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Updated: August 6, 2008
The status of the suspected terrorists detained by the United States at the U.S. Navy base in Guantanamo Bay, Cuba, continues to test the balance between the executive, judicial, and legislative branches of the U.S. government. On August 6, 2008, a jury of U.S. military officers convicted Osama bin Laden's former driver of supporting terrorism, but acquitted him of a more serious charge—conspiracy to commit terrorist attacks. The verdict, the first delivered at the controversial military prison, followed a string of setbacks for the Bush administration in its attempts to try suspected terrorists. On June 12, 2008, in its third major ruling on the topic, the Supreme Court declared unconstitutional a major provision of the 2006 law that enabled detainees to be tried before military tribunals at Guantanamo, a system the Bush administration and its allies in Congress went to great lengths to create. The ruling in Munaf v. Geren, written by Justice Anthony M. Kennedy, declared that the military tribunals failed to offer the "fundamental procedural protections of habeas corpus."
In plainer language, the tribunals' tight handling of prosecutorial evidence and limits on appeals made it too difficult for detainees to build a case to challenge their detention. "Liberty and security can be reconciled," the majority opinion stated. While the ruling represents the third consecutive setback for the Bush administration, it does not mean Guantanamo will close quickly, or even that the tribunals will halt. Yet with hundreds more petitions for habeas corpus pending before the U.S. District Court for the District of Columbia, pressure to send some detainees back to their home countries may grow.
Analysts noted that the Munaf v. Geren decision marks the first time the court addressed the underlying constitutional issues. Previous rulings in 2007 and 2004 focused primarily on the question of jurisdiction: In effect, did the fact that the detainees were held on a Navy base in Cuba obviate the need to involve the U.S. civilian court system.
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, still led by Republicans in late 2006, intervened by passing the Military Tribunals Act—the law found wanting by the court in the June 2008 ruling. In August 2008, Hamdan, 37, was found guilty of supporting terrorism, though his attorneys vowed an appeal (WSJ). The charge carries a maximum sentence of life in prison.
Administration 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. Indeed, strong dissents by four of the seven justices who ruled on Munaf v. Geren in June 2008 agreed with this view. Justice Antonin Scalia declared the court's ruling "will almost certainly cause more Americans to be killed." Chief Justice John G. Roberts declared the ruling to be "judicial activism," a standard conservative criticism of rulings deemed to infringe on the responsibilities of the executive and legislative branches of government.
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, when Congress passed the Military Commissions Act to legalizes military commissions, it also legalized “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 remain to be decided.
The legal jockeying over Guantanamo began with the capture of 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 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 in the 2006 Hamden case, “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.” 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. Defense attorney’s have also questioned the fairness of convicting Hamdan on a charge that was not considered a war crime prior to November 2001.
Of the approximately 270 detainees remaining at Guantanamo Bay—most of whom have been labeled “enemy combatants” by the Bush administration—only ten were subject to military commission charges at the time of the June 2008 Munaf v. Geren ruling. The ruling left open the possibility of these proceedings moving forward, and President Bush hinted he may ask Congress again to pass legislation integrating the court's extension of habeas corpus to Guantanamo into the tribunals. The fact that Democrats now control Congress, however, makes that prospect uncertain.
Meanwhile, the administration's dilemma only deepens. Of the detainees not charged, according to Benjamin Wittes, a public law specialist at the Brookings Institution, a large number already marked for transfer to the countries of their birth have been held primarily for fear that they will be tortured if send home. In other cases—including those of approximately 100 Yemenis in detention—the concern is that the government will simply set all of them free rather than pursue charges on evidence gathered by the United States. Witt contends the Munaf v. Geren ruling puts the onus on Congress to now act decisively to create an appeals system—complete with habeas corpus and appeals mechanisms—that will adjudicate the remaining cases.
The question of Guantanamo may well be passed on to the next president even though President Bush, Defense Secretary Robert M. Gates, and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, have all said they would like to close it (AP). The two major party presumptive presidential candidates, Republican Sen. John McCain and Democratic Sen. Barack Obama, have called for Guantanamo to be closed, and both are highly critical of the use of "extraordinary interrogation methods," which they have labeled as torture.
Their positions do differ, however. McCain would transfer the prisoners for adjudication at Ft. Leavenworth, Kansas—the site of the U.S. Army maximum security prison—and as a primary backer of the 2006 Military Commissions Act, felt habeas corpus issues had been properly dealt with in that system.
Obama voted against that measure and says those detainees not deported home should be tried either in U.S. civilian courts or by military courts-martial on U.S. territory.
Written with contributions by Lionel Beehner, Greg Bruno, Michael Moran, and Eben Kaplan.
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