Gitmo and the Supreme Court: What Happened?

The recent Supreme Court showdown over Guantánamo was billed as "probably the most important habeas corpus case in modern history," according to Law.com, and "the most important civil liberties case of the past 50 years," according to the Center for Constitutional Rights (CCR). This was no understatement. At stake was the validity of the administration's novel contention, first formulated in November 2001, that it can seize foreigners anywhere in the world, designate them as "enemy combatants" -- rather than as criminals or prisoners of war -- and hold them indefinitely, without charge or trial.

The very fact that the Supreme Court was discussing the detainees' rights at all was, in itself, astonishing. Three and a half years ago, in June 2004, the court ruled in the case of Rasul v. Bush that Guantánamo -- chosen as a base for the prison because it was presumed to be beyond the reach of U.S. courts -- was "in every practical respect a United States territory" and that the detainees had the right to challenge the basis of their detention, under the terms of the 800-year-old "Great Writ" of habeas corpus, which prohibits the suspension of prisoners' rights to challenge the basis of their detention except in "cases of rebellion or invasion."

In spite of this ruling, the detainees were not granted impartial hearings in a U.S. court. Instead, they were subjected to military reviews at Guantánamo -- the combatant status review tribunals (CSRTs) -- which were a lamentable replacement for a valid judicial challenge. Although the detainees were allowed to present their own version of the events that led up to their capture, they were not allowed legal representation and were subjected to secret evidence that they were unable to see or challenge.

In June this year, Lt. Col. Stephen Abraham, a veteran of U.S. intelligence, who worked on the CSRTs, delivered a damning verdict on their legitimacy, condemning them as the administrative equivalent of show trials, reliant upon generalized and often "generic" evidence, and designed to rubber-stamp the detainees' prior designation as "enemy combatants." Abraham's testimony was filed as an affidavit in Al Odah v. United States, one of the cases considered by the Supreme Court last week. It was regarded by legal experts as the trigger that spurred the Supreme Court, which had rejected an appeal on behalf of the detainees in April, to reverse its decision (an event so rare that it last happened 60 years ago) and to agree to hear the cases.

To complicate matters, the Supreme Court's decision in June 2004 has been undermined twice by Congress in the intervening years. In the fall of 2005, the flawed Detainee Treatment Act (DTA) was passed, which, in brief, limited any review of the detainees' cases to the D.C. Circuit Court (rather than the Supreme Court), preventing any independent fact-finding to challenge the administration's allegations and mandating the judges to rule only on whether or not the CSRTs had followed their own rules, and whether or not those rules were valid.

In the fall of 2006, following a second momentous decision in the Supreme Court, in Hamdan v. Rumsfeld, in which the justices ruled that the proposed trials by military commission for those held at Guantánamo (which also relied on the use of secret evidence) were illegal under domestic and international law, the even more flawed Military Commissions Act (MCA) was passed by a barely sentient Congress.

Instantly reviled by concerned lawyers and human rights activists, the MCA reinstated the military commissions and also comprehensively stripped the detainees of their habeas corpus rights, stating, explicitly, "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." In a further attempt to stifle dissent, the MCA defined an "enemy combatant" as someone who has either engaged in or supported hostilities against the United States, or "has been determined to be an unlawful enemy combatant by a combatant status review tribunal or another competent tribunal established under the authority of the president or the secretary of defense."