Legal Challenge to Guantanamo
What did the administration argue about the legal status of Guantanamo?
The Bush administration claimed that Guantanamo was technically foreign soil. Because Guantanamo is part of Cuba, argued the government, it is beyond the reach of American courts; thus US courts were incapable even of approaching the question of whether the detainees were legally imprisoned at Guantanamo.
The key precedent underlying the Administration's position was Johnson v. Eisentrager. In that 1950 case, the Supreme Court denied a group of convicted German war criminals the right to seek federal court review of their sentences. The Court's opinion placed great emphasis on the fact that occupied Germany, where the detainees were being held, was foreign territory. However, as the petitioner's brief for Rasul v Bush pointed out, Johnson v. Eisentrager focused on whether or not the court could reevaluate the content of a formal military proceeding, not whether the German prisoners could have been denied access to trial -- it was a decision about one court's jurisdiction over another, not about the possibility of a zone beyond judicial authority.
Who challenged the administration, and why did the Supreme Court take the case?
Shortly after 9/11, a group of lawyers in Australia and the United States, acting as "next friend" of several Guantanamo detainees, filed "habeas corpus" cases (see below) on behalf of their clients. In December 2003, a federal appeals court in San Francisco ruled that U.S. courts have jurisdiction to hear claims from detainees at Guantanamo, and affirmed the crucial role that courts play in preventing the executive from running roughshod over individual rights. Following this, the U.S. Supreme Court decided to hear two cases connected to this jurisdiction question, Rasul v Bush and Al Odah v United States. Particulars about all of these cases -- and the legal briefs -- are available online: check the "Selected Documents" page in this section.
What was the outcome of the Supreme Court Case?
The Court held, by a 6-3 margin, that detainees could turn to the federal courts to determine whether their detention was lawful. As Joseph Margulies lead counsel for Rasul v Bush, noted in an article in the Virginia Quarterly Review:
The Court quickly dispatched the "Guantánamo fiction" that had prevailed in the lower courts, concluding that the federal court in the District of Columbia had jurisdiction, notwithstanding the fact that Cuba retained "ultimate sovereignty" over Guantánamo Bay. "What matters," Justice Kennedy explained, "is the unchallenged and indefinite control that the United States has long exercised over Guantanamo Bay. From a practical perspective, the indefinite lease of Guantanamo Bay has produced a place that belongs to the United States." At the same time, the Court also rejected the outrageous suggestion that the president, in his capacity as commander in chief, could detain foreign nationals at Guantánamo indefinitely, "without access to counsel and without being charged with any wrongdoing." Lest anyone misunderstand, the Court made plain that such detention was "unquestionably" illegal.
So what now? Didn't the Court "fix" the problem? Aren't the remaining detainees going to get trials?
In a word, no. In the wake of the Supreme Court decision, the Pentagon announced that there would be two different kinds of legal proceedings for detainees. First, all the remaining detainees at Guantanamo would be processed in "Combatant Status Review Tribunals," in order to determine whether they could continue to be held as enemy combatants. These tribunals do not guarantee detainees legal representation; even if a detainee manages to obtain a lawyer, that lawyer cannot be present in the tribunal proceedings. Instead, the prisoner is interviewed in front of a three-person panel; the panel studies the prisoner's case and forwards its findings to Rear Admiral James M. McGarrah, who issues a final ruling.
After a detainee has been declared an enemy combatant, they can be scheduled for a "military commission," a procedure that has not been used to try war criminals since the Second World War. As many critics have noted, prisoners have access to legal representation at this point, but the structure of the commission gives prisoners and their lawyers little opportunity to mount an adequate defense. According to Joanne Mariner, deputy director of the Americas division of Human Rights Watch:
Under the rules, the President, through his designees, serves as prosecutor, judge, jury, and, potentially, executioner. There is no appeal to an independent civilian court, violating a fundamental precept of international law as well as settled practice in the U.S. military justice system.... An accused brought before the commissions would be severely limited in his ability to defend himself against charges. The rules permit the military to monitor private conversations between defense counsel and their clients, violating the fundamental notion of attorney-client confidentiality. Moreover, under the rules, the detainee's civilian lawyer, even with a high-level security clearance, can be denied access to the evidence against the defendant or barred from attending closed court proceedings.
Not only human rights groups have been skeptical of the commission process. In mid 2004, Salim Ahmed Hamdan, the first detainee scheduled for a such a commission, challenged the right of the government to use military commissions to try detainees. In November 2004, US District judge James Robertson ruled that Hamdan can't be tried before a military commission unless a competent tribunal first approves the Administration position that Hamdan and other cannot be tried as prisoners of war. Robertson also ruled that the Commissions be restructured so they are in compliance with the US Uniform Code of Military Justice.
Even if the Administration manages to overcome these hurdles to their preferred method of trying prisoners at Guantanamo, it remains unclear, how many detainees will actually ever go before a military commission. As of December 20, 2004, 507 CSR tribunals had been conducted at Guantanamo. (In 215 of these cases, the detainees refused to take part in the hearing, but the hearings will simply held in their absence). Thus far, 15 detainees have been designated for war-crimes trials before a military commission, and two have been reclassified as non-combatants and released. The remaining 275 prisoners remain in limbo -- the government neither plans to release them nor bring them to trial.
What about the habeas cases now allowed under the provisions of the Supreme Court Ruling?
The plaintiffs in the 2004 Supreme Court case on Guantanamo were suing for the "habeas corpus" rights of the detainees. This phrase, from the Latin: "You have the body"; means a writ used to bring a person before a court or a judge so that the court or judge may determine whether that person is being unlawfully denied his or her freedom.
According to the Justice Department, since Supreme Court decision 69 Guantanamo detainees have filed 19 cases in US District Court challenging the legality of their detentions as enemy aliens. In January of 2005, two Federal District judges wrote contradicting opinions regarding these cases. According to the first judge, Robert Leon, the American legal system was still not required to hear the cases after they were filed. The second judge, Hens Green, was adamant that detainee's habeas rights were still being violated by the Administration's proceedings: Green, however, allowed the decision to go to appeals court, where it now waits for trial (8/25)