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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  • Lumière

    The issue here is the hypocrisy we are showing the world.

    I understand the issue with the Geneva Convention not covering terrorists. That is Ok for the rest of the world, but if we are supposed to be a bastion for freedom and individual rights, I think we need to be bigger than the Geneva Convention.

  • Nick


    Preliminary 1: Is a ‘country’ or ‘nation’ simply the people alive within a state’s borders, the economy they operate or are subject to, and the government that regulates them? Is this notion of ‘country’ the totality of what the government constitutionally safeguards via police, military, and intelligence agencies?

    Preliminary 2: Or is a ‘country’ (or ‘nation’) more – is it also the aggregate legacies its forebears have handed down to its living citizens? Legacies not only historical, socio-political, and cultural, but also legal and humanistic?

    If a county (or nation) is its aggregate legacies as well as its living people and their economic activities, then the QUESTION is this:

    Is it ‘patriotic’ to support the unprecedented denial of habeas corpus?

    Or is it instead treasonous?

  • Lumière

    How many times in this country have we seen an accused released from prison, perhaps based on DNA evidence, only to see the district attorney claim the individual is still guilty.

    These people have no hope without habeas corpus….

  • Nick

    ‘scuz my typo: “If a county (or nation) is its aggregate legacies…”

    Uh, let’s try: “If a country (or nation) is its aggregate legacies…”

  • Lumière

    President Abraham Lincoln suspended habeas corpus in Maryland on April 27, 1861, two weeks after the Confederate attack on the Union garrison at Fort Sumter.

    Such suspensions have been rare in American history. The most recent occasion was in 1871, when President Ulysses S. Grant sent federal troops to South Carolina to stop attacks by the Ku Klux Klan against newly emancipated black citizens.

  • Lumière


    Potential for short term detention for named individuals: without evidence; and without criminal involvement; the detainee may be interrogated by ASIO;

    disclosing that an individual has been so detained or interrogated is, in almost all circumstances, a crime.

  • hurley

    Law is an abstraction designed in part to protect itself, the better to further the intentions of its founders and those it governs. A conspiracy of sorts, as William Gaddis pointed out to great tragi-comic efect in A Frolic of His Own. At the same time it’s the closest thing to a soveriegn any self-respecting small-r republican would endorse. There are relatively good systems of law, and relatively bad ones; both tend to preserve themselves in their own self-interest, the difference that the former favors a more inclusive, more benign view of self-interest, and the latter the lesser. I’m not a lawyer, as must be clear to all but the blind by now. I’ve broken my share of laws, but the concept of the Law, with all of its terrifying overtones, should be taken seriously in the various democracies in which most of us here live. One tampers with it at great practical, ethical, and metaphysical peril. The US has violated its own laws in Guantanamo and elsewhere, therebye undermining its own legitimacy, with consequences I don’t look forward to.

  • Nick

    Thanks Lumiere & hurley.

    So, it’s not wholly unprecedented to suspend habeas. And we can even sympathize with Grant’s action against the KKK. IMO, this then only worsens the dilemma. Like so:

    Is habeas essentially akin to federal prosecutors, who “serve at the President’s pleasure”?

    Or should it be above the realm of political expediency?

    If the Bush Administration fears that it can’t offer strong enough evidence against the accused Gitmo ‘terrorists’ to have a reasonable chance of convicting them in civil court, is its denial of habeas sagacious, or merely expedient?

    Isn’t this ultimately a question of who shoulders the burden of proof? The accuser, or the accused?

  • Nick

    And lest we forget:

    “The Star Chamber (Latin Camera stellata) was an English court of law at the royal Palace of Westminster that sat between 1487 and 1641, when the court itself was abolished.

    In modern usage, legal or administrative bodies with strict, arbitrary rulings and secretive proceedings are sometimes called, metaphorically or poetically, star chambers.”

    (emphasis mine)

  • hurley

    I should have added: hence my emphasis on impeachment…

  • Lumière

    What’s the argument for denying detainees habeas rights — rights that Anglo-American law has upheld fiercely for centuries?

    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.”

  • Lumière

    What’s the argument for denying detainees habeas rights — rights that Anglo-American law has upheld fiercely for centuries?

    What is terrorism?

    Is the terrorist the vox populi, who are too fearful to act? Is terrorism thusly the expression of fear or fear personified?

    In a condition of fear, one might consider the suspension of civil order: fight fear with fear. Create an uncertain outcome for those that insight fear.

    Ps. American patriots an Israelis patriots were branded as terrorists b/c they conducted terrorist acts. Back to McNamara – they did bad, to achieve good?

  • rc21

    I am not sure but is it written in the geneva convention that enemy combatants picked up on the battle field wearing civillian clothing may be considered spies?

    If so what is the penalty for such an infraction?

  • Tom B

    Interesting that the detainees were once described as ‘the worst of the worst’, but that now half of these monsters have been released… Either those released were never ‘the worst of the worst’ OR

  • Tom B

    … OR… the Bush Administration has released hundreds of terrorists…. You can’t have it both ways… For a very interesting view of the Guantanamo detainees, here’s a link to “A Report On Guantanamo Detainees; A Profile of 517 Detainees through Analysis of Department of Defense Data” It would seem to indicate that Dick Cheney might have been ‘exagerating…’ (as he frequently does).

  • Lumière

    Captain Renault: Major Strasser has been shot. Round up the usual suspects.

  • Nick

    Ironically, Tom B, for all we know, the remaining detainees in Gitmo might well be Islamic extremists who would be only too happy to personally detonate a dirty bomb in Times Square.

    But how can we know? (Especially considering the now obvious incredibility of the Bush Administration.)

    Can we prove it?

    Trials are strange beasts: they putatively ascertain the “truth” of a crime. (Although that apparently means a jury’s opinion of a legal case creates a “truth”!)

    How can any trial ascertain the “truth” of crimes not yet committed?

    We can’t even ‘prove’ that most of these cats (especially the Afghans) were doing much aside from following the lead of their neighborhood thug-lords.

    The burden of proof should be on us, not them. Even if those in Gitmo we suspect of ‘terrorism’ really do want to irradiate New York & D.C. The convention that the accuser shoulders the burden of proof is a vital thread in the fabric of our civilization. To unravel it is tantamount to choosing a reversion to the barbarism of the Dark Ages.

  • Nick

    hurley‘s right about impeachment, btw. Betraying the most venerated principles and honored humanisitic legacies of one’s country seems to me to qualify as a ‘high misdemeanor’.

    Arg! (dismay, not pirate talk)

  • Potter

    Another vote here for impeachment. Thank you for the show. We can’t be silent.

  • OliverCranglesParrot

    Stay with us Chris. We need you functional! Take a deep drink of water or something.

  • OliverCranglesParrot

    Impeachment should begin with the election process.

  • OliverCranglesParrot

    Re-parsing my last comment: Impeach the election process…repair and correct it and remain constantly vigilant as to electoral activities.

  • Lumière

    In Pashtun society, when we first started the war in Afghanistan, I went to some people who really knew the Taliban well… and I asked, what do I need to know, and they said: the one thing you need to know about the Taliban is revenge can come in two or three generations. You guys have no idea what you’ve kicked over. You can get the son of the son, and perfectly be justified twenty years later. We’re dealing with cultures and societies we don’t know.

    Seymour Hersh

  • Lumière

    Unbelievable ! laundered hearsay evidence!

  • mike seccombe

    A note in support of Major Michael Mori, who is threatened with charges for defending not only against this government, but also facing resistance from the Australian government, for his support of David Hicks.

  • ckule

    Bear in mind that in addition to the some 400 still left in Guantanamo there are thousands of detainees held by the U.S. in Iraq. In the past, habeas corpus was overridden, for example, in the case of the Indian Wars because the internees were placed on reservations and the territory was, effectively, completely occupied. What are we going to do about the foreign detainees if we withdraw? Bring them with us? And then not afford any sort of habeas corpus review? We have really lost our way by not affording Geneva recognition and, moreover, affording the usual protections.

  • Lumière

    This is very telling:

    The lawyers offering the substandard system have knowledge of the greater system and feel no compunction about the slide in standards – their standards

    There is your banality of evil….

  • Matt

    As a reference to the point made about law students studying the Guantanamo issue/enemy combatants/military tribunals….

    The Massachusetts Bar Exam was just taken by my wife last week. One of the essay questions had to do with the Military Commissions Act, and what rights citizens and non-citizens have with regard to habeas corpus. The analysis and learning has already begun…

  • Lumière

    Good show – needs 2 or 3 more hours !

  • Nick

    “Do you believe in collateral damage?”

    — Lee Casey, while arguing with Dwight Sullivan that it’s just fine and dandy to sweep up innocent civilians along with those deemed by our military as “unlawful combatants”.

    What the hell is THAT supposed to mean? That if you accept the euphemism “collateral damage” in place of “slaughtered innocents” the various combatants raging through neighborhoods are magically absolved from culpability for the deaths of the civilians?

    No wonder the name ‘Wormtongue’ sprang to mind when Casey began his dissembling.

    It is vital – albeit a near impossibility – that Americans take care to never empower with the reins of government such deceitful ideologues as these neocon Bushies who have disgraced our standing in the world for the past 6+ years.

    This was a show that was largely exemplary of ROS at its best. But Lumiere is right that it needed another hour at least. I’ve got a toasty woodstove I’d like to stick Casey’s shameless feet into.

  • Lumière


    Casey was good guest… he made Dwight Sulllivan (also good) admit that study was flawed.

    Of the 400 released only 38 were mistakes.

    90% is a high success rate- think anyone will bat 900 this season?

    Collateral damage is a fact of modern war –

    What bothers me about Casey’s ilk:

    The cornerstone of western thought is progress – when you advance a system – even war – you don’t go back

    The question for Casey is why don’t we use the better system?

    If we can’t convict these people: does that say the system is no good or are these people innocent?

    His answer is that traditionally the tribunal has worked fine – how would we know?

    & we won’t extend our system beyond our borders – why not ?

    that’s where our system came from !!!!

    this troubles me and I’m a cynic !

  • Lumiere–

    Good point about where our system originates. And to hammer the point home: the war on terror is, ostensibly, about “spreading democracy.” Well, wouldn’t one (very effective) way of doing this be the application of constitutionally guaranteed rights (like habeas corpus) to those unlucky enough not to fully civilized American citizens?

  • Tom B

    The war on terrorism may ‘ostensibly’ be about ‘spreading democracy’, but democracy is a notoriously slippery word. (1) Does it simply mean rule by the 51 percent over the 49 percent? (2) Does ‘democracy’ mean rule by law? (If so, halachah, or sharia, or English common law, or Nazi statutes like the Nuremberg Laws?) (3) Does democracy mean driving a car and watching Brittney Spears on one’s high definition TV? (4) Does democracy mean electing folks to go and pass laws favorable to their campaign contributors? — And as for constitutionally guaranteed rights: whose Constitution, and whose interpretation of that Constitution? And if the (US) Constitution allows slavery (as it did before 1868) can one defend slavery as consistent with the Constitution? Is there any higher law than statutes or a basic law (i.e. constitution)? IMHO, legal does NOT equal moral — but lots of folks argue otherwise. It ultimately resolves back to moral suasion, political negotiation, and issues of power or powerlessness…

  • galoot

    Great show and one of the most important issues around. I would love to hear a follow up now that David Hicks, the Australian (who is actually entitled to British Citizenship but shamefully denied it by the UK government so far) has made a bizarre deal to get out of Guantanamo. He signed a statement saying that he was not mistreated during his detention – clearly this is not true. I would love to hear legal experts pick this agreement apart (if we can even see it). We are way beyond Orwellian here.