Primer on detainees’ status now — Part I
on May 12, 2007 at 12:03 am
Analysis
No part of the Bush Administration’s campaign against terrorism has drawn more sustained challenge — legally, politically and diplomatically — than its policy on handling of individuals who are captured and then held in detention for prolonged periods, usually outside the U.S. mainland. Four times, the Supreme Court has reviewed facets of this policy, leading to changes or to entirely new detainee review procedures in the military or in civilian courts. More recently, however, the Court or Chief Justice John G. Roberts, Jr., acting alone, have refused to hear or have rejected new challenges by detainees’ lawyers. As a result, the detainees’ legal fate in coming months will rest largely (though not exclusively) in the hands of lower courts. This is the first of two lengthy posts here on the current status of the detainee question, in Congress and in the courts. The second part will appear Sunday.
Part I — The Basics: laws, legislation, courts, cases, issues
A. The overall situation
Pentagon figures show that 389 individuals remain confined at the U.S. military prison camp in Guantanamo Bay, Cuba, and one remains in a U.S. Navy brig in Charleston, S.C. Many of them have civilian lawyers, almost all of whom are representing their clients for free. All at Guantanamo are foreign nationals, the one in the brig is a resident alien; all have been designated, at one time or another, as “enemy combatants” — initially, by presidential order for a few, or, by military panels, for most. Some held at Guantanamo have been designated as “no longer enemy combatants,” but remain there nonetheless, because of actual or perceived complications in releasing them.
Soon after captives began arriving at Guantanamo Bay more than five years ago, their challenges to detention have drawn the U.S. courts into close monitoring of war-on-terrorism policies of the Administration. The Supreme Court has issued four rulngs on detainees’ rights — two involving foreign nationals, two involving U.S. citizens. All of those decisions either struck down government policies, or voiced caution about potential excesses. It is now clear that U.S. citizens may pursue broad-based challenges to their detention, under federal habeas corpus laws. Foreign nationals and resident aliens, however, have remained in or emerged into a separate legal category, with diminished legal rights.
Three issues have run through all of the court cases up to this point: first, whether foreign nationals have any right to challenge their detention — a question of access to the courts; second, if such challenges are allowed, whether the government (including the President) had any authority to order or to prolong the detentions — a question of Executive branch power, especially under Congress’ post-9/11 Resolution, and, third, if such challenges are allowed, whether the military and civilian court processes for reviewing continued detention are legally adequate under U.S. laws, treaties or the Constitution — a question of legal rights, both substantive and procedural.
The Supreme Court has allowed the government to capture either foreign nationals or U.S. citizens, but only if that was done overseas and in an active combat zone. A question remains how long continued detention would remain legal, even if initial capture was legal. The Court also has allowed both alien and citizen detainees to file some challenge in federal courts, even if seized on an overseas battlefield, but has not yet reached the issue of court access for those captured within the U.S. The Court has never ruled in a final way on who could be seized based on the claimed status of “enemy combatant.”
Congress has passed two laws to take away or reduce the legal rights of captives who are foreign nationals — the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. The DTA had two purposes: an attempt to eliminate habeas challenges by foreign national detainees at Guantanamo, and the creation of a limited alternative review of military detention proceedings by the D.C. Circuit Court. The Supreme Court ruled that the habeas-stripping provisions in DTA did not apply to pending cases, however; the alternative remedy in the D.C. Circuit remains in effect. The MCA sought to wipe out all habeas challenges by any detainee captured after Sept. 11, 2001, shunting detainees into the DTA review process at the Circuit Court. It remains an open question whether this applies to a detainee seized within the U.S. The MCA also created new war crimes tribunals (“military commissions”) to replace the presidentially-drafted commission trial system that the Supreme Court had struck down in 2006.
Only three of the detainees at Guantanamo Bay now face war crimes trials before military commissions created under the MCA, although the Pentagon has said that others will be charged as time goes on. The other Guantanamo detainees, and the detainee at the Charleston brig, have not been charged with any crimes. There are currently no cases in the federal courts involving U.S. citizens challenging their status as “enemy combatants.” (One citizen, Jose Padilla, is now on trial on terrorism-related charges in a regular federal District Court in Miami, after having been released from military detention at the Navy brig. Jury selection has just been completed in Padilla’s case.)
Congress is considering various legiislative proposals, but none of the more significant proposals now under consideration to regulate the treatment of detainees appears likely, if passed, to have enough support to survive a probable presidential veto.
Following are background facts and summaries of activities now unfolding in Congress and the courts.
B. Laws and legislation
The Detainee Treatment Act and the Military Commissions Act now control the military’s procedures for detainees and the response of the federal civilian courts to detainees’ legal challenges.
Under the DTA, detainees who have had their detention reviewed and upheld by a military “Combatant Status Review Tribunal” have a right to ask the D.C. Circuit Court to review the CSRT process and its findings about continued detention. The review might be limited to the record before the CSRT (that is in dispute), and the law appears to allow some constitutional challenge — provided, that is, the detainees have any constitutional rights to assert (itself another issue). Presumably, the Supreme Court would have authority to review any Circuit Court ruling on a detention, especially if constitutional issues were at stake.
The habeas-stripping provisions of the DTA no longer matter; they have been replaced by more restrictive provisions in the MCA.
The MCA sought to take away all habeas or other existing legal challenges by war-on-terrorism detainees, and provided instead for detainees’ access to the DTA review process at the D.C. Circuit. Whether that withdrawal applies to a detainee taken prisoner in the U.S. is still a contested issue. The MCA, besides setting up new war crimes processes before newly created “military commissions,” provided for review of final convictions by such tribunals. A decision by the Circuit Court may be challenged in the Supreme Court, but review there is discretionary, MCA provides..
Congress is now considering whether to modify or repeal the MCA’s ban on habeas challenges. Bills have been introduced (such as H.R. 1416 and S. 815), but those measures have not moved at all in the committees to which they were referred. Civil liberties and human rights groups had been trying to persuade lawmakers to write a restoration of habeas rights for detainees into a new Pentagon budget bill, but the House Armed Services Committee refused on Thursday to do so. A rally to promote the issue will be staged in Washington by those groups on June 26.
There are also proposals in Congress to close altogether the detention facility at Guantanamo Bay (such as H.R. 2212 and S.1249). Both would require the prison part of the Naval base there to be shut down, and the detainees transferred to the U.S. mainland for trial in a civilian or regular military court, or to be further detained if Congress authorized it. Although some members of the Bush Administration have favored closing Guantanamo’s prison operation, President Bush is rigorously opposed.
It is unclear whether any of these measures would clear either house of Congress. If any does, a veto by President Bush looms, and there very likely would not be enough votes to override.
C. Courts, pending cases, and issues
At this point, cases are pending in the Supreme Court, in two federal Circuit Courts, and in most of the U.S. District Courts in Washington, D.C. The Supreme Court, for the time being, at least, is probably going to be the least active. But new cases could be reaching it over the summer and this fall.
(1) The Supreme Court
On April 2, the Court refused to review the Feb. 20 decision of the D.C. Circuit Court upholding the Military Commissions Act’s habeas-stripping provisions. (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196). Those appeals were challenges only to the loss of habeas rights, and did not raise direct questions about the constitutionality of the DTA review process or of the new military war crimes trials. The Boumediene case did attempt to raise the issue about the legality of the detention, but the Circuit Court had not passed upon that question. The Court gave no reasons for denying review, although two Justices wrote separately to say they preferred to have the detainees test the DTA process first. Three other Justices — one short of the number needed for review — would have heard the cases.
Petitions asking the Court to rehear the denial of those cases are now pending at the Court, along with a request not to act on those petitions until after the Circuit Court completes review of their cases under the DTA process. The Justices will consider those filings at their private Conference on May 24.
The Court, with three Justices again dissenting, on April 30 refused for a second time to review the Circuit Court ruling upholding the MCA habeas-stripping provisions, and refused to hear a joined appeal by Salim Ahmed Hamdan, a Yemeni national, seeking the right to challenge his forthcoming trial before a “military commission.” (Hamdan v. Gates/Khadr. v. Bush, 06-1169). There is no pending petition for rehearing of that denial. The case thus goes back to the Circuit Court, which has called for new briefs by June 8 on what to do next with Hamdan’s case.
The Supreme Court has one other pending detainee case: In re Ali (06-1194), involving an individual whose real name is Anwar Hassan. He has challenged his imprisonment. His case has been on hold in U.S. District Court. His appeal seeks to raise an issue not yet before the Supreme Court — whether the Court retains the authority, despite the MCA, to review his case on an original habeas plea. The Justice Department has not yet responded to this petition; that response is currently due next Wednesday.
(2) Fourth Circuit Court
Another rulng by a federal appeals court on the habeas-strripping provisions of MCA is expected fairly soon from the Fourth Circuit in Richmond. A three-judge panel of that Court held a hearing Feb. 1 in the case of Al-Marri v. Wright (Circuit docket 06-7427). The panel included Circuit Judges Diana Gribbon Motz and Roger L. Gregory and U.S. District Judge Henry E. Hudson. That case, too, may some day work its way to the Supreme Court.
The case involves the only individual named an “enemy combatant” who is currently being held by the military within the U.S. — Ali Saleh Kahlah Al-Marri, a Qatari national who is in the country legally on a student visa. He was taken prisoner at his home in Peoria, Ill., on Dec. 12, 2001, as a potential witness in a federal investigation of the Sept. 11, 2001, terrorist attacks. He had entered the U.S. on Sept. 10. He was later declared an “enemy combatant,” and has been held at the U.S. Navy brig in Charleston, S.C., since mid-2003. He currently faces no criminal charges. The government is seeking dismissal of his habeas challenge, relying upon the MCA.
Because he is being held within the U.S., and was legally in the U.S., his situation is different from that of the detainees involved in the D.C. Circuit’s Feb. 20 ruling upholding the withdrawal of habeas rights. The D.C. Circuit case only involved individuals held at Guantanamo Bay, Cuba, who had never been in the U.S., and had no ties here. Those were key factors in the D.C. Circuit’s ruling that the Guantanamo detainees have no constitutional rights, and thus could not claim that the MCA’s withdrawal of habeas was an unconstitutional suspension of the writ of habeas corpus.
The government has argued in Al-Marri’s case in the Fourth Circuit that MCA’s habeas withdrawal applies not only to Guantanamo detainees, but to any detainee who has been in U.S. custody since Sept. 11, 2001.. Moreover, it contended, Congress had the authority under the Constitution to suspend the writ as to individuals like Al-Marri. He can challenge his detention in the D.C. Circuit under the DTA process, the government has argued.
(3) D.C. Circuit Court
This Court is heaviliy involved now in detainees’ cases, and the list of cases there is steadily building up. As of now, some 45 detainees have filed appeals under the Detainee Treatment Act, challenging rulings on their detention by military Combatant Status Review Tribunals. More are expected. The Court so far has held no hearings on any of the merits of the challenges, but is scheduled to hold a 40-minute hearing next Tuesday starting at 9:30 a.m. on a variety of preliminary but crucial issues about how DTA cases are to proceed in that Court. These cases have stirred a major public controversy over the scope of detainees’ access to their lawyers.
The cases up Tuesday are Bismullah v. Gates (Circuit docket 06-1197) and Parhat v. Gates (06-1397). (NOTE: These cases will be discussed at length in Part II of this primer, appearing on this blog on Sunday. They will not be discussed further here.)
The Circuit Court has a variety of other cases before it, including several involving attempts to block the government from transferring detainees out of the Guantanamo prison to other countries, where some detainees fear persecution or even torture.
In addition, the Circuit Court has reached somewhat conflicting results on two cases involving U.S. citizens who are being held in Iraq by the U.S. military, and are challenging detention by U.S. forces and plans to hand them over to Iraqi authorities for criminal prosecution or sentence. Those cases are Omar v. Harvey (06-5126) and Munaf v. Geren (06-5324). The Circuit Coiurt is considering a government request for rehearing en banc in Omar, and on Wednesday stayed its ruling in Munaf while that citizen-detainee, Mohammad Munaf, pursues an appeal to the Supreme Court.
So far, the Circuit Court has not put into effect formally (that is, has not issued its mandate) in the Boumediene and Al Odah cases, which it decided on Feb. 20 and which the Supreme Court refused to hear on April 2. The detainees’ lawyers have asked the Court to withhold that mandate’s issuance, because they are hoping to avert an early dismissal of their earlier habeas cases in U.S. District Court; they want those cases nominally kept alive until after the Supreme Court — not lower courts — has a chance to rule on the habeas-stripping provision of the MCA. The government has opposed delay in issuing the mandate, saying the detainees’ lawyers simply want to continue litigating cases in District Court that should now be dismissed.
The Circuit Court also has before it the Hamdan case (Circuit docket 07-5042) that the Supreme Court declined to hear on April 30. It has asked both sides to file briefs by June 8 on what steps should be taken next with that case. It is an appeal from a District Court ruling dismissing Hamdan’s habeas plea under the MCA.
(4) U.S. Districts Courts, Washington, D.C.
Most of the judges on these District Courts have pending before them habeas cases filed by detainees, some as long ago as five years. Some of the judges have begun dismissing them under the MCA, but detainees’ lawyers have been asking them to reconsider, in view of the fact that the Circuit Court has not yet issued its mandate in the underlying cases.
The government, not waiting for the Circuit mandate to issue in the cases decided there, on April 19 filed motions in some 240 cases in District Court involving about 300 detainees to go ahead and dismiss them under the MCA. The detainees’ lawyers are opposing those motions, and urging the District judges to keep the cases on hold until the Supreme Court gets back into the fray with a review of the MCA’s validity.
(Tomorrow: Part II — The D.C. Circuit to the Fore)
