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A new test on “Geneva rights”

Following up on two Supreme Court rulings, lawyers for more than three dozen Guantanamo Bay detainees on Thursday urged a federal judge to rule that they are entitled to humane treatment under the Geneva Conventions, but have not been getting it.  This will pose the first test for the Obama Administration on the policy it will follow on Geneva rights — including the issue of whether the prisoners are to be treated as “prisoners of war.”

The request will also test whether federal courts will exercise power to control or limit conditions under which the detainees are confined at the Navy prison on Cuba.  The former Bush Administration had contended that federal judges had no such power.

A request to assure that Geneva rights are respected at Guantanamo has been on hold for months at U.S. District Court, but is now moving forward in the wake of the Justices’ decision last June in Boumediene v. Bush, giving Guantanamo prisoners a constitutional right to test their detention.   The detainees are also seeking to apply the Justices’ 2004 ruling in Hamdan v. Rumsfeld, assuring some at Guantanamo that they have Geneva protection.

The plea for applying those rights to all at the Guantanamo prison came in a new brief filed in a series of cases (El Falesteny, et al., v. Obama, District Court docket 05-238, is the lead case).  The brief can be found here.  An addendum, listing the Geneva Articles that are at stake, is here.

The Obama Administration is due to file a response to the brief by March 26.   The cases are pending before U.S. District Judge Reggie B. Walton.

Judge Walton on March 3 called for new briefs on whether the Geneva Conventions apply to Guantanamo, and whether a violation of those rights can be challenged in federal habeas cases.  The judge also asked for briefing on whether the detainees are entitled to “a certain minimum standard of care” even if Geneva rights do not apply, and whether a judge has any authority to decide a habeas challenge to conditions of confinement.

Answering, the detainees’ lawyers argued that the Conventions do apply at Guantanamo, that U.S. courts may enforce those rights, and that, if the U.S. military is unwilling to obey the Conventions there, the detainees should either be transferred to another country or sent to their home countries.

The Supreme Court’s Boumediene decision, the brief contended, “removes any doubt” that the District Courts have authority to decide the habeas cases.

The document argued that Guantanamo detainees are prisoners of war because, even though the military designated them as “enemy combatants,” that designation is not sufficient to satisfy the Geneva Convention on POW rights.

“The test and history of the habeas statute and the Supremacy Clause, on-point Supreme Court precedent, and each of the several ‘tests’ that courts have developed for determining whether a treaty” can be enforced, all show that rights under the Third Geneva Convention are to be enforced in habeas cases, the brief contended.

Federal habeas courts, it said, have always had authority to apply not only the Constitution and U.S. laws, but also treaties that the U.S. has signed.