No Day is Super When You're Being Detained Indefinitely

This afternoon, ACS was excited to welcome Jonathan Hafetz of the Liberty and National Security Project of the Brennan Center for Justice at NYU.

He began by providing an overview of the recent history of Guantanamo litigation, which has been going on since about 2002. In that year, the Bush administration made several key decisions (like deciding not to follow the Geneva Conventions) that led to the current “special prison” situation in Guantanamo and around the world. Despite how long this has been going on, the rights of the detainees have never been clearly determined. There are currently some large cases that seem likely to clear up some of the confusion.

Hafetz focused on Guantanamo specifically, because it is emblematic (and the most iconic one) of the administration’s extra-legal detention centers. Hafetz sees Guantanamo as representative of a larger effort to establish prisons that exist outside of the law.

When lawyers became aware of the situation in Guantanamo, they began attempting to represent the detainees. In 2004, Rasul v. Bush, the Supreme Court rejected the idea that Guantanamo detainees had no right to habeas. Many more cases were subsequently filed and more lawyers began visiting Guantanamo.

The process was then derailed. In December of 2005, Congress passed the Detainee Treatment Act. It contained some prohibitions on cruel treatment, but its most significant effect was to strip detainees of Federal habeas rights.

In 2006, the Supreme Court decided Hamdan v. Rumsfeld, which challenged the legality of using military commissions to try suspects at Guantanamo. The Court sidestepped the constitutional challenge to the Detainee Treatment Act by saying it didn’t apply to pending habeas cases (of which there were about 200). They then struck down the commissions on the grounds that they violated the Geneva Conventions.

Later that same year, Congress passed the Military Commissions Act, which gave legislative approval to the commissions struck down in Hamdan. To deal with the Court’s ruling on the pending habeas cases, the act stripped all habeas rights retroactively and replaced them with a less robust system of adjudication, with the possibility of appeal to the DC Circuit Court.

In February of 2007, the DC Circuit upheld the Military Commissions Act’s suspension of habeas as constitutional because enemy combatants are not U.S. citizens. The Supreme Court initially denied review of this case. Then, on a petition for rehearing, they changed course and agreed to hear it.

Another important case pending decision pending decision is Boumediene v. Bush, which contains two major issues: (1) the question of whether the constitutional right to habeas corpus is limited to the geographic United States. This has broad implications for enemy combatants all over the world. (2) If combatants on foreign soil have habeas rights, is the alternative provided by the Commissions Act a constitutionally adequate substitute? (There are a number of serious flaws in the system).

These issues are now complicated by separate litigation that has proceeded under the Detainee Treatment Act since its passage. There are now separate petitions for review under the substitute scheme, which itself may be ruled unconstitutional.

A recent DC Circuit ruling expanded their power of review of status tribunal and allowed them to look at all of the relevant evidence that led to a conviction, instead of the more limited record they had previously been sent. An en banc hearing on the case was denied 5-5, and the government has petitioned for cert on an expedited schedule so that the case can be heard this term.

Hafetz believes that the Supreme Court will have to clarify the legal rules in Guantanamo in some of these decisions, which will be a big step for detainees. He views Guantanamo as one island in an archipelago of a new kind of prison set up to avoid legal processes.

Clarification of the legal rights of detainees will hopefully lead to some positive change in a dire situation. Before last week, of the 750 inmates that had been at Guantanamo bay, only 5 had ever been charged with any crime. (It is now around a dozen).

Thanks to Jonathan Hafetz for this interesting talk!