Posted by: sean | November 15, 2005

Guantanamo Bay and habeas corpus

In order to understand the motions to be voted on later today about habeas corpus rights for detainees at Guantanamo Bay, it is useful to step back, with the help of Human Rights Watch’s overview, and review the whole process in motion there.

President Bush declared in November 2001 that non-US citizens accused of terrorism could be tried by an ad-hoc military commission, instead of by a court martial or a federal civilian court. The justification was that the people being detained were not prisoners of war, but rather “enemy combatants,” who have no rights under the Geneva Conventions. There are about 550 people being detained at Guantanamo Bay, detained sometimes by US forces, sometimes by foreign services or turned over to the US by the Northern Alliance in Afghanistan in exchange for a $5,000 bounty. Some have been released, mostly because of deals with their home governments, who have expressed dissatisfaction with the proposed ad-hoc military commissions. The British Attorny-General described them as “not … the type of process which we would afford British nationals.”

Military Commissions

The purpose of military commissions is to try non-US citizens who are charged with having participated in international terrorism against the United States. Authorized in November 2001, their panels are made up of 3-7 members, all of whom must be current or retired members of the US military and only one of which must have a law degree. The detainee must be assigned military defense council, but can hire a civilian lawyer at his own expense. According to HRW,

The normal rules of procedure in a court martial do not apply in the military commissions. Hearsay evidence can be admissible. Decisions are based on a majority of commission members, except in death penalty cases, where a unanimous verdict is required. Cases are reviewed by a military review panel, but there is no appeal to a civilian court as is the case with courts martial. Final review rests with either the Secretary of Defense or the President.

To date, only 4 detainees have been formally charged with offences in odrer to be tried in a military commission.

Combatant Status Review Tribunals

In the meantime, while many detainees will begin their 5th year of detention at Guantanamo Bay this year, the Department of Defense has set up these tribunals for detainees to challenge their status as a “enemy combatants.” They were introduced in response to the supreme court decision in Rasul v. Bush, in which the Court ruled that federal courts had the jurisdiction to hear claims made by Guantanamo detainees challenging their imprisonment.

Each detainee is assigned a “personal representative,” who is a military officer and not a lawyer, to assist him in the process. He then appears before 3 military officers, who decide whether or not he has been correctly labeled as an “enemy combatant.”

According to the Washington Post, the DOD has stated that 558 Tribunals have taken place. Of these, the tribunal have decided on 509 cases, of which 33 detainees were found not to be “enemy combatants,” but only 4 have been released. The same article, takes a look at the first case in which classified evidence used in the tribunal has become public.

The case, decided in 2004, is about Murat Kurnaz, a German citizen of Turkish descent, who was seized in Pakistan in 2001. According to the Tribunal, Kurnaz was a member of al Qaida and an “enemy combatant” and as such, could be detained indefinitely in Guantanamo Bay. This is what was found:

In Kurnaz’s case, a tribunal panel made up of an Air Force colonel and lieutenant colonel and a Navy lieutenant commander concluded that he was an al Qaeda member, based on “some evidence” that was classified.

But in nearly 100 pages of documents, now declassified by the government, U.S. military investigators and German law enforcement authorities said they had no such evidence. The Command Intelligence Task Force, the investigative arm of the U.S. Southern Command, which oversees the Guantanamo Bay facility, repeatedly suggested that it may have been a mistake to take Kurnaz off a bus of Islamic missionaries traveling through Pakistan in October 2001.

“CITF has no definite link/evidence of detainee having an association with Al Qaida or making any specific threat against the U.S.,” one document says. “CITF is not aware of evidence that Kurnaz was or is a member of Al Quaeda.”

Another newly declassified document reports that the “Germans confirmed this detainee has no connection to an al-Qaida cell in Germany.”

Only one document in Kurnaz’s file, a short memo written by an unidentified military official, concludes that the German Muslim of Turkish descent is an al Qaeda member. It says he was working with German terrorists and trying in the fall of 2001 to reach Afghanistan to help fight U.S. forces.

In recently declassified portions of her January [2005] ruling, [US District Judge Joyce Hens] Green wrote that the panel’s decision appeared to be based on a single document, labeled “R-19.” She said she found that to be one of the most troubling military abuses of due process among the many cases of Guantanamo detainees that she has reviewed.

The R-19 memo, she wrote, “fails to provide significant details to support its conclusory allegations, does not reveal the sources for its information and is contradicted by other evidence in the record.” Green reviewed all the classified and unclassified evidence in the case.

So to summarize, the one case in which we have the evidence used to decide whether someone was an “enemy combatant” shows that the process is a show trial and fundamentally unfair. Both the German government and the US Command Intelligence Task Force found that Kurnaz was innocent, but 3 US military officers decided otherwise. So an innocent man has been languishing in prison, where he has most likely been abused and tortured for 4 years.

Habeas Corpus

So that is the context that we find ourselves in when the US Senate is trying to strip detainees of their right (decided on by the Supreme Court) to habeas corpus. To bring us back up to speed, there has been a “compromise” amendment to the original motion proposed by Senator Graham (R-SC) as well as a new version of the Bingaman amendment (D-NM). Thanks to Obsidian Wings, copies of those two amendments are available here and here (both are in pdf format).

The new “compromise” amendment states that if found guilty by a Military Commission and sentenced to the death penalty or 10 years or more in prison, the case would automatically be sent to the US Court of Appeals for the District of Columbia or at the court’s discretion for any other case. However, we must remember that since these people have been detained, only 4 have actually been charged with any offence. The rest are being held indefinitely without being charged, and it was for these cases that the Supreme Court said federal courts could hear habeas corpus cases.

As for the judicial review of the detention of enemy combatants, the new amendment still states,

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien outside the United States … who is detained by the Department of Defense at Guantanamo Bay, Cuba.

It then goes on to state,

…the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any decision … that an alien is properly detained as an enemy combatant.

The language of the competing Bingaman amendment, on the other hand, states that the court of appeals would have jurisdiction to consider an application for writ of habeas corpus, provided that the detainee has been subjected to a Combat Status Review Tribunal but is not yet charged with an offense before a military commission (the case of most of the detainees). There is, however, another exemption for any “individual not designated as an enemy combatant following a combatant status review, but who continues to be held by the United States Government.” This would presumably include the 29 detainees who were found not to be “enemy combatants,” but who have not been released yet.

Under the Bingaman amendment, the court could review the following things:

(A) whether the status determination of the Combatant Status Review Tribunal … was consistent with the procedures and standards specified by the Secretary of Defense for Combatant Status Review Tribunals;

(B) whether such status determination was supported by sufficient evidence and reached in accordance with due process of law, provided that statements obtained through undue coercion, torture, or cruel or inhuman treatment may not be used as a basis for the determination; and

(C) the lawfulness of the detention of such alien.

However, in contrast to his first proposal, the new Bingaman amendment says that the appeals court may not “consider claims based on living conditions.”

To be honest, I don’t quite understand the distinction made in the Graham amendment between the appeals court’s jurisdiction to hear an application for a writ of habeas corpus and its jurisdiction to “determine the validity of any decision … that an alien is properly detained as an enemy combatant.” The only difference that I can tell would be that the former would seem to be reviewing the case from scratch (although this doesn’t seem to be the case in the Bingaman amendment either), whereas the second would be reviewing the decision of another body based on the rules of that body, the criteria being much more stringent in a civilian court of appeals reviewing a writ of habeas corpus than the stated criteria of the Combatant Status Review Tribunals. This would seem correct from the Kurnaz case, which is the only example we have of these tribunals so far.

This certainly does seem to be a “compromise,” but not necessarily in the good sense of the term. While better than the original motion, it still compromises the rule of law by letting flawed tribunals take the place of an experienced civil legal system or even military courts martial.

As for the Bingaman amendment, it seems less likely to pass, but is much better than the Graham amendment, particularly since it explicitly says that evidence gained from torture is off limits for deciding a detainees status, even if it does soften its stance on the living conditions of detainees. And one shouldn’t mistake the question of living conditions with halal meat or air conditioning. Living conditions is a euphemism used to not say outright “whether or not detainees are being tortured.”

For more information, there was an op-ed in the Times today, as well as an article in the Post on the subject today.


  1. Excellent post, and thank you for mentioning the case of Murat Kurnaz. Together with some German blogs we have been trying to draw attention to his situation, in particular. He does have an attorney (from Bremen, his home town), but the German government has refused to intervene, since Murat is not a German citizen.

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