In August of 2003, in a federal courtroom in San Francisco, a lawyer for the United States made an alarming statement. The court, the lawyer argued, was completely powerless to rule on the legitimacy of the Administration's detention policies at Guantanamo Bay: detainees could be held without charge or trial, without access to lawyers, and without any recognized rights under U.S. or international law. Would this be the case, the judges inquired, "even if the claims were that [the government] was engaging in acts of torture or that it was summarily executing the detainees?" Yes, replied the government lawyer. The judges were incredulous. "To our knowledge," they wrote, "prior to the current detention of prisoners at Guantanamo, the U.S. government has never before asserted such a grave and startling proposition." Gherebi v. Bush, 374 F.3d 727, 738 (9th Cir. 2004). (PDF file.)
The Supreme Court repudiated the government's position in the landmark Rasul decision, but the Administration has sought new ways to deny justice to the 500 men and boys still detained at Guantanamo. Today the Court will hear the case of Salim Ahmed Hamdan, Osama Bin Laden's driver, which began as a challenge to the Administration's unprecedented military tribunal system, but has grown in significance since the enactment of the disastrous "Detainee Treatment Act" (popularly known as "Graham-Levin," after Senate sponsors Lindsay Graham and Carl Levin), which purports to divest federal courts of jurisdiction over habeas corpus petitions submitted on behalf of Guantanamo detainees.
The military tribunal system at the heart of the case is terribly flawed, as the ACLU argued in a friend-of-the-court brief submitted in January. I had a chance to view some of the tribunal proceedings firsthand, and it's hard to imagine that, with the whole world watching, we can't do better than these kangaroo courts. The system, in the words of a former tribunal prosecutor, is "rigged," with "handpicked" members who "will not acquit the detainees." The President and Secretary of Defense — who, under military commission rules, are the final arbiters of guilt or innocence — have already publicly declared that the detainees are "bad people" and "among the most dangerous, best-trained, vicious killers on the face of the Earth."
Contrary to any established system of law — whether derived from the Constitution, the Uniform Code of Military Justice, or our international treaty obligations — the military commission rules do not guarantee an independent tribunal, an impartial appeal or the exclusion of tesimony obtained through coercive interrogation techniques, although the ACLU has obtained abundant evidence that the detainees at Guantanamo have been subjected to brutal and degrading treatment. (PDF file, obtained through ACLU FOIA requests) Finally, there is no guarantee that, in the unlikely event that a detainee were actually acquitted by a military commission, he would be released from custody, because the Administration has already designated the detainees "unlawful combatants." (For more related documents released to the ACLU under the Freedom of Information Act, see /torturefoia.)
But much more may be at stake today than the legitimacy of the military tribunals. The Administration has moved to dismiss the Hamdan appeal — as well as all other Guantanamo cases pending in the lower courts — on the ground that Congress has stripped the courts of habeas jurisdiction, and the detainees have no rights under the Constitution to challenge their indefinite detention and conditions of confinement. In a more refined way, the Administration is once again advancing the argument that so astonished the federal judges in San Francisco. Today we'll see whether the justices of the Supreme Court react similarly.