In Hamdan v Rumsfeld the United States Supreme Court found that the military commissions established by the Bush Administration to be unconstitutional.
This was my look at what followed from that with some history of the right to a trial. Might be useful if things go to shit.
‘Injustice anywhere is a threat to justice everywhere’.
Martin Luther King
United States Naval Station, Guantánamo Bay, Cuba.
The United States first occupied Guantánamo, approximately 45 square miles of land (28,817 acres) and water on the southeast coast of Cuba, in June 1898 during the Spanish-American War. United States occupation of this territory, strictly defined as a ‘Coaling and Naval Station’, was formalised in February 1903 under a Treaty signed with the then Cuban president and American Citizen, Tomás Estrada Palma. A Supplementary Agreement formalised later in 1903 added several conditions. A later 1934 treaty between Cuba and the United States sets out that the lease continues in perpetuity as long as the base remains continually occupied by the United States.
Habeas corpus in the United States.
‘The writ is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. Its pre-eminent role is recognized by the admonition in the Constitution that: "The Privilege of the Writ of Habeas corpus shall not be suspended.’
U.S. Supreme Court 1969
Habeas corpus - Latin for ‘you may have the body.’ is a legal writ requiring prison officials to produce prisoners before a court so that the legal validity of their detention can be decided.
Originating in England in the 12/13th Centuries, the English writ of Habeas corpus was given it’s present form when the Declaration of Rights (i.e. Bill of Rights) was presented to William of Orange and his wife Mary as the main condition to their ascent to the throne in 1689, finally giving substance to the promise of Article 39 in the Magna Carta regarding the right of a fair trial by equals to all free men.
It was this form of the habeas corpus writ that was enshrined in the American Constitution of 1789, the relevant part of which, reads ‘Habeas corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it.’ . One of the Constitution’s framers, Alexander Hamilton in a letter to a friend regarding habeas corpus, stated that ‘arbitrary imprisonments have been in all ages the favourite and most formidable instruments of tyranny.’.
In 1866 after the end of the Civil War, the U.S. Supreme Court in the case of Ex parte Milligan, and addressing President Lincoln’s suspension of habeas corpus during the Civil War, laid down the boundaries for the suspension of the writ of habeas corpus in wartime, stating that it was Congress and not the President who decided on it’s suspension, thereby reaffirming Chief Justice Roger Tanney’s decision in Ex parte Merryman of a few years earlier.
Other than in the example given above, the writ of Habeas corpus has only been suspended three other times in the United States. The first was under the Ku Klux Klan Act when the Union faced rebellion in several South Carolina counties, the second was in the Philippines in 1902 during a rebellion there and the last was in Hawaii after the attack on Pearl Harbor in 1941. These are all clearly cases of rebellion or invasion.
Why Guantánamo?
December 28, 2001
MEMORANDUM FOR WILLIAM J. HAYNES, 2 GENERAL COUNSEL, DEPARTMENT OF DEFENSE.
FROM: Patrick F. Philbin
Deputy Assistant Attorney General
John C. Yoo
Deputy Assistant Attorney General
RE: Possible Habeas Jurisdiction over Aliens Held in Guantánamo Bay, Cuba.
‘For the foregoing reasons, we conclude 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’
In the early to mid 90s, after a military coup in Haiti, large numbers of Haitian ‘boat people’ were intercepted by the United States Coastguard and transported to Guantánamo. Most of these Haitian refugees were repatriated back to Haiti under a contentious policy announced by President Bush (G.H.W. or ‘41’) on May 24, 1992 from his holiday home in Kennebunkport, Maine.
The Haitian refugees’ plight was addressed in a case bought before the Eastern District Court of New York by a Yale Law school professor and his students. Judge Johnson in his decision on this case, ordered that the Guantánamo detainment camp be closed and that legal counsel at any place subject to United States jurisdiction never again be barred from anybody held at such facilities. But in a deal arranged between the plaintiffs’ legal team and the Clinton Administration this decision was ‘vacated’ and this stopped this decision from being used for similar cases in the future.
Guantánamo as a ‘Detaining Facility’ during the ‘War on Terror’.
‘After the chaos and carnage of September 11th, it is not enough to serve our enemies with legal papers.’
George W. Bush, January 2004.
On October 7, 2001 the United States and Britain attacked Afghanistan in response to the attacks on New York on September 11, 2001.
In January 2002 the United States military started airfreighting prisoners from Afghanistan to Guantánamo. The prisoners, shackled and blindfolded in transit, had open cages awaiting them upon their arrival at Guantánamo. Secretary of Defense Donald Rumsfeld, denying these prisoners access to the Geneva Convention, described them as ‘Unlawful Combatants’ undoubtedly based on the advice of John Yoo and Robert Delahunty in their memo to the Department of Defense of January 9, 2002.
Among the first to be transferred to Guantánamo was Yaser Esam Hamdi, a Louisiana native who was quickly transferred to a Naval Brig in Norfolk, Virginia because of his American citizenship. The Supreme Court in a decision handed down on June 28, 2004 gave Hamdi the right to a trial to determine the validity of the charges. But they also determined that due process could be met by a Military Tribunal and that hearsay evidence may be accepted as the most reliable evidence in such a case. It was left to the conservative Justice Antonin Scalia to write a scathing dissent.
Two other cases seeking Habeas corpus in relation to Guantánamo prisoners, Rasul v Bush and Al Odah et al. v United States et al, had also wound their way to the Supreme Court and as they both ended up at the United States Court Of Appeals For The District Of Columbia Circuit they were decided together on June 28, 2004, the same day as Hamdi was decided. The Court held that ‘Aliens held at the base, no less than American citizens, are entitled to invoke the federal courts’ authority under §2241’. They based this decision on a Supreme Court case in Kentucky, Braden v 30th Judicial Circuit Court of Ky which had explained the writ of habeas corpus as ‘‘the writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody’.
Detainee Treatment Act of 2005 and Hamdan v Rumsfeld.
Republican Senator Graham introduced, late on November 10, 2005, an amendment to the U.S. Senate, the intent of which was to dismiss all future and pending Guantánamo habeas corpus cases. This was passed in the Senate minus the ability to dismiss pending cases. As the Detainee Treatment Act of 2005 it was then signed into law on 30 December 2005 by President Bush, but in it’s original unrevised form. On January 4, the Executive Branch notified the United States District Court for the District of Columbia that it intended to move to dismiss all the pending Guantánamo Habeas corpus cases.
Another Guantánamo habeas corpus case, Hamdan v Rumsfeld, had been winding it’s way through the various courts since April 2004, and in a Supreme Court decision on June 29, 2006 reversing the Court of Appeals (D.C. Circuit) and partly reaffirming an earlier District Court decision, the plurality of the court found that the sole charge of Conspiracy to commit War Crimes was not a crime under either United States or International law. They also found that the relevant Geneva Conventions did apply to Hamdan. The Court, as widely expected, also dismissed the relevance of the Detainee Treatment Act to Hamdan.
The Military Commissions Act of 2006.
‘The habeas corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume.’
Thomas Jefferson, 1798.
The Hamdan decision if allowed to stand, would have resulted in 755 Guantánamo prisoners along with many others around the world having access to the U.S. Courts, and it was therefore no surprise to see, after very quick consideration in Congress and Senate, that on October 17, 2006 the Military Commissions Act was signed into existence.
As expected the writ of habeas corpus in relation to any ‘unlawful combatant’ was rescinded, but this was also to apply ‘of an alien detained by the United States since September 11, 2001’ effectively applying the lack of it’s application to all post 9/11 non-U.S. prisoners held in the custody of the United States at prisons like that at Guantánamo.
In an F.B.I. document released on January 2, 2007, various incidents of abuse of prisoners, witnessed by F.B.I. employees while at Guantánamo, were outlined, including the use of dogs, sleep deprivation, stress and other abusive interrogation tactics. In Abu Graib Prison in Iraq, as exposed by the CBS program 60 Minutes and Seymour Hersh in the New Yorker in April/May 2004, there had been systemic abuse and torture including sodomy of young children and murder. U.S. military interrogation strategies include the use of mock executions, sexual humiliation and waterboarding as well as the previously mentioned interrogation methods.
Under the Military Commissions Act of 2006 rape and ‘sexual assault or abuse’ as defined, fail to conform to standards of international law. It also (re)defines torture and serious or severe physical harm, setting the bar at the level of ‘substantial risk of death’, ‘extreme pain’ or ‘significant loss of a bodily member, organ, or mental faculty’. It also gives retroactive immunity to U.S. personnel for post 9/11 abuses before December 31 2005, as long as they were not aware that they were acting illegally.
The Military Commissions Act of 2006 also provides for the conditions under which prisoners that the U.S. Government defines, as ‘unlawful enemy combatants’ will be tried in a Military Commission. It allows evidence gained from hearsay, torture and secret evidence that is not required to be passed on to the defendant. The defendant can be charged for offences which did not exist at the time of the prisoner’s original detainment including charges possible under ‘providing material support for terrorism’ a term not further defined (which could easily apply to say a journalist).
In the Geneva Conventions, there is no mention of ‘unlawful enemy combatants’ anywhere. If those captured are not judged to be POWs then they have to be classified as civilians instead. The International Criminal Tribunal for the Former Yugoslavia, in 1998, clarified this point by quoting from the Red Cross’s commentary on the Fourth Geneva Convention in 1958; ‘There is no intermediate status; nobody in enemy hands can be outside the law.’.
Summary
The Military Commissions Act of 2006 was written with the intention of barring Guantánamo prisoners’ previously legitimate access to the U.S. Court system. It also denies access for prisoners, under U.S. care, to the protection of the Geneva Conventions.
The effect this has in relation to the prisoners at Guantánamo, is that their right to a fair trial has been barred, their human rights denied and their incarceration is potentially lifelong. If tried by a Military Commission they could face the death penalty possibly without knowing the charges they’ve been convicted of. This could even plausibly be done without their attendance at the Military Commission. If freed from Guantánamo, the legislation’s intent is to bar them from civil action in the U.S. Court system for action arising from their incarceration (the Act bars civil action unless they’re still at Guantanamo).
I did not, it seems, get around to providing references.
This is what I am researching now- making the comparison between 9/11 GWOT tactics and the Global War on Virii- a new series. Parallels are skewed, so converge rapidly.
Great post Richard. Very interesting. I'm kinda in favor of releasing all of the current "enemy combatants" at Guantanamo to make room for the true criminals of the world. I could probably come up with a list of names off the top of my head that would adequately replace every one of the people that are there now...