive a blank check,” wrote Justice Stephen G. Breyer in his majority opinion. “The court is saying you have to provide this basic level of fairness,” explained Pearlstein. “That is, the defendant has the right to see the evidence against him. Otherwise, how do you defend yourself?”
Yet some on the court said because of the defendant’s alleged ties to terrorism and the sensitivity of the evidence against him, a military tribunal was necessary. As Chief Justice Clarence Thomas wrote in his dissenting opinion, “The common law of war establishes that Hamdan’s willful and knowing membership in al-Qaeda is a war crime chargeable before a military commission.” Thomas said the Court’s decision will “sorely hamper the president’s ability to confront and defeat a new and deadly enemy.”
Moving toward Closure
At the time, the ruling was seen by some as a significant check on the powers of the president during wartime. “The Supreme Court has basically knocked out a plank in the [Bush] administration's war-on-terrorism apparatus,” said Danchin. “This is a sweeping decision that the court has issued,” Pearlstein added. “It supports the proposition not only that these military commissions are inconsistent with federal statutes and U.S. treaty obligations, but also with the broader basic principle that mere assertions of military necessity are not sufficient to overcome serious judicial review of a president's conduct.” Effectively, the Supreme Court decision requires that detainees at Guantanamo Bay be tried not by a military tribunal, but presumably by either a federal court or military courts-martial—or be repatriated back to their home country and tried there. At the time of the decision, some experts felt it may also accelerate the decision to shut down the facility at Guantanamo Bay. That, however, has not happened.
Holding Pattern
Of the approximately 275 detainees remaining at Guantanamo Bay—most of whom have been labeled “enemy combats” by the Bush administration—only three are subject to military commission charges, according to Human Rights Watch. The case of one, Omar Khadr, a 21-year-old Canadian, is scheduled for May 2008. Following the Hamdan ruling, all trials were stayed, but proceedings have since resumed. Even still Guantanamo remains a sore spot for the Bush administration, which itself has said it would like to see the prison closed. The issue has divided U.S. presidential contenders, while top U.S. officials, including President Bush, Defense Secretary Robert M. Gates, and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, have called for its closure (AP).
Should that happen, the United States may send the detainees to their host countries to be charged, or, experts speculate, it may send them—through rendition—to “ghost facilities around the world.” In recent months dozens of inmates have been transferred from Cuba to facilities in other nations, including Saudi Arabia, Sudan, Afghanistan, and Jordan. The White House has refused to send detainees back to countries where they may be tortured, which explains the status of five Chinese Uighurs who were released from Guantanamo Bay to Albania, which agreed to receive them.
Next on the Docket
For now, though, the fate of those remaining in Guantanamo is tied to the U.S. justice system. In 2007, the Supreme Court reasserted itself in Guantanamo cases when it heard two habeas cases (PDF): Boumediene v. Bush and Al Odah v. United States. At the heart of each case is the question of whether the Military Commissions Act violates the part of the Constitution known as the Suspension Clause, which 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.” Human Rights Watch boils down the questions before the court this way: “Are these habeas-stripping provisions constitutional? And is federal court review of [military tribunals] an adequate and effective substitute for habeas?”
The Boumediene case concerns a habeas petition by six Algerian nationals arrested in Bosnia in 2002 for allegedly plotting an attack on the U.S. embassy there. Al Odah involves habeas petitions filed by relatives of a dozen Kuwaiti men arrested in Pakistan and Afghanistan as part of the U.S. military operations in that region. Interestingly, the Supreme Court ruled against Al Odah in 2004. Some experts believe the court’s unusual decision to reconsider the case was influenced by an affidavit (PDF) from an army officer involved in the tribunals which suggested the proceedings too often relied on vague or incomplete evidence. The Supreme Court is expected to rule on the cases—which have been consolidated—in early 2008.
Staff Writers Lionel Beehner, Greg Bruno, and Eben Kaplan contributed to this Backgrounder.
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