ACSBlog: The Blog of the American Constitution Society

Jonathan Hafetz is Associate Counsel at the Brennan Center for Justice at NYU School of Law, and authored the amicus brief of British and American Habeas Corpus Scholars submitted on behalf of the Guant√°namo detainees.

Does a federal court have the power to consider evidence that a Guant√°namo prisoner is a chicken farmer who was mistaken for a Taliban minister because he had a similar name? That was the basic issue before the U.S. Court of Appeals for the District of Columbia Circuit at the March 22 oral argument in cases affecting the approximately 500 detainees at Guant√°namo.

The court of appeals is now reviewing the impact of recent legislation, the Detainee Treatment Act of 2005 ("DTA"), on cases challenging detentions at Guant√°namo. The statute purports to eliminate district court habeas corpus jurisdiction while creating a new "exclusive review" mechanism in the circuit that, unlike habeas, provides no inquiry into the facts. The appeals court must decide whether the DTA applies retroactively to eliminate habeas corpus in pending cases. Beneath the nuances of statutory construction, lays a question as old as the common law writ of habeas itself: can an individual be deprived of his liberty indefinitely without a meaningful opportunity to contest the government's accusations?

The government evidently thinks so, and designed Guant√°namo precisely to avoid judicial scrutiny into its detention decisions. For over two-and-a-half years, the government argued vigorously that no federal court could review the lawfulness of a prisoner's military confinement at Guant√°namo. In June 2004, the U.S. Supreme Court rejected that argument, ruling in Rasul v. Bush that Guant√°namo detainees have the right to file habeas corpus petitions in federal district court.

Nine days after Rasul was decided, the Defense Department created the Combatant Status Review Tribunal (CSRT), establishing a mechanism to determine whether a prisoner is an "enemy combatant." But the CSRT is a perfect storm of substantive overbreadth and procedural inadequacy. First, the CSRT expanded the Supreme Court's narrow definition of "enemy combatant" in Hamdi v. Rumsfeld, limiting that term to persons who engaged in combat against the United States or its allies on an Afghani battlefield. The CSRT, by contrast, defines an "enemy combatant" to include mere affiliation with al Qaeda or associated groups, and enlarges the battlefield from Afghanistan to the rest of the world. Second, the CSRT denies fundamental safeguards, including the right to see and confront the government's evidence, to present witnesses, to the assistance of counsel, and to an independent decisionmaker.

Hoping to short-circuit a judicial inquiry into the facts, the government moved to dismiss the habeas cases. Despite Rasul, the government argued that the detainees had no constitutional or legal rights to enforce through habeas and, in any event, that the CSRT satisfied any rights they had. In January 2005, District Judge Joyce Hens Green, who had been designated by the other judges to coordinate proceedings and rule on common issues, denied the motion. Judge Green found that the CSRT violated the Due Process Clause of the Fifth Amendment because it permitted secret evidence and evidence secured by torture; denied access to counsel; and used a vague and overly broad definition of enemy combatant that would encompass even "[a] little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan but [what] really is a front to finance al-Qaeda activities." Judge Green further found that the Geneva Conventions protected members of the Taliban. But another district judge, Richard J. Leon, had decided to hear the two habeas cases assigned to him separately. He granted the government's motion, finding the detainees had no protections under the Constitution, laws, or treaties of the United States, and dismissed the petitions. Judge Leon's decision prompted a stay in the district court habeas litigation pending appellate resolution of disputed legal issues.

The circuit court heard argument in the appeals of the two district court decisions in September 2005. Then, following the DTA's passage in December, the panel ordered additional briefing and scheduled last week's argument to address the statute's impact on the pending cases.

The circuit court's construction of the DTA will turn in part on its understanding of habeas corpus. It should conclude that the DTA does not eliminate habeas jurisdiction in pending cases. Statutes are presumed not to apply retroactively when they speak to the substantive rights of the parties - in this case, the petitioners' habeas corpus rights against indefinite executive detention. Further, construing the DTA to eliminate habeas without providing an adequate substitute for its searching factual inquiry into executive detention would raise a serious constitutional question.

As the Supreme Court has explained, the Suspension Clause of the Constitution, at a minimum, protects the writ of habeas corpus as it existed in 1789. At common law, and as codified by statute two years before the Bill of Rights was adopted, a habeas petitioner had the right to contest the executive's allegations and to submit evidence demonstrating his detention was illegal. That core protection is what prevented the king from locking a prisoner in the tower without an opportunity to prove his innocence, and it is what makes the Great Writ so vital to Guant√°namo today.

During the argument, the panel questioned the government about the review available to the detainees if habeas were eliminated. The government acknowledged that the circuit court could decide the legal question of whether the detainees had any enforceable rights (which it maintained they did not). But it argued that the court could not, under any circumstances, consider evidence submitted by a detainee, even if it proved he was innocent or had made statements under torture.

The circumstances surrounding the Guant√°namo detainees' capture underscore the importance of the meaningful factual inquiry habeas corpus guarantees. A recent study shows that most detainees were seized amid the post-September 11 chaos in Afghanistan and Pakistan, where United States forces dropped leaflets offering "millions of dollars [to help] the anti-Taliban forces capture al Qaida and Taliban murderers." An astounding eighty-six percent of detainees were handed over to the United States by Pakistan or the Northern Alliance during that time, when the United States offered large bounties for capture of suspected enemies.

The factual basis for continued detention in many cases appears flimsy at best. A 2002 CIA report concluded that "a substantial number of the detainees appeared to be either low-level militants . . . or simply innocents in the wrong place at the wrong time." According to the government's own data, fewer than half of all Guant√°namo detainees committed any hostile act against the United States and only 8 per cent were classified as al Qaeda fighters. One prisoner, for example, remains at Guant√°namo simply because he owns a type of cheap watch supposedly favored by al Qaeda. Another prisoner is a farmer arrested for wearing an olive green military jacket, a remnant from Afghanistan's constant wars over the past decades. Yet, all of the Guant√°namo detainees may be held for life, without ever facing charges or trial in a military or civilian court.

These problems are compounded by the CSRT's reliance on evidence obtained through torture or other forms of coercion. The CSRT permits consideration of any evidence "relevant and helpful to resolution of the issue before it," which the government says includes evidence obtained by torture. For example, Mohammed al-Qahtani, a Guant√°namo detainee whose prolonged physical and psychological abuse is documented in a government interrogation log, implicated not only himself but 30 fellow prisoners as well.

Under the government's view of the DTA, no court will ever hear evidence that a prisoner or government informant was tortured. No court will ever consider evidence exonerating a prisoner even though the CSRT said that evidence was "unavailable." No court, in short, will be able to look behind the government's accusations to the facts showing an innocent man has been wrongly imprisoned, potentially for life.

Much more is at stake than the fate of individual detainees. By guaranteeing a searching factual and legal inquiry into the basis for prisoner's confinement, habeas corpus checks the arbitrary exercise of executive power and ensures that the government remains accountable for its detention decisions. If this inquiry is eliminated, there is little hope for the rule of law at Guant√°namo or elsewhere.