By Kenneth J. Theisen, 8/25/07
On Friday, August 24th, the Bush regime’s denial of due
process to 355 Guantanamo Bay detainees was challenged by a score of retired
federal judges, a Marine General, and two admirals who filed “friend of the
court briefs” with the Supreme Court in the consolidated cases of Boumediene v.
Bush and Al Odah v. U.S. They joined 383 current or former members of
the European and U.K.
parliaments and 25 retired American diplomats to urge the Supreme Court to
grant detainees at Guantanamo Bay full access to the U.S. court system. The Supreme
Court is set to hear these cases which will decide whether the prisoners at Guantanamo can challenge
their confinement before the federal courts.
In 2005, Congress passed the Detainee Treatment Act, which
eliminated habeas corpus for all detainees at Guantanamo. Then in 2006, the Military
Commissions Act (MCA) passed by Congress purported to strip the prisoners of
this right of habeas corpus by taking away the courts” jurisdiction to hear
detainee cases.
In February 2007, the U.S. Circuit Court of Appeals for the District of Columbia
upheld this provision of the law. In
April, the Supreme Court turned down the appeal of this decision. Then in June of this year in a highly unusual
reversal of the April ruling, the Supreme Court agreed to hear the cases during
the court’s term that starts in October. Since then, various parties have filed amicus
briefs (friend of the court briefs) arguing that justice demands that these
prisoners have the right to utilize the federal court system.
The brief filed by the European parliamentarians argued that
all states must comply with minimal judicial standards required by
international humanitarian and human rights law. The brief stated, “The
treatment of petitioners currently falls short of these standards.”
The MCA, which is being used to “try” these prisoners, has
virtually stripped them of all due process rights. Instead of trials, the
prisoners face Combatant Status Review Tribunals (CSRTs) which are nothing more
than kangaroo proceedings where decisions are made by a three member military
panel. There is no right to an attorney and the panel relies on classified
information that the detainee is not allowed to review. Detainees have minimal appellate rights from
these panels according to the MCA. They can appeal the decision of the panel to
civilian court on very narrow grounds. These decisions are then heard by the extremely
conservative U.S. Circuit Court of Appeals for the District of Columbia, the same court that
had earlier decided the stripping of the courts of habeas jurisdiction was
legal.
The brief filed by the retired judges stated that the
current minimal civilian court review “corrupts the judicial
function” because it does not allow fact-finding into whether statements
used by the tribunals were obtained by torture. “The English common law
and our nation’s fundamental traditions condemn judicial reliance upon
statements extracted by torture or other impermissible coercion. There are
substantial allegations, however, that Combatant Status Review Tribunal panels
have relied on such statements.”
The “due process” of these CSRTs was the subject of the
amicus brief filed by the 2 Navy admirals and Marine Corps general. In their
brief they stated, “If the United States holds prisoners indefinitely –
potentially lifetime imprisonment – based on sham CSRT proceedings and without
providing meaningful judicial review of their imprisonment, enemies in current
or future conflicts may use that as an excuse to mete out similar treatment to
captured American military forces.”
The fact that so many judges, diplomats, parliamentarians,
and now high-ranking military personnel have weighed in on the rights of
detainees to have access to civilian courts is highly significant and a
positive development. The treatment of prisoners has brought global condemnation
of the Bush regime and even members of the ruling class have been too ashamed
to defend the regime on this issue. The
CSRTs which were created by the MCA have brought nothing but ridicule to the
regime as they appear to be what they are, kangaroo courts.
Since the beginning of the so-called “war on terrorism,” the
Bush regime has struggled with how to pretend to allow due process for Guantanamo prisoners
without actually giving them any real rights. In November 2001, by executive
order of the President, the first Guantanamo
military commissions were created. But
in June 2006, the Supreme Court struck down that system. That is why in October
2006, Congress passed the MCA, establishing this new system of CSRTs to hear
cases involving Guantanamo
detainees.
But like the Supreme Court reversal, some in Congress who
have been complicit in this due process charade at Guantanamo are now beginning to rethink their
strategy. In June of this year, the Senate Judiciary Committee voted 11-8 for a
bill that would restore the right of habeas corpus to detainees. Immediately, the Department of Justice under Alberto
Gonzales issued a statement indicating that President Bush’s senior advisers
will recommend that he veto the bill if it is passed by Congress.
Gonzales, the “legal author” of many of the Bush regime’s crimes,
in a June letter to Senate Judiciary Committee Chairman Patrick Leahy, stated
that granting detainees greater access to U.S. courts would “overburden”
those courts. It would also delay the process of “bringing enemy
combatants to justice.” In quoting a prior Supreme Court decision,
Gonzales warned that “the extension of habeas corpus to alien combatants
captured abroad ‘would hamper the war effort and bring aid and comfort to the
enemy.'” In the letter, he further
stated the current system of CSRTs offered detainees “an unprecedented
degree of process.”
It is ludicrous that the regime can talk about the granting
of habeas as a delay in “bringing enemy combatants to justice.” The regime has held most of these prisoners
for more than 5 years without even allowing them any access to justice. We are
now to believe that the esteemed Attorney General is worried about delaying
justice. But “no access to justice” is what the regime really wants. From the
beginning, the regime lawyers have argued rights guaranteed under the U.S.
Constitution are only for individuals present on U.S.
territory and to U.S.
citizens who are terrorism suspects, not to “alien detainees” at Guantanamo. And the
regime has not exactly bent over backwards to provide rights to U.S. citizens
if you take a look at the Padilla case where the defendant was a U.S. citizen
held without legal rights for years in solitary confinement.
The stakes are high in these two cases and the decision of
the Supreme Court will decide whether or not habeas rights exist for those
taken prisoner outside of the U.S.
If the Bush regime wins another brick in
the wall to create a police state will have been added. (See Was
Congress Duped when it Conferred Warrantless Search Powers on the President”Or
Was it Complicit in Helping the Regime Build a Police State?)