Comment & Debate
Suzanne Nossel, Senior Fellow at the Security and Peace Institute. “10 Reasons to Close Guantanamo”. Democracy Arsenal. June 12, 2005 – “To expedite the determination of which inmates warrant continued detention – One of the most egregious aspects of the Guantanamo process is the fact that after being captive for three and a half years, many of the 540 detainees have still not had the benefit of a hearing to determine whether there is evidence to back their designation as enemy combatants. Some still haven’t even seen a lawyer. With a fixed timeline to shut down Guantanamo, those hearings would need to happen more quickly.”
“Economic, Social, and Cultural Rights. Civil and Political Rights. Situation of detainees at Guantánamo Bay”. United Nations Economic and Social Council. February 15, 2006 – “II. ARBITRARY DETENTION AND INDEPENDENCE OF JUDGES AND LAWYERS 17. The Chairperson of the Working Group on Arbitrary Detention17 and the Special Rapporteur on the independence of judges and lawyers are deeply concerned about the legal regime applied by the United States to the detainees in the Guantánamo Bay detention centre. In their view, the legal regime applied to these detainees seriously undermines the rule of law and a number of fundamental universally recognized human rights, which are the essence of democratic societies. These include the right to challenge the lawfulness of the detention before a court (ICCPR, art. 9 (4)) and the right to a fair trial by a competent, independent and impartial court of law (ICCPR, art. 14); they protect every person from arbitrary detention and unjust punishment and safeguard the presumption of innocence.” The United States justifies the indeterminate detention of the men held at Guantánamo Bay and the denial of their right to challenge the legality of the deprivation of liberty by classifying them as “enemy combatants”. For the reasons the Chairperson of the Working Group and the Special Rapporteur will elaborate, to the extent permitted by the constraints of this report, the ongoing detention of the Guantánamo Bay detainees as “enemy combatants” does in fact constitute arbitrary deprivation of the right to personal liberty. 21. Because detention “without charges or access to counsel for the duration of hostilities” amounts to a radical departure from established principles of human rights law, it is particularly important to distinguish between the detainees captured by the United States in the course of an armed conflict and those captured under circumstances that did not involve an armed conflict. In this context, it is to be noted that the global struggle against international terrorism does not, as such, constitute an armed conflict for the purposes of the applicability of international humanitarian law.20″
Karen J. Greenberg. “8 Reasons to Close Guantnamo Now”. In These Times. February 12, 2007 – “#4 Prisoners have no way to prove their innocence. […] Under the Constitution, every prisoner in U.S. custody has the right to legal representation and to due process, i.e. a trial (habeus corpus). Yet the detainees at Guantánamo, though afforded Combatant Status Review Tribunals, cannot have their own counsel at those hearings and have no meaningful way of contesting evidence, some of which is secret.”
“Economic, Social, and Cultural Rights. Civil and Political Rights. Situation of detainees at Guantánamo Bay”. United Nations Economic and Social Council. February 15, 2006 – “The right to challenge legality of detention before a judicial body. 27. The Chairperson of the Working Group and the Special Rapporteur recall that detainees at Guantánamo Bay were deprived of their right to challenge the lawfulness of their detention and of their right to legal counsel for several years, until a United States Supreme Court decision granted detainees access to federal courts. In June 2004, the Supreme Court, in Rasul v. Bush,25 held that United States courts have the jurisdiction to consider challenges to the legality of the detention of foreign nationals detained at the Guantánamo Bay Naval Base. However, at the time of writing (i.e. more than four years after detention at Guantánamo Bay started), not a single habeas corpus petition has been decided on the merits by a United States Federal Court. 28. In light of the Rasul judgement, the Government, on 7 July 2004, created the Combatant Status Review Tribunal (CSRT), a body composed of three noncommissioned officers, to examine the legality of detentions. Thereafter, the United States District Court dealing with the habeas corpus petitions of the Guantánamo detainees ruled that the CSRT proceedings “deny [the detainees] a fair opportunity to challenge their incarceration” and thus fail to comply with the terms of the Supreme Court’s ruling26. According to information received from the Government, all persons currently held at Guantánamo Bay had their status reviewed by the CSRT.27 The United States further established, on 11 May 2004, Administrative Review Boards (ARBs) to provide an annual review of the detention of each detainee. These institutions do not satisfy the requirement in article 9 (3) of ICCPR that “[a]nyone … detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release”: the requirement in article 9 (4) of ICCPR that “[a]nyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful”, or the requirements of article 14 of ICCPR, as:”[…]
“Justice 5, Brutality 4” . The New York Times. June 13, 2008 – Twice the Supreme Court swatted back his imperial overreaching, and twice Congress helped Mr. Bush try to open a gaping loophole in the Constitution. On Thursday, the court turned back the most recent effort to subvert justice with a stirring defense of habeas corpus, the right of anyone being held by the government to challenge his confinement before a judge.
The court ruled that the detainees being held in Guantanamo Bay, Cuba, have that cherished right, and that the process for them to challenge their confinement is inadequate. It was a very good day for people who value freedom and abhor Mr. Bush’s attempts to turn Guantanamo Bay into a constitutional-rights-free zone.
The right of habeas corpus is so central to the American legal system that it has its own clause in the Constitution: it cannot be suspended except when in cases of rebellion or invasion the public safety may require it.
Despite this, the Bush administration repeatedly tried to strip away habeas rights. First, it herded prisoners who were seized in Afghanistan, and in other foreign countries, into the United States Navy base at Guantanamo Bay and claimed that since the base is on foreign territory, the detainees’ habeas cases could not be heard in the federal courts. In 2004, the court rejected that argument, ruling that Guantanamo, which is under American control, is effectively part of the United States.
In 2006, the court handed the administration another defeat, ruling that it had relied improperly on the Detainee Treatment Act of 2005 to hold the detainees on Guantanamo without giving them habeas rights. Since then, Congress passed another law, the Military Commissions Act of 2006 that tried — and failed horribly — to fix the problems with the Detainee Treatment Act.
Now, by a 5-to-4 vote, the court has affirmed the detainees’ habeas rights. The majority, in an opinion by Justice Anthony Kennedy, ruled that the Military Commissions Act violates the Suspension Clause, by eliminating habeas corpus although the requirements of the Constitution — invasion or rebellion — do not exist.
The court ruled that the military tribunals that are hearing the detainees’ cases — the administration’s weak alternative to habeas proceedings in a federal court — are not an adequate substitute. The hearings cut back on basic due process protections, like the right to counsel and the right to present evidence of innocence.
Roger Cohen. “A Command of the Law”. New York Times. November 26, 2008 – Of the 770 detainees grabbed here and there and flown to Guantánamo, only 23 have ever been charged with a crime. Of the more than 500 so far released, many traumatized by those “enhanced” techniques, not one has received an apology or compensation for their season in hell.
What they got on release was a single piece of paper from the American government. A U.S. official met one of the dozens of Afghans now released from Guantánamo and was so appalled by this document that he forwarded me a copy.
Dated Oct. 7, 2006, it reads as follows:
“An Administrative Review Board has reviewed the information about you that was talked about at the meeting on 02 December 2005 and the deciding official in the United States has made a decision about what will happen to you. You will be sent to the country of Afghanistan. Your departure will occur as soon as possible.”
That’s it, the one and only record on paper of protracted U.S. incarceration: three sentences for four years of a young Afghan’s life, written in language Orwell would have recognized.
We have “the deciding official,” not an officer, general or judge. We have “the information about you,” not allegations, or accusations, let alone charges. We have “a decision about what will happen to you,” not a judgment, ruling or verdict. This is the lexicon of totalitarianism. It is acutely embarrassing to the United States.
That is why I am thankful above all that the next U.S. commander in chief is a constitutional lawyer. Nothing has been more damaging to the United States than the violation of the legal principles at the heart of the American idea.