Lives hostage to words
A recent US Supreme Court decision could be a step towards bringing the Bush administration back in line with American ideals about the just rule of law, writes Ramsey Al-Rikabi
A prisoner escorted by American troops in US military base, Guantanamo Bay, Cuba
(photo: AP)
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In its "war on terror", the Bush administration has effectively excluded the legislative and judicial branches of the government by exacting consent from the former for broad presidential powers and blocking intervention from the latter on national security and jurisdiction issues.
The first crack in the presidential wall appeared last week when the US Supreme Court decided to review the cases of 16 foreign nationals captured in Afghanistan and held at the US Navy base in Guantanamo Bay, Cuba. The deceptively simple issue before the court is whether the 16 prisoners, which the US has left in legal limbo by labelling them "unlawful enemy combatants", thereby denying them prisoner of war status, have the right to challenge their detention in US courts. Around 660 foreign nationals from over 40 countries are being held by US authorities in Guantanamo Bay at the Camp Delta prison, which is currently being expanded to increase its capacity to 1,100 inmates by mid-2004.
The court framed for itself a rather narrow question, asking simply whether US courts "lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba".
The cases were originally dismissed by the Federal District Court in Washington, DC on the grounds that the foreign nationals held at Guantanamo were not entitled to constitutional protections of due process. Such protections are extended to foreign nationals in most situations. That decision was upheld in March 2003 by the United States Court of Appeals for the District of Columbia. Both decisions were made on the basis of a 1950 Supreme Court precedent.
That 1950 ruling, Johnson v Eisentrager, involved Germans captured by the US in China before the end of hostilities with Japan during World War II. The Court decided in the Eisentrager case that the German intelligence officers were not entitled to a writ of habeas corpus because they were never "within any territory over which the United States is sovereign, and the scenes of their offence, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States".
The jurisdictional question before the court relies on what it considers the status of the naval base in Guantanamo. According to the 1903 lease agreement between the US and Cuba, Cuba would retain "ultimate sovereignty", while the US would "exercise complete jurisdiction and control" of the area.
In the process of deciding whether the case would be heard by the court, the US government argued to the court that those captured during military and intelligence-gathering operations in Afghanistan and Pakistan following 11 September are "enemy combatants" and their subsequent detention "serves the vital objectives of preventing combatants from continuing to aid our enemies and gathering intelligence to further the overall war effort".
While the administration has succeeded by relying on the Eisentrager precedent to bar interference by US courts in the case of Guantanamo detainees, serious differences exist between the two cases. The Germans captured by US forces were charged by a "competent tribunal" and found guilty of a war crime -- namely aiding the Japanese against the US. The Eisentrager petitioners at least had been granted some form of due process. The situation in Guantanamo is totally different: foreign nationals there have never been charged with a crime, no evidence of criminal action has ever been presented to them and they have been denied access to lawyers. Isolated from the outside world, the prisoners represented in the two present Guantanamo cases most likely are unaware that litigation is ongoing in their names.
The "enemy combatant" status ascribed to the captured Germans was logical given the circumstances of WWII. Applying that label to Guantanamo detainees has proven problematic. "No one is wearing uniforms and you just don't know who the enemy is. They are basically picking up civilians, some having nothing to do with terrorism," Thomas Wilner, a member of the Washington, DC law firm Shearman & Sterling that is representing 12 Kuwaitis in one of the cases before the court, told Al-Ahram Weekly. "This is a new type of war and there need to be specific guidelines in place," he added.
Ken Hurwitz, a senior associate with the New York-based Lawyers Committee for Human Rights (LCHR) also believes that distinctions should be made. "World War II was a declared war, while this is more a war by metaphor rather than reality," he said.
The Bush administration's reliance on the issue of sovereignty might not hold either, as it can be argued that mainland China during WWII is simply not the same as Guantanamo Bay, which the US leases in perpetuity and over which it has complete effective control. US court decisions leading up to the Supreme Court's decision to hear the case have interpreted Guantanamo to be outside US sovereignty. According to the Eisentrager criteria even the Supreme Court lacks jurisdiction over Guantanamo. Yet if effective control were deemed equal (or close enough) to sovereignty, all the detainees would be entitled to US constitutional guarantees of due process.
The court's decision to review the cases, "represents a definite signal by the court of its willingness to decide whether past judicial opinions used by the government in support of its strategy in the war against terrorism are equally applicable in a new context -- a new type of war -- where there is no traditional battlefield and where we are dealing with 'non- state' actors," Scott Silliman, law professor and executive director of the Center for Law, Ethics and National Security at Duke University told Al-Ahram Weekly.
The cases that will be heard by the Supreme Court, Rasul v Bush (03-334) and Al-Odah v US (03-343), were filed by the families of 16 Guantanamo Bay detainees -- two Britons and two Australians in the former case and 12 Kuwaitis in the latter. If the court decides that indeed US courts do have jurisdiction over Guantanamo, the cases would return to the lower courts, possibly to be heard before the Supreme Court in the future.
The court's ruling next year on these grounds will have major repercussions for all Guantanamo detainees, and possibly for how the US administration carries out the "war on terror".
Specific conditions of detainees at Guantanamo Bay are guarded secrets, especially when it comes to interrogations. Still, there is hardly any doubt that some coercion to cooperate and provide information is being used, certainly without legal representation. "If a lawyer comes in for 20 minutes, that spell could be broken," LCHR's Hurwitz told the Weekly. And, he added, if the court does decide it has jurisdiction to challenge the legality of their detentions, "There would be a swarm of lawyers heading to Guantanamo," and the remaining detainees might be certified into a class action suit -- a common move in litigation to consolidate many similarly situated claims into one case.
The court has rejected previous petitions on behalf of Guantanamo detainees. Because the court does not give reasons for hearing or rejecting such petitions, no one is clear why the judicial branch has now decided to step into the fray. "Why it did so in the DC cases, at this time, would be just speculation," Silliman said. But the court's opacity is no reason to doubt the long-term effect of the decision. "However the Supreme Court rules on that issue will have a major impact upon the authority of the president to detain and prosecute terrorists, both in this country and abroad," he added. Traditionally, the judicial branch of the government has deferred to the president during times of war. However, given the almost ethereal aspects of the "war on terror" and the court's occasional bristling at presidential stone-walling or arrogance, the Supreme Court might have considered this the right time to effectively get involved.
Wilner said that the court's decision to hear the cases is important "because without it the president would basically have authority to set up prison camps outside the US".
A "friends of the court" brief filed by former US ambassadors and high-ranking State Department employees told the court, "It will not be evident why, if the Executive Branch can detain prisoners in Guantanamo free of judicial enquiry, it cannot expand the practice to establish a global criminal justice system with a series of prison camps like Guantanamo which would be similarly subject to no legal insight and in which any foreigner might be detained." The brief also stressed that America's reputation as a supporter of the rule of law, which they see as crucial for diplomatic leverage and stature, would be irreparably harmed if the detention continued unchallenged. Other briefs filed on behalf of the detainees came from retired generals and former prisoners of war, stressing the repercussions of the administration's policies on the treatment of US personnel captured abroad.
A brief from international law expert Curtis Doebbler argued that the US is not fulfilling obligations to the detainees under international human rights instruments it has ratified. "If the United States is to convince other countries and individuals that it is a law-abiding member of the international community it must apply the international law to which it and other countries have agreed," he wrote.
Arguments in the two cases will not be heard until next year and a decision will most likely not be delivered until June 2004. "It's a small step. The repercussions are really nothing unless the Bush administration takes it as a signal to change its policies," Wilner said.
