In the face of multiple legal and legislative challenges, President George W. Bush this week issued an executive order to allow cases against prisoners at Guantánamo Bay, Cuba to move forward to trials by military tribunals.
The challenges are to the constitutionality of the Military Commissions Act of 2006 (MCA), which Bush signed into law last October. The first three cases to be tried under the law involve an Australian, a Yemeni and a Canadian, all held at Guantánamo.
The Australian, David Hicks, is expected to be formally charged by the military by the end of next week, along with Omar Khadr, a Canadian accused of killing a U.S. Army Special Forces soldier during a firefight in Afghanistan, and Salim Ahmed Hamdan, a Yemeni accused of supporting al-Qaeda operatives.
Authorities drafted charges – including murder, conspiracy and providing material support for terrorism – against the three on Feb. 2. Once formal charges are filed, a timetable requires preliminary hearings within 30 days and the start of a jury trial within 120 days at Guantánamo, where nearly 400 men are still held on suspicion of links to al Qaeda or the Taliban.
On the legislative front, Senator Chris Dodd, a Connecticut Democrat and a candidate for his party’s 2008 presidential nomination, this week introduced legislation that would make substantial changes to the MCA. He was joined by fellow Democrats Senator Patrick Leahy of Vermont, chairman of the powerful Judiciary Committee, Senator Russ Feingold of Wisconsin, and Senator Robert Menendez of New Jersey.
The Dodd legislation restores habeas corpus protections to detainees, narrows the definition of an unlawful enemy combatant to individuals who directly participate in hostilities against the United States who are not lawful combatants, and bars information gained through coercion from being introduced as evidence in trials.
It also empowers military judges to exclude hearsay evidence they deem to be unreliable, authorizes the U.S. Court of Appeals for the Armed Forces to review decisions by the military commissions, limits the authority of the president to interpret the meaning and application of the Geneva Conventions and makes that authority subject to congressional and judicial oversight, and provides for expedited judicial review of the Military Commissions Act of 2006 to determine the constitutionally of its provisions.
The principle of habeas corpus, originally contained in the Magna Carta, has been one of the cornerstones of U.S. law since the nation’s founding. It gives a detainee the right to go to court to challenge the authority of the prison or jail warden to continue to hold him or her.
Similar legislation was introduced earlier by Leahy and Republican Senator Arlen Specter of Pennsylvania. Leahy said the bill would "restore the habeas corpus protections to millions of legal residents."
Both bills are strongly supported by civil and human rights advocacy groups, such as the American Civil Liberties Union, Amnesty International, Human Rights Watch, Human Rights First, the Center for Victims of Torture, the Open Society Institute, and Torture Abolition and Survivors Support Coalition International.
On the legal side, lawyers representing detainees at Guantánamo Bay have petitioned the U.S. Court of Appeals for the District of Columbia Circuit to declare the suspension of habeas rights unconstitutional. In an amicus – friend of the court – brief in the case, seven retired federal judges urged the appeals court to rule that parts of the MCA violate the Constitution.
Multiple challenges to the MCA were filed even before President Bush signed the act into law, with defense lawyers asking federal judges to strike down key parts of the measure as unconstitutional.
The MCA bars judges from hearing detainee lawsuits. Instead, it sets up a much more limited appeals process for detainees who are seeking to challenge their designation as an enemy combatant or to challenge a war crimes conviction by a military commission.
One suit was filed on behalf of a detainee who is expected to be among the first to be tried under the new law, Majid Khan, one of the 14 so-called "high-value" al Qaeda suspects recently transferred to Guantánamo from secret Central Intelligence Agency prisons. The other was filed on behalf of 25 detainees being held among some 500 men at Bagram Air Force Base in Afghanistan.
The Khan suit says that despite being held in secret CIA detention for three and a half years, Khan, whose family lives in Baltimore, has never had a hearing before a neutral judge or military panel to determine the legality of his detention. It claims that as a CIA prisoner, Khan was subjected to torture and cruel, inhuman, or degrading treatment, and coerced into making false and unreliable statements.
These suits join more than 400 other detainee cases filed on behalf of prisoners at Guantánamo currently pending before U.S. district or appeals court judges in Washington.
Legal experts expect many of these cases to eventually be heard by the Supreme Court.
All the Guantánamo suits had been put on hold pending the high court’s ruling in the Hamdan case last June. In that case, the court struck down the Bush administration’s military commission process as illegal and ruled that a December 2005 law, the Detainee Treatment Act, had not retroactively stripped the Supreme Court of authority to decide the Hamdan case.
But, while preserving its own jurisdiction in the Hamdan case, the high court did not make clear whether other courts retained jurisdiction to hear and decide existing detainee cases.
Meanwhile, lawyers for the three men expected to face Military Commission trials are claiming that tight deadlines, rules allowing hearsay evidence, and limited access to Guantánamo are hampering their efforts to defend their clients.
The government has proposed limiting contact between defense lawyers and detainees because detainees’ communications, such as news of world events like terrorist attacks in Iraq, London and Israel, could incite the prisoners to violence.
The defense attorneys say the new tribunal rules have put them at a disadvantage even before the trials begin. They claim that one of their greatest obstacles is their inability to speak with clients unless they travel to Guantánamo.
Marine Lt. Col. Colby Vokey, an attorney for 20-year-old Khadr, said his client refused to leave his cell last week, and they were unable to meet during his visit to Guantánamo. He said Khadr is not told when he visits and likely chose not to move because it is one of his only ways of resisting his jailers.
Numerous human rights organizations have weighed in on this issue. For example, Mary Shaw of Amnesty International USA told IPS, "With passage of the Military Commissions Act, human rights violations perpetrated by the Bush administration in the ‘war on terror’ have in effect been given the congressional stamp of approval. This raises serious questions about the U.S. government’s commitment to due process and the rule of law."
"The ‘war on terror’ must not be used as an excuse to deny the basic human rights of any person," she said. "Amnesty International will continue to campaign for U.S. ‘war on terror’ detention policies and practices to be brought into full compliance with international law, and for repeal of any law that fails to meet this test."
