Also in Politics & Social Justice

Guantánamo

What the World Should Know

by Michael Ratner, Ellen Ray

Including "A President Beyond the Law" by Anthony Lewis

Articles by this Author

Keep the Great Writ alive

For eight centuries, habeas corpus has shielded people from detention without trial. The Senate "compromise" denies this right -- and threatens the rule of law.

Salon.com
By Michael Ratner, with Sara Miles
September 26, 2006

For nearly five years, I've been fighting attempts by the Bush administration to sweep away the cornerstone of our justice system: habeas corpus, which protects people from being summarily detained without trial. Considered the hallmark of Western liberty, habeas corpus has its origins in the Magna Carta of 1215. The "Great Writ" ended kings' power to kidnap people at will, lock them in dungeons and never bring them to court. Habeas corpus forever marked the line between authority under law and authority that thinks it is the law.

As president of the Center for Constitutional Rights, I've challenged the Bush administration for acting as a law unto itself and blatantly disregarding the Great Writ in its prison camp at Guantánamo Bay, Cuba. Twice, the Supreme Court has insisted that the administration respect habeas corpus; repeatedly, the White House has ignored the court's rulings, going to Congress to get approval for previously unthinkable kinds of detention.

Now, within the next few days, it is conceivable that Congress will abolish the writ of habeas corpus for any non-citizen who is detained outside the country. Stripping away the political nitpicking, linguistic compromises, calculated deal-making and cynical maneuvering of last week's "compromise" in Congress, two questions remain at the center of legislation about the rights of prisoners in Guantánamo.

The first, about torture and the Geneva Conventions, is straightforward: Are we human beings?

The second, about habeas corpus, is, do we believe in the rule of law?

I've spent my life defending victims of torture, and I firmly believe that to be human means recognizing that torture, whether committed by Nazis, Stalinists, Islamic fundamentalists or Americans, is never justified. Inexcusably, the compromise forged by the Bush administration and Republican senators now blurs the line on Article 3 of the Geneva Conventions, which prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" and "outrages upon personal dignity, in particular, humiliating and degrading treatment." It's morally corrupt to attempt to parse exactly what kinds of cruelty, which degree of mutilation, and what depth of degradation are OK: This cannot be an area where "compromise" is acceptable.

But it's also crucial to understand that this legislation places our very belief in the rule of law at risk. The contempt for the law shown by recent developments disturbs me enormously, and shows how far our national values have been hijacked by the extreme right and its partisan agenda.

My office represents and coordinates writs of habeas corpus on behalf of all 460 detainees held at Guantánamo. Almost none of these detainees have been charged with a crime. Many, according to the administration's own claims, have never actively taken hostile action against the United States, but were turned over to the Americans by war lords or bounty hunters. Others are confused, elderly, or simply arrested in error. As Col. Bill Cline, deputy camp commander at Guantánamo, acknowledged, "Some of the prisoners are victims of circumstance, caught up in the wrong place at the wrong time."

But without habeas corpus hearings, there is no way for detainees to know the charges against them, or to refute any evidence that might be wrong. Like our client Maher Arar -- a Canadian sent by the United States to Syria, where he was tortured in a secret prison until the Canadians finally demanded his release -- they are unable to prove their innocence because they have no way to test their detention. And without accountability to a court, as we have seen over and over, abuse of prisoners quickly becomes rampant.

We have been trying to get the Guantánamo prisoners a habeas corpus hearing in federal court for nearly five years. We had a major victory in June 2004 (Rasul v. Bush) when the Supreme Court ruled that courts are open to aliens held outside the United States, and that they have the right to file writs of habeas corpus to test their detentions. Evoking the central importance of habeas corpus to our system of law, the court wrote: "Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land."

Within days of our victory something remarkable occurred. Hundreds of lawyers from big firms and small firms, Democrats and Republicans, Christians, Jews and Muslims, all stepped forward to represent Guantánamo detainees. They did this at great expense and personal sacrifice, traveling to meet their clients at Guantánamo -- and, in the process, discovering what we now know about the torture and abuse there, and putting an end to much of it. These lawyers undertook these cases on principle, believing, as did the Supreme Court, that no person should be imprisoned solely at the behest of the executive, and that all human beings are entitled to the protections of law.

And yet, as of today, not one of our clients has been given the required habeas corpus hearing that would determine whether he was properly detained. The administration stonewalled, stalled and flatly refused to obey the court, fighting hard to retain the privilege of kings.

In 2005, the Bush administration went to Congress and got legislation passed that it hoped would abolish habeas corpus for our clients. It did not work. Once again the Supreme Court stepped in and in June 2006 (Hamdan v. Rumsfeld) ruled that the legislation, called the Detainee Treatment Act, did not apply to our clients.

Refusing to accept the court's verdict, the administration went back to Congress yet again: This week, Republicans in Congress appear ready to pass new bills abolishing habeas corpus. The current legislation does not just apply to those held at Guantánamo but to aliens detained anywhere outside the United States; it is retroactive, so any pending habeas petitions will be knocked out of court.

We believe that this legislation is as unconstitutional as the previous attempts by the administration to abolish habeas corpus, and that, as with previous attempts, it will eventually be overturned by the Supreme Court. But it should not be passed at all: It is unconscionable that illegally detained individuals need to languish in prison for years more without charges or hearings while awaiting judicial remedy.

The remedy is at hand. It is one that has been with us since 1215: the Great Writ. As citizens, we must keep it alive.

On June 28, 2004 the Supreme Court of the United States issued its decision in Rasul v. Bush, the Guantánamo cases. In a 6-3 decision the court found that courts in the United States had jurisdiction to consider the legality of the detentions of non-citizens detained at Guantánamo Bay Naval Base. In non-legal language this decision means that the courthouse doors in the U.S. are open and that the detainees can argue in U.S. courts that they are being unlawfully detained.

The New York Times, quoting legal scholars, called the decision “the most important civil rights case in half a century.” It was indeed a great victory. Until this decision, the Bush administration had argued that no court in the world could consider the legality of the Guantánamo detentions. In terms of U.S. law it was the first time that the Supreme Court had clearly stated that non-citizens detained by the United States, outside the United States, could use the courts even during a period the administration labels “wartime.” The court distinguished the Eisentrager case, discussed in the text, that the lower courts had relied upon in denying the right of the detainees to go to court.

The decision was also a major political blow to the Bush administration and its claim that it could carry on the so-called war on terror free from judicial oversight and beyond any constitutional or international constraints. It was seen in the U.S. as an important setback to the manner in which the administration is carrying out its war on terror. The six-judge opinion was written by Justice Stevens and relied on early precedents from England. He invoked the Magna Carta, dating back to 1215, and quoted approvingly an earlier dissenting opinion, in an analogous executive detention case from 1953:

Despite the importance of the decision, it will not mean immediate freedom for the Guantánamo detainees. While the courthouse door is now open, it will now be up to the lower courts to determine whether the detentions of the detainees are legal. We do not know at this point how this will develop. The detainees’ lawyers, of which I am one, take the position that the next proceedings ought to take place in the federal courts; that the government must come forward and justify each detention and that each detainee has the right to an attorney and the right to contest the governments claims. To that end, at the time I am writing this, on July 9, 2004, the Center for Constitutional Rights assisted by other major law firms has filed scores of new cases on behalf of the detainees in the District Court and will be asking for immediate access to the detainees by attorneys.

The Bush administration did not expect such an adverse ruling and initially seemed in disarray. However, on July 8 it announced its plans for the detainees in what appears to be a hasty effort to set up some kind of hearing procedure in Guantánamo. This is an obvious attempt to forestall federal court review of the cases. The administration has established what it calls “Combatant Status Review Panels” which are to determine whether individual detainees are “enemy combatants.” The hearings are to take place within a month or two at Guantánamo before three handpicked military officers whose decision will not be final, but will go to other Pentagon officials for a final ruling. The detainee will not have the right to an attorney, but only a personal representative who will be a military officer. The evidence used against the detainee can include hearsay and any statements he may have made in his two and one-half years of detention.

This is hardly a fair system for determining whether someone should be detained indefinitely and incommunicado at Guantánamo. CCR has issued a press release attached hereto explaining some of the deficiencies. Without detailing all of those here, its seems obvious that detainees should have attorneys, that any statements made during their detention should be considered coerced, unreliable, and should be suppressed, and that panels of military officers are not neutral fact-finders. In addition, the definition of enemy combatant for these new tribunals is meaninglessly vague and does not comply with the recent decision of the Supreme Court in the case of Yaser Hamdi. In that case, the court adopted a narrow definition of the term that in essence refers to those fighting against the U.S. in the war in Afghanistan. The Center’s hope is that the detainees on Guantá:namo get a real review of their status and not the sham hearings that have been suggested. In many ways, the Guantánamo litigation is only at its beginning.

Another interesting aspect of the Supreme Court’s ruling was its decision that the detainees could sue not only to test the legality of their detentions, but could also sue with regard to the conditions under which they were detained. As we now know coercive interrogation techniques amounting in some cases to torture was employed by the Bush administration. The ruling in the Guantánamo cases opens the door to lawsuits by detainees to stop the use of such techniques and damages suits as well.

I am sure most readers are familiar with the situation of the two Australians at the camp. David Hicks was designated for a Military Tribunal in July of 2003 and charged with various crimes in May of 2004. (Military Tribunals are criminal proceedings and are not the same as the Combatant Status Review Tribunals discussed above.)Both military and civilian counsel are defending David Hicks and a trial date is yet to be set. On July 7, 2004 Mamdouh Habib was designated for a military tribunal, although he has not yet been charged. Under the recent Supreme Court case it is now possible for both of them to go into federal court and challenge their detentions as well as these Military Tribunals.

While the fight against the excesses and lawlessness of the Bush administration is far from over, the recent Guantánamo case is a major step in the right direction. There is still a lot of work to do; restoring the rule of law will be a hard, but worthwhile struggle.