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Analysis: What are detainees’ rights now?

The Supreme Court’s lead opinion in the Guantanamo Bay cases Thursday declares simply: “The detainees in these cases are entitled to a prompt habeas corpus hearing….The costs of delay can no longer be borne by those who are held in custody.”

But that does not mean any detainee is going to be released soon — although that ultimate remedy does have to remain available as a potential outcome.  Much was decided on Thursday — particularly in terms of constitutional magnitude — but much remains open for the future.  What is next, and where might the decision lead in the end?  Answers, but only preliminary answers, can be suggested.

First, however, some policy and political calculations have to be gauged.  The decision does leave President Bush and Congress with the power to try again (assuming they could find some common ground) to head off habeas.  Even though Thursday’s decision was a constitutional ruling, the Court did not say that there can never be any substitutes for habeas review of detention.  But, as a matter of political reality, a Republican President with only six months left in office and historically low popular approval ratings, and a Democratic Congress that is less and less deferential to the Executive even on war-on-terrorism issues, very likely will not be able to agree in the short time realistically available to find an alternative to habeas that has any chance of surviving a court test.

The Pentagon, too, still has some options open to it.  It can scrap the existing system that decides who is to be designated as an “enemy combatant” and thus must remain confined.  The Court did not strike down the so-called Combatant Status Review Tribunals; indeed, it said, they “remain intact.” But, the less such a filtering system protects a detainee’s legal rights, the more chances he has to challenge the enemy label and the detention in court, according to Thursday’s decision.  Does the Pentagon have a military interest in expanding detainee’s rights up-front?  Given its history with CSRTs, the answer is probably not.

The Pentagon perhaps also might ponder some changes in the system for trying detainees on war crimes charges — the so-called military commissions that are ponderously moving forward at Guantanamo.  But the Court said nothing about the commission system Thursday, so the military may have no incentive to re-think a system that it has struggled to keep going amid a host of difficulties, major and minor.  Still, the Court’s ruling does portend some serious challenges to the military commissions through habeas cases, even though the specific cases decided Thursday involved challenges only to detention, not to prosecution.

There is one other political calculation to take into account: the prospect that Guatanamo Bay itself may be shut down entirely as an apparatus for detention and prosecution of captives in the war on terrorism.  That could change, in wholesale ways, the fate of the detainees, and Bush Administration policy.  But, between now and the start of a new Presidency, the time may be too short to find an alternative to Guantanamo, at least one that the President and Congress could agree on.

Thus, leaving aside all the prospects for political change of greater or lesser moment, what is going to happen next for the detainees is going to be legal in nature.  As the Court said, the captives must have a “prompt” habeas hearing.  What will go on in those hearings is going to be discussed shortly by the judges of the U.S. District Court in Washington (where such hearings will be held) joined by lawyers for the detainees, and for the government (Justice Department and Pentagon, in particular).  As an earlier post on this blog indicated, the judges are already planning for such discussions.

Those in on the discussions about habeas proceedings have some leeway in how to proceed, because the Court said explicitly on Thursday that its “opinion does not address the content of the law that governs” the Guantanamo detention.  “That is a matter yet to be determined.”

But there is a good deal of guidance in the Court’s opinion written by Justice Anthony M. Kennedy, although some of its is a bit contradictory, or perhaps at least a bit unclear.  On the one hand, for example, the Court says the detainees must have a “prompt” habeas hearing.  But elsewhere, the opinion says that “federal courts should refrain from entertaining an enemy combatant’s habeas corpus petition at least until after the [Defense] Department, acting via the CSRT, has had a chance to review his status.”  The latter point, however, does not explicitly take account of the fact that all of the detainees now at Guantanamo (270 or so remain) have had at least one CSRT review, and a few have had more than one.  The Pentagon, though, may want to have some additional “do-overs,” especially if it fears that the existing basis for a specific prisoner’s detention is vulnerable to a strong habeas challenge, so the Court may be anticipating some time for those to occur.  And it obviously did have in mind future captives, not yet at Guantanamo.

It is clear from the opinion that the detainees who already have had their CSRT reviews may proceed directly to District Court, with a new or reopened habeas challenge.  (Some 200 habeas petitions are already waiting there.)  The Court said that the detainees in that category need not pursue their challenges to CSRT decisions in the D.C. Circuit Court under the Detainee Treatment Act (Congress’ alternative to habeas).  To require those who have been held for six years to complete that process ahead of habeas “would be to require additional months, if not years, of delay,” the Court said.

In fact, in the two cases that the Court explicitly decided Thursday (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196), the Court ordered the D.C. Circuit to send them back to District Courts for the habeas review now required.

Still, the Court said it was not disturbing the DTA process that Congress assigned to the D.C. Circuit, so it will be up to that tribunal, in cases other than those in which detainees have been held for years, to decide how to proceed, if at all, now.  Lawyers in some of the DTA cases pending at the Circuit Court are already under orders to advise that Court on what they think should happen following the Supreme Court decision.  One of the cases in which such an updating order has been issued involves Salim Ahmed Hamdan, who has seeking to use his DTA not only to challenge his detention, but his war crimes prosecution before a military commission. The Circuit Court already has under advisement an appeal testing the legal rights of another Guantanamo detainee, Omar Ahmed Khadr.

But, returning to the habeas cases that are expected to resume in District Court, what rights will the captives have? Or, at least, what did Thursday’s decision seem to say about those rights, even while insisting it was not providing a final checklist of rights?

Two somewhat general principles were stated: (1) that, if the detention decision comes in a proceeding in which the captive’s legal rights are limited so that the process was not “thorough,” the habeas review must be more expansive and comprehensive; and (2) that the judges handling habeas cases “must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release.”

Going beyond those generalities, the Court made comments, in critiquing the CSRT and DTA proceedings, that suggest what habeas rights a detainee probably has to have before a court can uphold a decision that he must remain in detention or before a court would allow him to be tried for war crimes (since a CSRT or other designation of enemy status is necessary for a war crimes trial):

1. The habeas hearing must be prompt — at least for a detainee who has been held for several years (the time factor is uncertain).

2. The habeas review must be sufficiently comprehensive to significantly reduce the risk of error in an enemy designation, and the court must have the authority to correct errors in that designation.

3. The detainee must have a meaningful right to rebut the Pentagon’s evidence that seeks to support an enemy label, including some right to bring in additional evidence challenging the enemy status finding.

4. The detainee must have the assistance of a lawyer.

5. The detainee’s habeas case may demand an answer to the question of whether the President has the authority to order a captive held indefinitely — in other words, to challenge the basic authority of the Executive to have a prolonged detention policy for war-on-terrorism captives.

6. Release of custody, at least a “conditional” release (unspecified conditions), must remain one of the remedy options.  It would not be enough, constitutionally, for a court merely to order a new CSRT proceeding as the only possible remedy.

Potentially, the first five of these rights may exist in a habeas case brought by a detainee who is facing a war crimes prosecution before a military commission.  That is because a habeas challenge in that context would be, in part, a challenge to the enemy designation that must be made before a detainee may be charged with war crimes.  But a habeas challenge in the war crimes context might also involve other constitutional claims of defects in the military prosecution itself — such as a denial of access to classified evidence against the accused.  It is unclear, though, whether a habeas court would have the authority to examine those challenges in a pre-trial habeas case — or would have to await a final conviction.  There might be other ways, different from habeas, for challenging the constitutionality of the commission process.  The Court said nothing Thursday about such challenges. Those, too, are for the future.

There is no way, at this point, to predict how many — if any — detainees now at Guantanamo may win their freedom as a result of the ruling.  District Court judges already have been divided in their views of detainees’ rights, and that conflict is likely to continue.

An  entirely separate question arises over whether the decision will provide habeas access for any detainees held elsewhere than at Guantanamo Bay — for example, at the U.S. military’s detention facility at Bagram air base in Afghanistan.  Detainees there now have attempts at habeas pending in the District Courts in Washington.  Their attorneys surely will attempt to take advantage of the ruling, and of the separate decision Thursday (in Munaf v. Geren, 06-1666), finding that habeas rights do apply to those held by the U.S. military in Iraq.  The Munaf decision involved only American citizens so held, but lawyers predictably would contend that should apply to foreign nationals so held, too — on the same ratrionale that the Guantanamo decision recognized habeas rights for foreign nationals at the Cuba base.