U.S. military tribunal law faces first court challenge

November 3, 2006

The military commissions set up by the Bush administration to try Guantanamo detainees may order indefinite detention of suspects based on evidence secured by torture, concluded an amicus curiae brief filed by seven former federal judges before the D.C Circuit Court of Appeals.

Lawyers for Guantanamo detainees also filed separate briefs arguing that the Military Commissions Act of 2006 (MCA) does not prevent the court from hearing habeas corpus petitions from detainees.

A court uses the writ of habeas corpus to examine whether a person is lawfully imprisoned by the government, and to compel release if the imprisonment is not legal. In common law countries, habeas corpus is an important instrument for protecting an individual's freedom against arbitrary state action.

Long road to military trials
The United States has detained 759 men as "illegal combatants" at the Guantanamo Bay detention camp, of whom about 250 have been released or transferred to the custody of other countries. After the Supreme Court ruled in Rasul v. Bush (2004) that detainees are entitled to challenge their detentions in federal court, the Defence Department set up the Combatant Status Review Tribunal (CSRT) to review the determinations that the detainees were "enemy combatants". The detentions of 558 were reviewed by the CSRT, which confirmed all but 38 of the detainees as "enemy combatants". John B. Bellinger III, Legal Adviser to the State Department has indicated last month that the administration plans to try only 60 to 80 of the 435 men currently detained.

In December 2005, the Detainee Treatment Act (DTA) was signed into law under which, the habeas petitions of the detainees were to be transferred to the CSRT. The Supreme Court held in Hamdan v. Rumsfeld (2006) that the DTA did not apply to pending habeas petitions that challenge the legitimacy of the tribunals themselves. This led to the Military Commissions Act of 2006 to be signed into law, under which the administration seeks to strip federal courts of jurisdiction over the detainees' habeas petitions. Instead, detainees can challenge their detention at the CSRT and appeal only for a limited review by the D.C. Circuit Court.

Previously, two district courts have given contradictory rulings over the issue of whether the petitioners, who have not been charged but have been detained indefinitely, can petition for habeas rights in federal courts.

On Wednesday, attorneys for detainees filed the first full court briefings challenging the administration's interpretation of the detainee laws at the US District Court of Appeals for the District of Columbia Circuit, in the cases Al Odah v. United States and Boumediene v. Bush and Khalid v. Bush.

Separately, seven former federal judges filed an amicus brief in support of the detainees' brief.

The Justice department is scheduled to file a response by November 13.

Former judges file amicus brief
Seven former Federal Circuit and District judges, Shirley M. Hufstedler, Nathaniel R. Jones, Abner J. Mikva, Patricia M. Wald, and retired District Judges George N. Leighton, Frank J. McGarr, and Timothy K. Lewis filed an amicus brief supporting the petitioners' claim, saying that the "court-stripping" provisions of the MCA "challenges the integrity of our judicial system".

The brief argued that the government's interpretation of the DTA and MCA would force the court to condone the use of evidence obtained by torture to sentence detainees to indefinite imprisonment, which is prohibited by common law and the Constitution.

The brief pointed out that the CSRTs failed to consider whether evidence presented to them was obtained by torture. The brief cited several cases where records of the tribunal proceedings showed that many of them did not address evidence of torture, some cross-examined detainees about torture allegations, but to distance U.S. forces from the alleged torture. Even when the CSRT referred torture allegations for investigation, it did not wait for results before ruling based on the evidence.

Based on rules that compelled the tribunal to accept the government's evidence against prisoners as presumptively "genuine and accurate.", the tribunal relied on incriminating statements by detainees, even though they testified that the statements were obtained by torture and that medical records and other reports confirm the use of torture.

The government has maintained that investigating allegations of torture was not "the CSRT's role" and has claimed that the tribunals are permitted to rely on evidence "obtained through a non-traditional means, even torture" to determine that a prisoner was an enemy combatant.

Prisoners allege torture
The brief listed several instances where prisoners have alleged the use of torture to extract incriminating statements. The Australian citizen Mamdouh Habib, who was captured in Pakistan in 2001 was "rendered" to Egypt, where he alleges he confessed to several terrorism related crimes after being subjected to "horrific abuse" by the Egyptian authorities. The tribunal simultaneously found enough credible evidence to order an investigation into the torture allegations and found Habib an enemy combatant based on the same evidence.

The brief outlined the case of detainee Mohammed al Qahtani whose interrogation, the Defence Department has said, produced "detailed information about 30 of Osama Bin Laden's bodyguards who are also held at Guantanamo". Interrogation logs showed al Qahtani was interrogated for about 20 hours per day for seven weeks, subjected to isolation, intimidated with military dogs, sexually humiliated, and subjected to sleep and sensory deprivation.

Since the CSRT rules permit secret evidence, suspects implicated by al Qahtani's statements will not be told who accused them or under what circumstances and the accusations will be presumed accurate.

The brief pointed out that it was not aware of a single CSRT that allowed a prisoner to develop an evidentiary record to support the allegations of torture. But according to the government's interpretation of the DTA and MCA, the appeals court cannot consider facts outside the CSRT's record when reviewing the CSRT's decision.

Detainee lawyers challenge new law
The briefs filed by lawyers for the detainees argues that the text of the MCA does not strip the courts of authority to hear pending habeas petitions and does not permit indefinite detention without charge.

The briefs argue that if the MCA did indeed repeal habeas rights, then the law is unconstitutional. This, because the CSRT hearings and the limited review by the D.C. Circuit court, which are meant to be the substitute for a habeas review under the Act, are not "adequate and effective" to test the legality of the detentions, and hence would violate the Suspension Clause of the U.S. constitution.

The MCA interpretation of the review process falls short of the "adequate and effective" remedy constitutionally required, according to detainee lawyers, with the following shortcomings -


 * The administration contends that detainees, or their attorneys, are not entitled to classified information relevant to the case but not in the CSRT's record.
 * The administration claims that the Act forbids the Circuit court from considering any facts not in the record of the CSRT proceedings or excluding any part of the evidence presented in the record (for instance, evidence obtained by torture).
 * The government also interprets the Act to require the Court to uphold the CSRT's decision, unless there was no evidence supporting detention. It does not allow the Court to assess the relative weight of the evidence, thus, as long as some evidence supported detention, this Court would be constrained to uphold the imprisonment.
 * Finally, the Circuit court itself has no power under the Act to order the release of a detainee if the CSRT process or its ruling is unlawful.

The briefs further argue that the MCA does not prevent the detainees claiming rights under the Geneva Conventions.