Gitmo Detainess Are Still Stuck Down There
    Herman Schwartz
    Legal Times

    Monday 07 May 2007

    The Bush administration this February won a court victory denying habeas corpus to alien detainees. Now, it is trying to deny the detainees the effective assistance of counsel.

    None of this should come as a surprise. Ever since President George W. Bush declared his "war on terror" in the wake of the Sept. 11, 2001, terrorist attacks, he has claimed unlimited and unlimitable power under the commander-in-chief provisions of Article II of the Constitution. Since then, government lawyers have persisted in trying to prevent any judicial scrutiny of the president's actions in conducting this "war."

    Until recently, these efforts had mostly failed. In February, however, a 2-1 panel of the U.S. Court of Appeals for the D.C. Circuit ruled in Boumediene v. Bush that the Military Commissions Act of 2006 provision that denies the courts any meaningful supervision over the aliens detained as "enemy combatants" by the military at the U.S. Naval Base at Guant a1namo Bay, Cuba, and elsewhere was not an unconstitutional suspension of the writ of habeas corpus.

    With the Supreme Court's denial of certiorari on April 2, the government strategy has apparently succeeded, at least for the moment.

    But this could change. Although in the past, Congress has collaborated with the Bush administration in restricting detainee rights, a new Democratic Congress may be more willing to stand up to the president. And at the Supreme Court, two key justices, even while denying certiorari last month, may have signaled their commitment to habeas rights for detainees in the future.

    No Blank Check

    The United States holds Guant a1namo under a lease and treaty giving it total dominion and control over the base for as long as it chooses. Cuba retains ultimate sovereignty, however, so the U.S. government, assuming that no federal court would have jurisdiction over the base, chose Guant a1namo as the place to confine the then 600-plus detainees with alleged links to al-Qaida and the Taliban.

    The first sign of trouble came when it was discovered that Yasir Esam Hamdi, one of the Guant a1namo detainees, was an American citizen. The government immediately moved him into a Navy brig off South Carolina, which is in the jurisdiction of the U.S. Court of Appeals for the 4th Circuit.

    When Hamdi filed a habeas corpus petition challenging his detention as an "enemy combatant," the government first argued that the judiciary should stay out of the case entirely. This was too much for even the usually compliant 4th Circuit and it refused. On the merits, however, it adopted a posture of virtually total deference to the government and dismissed the petition.

    When the case was appealed to the Supreme Court, the justices declared in Hamdi v. Rumsfeld (2004) that where individual rights are concerned "a state of war is not a blank check for the President," and insisted on some due process. Only Justice Clarence Thomas dissented.

    In the D.C. Circuit, where other detainee writs from Guant a1namo were pending, the government's avoidance strategy also succeeded initially. In an opinion by Judge A. Raymond Randolph, the court agreed with the government that because Cuba retained "ultimate sovereignty" over the base, the federal courts lacked jurisdiction.

    This decision was short-lived. The same day that the Supreme Court decided Hamdi, it reversed the D.C. Circuit in Rasul v. Bush (2004). In a 6-3 decision, the Court reasoned that because of the "plenary and exclusive jurisdiction" exercised by the United States over the base in Cuba, the federal courts could hear habeas petitions by these detainees.

    In response to Hamdi, the government quickly put together a skeletal hearing procedure to determine which detainees were "enemy combatants." At the same time, the government began war crimes proceedings against some of the detainees before military commissions newly established by the president in 2001.

    When these tribunals were challenged in the D.C. Circuit for violating both domestic and international law, the government again urged the court to stay out. Again this argument failed. But like the 4th Circuit, the court ruled for the government on the merits; Judge Randolph wrote this opinion as well.

    The Supreme Court agreed to review this decision, but Republican senators quickly added a provision to the then-pending Detainee Treatment Act of 2005 that stripped the federal courts, including the Supreme Court, of jurisdiction over detainee and military commission cases except for some minimal review by the D.C. Circuit.

    At first, this move failed. Last June, the Supreme Court ruled in Hamdan v. Rumsfeld (2006) that the Detainee Treatment Act was inapplicable to pending cases and found the new military commissions inconsistent with the statutes authorizing such tribunals.

    Overturning Hamdan

    The Hamdan outcome did not last long. When Congress returned from its summer recess in September, the administration submitted a bill amending the statutes at issue in Hamdan. Congress promptly complied by passing the Military Commissions Act, overturning almost every aspect of the Hamdan decision. The act also abolished habeas corpus and every other form of meaningful judicial scrutiny for all alien detainee cases, pending and future. It was this provision that the D.C. Circuit, in still another Randolph opinion, upheld in February.

    The petitioners in the Boumediene case argued that because the Military Commissions Act abolished habeas corpus review without providing an adequate substitute, Congress had unconstitutionally suspended the writ.

    According to Randolph, however, in Immigration and Naturalization Service v. St. Cyr (2001) the Supreme Court had declared that the suspension clause protecting habeas corpus protects the writ only "as it existed in 1789." Randolph found no support in the 18th and 19th century authorities cited by the petitioners for allowing the writ to pertain to aliens "outside the sovereign's territory." He then concluded that because Cuba retains ultimate sovereignty over Guant a1namo, regardless of whether the United States had total control of the base, habeas corpus would not have been available in 1789 to any detainees confined there. The Supreme Court's Rasul decision he read as applicable only to 28 U.S.C. 2241, the current federal habeas corpus statute, which the Military Commissions Act had made unavailable to alien detainees.

    As Judge Judith Rogers pointed out in dissent, every element of this reasoning conflicts with the Supreme Court's ruling and language in Rasul. In St. Cyr the Court did not say that habeas corpus is limited to its scope in 1789 but only that this was "the absolute minimum" protected by the clause. Moreover, the Court in Rasul had concluded that even in 1789 "application of the habeas statute to persons detained at the [Guant a1namo] base is consistent with the historical reach of the writ of habeas corpus," citing some of the same authorities dismissed by Randolph.

    And though Rasul was indeed a statutory case, the Supreme Court in Hamdan had based its decision on the complete jurisdiction and control, potentially permanent, that the United States exercised over the base.

    Why No CERT?

    All of this is obvious to anyone who has followed these cases. It was certainly realized by Judges Randolph and David Sentelle, who made up the two-member majority. It was therefore not unreasonable to expect the Supreme Court to take the case and reverse. Yet it didn't.

    Why did only three justices - David Souter, Ruth Bader Ginsburg, and Stephen Breyer - vote to review the case? Two more of the six-justice majority in Rasul - Justice John Paul Stevens, who wrote the Court's opinion, and Justice Anthony Kennedy, who concurred separately - are still on the Court, and only four votes are necessary to grant review.

    In an unusual joint statement accompanying the order denying certiorari, Stevens and Kennedy wrote that the Court's tradition of not deciding constitutional questions except when necessary, and the petitioners' obligation to exhaust available remedies, made it "appropriate" not to review the case at that time. They added, however, that should there be unreasonable delays or "some other and ongoing injury," they might reconsider.

    Regardless of how one views these reasons, there may be an extrajudicial factor underlying the two justices' decision: Bills to repeal the habeas corpus provisions of the Military Commissions Act and Detainee Treatment Act have been introduced. Although their prospects are uncertain, a Senate bill to strike the habeas corpus provisions from the Military Commissions Act failed last year by only a 51-48 margin, and the 2006 election switched six seats to the Democrats. Passage of a similar bill would resolve the issue and avoid a major confrontation between the Supreme Court and the other two branches of government.

    The Stevens-Kennedy statement ended with the conventional "denial of certiorari does not constitute an expression of any opinion on the merits." But instead of the usual boilerplate citation, the justices added a cryptic "See Rasul v. Bush, 542 U.S. 466, 480-481 (2004) (majority opinion of Stevens, J.); id., at 487 (Kennedy, J., concurring in judgment)." The cited pages explain why the majority and Kennedy concluded that Guant a1namo is what the latter called "in every practical respect a United States territory ... a place that belongs to the United States."

    This may be a signal from the two justices that, despite their reluctance to hear the case now, five members of the Court still believe that habeas corpus should be available to the Guant a1namo detainees and - underscoring their earlier warning - that they will scrutinize subsequent proceedings closely.

    As if to defy this admonition, the government is again trying to shield its activities against outside scrutiny, this time by going after the detainees' lawyers. In mid-April, government lawyers asked the D.C. Circuit to impose tight limits on the Guant a1namo detainees' counsel: Lawyers who already have clients would be able to consult with them only three times; lawyers willing to represent detainees could have just one visit with a prospective client; lawyer-client mail could be read by government officials not involved in the case; and government officials could deny detainee lawyers access to the evidence on which the government based its claim that a detainee was an enemy combatant.

    And apparently emboldened by the denial of certiorari in Boumediene, the government still refuses to accept the Supreme Court's ruling in Rasul. In its April filing, the government is again insisting that Guant a1namo is just another "secure military base in a foreign country."

    Guant a1namo may not yet be the legal black hole that the government wants to make it. But the Bush administration hasn't given up trying.