Struggle Continues for Guantanamo Detainees’ Rights

On Monday, attorneys at the Center for Constitutional Rights (CCR)and our co-counsel petitioned the Supreme Court for a writ of certiorari, asking it to review on an expedited basis a Court of Appeals decision dismissing two sets of cases (Boumediene v. Bush and Al Odah v. United States) filed on behalf of detainees at Guantánamo Bay. If, as we hope and expect, the cases are accepted for review, they would mark the first challenge to the Military Commissions Act of 2006 (MCA), passed by the 109th Congress just prior to the last election.

The administration claims the Act effectively undoes the Supreme Court’s decision in CCR’s landmark 2004 case, Rasul v. Bush, where the Supreme Court held that the detainees have the right to challenge their detention in the U.S. courts. Concerned members of the public and young law students often ask us whether, in light of the MCA, the first round of the litigation accomplished anything. And the answer is an unequivocal yes—by sending lawyers to the base, and by pressuring the administration to create a sham procedure for reviewing the detentions before military panels (CSRTs), the facts about who the detainees actually are have come to light.

As a result, we know that most of the detainees at Guantánamo have no link to terrorism. We know from the military’s own records that only 1 in 20 were captured by U.S. forces; the rest were captured by third parties and frequently sold to the U.S.in exchange for bounties paid indiscriminately to villagers and warlords during the chaos of the Afghan war. In interview after interview, CIA and military sources have told reporters that the vast majority of detainees “don’t have anything to do with” terrorism, “didn’t belong there,” “weren’t fighting.” A Guantánamo interrogator told 60 Minutes that “at best, I would say there were a few dozen” of the hundreds of detainees who had any connection with terrorism.

Whether they come from Congress or the lower courts, misguided attempts to cut off judicial review will simply perpetuate a system already rife with error, a system that has–predictably–frequently imprisoned the innocent. As Jon Hafetz at NYU Law’s Brennan Center put it, “[s]tripping the federal courts of jurisdiction [will allow] lifelong detention for many individuals who are innocent and just need a hearing to prove it.” Major General Jay Hood, commander at Guantánamo, admitted to the Wall Street Journal that “[s]ometimes we just didn’t get the right folks,” but innocents remain at the base because “[n]obody wants to be the one to sign the release papers. … there’s no muscle in the system.”

The federal courts are supposed to be that muscle. Without the intervention of the federal courts allowing attorneys access to the base, we might never have found out about the abuse that has taken place at Guantánamo. Eliminating the power of the federal courts to hear these cases would not just allow wrongful detentions to continue forever; it would also effectively render the McCain Amendment prohibiting cruel, inhuman or degrading treatment unenforceable, and prevent any accountability for the torture or abuse of people in our custody.

As much attention as Guantánamo receives here, it is an even greater human rights scandal in Europe, and its impact in the Muslim world is inestimable. By creating a safe haven for unchecked wrongful detention and abuse, it promotes hatred of the United States and inspires repressive regimes overseas, which in turn foster violent, extremist opposition. And by helping cover up the fact that the administration has detained so few real terrorists, it has reduced political pressure on the executive and the intelligence and law enforcement agencies from the voting public. All of this makes us less safe, and that gives both Congress and the courts ample incentive to ensure that court oversight will reach Guantánamo.

Members of Congress on both sides of the aisle are now introducing legislation that would repeal the worst provisions of the Military Commissions Act of 2006 (MCA). Senator Dodd has introduced the Restoring the Constitution Act of 2007 and has been joined by Senators Leahy, Feingold, and Specter. These are welcome and important developments.

But in the end, these issues center around the power of the judicial branch to bring accountability to the executive branch, and to serve as a final bulwark for individual liberty. And as of now it is the High Court’s ultimate responsibility to make that happen. Every major question at issue here was addressed by the Supreme Court’s opinion in 2004. A broad array of parties who filed friend of the court (amicus) briefs in Rasul returned this week to urge that the Court enforce its 2004 mandate (except, sadly, the late Fred Korematsu, a Japanese-American WWII internee who died before seeing justice done in this case and whose daughter replaces him as amicus). Five years into this newest shameful chapter of our history, it can’t happen soon enough.