For most of 2008, the media’s interest in Guantánamo has focused not on the majority of the 273 prisoners who are still held there without charge or trial and largely unknown to the outside world, but on the 13 who have been plucked from the grinding obscurity of indefinite detention to face trial by "military commission," an innovation unrelated to either the U.S. courts or the U.S. military’s own judicial processes that was conceived in November 2001 by Vice President Dick Cheney and his close advisers.
I have written at length about the stumbling progress of the military commissions, most recently here, where I ran through the problems that have beset the proposed trials in the last month alone. These include boycotts by the prisoners themselves and the sudden and unexplained decision to drop charges against Mohammed al-Qahtani, one of six prisoners initially charged in connection with the 9/11 attacks. This was almost certainly because he, unlike the others, was tortured not in a secret prison run by the CIA (who cannot be compelled to provide evidence to the commissions), but in Guantánamo itself, where no such exclusions apply.
The setbacks in the last month also include a blistering attack on the system by Col. Morris Davis, the former chief prosecutor of the commissions, who accused his superiors of pressing ahead with politically motivated trials and of seeking to allow evidence obtained through torture, which, he pointed out, were destroying the trials’ credibility. So persuasive was Davis’ testimony (in the case of Salim Hamdan, a Yemeni who was once one of Osama bin Laden’s drivers), that on May 9, the judge in Hamdan’s case, Navy Capt. Keith Allred, prohibited Davis’ former boss, Brig. Gen. Thom Hartmann, from playing any further part in Hamdan’s forthcoming trial.
All these setbacks reflect badly on the integrity of the commissions, of course, but until last Friday, discussions about the role of the Supreme Court in determining the prisoners’ status had been overlooked. This was understandable in one way, as it is now nearly eleven months since the Supreme Court decided to look once more at the prisoners’ rights (along the way reversing itself for the first time in 60 years), but was completely incomprehensible in another, as the Supreme Court’s pending decision has been the elephant in the room since last December, when former Solicitor General Seth Waxman (for the prisoners) and the soon-to-retire current Solicitor General Paul Clement (for the government) presented their cases in what was rightly billed at the time as "the most important habeas corpus case in modern history."
Throughout this year, therefore, those who have been following developments at Guantánamo have been aware that a crucial decision has to be made before the Supreme Court’s current session ends in the summer. However, it was not until Allred spoke up on Friday, following on from his recently established notoriety with regard to Hartmann, that the justices were once more pushed back to center stage.
Postponing the start date for Salim Hamdan’s trial from June 2 to July 21, Allred stated that this will give the prosecutors and defense "the benefit of a decision that may well change the tenor or conduct of the trial," as the Associated Press reported. He added that a delay will avoid the "potential embarrassment, waste of resources, and prejudice to the accused," if, as the AP put it, "the Supreme Court ruling forces a halt to the proceedings mid-trial."
While Andrea Prasow, one of Hamdan’s lawyers, said that the defense team was "very pleased that the judge agrees that all parties will benefit from the Supreme Court’s guidance regarding the applicability of the Constitution to detainees held at Guantánamo," it was more noticeable that Allred had, for the second time in a week, humiliated the government simply by taking his job seriously. It appears, moreover, that he has been studying his calendar closely, as he is more aware of the cycles of Supreme Court decisions than many reporters.
Although subsequently rebuffed by the executive and Congress, the Supreme Court has twice delivered rulings that have dealt severe blows to the administration’s credibility at the end of June.
On June 26, 2004, in Rasul v. Bush, the first challenge to Guantánamo that made it to the Supreme Court, the justices ruled 6-3 that the prisoners had habeas corpus rights – in other words, the right to challenge the legal limbo in which they were held – and demolished along the way the executive’s long-cherished belief that Guantánamo did not count as U.S. territory, and was therefore beyond the reach of the U.S. courts.
In his majority opinion, Justice John Paul Stevens emphasized the importance of habeas corpus, citing a 1945 case in which it was described as "a writ antecedent to statute … throwing its roots deep into the genius of our common law," and a 1953 case dealing specifically with the detention of non-citizens in U.S. custody: "Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint."
The second Supreme Court decision, on June 29, 2006, was just as significant, and the identity of its plaintiff was certainly not lost on Allred. In Hamdan v. Rumsfeld, the justices ruled 5-3 that the military commissions were illegal under U.S. law and the Geneva Conventions. Concluding that Common Article 3 of the Geneva Conventions – which forbids "cruel treatment and torture" and "outrages upon personal dignity, in particular humiliating and degrading treatment" – was "applicable" to Hamdan and others facing military commissions, Justice Stevens stated that it was Hamdan’s right to be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."
On both occasions, the executive managed, one way or another, either to neutralize or otherwise dilute the Supreme Court’s decision, confirming that the nation’s leaders (and Dick Cheney in particular) believed that the executive branch of government was beyond the law – or, at least, had the right to redefine the law without necessarily being answerable to either Congress or the judiciary. Although lawyers were finally allowed access to the prisoners, and were enabled to begin filing habeas petitions, the executive behaved as though these were minor irritants rather than fundamental reforms of the existing system.
Within a month of the decision in Rasul v. Bush, military reviews – the "combatant status review tribunals" – were introduced to justify the prisoners’ continued detention without charge or trial. Empowered to rely upon secret evidence – including hearsay and information obtained through torture, coercion, and bribery – the tribunals, which also prevented the prisoners from being represented by lawyers, were, as former insider Lt. Col. Stephen Abraham explained last year, manifestly unjust, consisting of information that was, for the most part, generalized, generic, and badly-researched, and was, moreover, primarily designed to rubber-stamp the administration’s prior designation of the prisoners as "enemy combatants" without rights.
While the tribunals – and their equally unjust successors, the annual "administrative review boards" – were busy behaving in a parallel world to that conceived by the Supreme Court, the executive then turned to Congress in an attempt to nullify the justices’ ruling in Rasul, hijacking the Detainee Treatment Act (DTA) of 2005, an anti-torture bill proposed by Sen. John McCain, by not only excluding the CIA from legislation designed to prevent the use of torture by U.S. forces, but also, through a peculiarly aberrant amendment to the bill, managing to strip the Guantánamo prisoners of their right to file habeas corpus claims.
The executive’s response to the ruling in Hamdan v. Rumsfeld was even swifter. Perhaps perturbed that Justice Anthony Kennedy had warned that "violations of Common Article 3 are considered ‘war crimes,’ punishable as federal offenses, when committed by or against United States nationals and military personnel," the executive responded to the implications of the justices’ ruling by removing 14 "high-value detainees" from the CIA’s secret prisons and transporting them to Guantánamo in September 2006, and then pressed Congress to revive the commissions in the Military Commissions Act, which, for good measure, contained provisions designed to prevent the executive – or any of its agents – from ever being prosecuted for war crimes, and also reinforced the habeas-stripping terms of the DTA.
It remains to be seen what the Supreme Court will decide in its third ruling on Guantánamo, which, unlike Rasul and Hamdan, appears to be too close to call. The hope of all those who are shocked by the seemingly unending legal limbo in which the majority of the Guantánamo prisoners are held is that the Supreme Court will tackle both the excesses of the executive and the shortcomings of Congress by ruling that the prisoners have constitutional habeas corpus rights.
Whatever the eventual outcome, however, Allred is to be commended for not only reminding the world that a Supreme Court decision is expected imminently, but also for reflecting on its importance, and applying it, correctly, to halt the rush to justice – or rush to injustice – that typifies those driving the military commissions toward hoped-for conclusions.
I doubt that he’s a popular figure in either the White House or the Pentagon at present, not just for postponing Salim Hamdan’s trial, but also because, in response to his ruling against Hartmann, lawyers for the five "high-value detainees" in the planned 9/11 trial have taken his lead to complain that the date set for their clients’ arraignment – June 5 – is unduly premature.
On Monday, Army Maj. Jon Jackson, the lawyer for Mustafa al-Hawsawi, who is accused of helping to finance the 9/11 attacks, sought to delay Hawsawi’s arraignment, arguing, as the Associated Press described it, that he has only met his client twice, that he "has been barred from discussing those meetings with his assistant defense counsel, Navy Lt. Gretchen Sosbee, because the military has not yet given her security clearance," that he "has not received any potential evidence against al-Hawsawi supporting charges that ‘allege a complex conspiracy spanning several years,’" and that he and the other defense lawyers "have no place to store work product, discuss classified material, or prepare for their case while in Cuba," because, as the AP put it, "construction of a secure facility in Washington – which was to have been completed by the end of 2007 – has not even begun."
In the days to come, details of other lawyers’ challenges will no doubt be made public, but for now it’s worth noting that Capt. Allred’s interventions are a shining example of one component in the system of checks and balances that is supposed to ensure justice in U.S. society – the judiciary, albeit in an unlikely venue – acting as a necessary restraint on both Congress and the executive.
