Supreme Court rules that Guantanamo detainees have right to habeas corpus

In a remarkable decision issued today, the U.S. Supreme Court ruled that Guantanamo Bay alien detainees have a right to challenge the lawfulness of their detentions in U.S. federal courts. The 5-4 decision was issued in the combined cases of Al Odah v. United States and Boumediene v. Bush.

In its decision, the Court ruled that Congress had not validly suspended habeas corpus. Under Article I, Section 9, Clause 2 of the Constitution, the writ of habeas corpus may only be suspended in times of rebellion or invasion -- neither of which have occurred.

Just as significantly, the Court also ruled that the alternative to habeas corpus that Congress set up in 2005 under the Detainee Treatment Act, which only permits detainees to challenge the lawfulness of their detentions under very restrictive and limited terms, is an inadequate and ineffective alternative to habeas. The DTA, according to the Court, did not provide sufficient legal protections to detainees who sought to challenge their detentions under the DTA scheme.

Detainees had challenged the sufficiency of the DTA process, claiming that, unlike the legal protections afforded under habeas review, the DTA did not grant detainees the right to counsel, the right to meaningfully challenge evidence presented against them, the right to present exculpatory evidence, or the right to secure their release if they were found to not be enemy combatants. The DTA would have also allowed the government to present evidence obtained through coercion or torture.

This means that detainees are not required to abide by the terms set out in the Detainee Treatment Act, but rather, may challenge their detentions in U.S. federal courts via habeas petitions.

A copy of the Court's decision is available here.

German Court Asked to Review Decision Not to Investigate Rumsfeld in Torture Case

Today, human rights groups appealed to the Frankfurt High Regional Court in Germany, asking the court to review a German federal prosecutor's decision not to proceed with an investigation into high-ranking U.S. officials' involvement in the abuse and torture of detainees held in Iraq, Afghanistan, and Guantanamo Bay. The request, which names former Defense Secretary Donald Rumsfeld, former Attorney General Alberto Gonzales, former CIA Director George Tenet, and other high-ranking military officers and former government attorneys as the subjects of the investigation, is the second of such requests to be filed in Germany.*

The first complaint was filed in November 2004 by German attorney Wolfgang Kaleck, with the support of U.S. and international human rights groups. A German prosecutor dismissed that request, stating that the nations of the victims and the accused should be given the first opportunity to conduct the criminal prosecutions. However, since that first request was filed, U.S. officials have failed to take any action in investigating the allegations of abuse and torture. Moreover, now that the U.S. Congress has passed the Military Commissions Act, the likelihood that U.S. officials will ever be prosecuted in the United States has become virtually nil.

The MCA, signed into law on October 17, 2006, presents significant legal obstacles to prosecuting U.S. officials in U.S. courts. The MCA narrowly limits the types of conduct for which U.S. officials may be held liable, essentially granting them immunity for particular types of criminal conduct such as acts of torture. In addition, the statute allows defendants to claim, as a defense, that the detention and interrogation tactics they used were "lawful," or that the defendant didn't know that certain types of techniques were unlawful. The Office of Legal Counsel, which advises the Attorney General and the Executive branch on the lawfulness of proposed courses of conduct, has previously stated that certain forms of torture are lawful -- a view that has been widely criticized by legal scholars and the human rights community.

The MCA's broad grant of immunity, particularly for crimes like torture that violate well-recognized human rights standards, disregards the United States' binding obligations under international and domestic law. The United States, as a party to the Convention Against Torture, is bound by the treaty's prohibition against torture. The United States is also obligated under U.S. domestic law not to commit torture. The Foreign Affairs Reform and Restructuring Act of 1998 incorporates article 3 of the CAT, which prohibits countries from transferring individuals to countries where they will more likely than not be tortured. Under U.S. criminal law, the Torture Convention Implementation Act makes it a crime to violate the CAT's anti-torture provisions.

Even though torture is unlawful under domestic and international law, the MCA significantly limits the liability of U.S. officials for their human rights abuses. Furthermore, the U.S. government's unwillingness to enforce these obligations means that injured parties must look to foreign courts to secure justice. Without any guarantee that the United States will enforce its obligations not to torture, we now turn to foreign tribunals to hold perpetrators accountable for committing major human rights abuses.

Human Rights USA supports the German court's review of the prosecutor's decision not to investigate human rights violations committed by U.S. officials. HRUSA has submitted supporting evidence to accompany the petition for review. Among the supporting evidence provided by HRUSA are two complaints filed by HRUSA with the U.S. Department of Justice, seeking an investigation into the CIA's extraordinary rendition program and into the detainee abuse taking place in Iraq, Afghanistan, and Guantanamo Bay, as well as an affidavit by HRUSA's Executive Director, Morton Sklar, detailing the organization's efforts to seek criminal accountability for these major human rights abuses. The fact that HRUSA's requests for investigation went unanswered by the U.S. government only underscores the necessity for the German court's review of this case.

CC

*Under German law, German courts may exercise universal jurisdiction over defendants who are alleged to have committed genocide, crimes against humanity, and war crimes, regardless of the nationality of the parties or the location where the alleged acts took place. However, German law does not obligate federal prosecutors to open an investigation.

David Hicks' Guilty Plea Before the Military Commission Tribunal

After declining to enter a plea at an earlier session of his preliminary military commission hearing, Guantanamo Bay detainee David Hicks plead guilty before the nation's first Military Commission on Monday. Hicks' guilty plea should not prevent us from taking a long, hard look at the appropriateness and legality of using the military rather than civilian courts for these prosecutions.

Two critical questions that must be addressed are, first, whether these special military trials meet basic fairness and due process standards, and second, whether the approach taken by military tribunals is desirable even if they can be considered adequate for purposes of due process. The fact that Hicks has admitted his guilt should not be taken as a green light for these military trials to continue.

It must be understood that the special military commissions set up by the Bush Administration to prosecute suspected terrorists are worlds apart from the military trials that normally take place under the Uniform Code of Military Justice (UCMJ). Many of the traditional due process protections provided in typical UCMJ trials are not present in the special military commissions that were created to deal with alleged terrorists. Additionally, the rules of the UCMJ are not binding on, or applicable to, military commissions trials.

Under the Military Commissions Act of 2006:

• Detainees do not have the right to be represented by counsel of their choosing.
• Evidence obtained through torture, coercive interrogations, or improper long-term detention is admissible in certain circumstances, as is hearsay evidence.
• No regular judicial appeal is permitted. The only avenue for judicial review is through the "convening authority", which woud be the Secretary of Defense or his designee, who cannot be characterized as impartial.
• Detainees are denied the same fundamental due process protections that are provided for defendants in typical military criminal cases and in criminal trials in U.S. courts and international tribunals. For example, detainees do not have the right to prompt notification of the charges issued against them, nor do they have a right to speedy trial before an impartial court, and may be subject to secret trials closed to the public.
• The applicability of international law in U.S. courts, particularly the Geneva Conventions, is severely constricted.

These deficiencies are nothing new to the Guantanamo detainee trials. On June 29, 2006, the U.S. Supreme Court in Hamdan found these deficiences to be so blatant and unacceptable that it rejected the first set of military commission procedures (established under Military Commission Order No. 1), finding them to be in violation of U.S. military law and in conflict with the requirements of the Geneva Conventions. It was in response to the Court's decision in Hamdan that Congress made changes to the rules for the military commissions, enacting the Military Commissions Act of 2006.

Unfortunately, the new standards do not come close to remedying all of the problems that the Supreme Court identified in Hamdan. For example, the judge in Hicks' hearing threw Hicks' two civilian counsel out of the courtroom, finding that they were "not authorized to participate in the military commission proceedings." Under the MCA, detainees may be represented by civilian and military attorneys, so long as defense counsel meet certain specifications. Civilian attorneys qualify to represent detainees based on regulations prescribed by the Secretary of Defense. However, the Defense Secretary has not yet issued those regulations. One of Hicks' attorneys, Joshua Dratel, refused to sign a form agreeing to be bound by unwritten regulations, thereby signing off on his ethical obligations carte blanche and being subject to a system that makes up the rules as it goes.

Rebecca Snyder, another of Hicks' civilian attorneys, is a military reserve lawyer, but was disqualified from representing Hicks because she had not been called into active duty. She would have to change her reserve status before being permitted to appear before the commission. Such a bold move by the judge effectively constitutes a rejection of Hicks' entire defense team, leaving Hicks with only his military attorney to defend him.

But even if a greater degree of due process was to be provided in the military commissions procedures, the military trial approach cannot be justified. For years, the United States has strenuously objected to the use of military trials as a matter of principle, because of concerns that this process has been misused in so many cases with the aim of producing expedited results and bypassing normal rule of law standards.

Another significant problem is that it is not at all clear that alleged terrorists fall outside of the jurisdiction of the regular criminal courts as "unlawful enemy combatants" in wartime. Technically, under traditional standards of international law, unless the detainees were captured on a battlefield, such as in Iraq or Afghanistan, there is no basis for treating them as "war criminals" subject to military trial as unlawful enemy combatants. They may have committed international crimes - a fact that has yet to be established. But their actions should not be considered war crimes, since the "war on terrorism" is neither an armed conflict between governments, nor an external conflict involving competing national factions, under the terms of the Geneva Conventions.

Whatever the technical legalities or the merits (or demerits) of the military trials may be, the United States should not now be supporting the use of military trials when, with good reason, we have objected to this approach for so long, when other governments bypassed the regular legal profess for the sake of expediency.

Sheikh Muhammad’s Confessions

The “confessions” of Sheikh Muhammad presented before the Combatant Status Review Tribunal at Guantanamo Bay provide valuable insights into possible terrorist threats and thinking, and deserve to be taken seriously on that basis. But there are aspects of the confessions that are very troubling for other reasons that counsel taking them with caution as well.

Statements that result from torture (admitted waterboarding in this case) are never reliable, and should never be accepted as a basis for judgment in any type of judicial proceeding, even the special CSRT procedure established at GITMO to assess the status of suspected terrorists. These due process problems are compounded by the fact that Sheikh Muhammad, along with an undetermined number of other suspected terrorists, was held for many months in a “secret prison” without charges being filed against him, and subject to extreme forms of isolation and interrogation. Torture and arbitrary, indefinite detention would make any statement or confession unusable in a regular US court proceeding. The fact that these practices are being permitted in the context of the CSRT determinations places a major cloud on how the detainees and other suspected terrorists more generally. In the name of fighting the “war against terrorism,” and in order to deal with suspected terrorists expediently, we are allowing ourselves to commit torture and to eliminate some of the most important judicial protections that we associate with the “rule of law.”

The elimination of habeas corpus remedies in the REAL ID Act (for refugees) and in the Military Commissions Act (for terrorist detainees) is another victim of this process, and another indicator of how far our government seems willing to go to restrict basic rights and protections to stop terrorists.

It is important for us to look at these problems with how we are dealing with the terrorist threats, not just at the subjects of the “confessions” themselves. The Department of State has just put out its annual Country Reports on Human Rights assessing compliance by foreign governments, and placing great stress on how these governments observe the basic principles of democracy and the rule of law. How would our own government fare if subjected to the same analysis? The process surrounding how Sheikh Muhammad’s confessions were obtained, including the use of torture and long-term secret imprisonment, and the CSRT process that substitutes ex parte judgments by the military for basic due process rights, suggests this judgment would not be a very positive one.

MS