Legal Limbo at Guantanamo?

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Almost exactly a year ago we did our first and only show on Guantanamo. We were remiss, last autumn, in not covering Congress’s approval of the Military Commission Act, which outlines a process for trying “unlawful enemy combattants” in military commissions. And so now, with yesterday’s news that a second group of Gitmo prisoners has filed an appeal challenging the act, it’s high time that we revisit the legal limbo the detainees have lived in for the last five years.

Congress passed the 2006 Military Commissions Act in response to two Supreme Court rulings (Rasul v. Bush in 2004 and Hamdan v. Rumsfeld in 2006) that rejected the military tribunals the Bush Administration had designed to try Gitmo detainees. Among other things, the Court upheld the habeas rights of the detainees (their right to challenge their detention in the US court system). It also ruled that Congress, not the White House, had to design the rules for trying “unlawful enemy combatants.”

Congress responded to the Supreme Court rulings by passing the act — but the act still abolishes the habeas rights of detainees. This means that our Congress has stripped detainees of their rights to challenge their detention. In other words, “unlawful enemy combatants” can be imprisoned indefinitely with no legal recourse. The Supreme Court should decide this month whether it will hear the two current appeals challenging the abolishment of habeas corpus in the act.

We want to know: What’s the argument for denying detainees habeas rights — rights that Anglo-American law has upheld fiercely for centuries? What other aspects of the act’s rules for trying Gitmo’s prisoners are controversial (things like reliance on hearsay and inability to confront accusers)? Who is still imprisoned at Guantanamo? How are the prisoners being treated now, after several years of controversy about abuse and interrogation?

Dwight Sulllivan

Chief defense counsel, Office of Military Commissions

Colonel, US Marine Corps Reserve

Mark Danner

Former staff writer, New Yorker

Contributor, New York Review of Books

Professor of Journalism, UC Berkeley

Lee Casey

Partner, Baker Hostetler

Extra Credit Reading

Reuters, Guantanamo Inmates Appeal Detention to Top Court, The New York Times, March 5, 2007: “Some of the Guantanamo prisoners have been unlawfully detained for more than five years and deserve at least a hearing on their challenge to their confinement, their attorneys said on Monday in an appeal to the U.S. Supreme Court.”

Jeffrey Rosen, My Gitmo Vacation, The New Republic, February 26, 2007: “Before leaving, I had been given a preview of the tour by Colonel Dwight Sullivan, the chief defense counsel at the Office of Military Commissions, whose strong criticisms of the military tribunals have been accepted by the Defense Department as part of his job. “They’ll show you the accused in a La-Z-Boy sharing fries with the investigator,” Colonel Sullivan predicted…. Even more troubling, however, was Colonel Sullivan’s assessment of the Defense Department’s new rules for the military commissions regarding torture.

Jane Mayer, The Experiment, The New Yorker, July 11, 2005: “‘Come here!’ a man screamed. ‘See here! They are liars!’ He was middle-aged, with a full beard and skinny bow legs, and wore an orange shirt and shorts….’No food! No medicine! No doctor! Everybody sick here!’ A soldier near the detainee began ferociously signalling to the officials leading the tour to usher me out.”

AP, Experts Want New Definition of Torture, The New York Times, March 5, 2007: “Prisoners who endure poor or degrading treatment suffer much of the same long-term psychological distress as do captives who are tortured, suggests a study published Monday.”

Jeffrey Toobin, Killing Habeas Corpus, The New Yorker, December 4, 2006: “Since the Middle Ages, habeas corpus –‘You should have the body’– has been the principal means in Anglo-American jurisprudence by which prisoners can challenge their incarceration.”

Via Lumiere: Robert Parry, Gonzales Questions Habeas Corpus, January 19, 2007: “Gonzales continued, ‘The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended” except in cases of rebellion or invasion.'”

Gal Beckerman, Forget the Peripheral Stuff at Gitmo. The Story is Who’s There and Why?, CJRDaily, February 28, 2007: “The government’s lack of transparency about this is appalling, and we need our best journalists to root out this story of who is there and why. Everything else, it seems, is just commentary.”


It’s a much different feel today than it would have been jus six months ago . . . The exact protocols for the interrogation of course are classified. I saying that to tell you I can’t share them with you, I’m saying that to tell you I don’t know. But I can say that over time, Guantanamo has moved more from an interrogation, intel-producing operation into a human warehousing operation. You can actually see that in the physical infrastructure.

Dwight Sulllivan


Here what concerns me—and this is also part of the problem of allowing and hearsay. Let’s say that instead of having to obtain a confession from me, by coercive means, that statement was obtained from you by coercive means. And then that statement is admitted at my trial. But they don’t call you as a witness. They don’t even call the person that obtained the statement from you as a witness. They just take that piece of paper and they put it in against me. Now, under the commission system rules, I have the burden of showing why that evidence that’s being provided by the prosecution is inaccurate or unreliable. Well, I don’t have access to you. I don’t have access necessarily to the interrogator who took the statement from you. Through the use of the hearsay, it sets up a system where the United States could easily launder evidence derived by torture or other coercive means, and the defense would never know.

Dwight Sulllivan


I think the Military Commissions Act, for all kinds of reasons, is the piece of legislation that will be studied in law schools in the future as a horrible violation of what the United States stands for . . . I think you have to go back to the decision made in the fall of 2001 to essentially say that Al Qaeda prisoners are not going to be subject to protections under the Geneva Convention, including Common Article III. Now, that decision essentially stood until last summer, when Hamdam finally basically declared no Common Article III applies . . . Had these prisoners been respected under the system of laws of war that we have come to expect, there would have at least been an accepted procedure by which their capture and imprisonment would have been examined in a responsible way. And that was not done.

Mark Danner


When you point to habeas [corpus], you’re pointing to a broader principle that I think simply states that for basic fairness, legal fairness, someone cannot be seized by executive power and essentially disappeared. There has to be some kind of procedure, a fair procedure, a fairly recognized procedure, that they can appeal their arrest, they can appeal their detention, and they can get some kind of recognizably fair due process. And that has not yet happened.

Mark Danner


The fact it that these individuals who are being held as enemy combatants will get more due process than any individuals held in that capacity have ever gotten either in our history, of war in the tradition of pretty much any other country . . . What they have gotten, in terms of deciding whether they are in fact enemy combatants, it compares very favorable to what lawful prisoners of war would have gotten.

Lee Casey


Military commissions have been a part of American law since the War for Independence. They were used by Washington; they were used in the Civil War; they were used in the Second World War. And the military commissions we have now are far more protective than any military commissions in our history.

Lee Casey

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