Background
The US Detention Centre in Guantanamo Bay, Cuba was opened in 2002 by
the Bush administration to hold persons detained by the USA on the battlefield
in Afghanistan and those captured elsewhere in the context of the 'Global War
on Terror'. The first detainees were transferred to Guantanamo Bay,
on 11 January 2002.[1]
According to US authorities, 779 detainees have been held in Guantanamo. Ten
years have passed since the first detainees were taken to Guantanamo bay, but
not even one has been tried and convicted of any crime. Moreover there have
been allegations of torture and other human rights abuses perpetrated by US
officers at the detention camp. These, among many other issues have made the Guantanamo detention
centre controversial.
Nevertheless, the US government has continued to maintain its hard-line
position on the Guantanamo issue. The administration's detention policy was
founded on the systematic denial of the detainees’ right to access the courts
to challenge the constitutionality of their indefinite detention.[2]
However, in a litany of rulings, the Supreme Courts and other courts have
affirmed a number of the detainees’ rights and declared certain key aspects of
the US detention policy unconstitutional.
The key area that courts have determined pertains to the writ of habeas
corpus. The courts have ruled on their jurisdiction to entertain habeas corpus
petition, and affirmed detainee’s right to fair trial to facilitate their habeas
corpus petitions. This essay shall discuss ‘habeas corpus jurisprudence’ emanating
from the US
courts on the Guantanamo
detention issue. This shall be done by discussing the landmarks rulings made by
US courts with regard to the courts’ jurisdiction to entertain habeas and the fair
trial rights that should be availed the detainees. The essay shall also endeavour
to discuss the decisions pertaining to the treatment of detainees at the camp.
The essay shall further provide a summary of the status at Guantanamo Bay by
highlighting the number of detainees at the camp and the number of those
released among other current issues.
Definition of habeas corpus
Habeas corpus is a Latin
phrase for “you may have the body”. The Black’s
Law Dictionary (18th Ed.) defines habeas corpus, inter alia,
as:
‘A writ employed to bring a person before a court,
most frequently to ensure that the party’s imprisonment or detention is not
illegal (habeas corpus ad subjiciendum).’
Baron’s Dictionary of Legal Terms (2nd
Ed.) defines habeas corpus, inter alia, as follows:
‘It is a
procedure for obtaining a judicial determination of the legality of an
individual’s custody. Technically, it is
used in the criminal law context to bring the petitioner before the court to
inquire into the legality of his confinement.’
In US, the sources
of habeas corpus can be found in the Constitution, statutory law, and case law.
Article I, Section 9, Clause 2 of the US constitution states –
“The Privileges of
the Writ of Habeas Corpus shall not be suspended unless when in Cases of
Rebellion of Invasion the public Safety may require it.”
The power to suspend
the writ is conferred on the congress.
Court's Jurisdiction
Generally, the supreme court of the United States and other courts have
affirmed that Guantanamo bay detainees have a right to challenge the
constitutionality of their detention in the US Federal Courts. In Rasul
v. Bush[3] the Supreme Court ruled on June 28, 2004, that U.S courts have
jurisdiction to hear habeas corpus petitions filed on behalf of foreign
national imprisoned at the Guantanamo Bay Detention Camp.[4]
The ruling rejected the government’s argument that the federal courts had no
jurisdiction to hear detainees' habeas corpus petitions. In its reasons, the
Court stated that the naval base at Guantanamo
Bay was effectively
within the U.S territory since the US exercised 'plenary and
exclusive' jurisdiction over the territory.[5] This decision effectively reversed the
District Court decision, which held that the judiciary had no jurisdiction to
handle wrongful imprisonment cases involving foreign nationals held in Guantanamo Bay. The decision thus affirmed and
reiterated the right of foreign nationals held at the camp to challenge their
imprisonment.[6]
Similarly on 9 October 2004 the Supreme Court in Hamdi v Rumsfeld[7],
held that although congress had authorized the detention of combatants in
certain narrow circumstances, due process demands that a US citizen held in the
U.S as an enemy combatant be given meaningful opportunity to contest the
factual basis for his detention.[8] This case related to the detention of the petitioner, Hamdi, who was an
American citizen. The US
military had captured Hamdi in Afghanistan
as an enemy combatant. Hamdi filed for writ of habeas corpus which asked the
court among other things to (1) appoint counsel for Hamdi; (2) order
respondents to cease interrogating him; (3) declare that he is being held in
violation of the fifth and Fourteenth Amendments; (4) order that Hamdi be
released from his unlawful custody. The government filed a response and a
motion to dismiss the petition by adducing evidence (hearsay evidence) pointing
out that Hamdi was labelled as an enemy combatant in light of his association
with the Taliban. In light of that evidence, the fourth circuit court had dismissed
the habeas petition by holding that Hamdi's detention was legally authorized
and that he was entitled to no further opportunity to challenge his
enemy-combatant label. The matter
reached the Supreme Court where the court sought to determine; (a) whether the
executive has the authority to detain citizens who qualify as enemy combatants,
(b) the process is constitutionally available to a citizen who disputes his
enemy-combatant status. The Supreme Court overturned the decision of the District
Court.
In 2005, The US Congress enacted the Detainee Treatment Act with the aim
of overturning the courts decision in Rasul v Bush. This Act sought to
deprive the Federal Courts of jurisdiction over detainees' habeas petitions. However,
the US Supreme Court in Hamdan v. Rumsfeld[9] emasculated certain provisions of this Act. The court held that the
Provisions of the DTA depriving courts of jurisdiction over detainee's habeas
petitions did not apply to cases pending when DTA was enacted. Following this
decision, Congress passed the Military Commissions Act of 2006 whose 'habeas
provisions' provided in relevant parts that,
No court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas corpus filed by or on behalf
of an alien detained by the United
States who has been determined by the United States
to have been properly detained as an enemy combatant or is awaiting such
determination. [10]
However, in Boumediene v Bush[11] the Supreme Court declared that detainees “are entitled to the
privilege of habeas corpus to challenge the legality of their detention.” Accordingly,
the Supreme Court invalidated the provision of the MCA that stripped courts of
jurisdiction to hear habeas petitions from detainees. Boumedine was a petition
for habeas corpus filed on behalf of six Bosnian-Algerians to contest their
almost seven years detention at Guantanamo bay. The court granted the detainees
the writ of habeas corpus. This decision effectively established the courts
jurisdiction of habeas petitions filed by Guantanamo
detainees.
Fair Trial Rights
The right to a fair trial is a norm of international human rights law
designed to protect individuals from the unlawful and arbitrary curtailment or
deprivation of other basic rights and freedoms, the most prominent which are
the right to life and liberty.[12]
This fundamental right is enshrined in article 14 of the International Covenant
of Civil and Political Rights. The article provides that –
“everyone shall
be entitled to a fair and public hearing by a competent, independent and
impartial tribunal established by law”.
Similarly, Common Article 3 to the Geneva Conventions 1949 guarantee the
right of persons deprived of the liberty the right to a fair trial.[13] The
US courts have affirmed the fair trial rights of detainees by ruling on the
legality of the Military Tribunals and the issue of access to counsel by
detainees.
(i) Military commissions and fair trial[14]
On November 13, 2001
President Bush issued a Military Order that authorised the trial of non-US
citizens suspected of terrorism before military commissions.[15]
The Commission was established and went on to try and convict some of the
detainees. However, in Hamdan v Rumsfeld[16],
the Supreme Court held that the military commissions violated US law and the
Geneva Conventions. Hamdan was charged with conspiracy to commit offences triable
by a military commission. It was alleged that Hamdan participated in the
preparation of the September 11, 2001 attack. He was captured in Afghanistan in
2002 and later transferred to Guantanamo Bay. After a year of being detained
without trial, President Bush declared that he had committed offences triable
by a military commission. The commission tried and convicted Hamdan of the
offence of conspiracy. He applied for a writ of habeas corpus stating that he
deserved all the constitutional rights afforded to him at trial.
The Supreme Court sought to determine whether Hamdan committed an
offence triable by a military commission and whether the military commission
was constitutional. The Court held that Military tribunals are constitutional
in so far as they derive their mandate from the president's power at a time of
war to try and punish crimes against the laws of nations. Additionally, the
court articulated three circumstances which can justify a trial by a military
tribunal. The circumstances are, (1) where martial law has been declared, (2)
temporary military government in occupied territory, (3) when the offence is an
incident to a conduct of war, which violates laws of war. Accordingly, the
court stated that the third circumstance could have applied. The court was
however not ready to apply that circumstance since the charge of conspiracy was
not an incident to the conduct of war. The court further stated that the
commission therefore not only violated constitutional rights afforded to an
individual, but also violated rules established by the Uniform Code of Military
Justice (UCMJ) and article 3 of the Geneva
conventions.[17]
In response to this ruling, Congress enacted the Military Commissions
Act 2006, which among other things established a system of military commissions
for trials of Non-US citizen who have been determined to “unlawful enemy
combatant”. [18] The Act 'establishes procedures governing the use of military
commissions to try alien unlawful enemy combatants engaged in hostilities
against the United States for violations of the law of war and other offences
triable by military commission'. The new law also authorized the detainees to
represent themselves by choice and to attend trial. Hamdan challenged the new
procedures arguing that they violated the US constitution’s due process and
equal protection requirements. The Supreme Court declined to review the
constitutional challenge. Hamdan was successfully convicted but appealed against
his conviction. In 2012, The US Court of appeals for the Washington, D.C
circuit vacated the conviction on the grounds that the conviction was
retrospective and therefore unconstitutional. Similarly, the Act led to the
trial and eventual conviction of Ali Hamza Sulima Ahmad Al Bahlul and Ibrahim
ahmed Mahmoud Al Qosi. Bahlul filed an appeal in the court appeal contesting
the conviction. In Ali bahlul v United
States, a lower Court overturned
Bahlul’s conviction due to the retrospective nature of the charges. However the
US Court of Appeals for Washington, D.C Circuit reversed the lower court’s
decision. A federal Appeals court is currently examining the Circuit Court’s
decision.
(ii) Access to Attorney
The issue of access to counsel by Guantanamo detainees has been explored
in a number of cases. The US
authorities had put in place a number of obstacles aimed at hampering the
effective legal representation of detainees. In the cases of Hamdi
and Al
Odah, the courts stated that Guantanamo
detainees have a concomitant right to the assistance of counsel. The issue was
first addressed in Al Odah v United
States where Judge Kollar – Kottely
formulated a framework for detainee counsel - access.[19]
The framework that was formulated prompted the govt to move for a protective
order to prevent the unauthorized disclosure or dissemination of classified information.
In Re
Guantanamo
Detainee's cases[20],
Judge Joyce Hens Greens issued an "amended protective order and procedure
for counsel access to detainees" which set guidelines and procedure for
counsel access to both detainees and access to information. In July 2012, Judge
Thomas F. Hogan after determining that the court should issue a new protective order
issued a carefully crafted and thorough protective order that contained
procedures for counsel access to detainees and to classified information.[21]
In spite of this viable framework, the Government employed other
unorthodox means to deny the detainees their right to access their counsels. The
measures included; invasive search protocols for detainees before and after
they meet their Attorney, restrictions on the locations within the facility
where certain detainees can meet with counsel, new vans for transporting
detainees to meetings designed in a manner that made the detainees to sit in a
stress position. All these measures were geared towards making it hard for
detainees to meet with counsel. In re Guantanamo Bay
Detainee Litigation[22]
Judge Royce C. Lamberth ruled that restrictions on detainees’ access to counsel
violated detainees right to habeas corpus proceedings in federal court. The
gist of the motion was that the protocols including body search procedures
hinder detainees from meeting with their attorneys. The court therefore, struck
out those protocols by asserting that they infringed on the right of the
detainees right to access counsel.
Treatment of detainees
It however appears that the jurisdiction of the court is limited to
granting the writ of habeas corpus. The Supreme Court in Boumedine V Bush, did not
declare section 2241(e) (2) of the Military Commission Act unconstitutional.
This section provides that;
No court, justice, or judge shall have
jurisdiction to hear or consider any other action against the United States or
its agents relating to any aspect of the detention, transfer, treatment, trial,
or conditions of confinement of an alien who is or was detained by the United
States and has been determined by the United States to have been properly
detained as an enemy combatant or is awaiting such.
As a result, in Al-Zahrani v Rodriguez[23], the Court of Appeal, affirmed the decision of a district court in
dismissing a claim for damages relating to the alleged mistreatment and
eventual death of the appellant's sons while they were detained at Guantanamo
bay. The court of appeal was satisfied that neither the district court nor the
appeal court had jurisdiction over the subject matter of the case due to the
jurisdictional bar created by S. 7(a) of the Military Commissions Act codified at 28 U.S.C S2241(e). The court
further stated that the Supreme Court did no declare s. 2241(e) (2)
unconstitutional in Boumedine and thus the provision retains vitality to bar the
claim.[24]
It thus seems that the US
courts are only ready to entertain a claim in so far as it does not relate to
the treatment of the detainee or conditions of confinement of the Guantanamo detainees.
Such claims or actions will be dismissed by the court for lack of jurisdiction.
The courts only have jurisdiction to entertain detainee's habeas petitions.
This is problematic as it exposes the detainees to torture with impunity by the
military personnel.
Status of Guantanamo Detention Camp
By September 11 2011,
the total number of detainees remaining at the camp was 164.[25]
84 of those detainees have been approved for release to their home countries or
other third world countries but are still detained at the camp. The Obama
administration has expressed a commitment to taking steps towards releasing
them. On August 29, 2013,
the US
department of Defence announced the transfer of two Guantanamo Bay
detainees, Nabil Said Hadjarab and Muia Sadiq Ahmad Sayyab to their Home
Country Algeria.[26]
The two had been detained since 2001 and 2002 respectively, and had been
approved for release for several years but their case had delayed because it
was a challenge to find a place that was willing. Currently there is an ongoing
hunger strike at the camp, which began sometimes in February. The hunger strike
entered it 200th day on 24th August 2013. Thirty-seven detainees
continued to refuse food. As a result, the US military has embarked on a
program of force-feeding the detainees on a hunger strike.[27]
This has attracted worldwide condemnation since the force-feeding procedure is
equivalent to torture.
CONCLUSION
Courts have been instrumental in ensuring the protection of the
detainees’ right to habeas corpus. The US Supreme Court has affirmed the right
of detainees to apply for a writ of habeas corpus in US Courts. In order to
ensure the full enjoyment of this right, the courts have also affirmed the
detainee’s right to a fair trial. The denial of this right was hampering the
ability of the detainees to challenge the legality of their detention. The
courts have thus ensured the protection of the detainees’ right to access
counsel and declaring the Military Commissions unconstitutional. Moreover, the
decisions of the courts have engineered a number of legislative reforms. As
stated above the US
congress enacted two key pieces of legislation in response to the decisions of
the courts. Even though the legislations
sought to handicap the courts, the Supreme Court remained unbowed. Judicial
activism continued to protect the detainees and instigated further legislative
reforms. Nevertheless, a lot need to be done to protect the right and freedom
of the detainees from torture and inhumane treatment.
NB: Written in September 15, 2013
[2] As stated earlier, Guantanamo detainees have been subjected to
an indefinite detention without trial.
[4]"Rasul
v. Bush (law Case)." Encyclopedia Britannica Online. Encyclopedia Britannica, n.d.
Web. 7 Sept. 2013.
[5] ibid
[7] Hamdi v Rumsfeld 316 F.3d 450 (4th
Circuit. 2003) U.S.
[10] Section 7(a) of the Military
Commissions Act 2006 codified at 28 U.S.C s. 2241(e)(1)
[12]Article "What
Is a Fair Trial?" Lawyers Committee for Human Rights, n.d. Web. 7 Sept. 2013.
[13] Common article 3 of the Geneva conventions,
prohibit the sentencing of persons or the carrying out of executions without
previous judgement pronounced by a regularly constituted court.
[14] A military commission is commission created by
military necessity and by the constitution or a statute. In a trial before the
commission, the accused person is afforded a military counsel and a copy of the
charges before him. The hearing may be conducted in absence of the
accused for the accused. The accused does not have the right to see all the evidence or hear
all the witness statements against him for reasons of national security
[15] "Military
Commisions." Human Rights
First Military Commissions Comments. N.p., n.d. Web. 8 Sept. 2013.
[18] Military commissions Act 2006
[20] 344 F Supp. 2d 174, 175(DDC 2004)
[22] Miscellaneous No. 12-398(RCL)
[23] 669 F.3d 315(2012)
[25] "Guantanamo Ten Years On:
Facts and Figures | Human Rights Watch." Guantanamo Ten
Years On: Facts and Figures | Human Rights Watch. N.p., n.d. Web. 8 Sept. 2013.
[27] "Gitmo Hunger
Strike: Timeline." RT
News. N.p., n.d. Web. 8 Sept. 2013.
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