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Guantánamo: The Road to Closure

Ben Wizner,
ACLU Speech, Privacy, and Technology Project
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July 26, 2007

Guantanamo has been in the news again: Several congressional bills would restore habeas corpus to detainees or close the prison camp altogether; the Supreme Court has agreed to hear a third Guantanamo-related case, reversing its own recent decision to delay review; and the Court of Appeals for the D.C. Circuit has ordered the Defense Department to produce all relevant information, not just cherry-picked evidence, regarding the detainees who are challenging their “enemy combatant” designations.

We’re now in the sixth year of the national disgrace that may one day be remembered as the Guantanamo Era. Here, in two parts, is a review of how we’ve gotten to where we are:

Part I: From Camp X-Ray to the Detainee Treatment Act.

Our government brought the first detainees to Guantanamo in January 2002, with the express goal of avoiding the jurisdiction of U.S. courts by placing the detainees outside U.S. territory. For 2 1/2 years – until the Supreme Court’s historic 2004 decision in Rasul v. Bush – the Bush administration’s position and policy was that detainees could be held indefinitely, without access to lawyers and without being charged with any crimes, on the sole authority of the president.

The most extreme articulation of that position occurred in a federal courtroom in California. Family members had filed a habeas corpus petition seeking the release of their relatives in Guantanamo, and the administration argued that the court lacked any jurisdiction: 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 in their decision, “prior to the current detention of prisoners at Guantanamo, the U.S. government has never before asserted such a grave and startling proposition.”

In June 2004, the Supreme Court’s Rasul decision held that because the naval base at Guantanamo Bay was under the exclusive control of the United States, the federal habeas corpus statute extended to detainees held there. In other words, detainees could challenge their detention in U.S. courts by seeking writs of habeas corpus, the fundamental protection against arbitrary imprisonment developed under the common law, and the administration would have to provide evidence supporting its cursory and wholesale designation of the detainees as “enemy combatants.”

Nine days later, the administration scrambled to create the now notorious “Combatant Status Review Tribunals” (CSRTs) – a transparent attempt to avoid meaningful federal court review by providing the illusion of legal process at Guantanamo. The CSRTs served as a Pentagon rubber-stamp: Detainees were brought before military panels without lawyers, without access to the key government “evidence” being used against them, and without the opportunity to present evidence on their own behalf. Unsurprisingly, virtually all of the detainees were designated “enemy combatants,” though a miniscule number earned the Orwellian moniker “NLEC” – “no longer enemy combatant.”

In a separate development, the administration created and convened “Military Commissions” to bring war crimes charges against a small subset of the detainees. (The vast majority of detainees will never be charged as criminals, but are being held solely as “enemy combatants,” subject to detention until the “cessation of hostilities” in the “war on terror” – in other words, forever.) One of those detainees, Salim Ahmed Hamdan, challenged the authority of the military commission system, and his case reached the Supreme Court in 2006. (I’ll discuss that case in the next entry.)

In the meantime, hundreds of volunteer lawyers had arrived at Guantanamo to provide representation to detainees in habeas proceedings. Federal courts in the District of Columbia began to consider the detainees’ claims that they were being held without justification. In an effort to put a halt to those proceedings, the administration urged Congress to revoke the right of habeas corpus for Guantanamo detainees, and Congress complied by enacting the Detainee Treatment Act (DTA) in 2005, as an amendment to the Defense Appropriations and Defense Authorization Acts. The administration then sought the dismissal of all pending habeas corpus challenges – including Hamdan’s, which was pending before the Supreme Court.

Read Part II of “Guantanamo: The Road to Closure” >>