The battle royale over the prisoners at Guantanamo Bay
Ron
Chepesiuk
Last
June 28, the U.S. Supreme Court deliered a major legal blow to the Bush
administration's strategy for prosecuting the War on Terrorism when
it ruled in Rasul vs Bush that foreign terrorist suspects can use the
American legal system to challenge their detention. In its 6-3 ruling,
the Supreme Court rejected the Bush administration's claim that it could
hold foreign detainees at Guantanamo Bay, Cuba, without judicial review.
In ruling in favour of the plaintiffs, Justice John Paul Stevens, said,
"The courts have traditionally been open to non resident aliens
-- the fact that petitioners in these cases are being held in military
custody is immaterial to the question of the District Court's jurisdiction
over their non habeas claims."
Lawyers
for the plaintiffs were elated. In an interview for The Daily Star,
Judge John Gibbons, who argued the case for the Center for Constitutional
Rights (CCR), the New York City-based non profit legal organisation
that represented the plaintiffs in court, explained. "The lesson
of the decision is that no person is beyond the reach of U.S. domestic
law. The Supreme Court rejected the Bush administration's position that
it could maintain a law-free zone in Guantanamo. This means our clients
will be finally getting their day in court. The President does have
absolute power in War on Terrorism." Gibbons is a former Chief
Judge, for the U.S. Court of Appeals, Third Circuit.
But
in the wake of the Supreme Court, the battle for justice for the Guantanamo
Bay detainees is not over and it's unclear when they will have their
day in court. The Bush administration has reached deep into its bag
of tricks in the hope of at least stonewalling the judicial process
and, at best, circumventing it. In interviews with lawyers from the
CCR and with court documents they have shared, we get an inside look
at the ongoing legal Battle Royale over the fate of the Guantanamo detainees,
which has ensued for more than two years.
First
some background. In February 2002, the CCR brought the first legal challenge
to the Bush administration indefinite detention of foreign nationals
at Guantanamo when it filed two habeas corpus petitions, Rasul vs
Bush and Habib vs Bush. "After 9/11, no other legal
organisation was willing to join us," recalled Barbara Olshansky,
the CCR's Deputy Legal Director.
The
petitioners argued that it was illegal to detain its clients (two British
and two Australians) without a hearing to determine their legal status
and the lawfulness of their detention.
The
Bush administration has argued that the President, as the country's
commander in chief, has the absolute right to designate suspected foreign
fighters as enemy combatants. Moreover, he can detain them as long as
necessary to keep them from re-entering the War on Terrorism and to
give the government the time it needs to gather intelligence about possible
future planned attacks. In a written brief, the U.S. government argued
their case before the Washington, DC district court. For the courts
to interfere with the U.S. government's War on Terrorism plans would
create "a dangerous and unprecedented revolution in the separation
of powers and undermine the ability of the U.S. military to protect
citizens from attack," the Bush administration declared.
In
the majority opinion for Rasul vs Bush, Justice Sandra Day O'Connor
categorically rejected this argument. "We have long since made
clear that a state of war is not a blank check for the president when
it comes to the rights of the nation's citizens."
In
making its case, the Bush administration relied heavily on the 1950
court ruling, Johnson vs Eisentrager, which ruled that U.S. courts lack
jurisdiction over aliens detained outside of American sovereign territory.
In the Eisentrager case, U.S. soldiers captured a group of German soldiers
during World War II. They were spying for the Japanese in China after
Germany surrendered. An U.S. military tribunal tried and convicted the
Germans of violating the laws of war and then transferred them to Germany
where they served their prison sentences. The U.S. courts rejected the
argument of the prisoners' lawyers that their case be appealed and reviewed
in the District of Columbia federal court.
The
court dismissed the CCR's petition in August 7, 2002, but the organisation
appealed to the District of Columbia Court of Appeals, arguing that
"if the United States courts do not have jurisdiction to review
the executive decisions at Guantanamo, then no court has jurisdiction
to review them. That would mean the U.S. could act lawlessly with respect
to its conduct."
But
on March 11, 2003, the DC court rejected the appeal. The decision surprised
the CCR. "Every person has a right to his day in court," said
Michael Ratner, the CCR's president. "That [principle] is at the
heart of our legal system."
On
September 2, 2003, the CCR filed another petition to the Supreme Court
asking for a review of the lower court's decision. On November 10, 2003,
the Supreme Court, over the Bush administration's strong objections,
agreed to review the lower court's decision.
Given
the significance of Rasul vs Bush, several individuals and organisations
from a variety of backgrounds filed amicus (friends of the court) briefs
with the court in support of the CCR's case. They include the British
House of Lords, retired U.S. generals, former American POWs, military
lawyers and religious groups like the National Council of Churches.
The Reverend Dr. Robert W. Edgar, General Secretary of the National
Council of Churches, told The Daily Star that Rasul vs Bush shows the
"greatness" of U.S democracy. "We have three powers in
the U.S. [the executive, judiciary and legislature], and they must operate
under a system of checks and balances." Edgar explained in an interview.
"The U.S. system limits power in the U.S. Even moderate and conservative
politicians agree that the usurping of power by the [Bush] administration
was excessive in this case."
Since
the filing their writes of habeas corpus on behalf of the four Guantanamo
detainees, the British Shafiq Rasul and Asif Iqbal, have been freed,
while the two Australians, David Hicks and Mandouh Habib, remain at
Guantanamo. In all, the U.S. has released about 140 prisoners, according
to the CCR. "The Supreme Court has brought the prisoners at Guantanamo
within the protection of U.S. law," Ratner said.
That's
the background and now for an inside look at the current situation.
The
Centre for Constitutional Rights is currently putting in place a framework
that will roll out the Supreme Court's mandate for speedy justice for
the detainees. Last July 2, it filed five habeas corpus petitions in
Washington, D.C., federal court on behalf of nine of the Guantanamo
detainees it represents.
"We
are bringing the petitions to court to test the legality of the detentions,"
Ratner explained. "We want access to our clients now. We want to
get information about their mental and physical health. Have they been
treated humanely?"
Besides
pushing for immediate access to the detainees, the CCR is asking the
court to stop the U.S. government from using coercive interrogation
techniques on their clients and to award damages to them. In the language
of the petitions, the court should "order the detained petitioners
released from the Respondent's unlawful custody" and "order
Respondents to cease interrogations of the detained petitioners, direct
or indirect, while this litigation is pending."
The
petitions further contend that the Bush administration has "exceeded
the constitutional authority of the Executive and has violated and continues
to violate the War Powers Clause by ordering the prolonged and indefinite
detention of the Detained parties without congressional authorisation."
The
CCR currently represents 53 individuals who have been held at Guantanamo
Bay for more than two years. The five petitions represent nine detainees
and are grouped generally by the detainee's nationality. They include
a Turkish citizen with German residency who was seized in Pakistan,
two French citizens seized in Pakistan, two refugees (a Palestinian
and an Iraqi) residing in England who were seized in Gambia, a Canadian
citizen who was 15 when seized in Afghanistan and two British citizens
(unclear where they were seized). The CCP expects to file more petitions
in the coming days, with the goal of eventually covering all of its
150 clients.
"In
ruling for the majority [in Rasul vs Bush], Justice Sandra Day O'Connor
was very clear in narrowing the definition of 'enemy combatant'to someone
who had fought in Afghanistan," Ratner explained. "So a big
question in a number of the Guantanamo cases is: Do they fit the definition
of 'enemy combatant'?"
On
July 1, the CCR faxed a letter to Secretary of Defense Donald Rumsfeld
demanding access to their clients. In the letter, the CCR said it was
ready to "organise a delegation of attorneys" to provide legal
counsel to the detainees. As of July 10, the CCR hasn't received a response.
"Without
access to a lawyer," explained CCR legal director, Jeff Fogel,
in the faxed letter, "The Supreme Court decision [Rasul vs Bush]
would be meaningless. The right to habeas corpus has also included the
right to legal assistance."
Ratner
revealed that a number of large law firms have now joined the CCR's
legal battle with the Bush administration, including the Boston-based
Hale and Dorr, the Washington D.C. based Keller and Hechman, and the
British based Clifford Chance law firms. "We are a small organisation
and it would be difficult to handle all the cases by ourselves,"
Ratner revealed. "The fact that these big and prominent law firms
are coming aboard shows that the tide of the Guantanamo detainees has
turned."
Meanwhile,
the Bush administration has not given up the fight. It has moved ahead
with a new strategy to ensure that the Guantanamo detainees won't have
the opportunity to see their lawyers or the inside of an U.S. courtroom.
The U.S. Department of Defence (DOD) has announced that it setting up
so-called Combatant Status Review Tribunals to review the continued
detention of individuals at Guantanamo Bay.
Under
the DOD plan, the detainees would not be allowed any legal assistance.
Instead,
they would get what the Bush administration is calling a "personal
representative," whose job it would be to explain the legal process
to the detainees and to help them gather evidence.
The
CCR objects to the plan for a number of reasons: The tribunals don't
appear to bar the use of coerced confessions and it does not appear
that communication between the detainee and his "personal representative"
will be protected by any kind of confidentiality.
The
move has dismayed and angered lawyers for the Guatanamo prisoners. "With
all that we've learned in the past few months about the mistreatment
and torture of prisoners in U.S. custody, it's now more important than
ever to ensure that coerced statements are not relied upon to curtail
an individual's freedom," Olshansky said.
The
CCR contends that coercive techniques, solitary confinement and three
months of intense interrogations forced two of their clients, Shafiq
Rasul and Asif Aqbal, to falsely confess that they had met Osama Bin
Laden. "The interrogators at Guantanamo Bay showed Rasul and Aqbal
a video, ostensibly of them with Osama," Ratner recalled. "Our
clients denied again and again that they were in the video, but the
interrogators kept persisting. Finally, after three months, our clients
told them what they wanted to hear. Later, however, the British proved
that the Rasul and Aqbal were in the United Kingdom at the time the
video was made."
The
27-year old Shafiq Rasul was born in small town in England's West Midlands.
He travelled to Pakistan for a wedding in August 2002. Then in January
2002, Rasul's family received a call from the British Foreign Office,
informing members that he was being detained at Guantanamo. The U.S.
released Rasul to the custody of the British government on March 9,
2004. Shortly after returning to the United Kingdom, he was released
without charge.
Asif
Iqbal, age 23, is also from a small town in England's West Midlands.
In August 2002, he travelled to Pakistan to get married, but in January
2002 the British Foreign Office informed Iqbal's family that he was
being held at Guantanamo. He was released from there on March 9, 2004,
and returned to the United Kingdom where he was released without charge.
Rasul
and Iqbal are free, but despite the U.S. Supreme Court ruling, the remaining
Guantanamo detainees are still looking for justice American style. "We
don't know when we will get access to our clients," Ratner conceded.
"It could take a couple of weeks, maybe several weeks, or we might
have to litigate through the rest of the summer."
Still
he remains optimistic. "We have a lot of weight on our side - a
major Supreme Court ruling, big law firms that have joined us. The government
is really scrambling now. We feel it's just a matter of time."
Daily
Star columnist Ron Chepesiuk is a Visiting Professor of Journalism at
Chittagong University and a Research Associate with the National Defence
College in Dhaka.
