Neo-Conned! Again

by D Liam O'Huallachain

  The Administration's Response

  The conflict between Judge Green's and Judge Leon's interpretations of the detainee's post-Rasul rights will have to be resolved in a higher court, either the U.S. Court of Appeals for the District of Columbia Circuit, or possibly in the U.S. Supreme Court. At the end of April 2005, the administration filed its opening brief in the Court of Appeals arguing that Judge Green's opinion should be overturned. Its arguments show an administration in an unapologetic mood, in continuing pursuit of unfettered executive authority under the President's war powers as Commander-in-Chief, and disregarding international law and standards. Among its arguments are that:

  (1) The due process clause of the U.S. Constitution's Fifth Amendment “is inapplicable to aliens captured abroad and held at Guantánamo Bay, Cuba.” This, the government argues, repeating its pre-Rasul position, is because the “United States is not sovereign over Guantánamo Bay” and U.S. Supreme Court precedent makes it clear that the applicability of the Fifth Amendment to aliens “turns on whether the United States is sovereign, not whether it merely exercises control, over the territory at issue.” Moreover, “to construe a single, oblique footnote as implicitly overruling decades of settled precedent would be utterly implausible ….” In addition,

  [I]f the courts were to second-guess an Executive Branch determination regarding who is sovereign over a particular foreign territory, they would not only undermine the President's lead role in foreign policy, but also compromise the very capacity of the President to speak for the Nation with one voice in dealing with other governments.

  (2) Even if the Fifth Amendment did apply to foreign nationals held at Guantánamo, the CSRT procedures would exceed whatever due process requirements there were. The CSRT process, the administration argues, “manifestly satisfies the requirements of due process (if any) in the unique context of ongoing armed hostilities.” Moreover, the CSRT procedures criticized by Judge Green “are not constitutionally problematic.” The need for deference to the executive on the question of withholding classified information and legal counsel from the detainees is “greatly magnified here, where the issue is not the administration of domestic prisons, but the Executive Branch carrying out incidents of its war-making function.”

  (3) The definition of “enemy combatant” is not overbroad, as Judge Green found. According to the administration, “although there may be difficult calls at the margin, that has been true in every war, and … the determination of who are enemy combatants is a quintessentially military judgment entrusted primarily to the Executive Branch.” The executive, the executive argues, “has a unique institutional capacity to determine enemy combatant status and a unique constitutional authority to prosecute armed conflict abroad and to protect the Nation from further terrorist attacks. By contrast, the judiciary lacks the institutional competence, experience, or accountability to make such military judgments at the core of the war-making powers. These concerns are especially pronounced given the unconventional nature of the current war and enemy ….”

  (4) On the question of the Geneva Conventions, Judge Green “should have deferred to the view of the Executive as to whether the treaty was intended to grant those captured during an armed conflict judicially enforceable rights.” Judge Green's contention that the Taliban detainees should have been presumed to have prisoner of war status is “inconsistent with the deference owed to the President as Commander-in-Chief.”1

  Thus, at every step, the executive continues to place obstacles in the way of the detainees having their cases subjected to judicial scrutiny. It continues to appeal every decision that goes against it. By continuing its bid for unfettered executive power, rather than heed the ever-mounting criticism, it is inflicting further damage on the rule of law, human rights principles, and the international reputation of the U.S. Meanwhile, the detainees are kept in a legal black hole created by the U.S. administration. Forced to share in this limbo, their families are subjected to what may amount to cruel, inhuman, or degrading treatment.1 The situation remains a human rights scandal.

  The Administrative Review Board

  For any detainee affirmed as an “enemy combatant” by the Combatant Status Review Tribunal – except those pending trial by military commission – it will be up to another purely administrative process to review each case once a year to determine if the detainee should be released, transferred to the custody of another country, or continue to be detained. The Administrative Review Board (ARB) process will consist of

  an administrative proceeding for consideration of all relevant and reasonably available information to determine whether the enemy combatant represents a continuing threat to the U.S. or its allies in the ongoing armed conflict against al-Qaeda and its affiliates and supporters (e.g., Taliban), and whether there are other factors that could form the basis for continued detention (e.g., the enemy combatant's intelligence value and any law-enforcement interest in the detainee).2

  As with the CSRT, the detainee will have no access to legal counsel or to secret evidence, and there is no rule excluding evidence extracted under torture or other coercion. In the case of the CSRT, the decision is made by the panel of three military officers; for the ARB, the panel makes a recommendation to the Designated Civilian Official (DCO) overseeing the process, who takes the final decision.

  In addition to labeling Guantánamo detainees as broadly-defined “enemy combatants” in a broadly-defined global “war” the end of which it can neither predict nor define, the U.S. administration has repeatedly labeled the detainees as “killers” and “terrorists,” in violation of the presumption of innocence. This label has been pinned to all detainees, including those subsequently released without any evidence made available that they had committed any wrongdoing. At the same time, the administration states that the reason that a detainee may find himself in Guantánamo Bay is not necessarily because he is guilty of any offense, but because he might commit an offense in the future or might have knowledge of or association with such unlawful activities.1

  Military Commissions

  Military commissions, meanwhile, established under the Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism signed by President Bush on 13 November 2001, provide for the prosecution of “enemy combatants who violate the laws of war.” The administration sees the military commissions as “entirely creatures of the President's authority as Commander-in-Chief … and are part and parcel of the conduct of a military campaign.”2 In essence, the proposed military commissions are a case of the law being made and administered by the executive.

  In the context of the “war on terror,” the U.S. administration defines both the enemy and the war very broadly. In its Hamdi decision of June 28, 2004, the U.S. Supreme Court noted that “the government has never provided any court with the full criteria that it uses in classifying individuals as ['enemy combatants'].” The administration subsequently wrote the CSRT Order of July 7, 2004, which states that

  the term “enemy combatant” shall mean an individual who was part of or supporting Taliban or al-Qaeda forces or partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

  In her January 2005 ruling, Judge Joyce Hens Green concluded that this overbroad definition of “enemy combatant,” with its use of the word “includes,” showed that the government considers that it can subject to indefinite executive detention even individuals who had never committed a belligerent act or who never directly supported hostilities against the U.S. or its allies. This, she gleaned from the government, could include “a little old lady in Switzerland” whose charitable donation to an orphanage in Afghanistan ends up supporting al-Qaeda.1

  As already noted, the UN Independent Expert on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism wrote in his recent report that: “However States conceive of the struggle against terrorism, it is both legally an
d conceptually important that acts of terrorism not be invariably conflated with acts of war.”2 Yet the Pentagon's instructions for the military commissions extend the concept of armed conflict to include “a single hostile act or attempted act,” or conspiracy to carry out such acts, a definition so broad that it could encompass many acts that would normally fall under the jurisdiction of the ordinary criminal justice system. The instructions specifically state:

  This element does not require a declaration of war, ongoing mutual hostilities, or confrontation involving a regular national armed force. A single hostile act or attempted act may provide sufficient basis so long as its magnitude or severity rises to the level of an “armed attack” or an “act of war,” or the number, power, stated intent, or organization of the force with which the actor is associated is such that the act or attempted act is tantamount to an attack by an armed force. Similarly, conduct undertaken or organized with knowledge or intent that it initiate or contribute to such hostile act or hostilities would satisfy the requirement.1

  Despite these broad definitions, by March 2005, only four people had been charged under the Military Order. This small number could be for any of several reasons – a dearth of evidence against the detainees even given the fact that the military commission rules allow a conviction on lesser standards of evidence than pertain in the ordinary courts; a preference on the part of the U.S. administration for detention without trial; or official sensitivity in the face of the widespread international criticism about the military commission process, even from close allies.

  Military commission proceedings against two U.K. nationals were suspended following the widespread public concern in the U.K. that followed their naming under the Military Order in July 2003.2 From facing the possibility of being charged with war crimes and tried by military commission with the power to sentence them to death, the two detainees in question, Feroz Abbasi and Moazzam Begg, were transferred to the U.K. in January 2005 and released. Their cases further illustrate how the U.S. has detained people, indefinitely and in cruel conditions, against whom whatever evidence it has is considered by other governments to be inadequate, unreliable, or inadmissible even for a simple felony, let alone war crimes. It also suggests a political as well as an additionally arbitrary aspect to the detention – namely that any detainee's treatment depends upon the response and influence of his home government.

  As well as the four detainees already charged, another nine detainees have been determined by President Bush to be subject to the Military Order, but had not been charged as of early April 2005.3 One of these nine detainees has been transferred to his country of nationality and released.1His identity, or the identity of the other eight and whether they are held in Guantánamo, remain unknown. Another reason why the administration may be delaying charging them or any others is because it is waiting for resolution of the litigation over the legality of these commissions in the U.S. federal courts. In November 2004, the post-Rasul petition for a writ of habeas corpus filed with District of Columbia District Judge James Robertson on behalf of Salim Ahmed Hamdan, challenging the lawfulness of the U.S. administration's plans to try this Yemeni detainee, led to the suspension of the military commissions.

  Judge Robertson reasoned that Salim Ahmed Hamdan, captured during the international armed conflict in Afghanistan, should have been presumed to be a prisoner of war until a “competent tribunal” determined otherwise, as required under Article 5 of the Third Geneva Convention. The judge pointed out that as a presumed prisoner of war, Hamdan could not be tried by a military commission; under Article 102 of the Third Geneva Convention “a prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power.” U.S. forces would normally be tried by court-martial under the Uniform Code of Military Justice (UCMJ). “The Military Commission is not such a court,” stressed Judge Robertson; “Its procedures are not such procedures.”

  Judge Robertson ruled that, even if a “competent tribunal” determined that Salim Ahmed Hamdan was not a prisoner of war, he could not be tried by military commission because their rules were unlawful. Specifically, the treatment of classified or otherwise “protected” information did not meet the necessary standards. Judge Robertson pointed out that, in front of a military commission,

  The accused himself may be excluded from proceedings … and evidence may be adduced that he will never see (because his lawyer will be forbidden to disclose it to him). Thus, for example, testimony may be received from a confidential informant, and Hamdan will not be permitted to hear the testimony, see the witness's face, or learn his name. If the government has information developed by interrogation of witnesses in Afghanistan or elsewhere, it can offer such evidence in transcript form, or even as summaries of transcripts. The [commission authorities] may receive it in evidence if it meets the “reasonably probative” standard but forbid it to be shown to Hamdan.

  Judge Robertson pointed out that “such a dramatic deviation” from the U.S. constitutional right to a fair trial “could not be countenanced in any American court,” and added that the right to trial “in one's presence” is “established as a matter of international humanitarian and human rights law.”1 However, he said that he needed to look no further than to the fact that, at least in this critical respect, the rules for the military commissions were contrary to, or inconsistent with, the requirements for U.S. courts-martial which allow the defendant to be present in all proceedings except during the panel's deliberation and vote.

  Judge Robertson emphasized that this issue was far from hypothetical, pointing out that Salim Ahmed Hamdan had already been excluded from parts of the commission panel selection process and that the government had already indicated that he would be excluded from two days of his trial during which the prosecution would present evidence against him.

  Judge Robertson abstained on the question of whether such a trial would violate common Article 3 of the Geneva Conventions, which prohibits trials by any tribunal other than “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” However, as Judge Robertson noted elsewhere in his opinion, the International Court of Justice has said that the protections of Common Article 3 “constitute a minimum yardstick” reflecting “elementary considerations of humanity.”

  1. Also widely considered to be provided elsewhere within the Constitution, for instance in the requirement of “due process of law” in the Fifth and Fourteenth Amendments.

  2. Rasul v. Bush, 000 U.S. 03–334 (2004).

  3. For example, at a press conference in Geneva on December 10, 2004, the UN High Commissioner for Human Rights expressed relief at the Supreme Court's decision, noting that the U.S. courts had historically played a leadership role in the protection of civil liberties. The UN Working Group on Arbitrary Detention also welcomed the ruling. UN Doc. E/CN.4/2005/6, December 1, 2004, para. 64.

  1. Statement of Mark Corallo, Director of Public Affairs, regarding the enemy combatant cases. Department of Justice news release, June 28, 2004.

  2. Hicks v. Bush. Response to petitions for writ of habeas corpus and motion to dismiss or for judgment as a matter of law and memorandum in support. In the U.S. District Court for the District of Columbia, October 4, 2004.

  3. Combatant Status Review Tribunal order issued. U.S. Department of Defense News Release, July 7, 2004.

  1. Hamdi v. Rumsfeld, 03—6696, decided June 28, 2004. The Pentagon said: “The Supreme Court held that the federal courts have jurisdiction to hear challenges to the legality of the detention of enemy combatants held at Guantánamo Bay. In a separate decision — involving an American citizen held in the United States (i.e. Hamdi) — the Court also held that due process would be satisfied by notice and an opportunity to be heard, and indicated that such process could properly be provided in the context of a hearing before a tribunal of military offic
ers.” Department of Defense, Combatant Status Review Tribunals.

  2. USA's Periodic Report to the UN Committee against Torture, May 6, 2005 (http://www.state.gov/g/drl/rls/45738.htm), Annex 1.

  1. Memorandum for the Secretary of the Navy. Subject: Order establishing Combatant Status Review Tribunal. Signed by Paul Wolfowitz, Deputy Secretary of Defense, July 7, 2004.

  2. Benchellali et al v. Bush et al. Transcript of motion hearing before the Honorable Richard J. Leon, U.S. District Judge, in the U.S. District Court for the District of Columbia, December 2, 2004.

  3. Memorandum for the Secretary of the Navy. Subject: Order establishing Combatant Status Review Tribunal. Signed by Paul Wolfowitz, Deputy Secretary of Defense, July 7, 2004.

  4. Re: Possible habeas jurisdiction over aliens held in Guantánamo Bay, Cuba. Memorandum for William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, U.S. Department of Justice, December 28, 2001. Although the memorandum concluded that no federal court could “properly entertain” a habeas corpus petition from a Guantánamo detainee, it warned that there was some possibility that a court could do so.

  1. Al Odah et al. v. USA et al. Opening brief for the United States et al. In the United States Court of Appeals for the District of Columbia Circuit, April 27, 2005, p. 51. The USA also noted these 38 cases in its Second Periodic Report to the UN Committee against Torture.

  1. United States District Court for the District of Columbia, Resolution of the Executive Session, September 15, 2004.

  2. Khalid v. Bush, Memorandum opinion, U.S. District Court for the District of Columbia, January 19, 2005 (http://www.dcd.uscourts.gov/opinions/2005/Leon/2004-CV-1142~7:40:40~3–2–2005-a.pdf).