guantanamo detainees and lindsey graham and right of habeas corpus and rights of detainees

We are just getting into the Springtime of societal awareness and analysis of some of the legal costs of waging the wars following the 9/11 terrorist attacks against the United States. The latest news is that yesterday the US Senate voted 49-42 on an amendment (SA 2516) to the National Defense Authorization Act for FY 2006 (S 1042) to limit the rights of access by Guantanamo detainees to US federal courts. Specifically, according to news reports, this action would allow a detainee a one time hearing in the DC Circuit Court to challenge their detention but would not permit a full-blown habeas corpus proceeding at the District Court level, which might involve a rather searching factual inquiry.

The issue is certain to resurface next week, since there have already been amendments to the amendment proposed, and even if it passes it must go to the House of Representatives before such an action becomes law (oh, I neglected to note that the President needs to sign it, but can anyone doubt that he would do so before the ink is dry on a Congressionally-enacted limitation?). This Senate action was in response to a June 2004 decision of the US Supreme Court which might* allow detainees to have

[*I say "might" because the scope of the language in the June 2004 Rasul opinion isn't clear, but the language may be resolved by the Hamdan case, which is currently before the Court, to be argued sometime in the first four months of 2006].

access to the "Great Writ"--habeas corpus in US District Courts. The purpose of this and the next essay is to lay out some of the issues that have arisen in the years since 2001 about the rights of non-US citizens who were captured in the Afghan War (during 2001-02) and transported to Guantanamo Bay, Cuba for incarceration.

Getting the Cases Straight

Four cases have made it to the US Supreme Court so far regarding issues flowing directly from treatment of detainees from the War on Terror, beginning late in 2001. Two have been decided in their final form, one has been remanded and one will be decided this term. The cases relate to the rights of: (a) an American citizen designated as an "enemy combatant" and captured in the theater of War and held subsequently in the US (the Hamdi case); (b) an American citizen designated as an "enemy combatant" but captured in the US and held subsequently in the US (the Padilla case); (c) various non-US citizens designated as "enemy combatants" and captured in the theater of War and held subsequently at Guantanamo Bay, Cuba (whether it is in the US or not will be mentioned below--the Rasul case); and (d) the constitutionality of the Military Commissions authorized by the President late in 2001 and set up in 2003 to try those (approximately 500) non-US citizens held in Guantanamo Bay and designated as "enemy combatants" (the Hamdan case).

The status of each of these cases is as follows: (a) the Hamdi case was decided by the Court in June 2004, and concluded that Hamdi's detention was permitted under the Congressional Authorization in the wake of the September 11 attacks but that he was entitled to a hearing on the propriety of his detention as an enemy combatant. The Court left open the possibility that this hearing could be either in a federal district court or a military setting; (b) the Padilla case was remanded by the Court in 2004 because it held that he had filed his habeas petition against the wrong official. The case will work its way back to the Supreme Court, probably by next term, though the lower courts might hold that since Hamdi was decided in favor of the detained US citizen who was captured in Afghanistan, it certainly would apply to a US citizen captured within our boundaries; (c) the Rasul case was decided in June 2004 and held that federal courts had jurisdiction to hear cases of non-citizens held in Guantanamo to challenge to their detention; and (d) the Hamdan case was granted certiorari on November 7, 2005 and will be heard by the Court before May 2006.

Moving to the Rasul Case

Phew. Keeping these straight really takes some time, especially if you want to read the Supreme Court opinions and try to relate the cases to each other. The remainder of this essay and the next will focus on the case which precipitated the Congressional action of 11/10 and which is probably the most controversial of the four, since it appeared to give non-citizen detainees in Guantanamo a "forum" in the United States to contest their incarceration right in the middle of the war.

The facts of Rasul, decided June 28, 2004, are as follows. After the US-led attack on the Taliban forces in Afghanistan in October 2001, two Australian and twelve Kuwaiti citizens were captured during the hostilities. They were transported to Guantanamo Bay, Cuba, for detention. The US occupies Guantanamo Bay pursuant to a 1903 Lease agreement executed with the then-new Government of Cuba, which provides that "the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba" over Guantanamo, while "the Republic of Cuba consents that during the period of the occupation by the United States..the United States shall exercise complete jurisdiction and control over and within said areas." This lease was extended by treaty in 1934 to be a permanent lease as long as the US decides it wants to remain there.

The detainees alleged after their capture that they were not terrorists, that they had not taken up arms agains the United States and that they had not, since being incarcerated in 2002, had opportunity to consult an attorney or have access to the courts or another tribunal for a hearing. They sought that access in this case.

The next essay describes the legal processes culminating in the Supreme Court's decision.

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