Supreme Court action sentences Gitmo detainees to another year without habeas review

Shane Kadidal [Managing Attorney, Center for Constitutional Rights Guantanamo Global Justice Initiative]: "On April 2, 2007, the US Supreme Court denied cert in our appeal of the D.C. Circuit's decision denying federal court jurisdiction over habeas corpus petitions of Guantánamo detainees. Justices Breyer, Souter, and Ginsburg dissented, with the first two also stating that they would have granted an expedited hearing this May. The decision, while by no means a death blow to the detainees' fundamental claims, ensures additional long delays before the court process can result in release for any of the many acknowledged innocent men held at the base.

Justices Stevens and Kennedy, who voted to deny review, issued a statement indicating that detainees should exhaust the process set up by the Detainee Treatment Act of 2005 (DTA) to better allow the Court to determine if that review process is an adequate substitute for habeas corpus. This inquiry itself implies strongly that five justices agree that the Military Commissions Act of 2006 (MCA), which the government claims strips jurisdiction in these cases from the courts, suspends the writ of habeas corpus. The DTA nominally allows detainees to challenge in the Court of Appeals the decisions of the Combatant Status Review Tribunals (CSRTs) determining they are so-called "enemy combatants."

However, the CSRT process is fatally flawed: the government controls what evidence and witnesses are permitted; classified evidence, hearsay, and evidence obtained by torture is admissible; and the detainees have no right to counsel. The end target of the process is also elusive: the definition of "enemy combatant" has shifted several times in the past three years, and the current statutory definition in the MCA is virtually limitless in who can be classified as an "enemy combatant." Even with the system heavily stacked against them, some detainees have been exonerated by the panels—in some cases, some of the men were then sent through the process a second or third time until the military got the result it wanted.

Moreover, review from the decisions of these military panels is exceedingly limited under the terms of the DTA. The DTA states that the Court of Appeals can inquire only into whether the government adhered to its own rules and contains no provision for considering additional facts not admitted during the CSRT process. While the DTA also says the Court should ask, "to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent" with them, the D.C. Circuit has already claimed the Constitution does not protect the detainees — a ruling in direct conflict with the 2004 Supreme Court Rasul decision, but one that the government will likely argue vastly narrows the scope of review.

If this limited appeal fails, the DTA purports to foreclose further review in the Supreme Court. Even if the D.C. Circuit did rule in favor of the detainee, the DTA doesn't spell out a remedy, and the government has argued that the remedy may be yet another CSRT proceeding (although Stevens and Kennedy pointed out that should the government create further unreasonable delays, other ongoing injuries, or take steps to "prejudice ... review in this Court," the Court could act promptly in response via a number of alternative procedural pathways, presumably including the filing of original writs of habeas corpus in the Supreme Court itself).

In light of all the fundamental flaws with the DTA, it is puzzling why Justices Stevens and Kennedy felt this process should be exhausted (a few guesses are here and here), although the inevitable delays now give Congress a prime opportunity to fix the process as well as underline the need for such a legislative solution.

The military, likely exaggerating, says that it will charge up to 80 or so of the 380 men remaining at Guantánamo. The Supreme Court's actions yesterday effectively sentenced the remaining 300 to another year in prison before they can argue for their release in a fair forum."

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