Government Submits Opening Appellate Brief in Rasul-on-Remand
on Apr 28, 2005 at 6:16 am
The Acting Solicitor General has filed the Government’s opening appellate brief in the U.S. Court of Appeals for the District of Columbia Circuit in Al Odah v. United States (Nos. 05-5064, 05-5095 through 05-5116), which is in essence the Rasul case on remand — a habeas challenge brought by numerous alien detainees at Guantanamo. The appeal is from a January 31st decision of District Court Judge Joyce Hens Green, in which she ruled in favor of the habeas petitioners on a series of very significant threshhold merits issues.
The important issues the brief addresses include the following:
1. Most significantly, Judge Green read footnote 15 of Rasul (and other aspects of that decision) to hold that the Due Process Clause provides some protection to aliens being detained at Guantanamo because GTMO is subject to long-term, exclusive U.S. jurisdiction and control.
DOJ argues at pages 15-29 of its brief that this holding is foreclosed by binding precedent to the contrary, including Eisentrager, Verdugo-Urquidez, and a dictum in Zadvydas, as well as courts of appeals cases.
This question — of the application of the Due Process Clause to aliens detained outside the U.S. — is of enormous importance, not only for purposes of identifying the constitutional protections, if any, that govern the process for determining “enemy combatant” status, but also for purposes of assessing the legality of the terms and conditions of detention, such as whether the Administration may continue to subject detainees to “cruel, inhuman and degrading” treatment in interrogations conducted abroad.
2. Judge Green also significantly ruled that the Administration’s definition of who may be detained as an “enemy combatant” is far too broad and not authorized by the congressional authorization statute (which, per Hamdi, incorporates the laws of war), because that definition includes persons with peripheral alleged connections to Al Qaeda and the Taliban. Thus, for example, in response to the court’s hypotheticals, DOJ counsel argued that the Executive has the authority to detain until the conclusion of the war on terrorism: “[a] little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan but [what] really is a front to finance al-Qaeda activities”; a person who teaches English to the son of an al Qaeda member; and a journalist who knows the location of Osama Bin Laden but refuses to disclose it to protect her source. More particularly, Judge Green offered the example of detainee Murat Kurnaz, as to whom there was no unclassified evidence that he “took any action or provided any direct support for terrorist actions against the U.S. or its allies,” or “even had knowledge of his associate’s planned suicide bombing, let alone [to] establish that the detainee assisted in the bombing in any way.” Thus, “[i]t would appear that the government is indefinitely holding the detainee–possibly for life–solely because of his contacts with individuals or organizations tied to terrorism and not because of any terrorist activities that the detainee aided, abetted, or undertook himself.”
Because Hamdi held that the purpose of detention can only be to keep combatants off the “battlefield,” Judge Green concluded that the category of persons who can be detained is limited to those who “took any action or provided any direct support for terrorist actions against the U.S. or its allies.” Mere contacts with individuals or organizations tied to terrorism (or membership in such organizations) is not sufficient.
DOJ addresses this “scope” argument at pages 49-52 of its brief. It claims that the laws of war permit detention of members or “supporters” of Al Qaeda and Taliban “forces.” Most strikingly, the brief goes so far as to intimate (page 51) that the Government could indefinitely detain as an “enemy combatant” a U.S. citizen who provides any “material support” to Al Qaeda or the Taliban. (The provision of such material support is a federal crime; but punishment for that offense is, of course, ordinarily effected through conviction and determinate sentencing in the criminal justice system.)
3. Judge Green ruled that aliens at GTMO challenging the legality of their detention are entitled to the same due process procedures to which citizens would be entitled under the governing plurality opinion in Hamdi, and that the new procedures the military is providing at GTMO for assessing “enemy combatant” status do not satisfy Hamdi requirements, largely because many detainees and their attorneys are not confronted with the classified evidence that forms the basis of the military decision to detain them.
DOJ argues at pages 38-48 of its brief that this Due Process holding was wrong.
4. Judge Green held that certain alleged Taliban detainees could sue to enforce their rights to be treated as POWs under the Third Geneva Convention.
DOJ argues (pp. 55-59) that the 1929 version of the Geneva Convention did not create judicially enforceable rights (which was the Court’s holding in footnote 14 of Eisentrager), and that there is no basis for concluding that the nations that ratified the 1955 (current) version of Geneva intended to alter that conclusion.
5. Judge Green held that the President had overstepped his authority in making the categorical determination that all Taliban personnel are automatically not entitled to POW status for purposes of the Third Geneva Convention. She held that such detainees are entitled to individualized hearings on POW status under Article 5 of that treaty.
DOJ argues (pp. 60-64) that once the President made the determination that the Taliban itself did not satisfy the standards for POW status under Article 4 of the Convention, the only remaining factual question in an individual detainee’s case is whether that person was, in fact, a member of the Taliban (or, presumably, a “supporter” of Taliban “forces”) — a question that the military can adequately address in the Combatant Status Review Tribunals that it has established.
