20 September 2011

Guantanamo Bay detainees remain in legal limbo

By Eric Donato, Juris Blogger
“The orders that I signed today should send an unmistakable signal that our actions in defense of liberty will be just as our cause, and that we, the people, will uphold our fundamental values as vigilantly as we protect our security,” President Obama announced in January 2009 during the signing ceremony for his executive order to close the Guantanamo Bay military detention facility.

“Once again, America’s moral example must be the bedrock and the beacon of our global leadership.”

Over two years later the facility remains open, housing 171 inmates according to an on-going analysis by NPR and the New York Times.  Crippled by delays, administrative setbacks, Congressional opposition, and ultimately acquiescence by the President, closure of the Guantanamo Bay detention camp doesn’t look likely in the near future.  But how did this impasse come to be, and what does it mean for the men imprisoned at the camp who are still waiting – some for over nine years – to have their day in court?

Though the United States Naval Station in Guantanamo Bay, Cuba, dates back to 1903, the detention and interrogation facility intended to hold enemy combatants or suspected terrorists opened in 2002.  Captured primarily in Afghanistan, Saudi Arabia, Yemen, Pakistan, and Algeria by the United States and foreign police and intelligence agencies, about 600 of the 779 people interned at the camp since it opened have been resettled in other countries.  Most were eased back into society through government programs, others remain in custody in foreign countries, and some returned to terrorist activities after release, such as Kuwaiti citizen Abdallah al-Ajmi who was detained for almost four years at Guantanamo Bay before performing a suicide attack in Iraq in 2008.

The prosecution of those deemed too dangerous to release from the prison has been an incendiary issue both domestically and abroad.  At the outset of the war on terror, President Bush established military commissions to try the growing number of suspected terrorists the country was taking into custody from Afghanistan and renditions from foreign countries like Saudi Arabia.  Declaring terrorist suspects held at Guantanamo “non-state actors,” the Bush administration contended that they were not due protection by the Geneva Convention or jurisdiction by federal courts because they were foreign enemy combatants being held outside of the United States.  Consequently, detainees were denied habeas corpus rights and faced an indefinite period of confinement.  Many were widely reported to have been subjected to torture during interrogation, including sleep deprivation, solitary confinement, extreme temperatures, waterboarding, and being chained in uncomfortable positions for long periods of time.

Nine years in, Guantanamo Bay's political legacy remains
The military tribunals established by the Bush administration for Guantanamo Bay differed substantially from traditional federal and military justice systems in that they permitted testimony derived from coercion.  Damning statements made under extreme duress or torture could be entered as valid evidence against the defendants.  Furthermore, only two-thirds of the jury, composed of officers and military judges, was needed to convict defendants.  Defendants were not allowed access to all the evidence against them so they were unable to refute key portions of the prosecution’s claims.

The policy of using these unique military commissions to try suspected terrorists was not left unchallenged, and a series of Supreme Court decisions and legislative maneuvers would come to rattle the status quo.

The first crack in the Bush administration’s detention policy came in 2004 when the Supreme Court in Hamdi v. Rumsfeld ruled that Hamdi, a U.S. citizen captured allegedly as an enemy combatant in Afghanistan in 2001, must be afforded the opportunity to legally contest his ‘enemy combatant’ status.  His citizenship and the fact that he was held in the U.S. were key components of the Court’s ruling, so the case was not construed as a total repudiation of the Guantanamo Bay justice system.

That ruling came in 2006.  In Hamdan v. Rumsfeld, the Supreme Court found that the Bush administration’s military commissions were invalid because they violated the military justice system and the Geneva Conventions.  The Court noted that if indeed the President had the power to convene the commissions, they would need to be sanctioned either by statute or the code of military justice, which they were not, and that the commissions as they stood in 2006 deviated from standard military justice practices, for example by admitting statements gathered by torture.

In response to this ruling the Military Commissions Act of 2006 was quickly enacted.  The act expanded the definition of enemy combatants, permitted the use of military commissions to try those so designated, and allowed evidence seized without a search warrant to be admitted in trial.  The law also prevented federal courts from establishing jurisdiction over enemy combatants.

The next blow to the Bush administration’s policies came in 2008, when the Supreme Court ruled that the provision of the Military Commissions Act that stripped federal courts of their jurisdiction over enemy combatants was unconstitutional.  In Boumediene v. Bush the Court decided that military commissions did not provide the protections of habeas corpus that the Constitution demanded, so the commissions were not a legitimate alternative to federal courts.

Soon after he was elected, President Obama moved to reverse the Bush administration’s policies toward alleged terrorists and enemy combatants, stating his preference for holding the detainees in a maximum-security prison in the United States and trying them in either federal courts or traditional military courts.  The administration reversed its position, as strong Congressional opposition to the closure of the Guantanamo Bay facility stumped his reformist ambitions.  Obama’s signature of the 2011 Defense Authorization Act, which contains provisions that prevent the transfer of detainees to the United States, has stopped the closure of the detention center, and has prompted the administration to resume military trials for some detainees, such as alleged 9/11 mastermind Khalid Sheikh Mohammed.  Others still face indefinite detention.

Though reformed under the Obama administration, the military commissions that will try the Guantanamo detainees are still different than standard federal or military courts.  They permit coerced information at the point where the suspect is captured or was found engaged in combat, though no longer through rough interrogation after that point.  The commissions also allow hearsay evidence.  Secret evidence that cannot be refuted in trial is still admissible though lawyers representing defendants in the system will supposedly have greater access to classified information than they did in previous years.

Whether the new military commission system will operate in a manner in line with traditional notions of due process remains to be seen, as does the future of the Guantanamo Bay detention facility that the President still insists that he wishes to close.  With 171 detainees kept in Cuba, most of whom are not scheduled to receive a trial, the waiting period continues.  Nine years and counting.

Eric Donato is a first year student at the Duquesne University School of Law. He earned his bachelor’s degree at the University of Pittsburgh, where he studied Journalism and Political Science. He has been a staff writer for several publications, including Pitt Med magazine. Eric can be reached at ericsdonato@gmail.com