Legal scholars say that detentions at Gitmo are an example of President Bush making his power consolidation permanent.
Pity the Uighurs. Originally known best in this country for their unusual name (pronounced WEE’-gurz), the group of 17 Chinese Muslims has been locked up at Guantanamo Bay for the past seven years. That has contributed to the Uighurs new-found notoriety as hapless victims of a U.S. detention policy that can’t send them home, yet can’t send them anywhere else.
Image has not been found. URL: http://www.washingtonindependent.com/wp-content/uploads/2008/09/law.jpgIllustration by: Matt Mahurin
The Bush administration has acknowledged that it no longer considers the Uighurs “enemy combatants” subject to detention. Yet on Nov. 24, it vigorously fought a court’s order to release them in the United States — insisting that only the president and his Homeland Security Dept. have the authority to make that call. (Because the 17 Chinese Muslims received weapons training in Afghanistan, the administration claimed they posed a threat and cannot be allowed to live here. Yet the government has never presented any evidence that the men intended to use their training to stage attacks in the United States.)
The case has become such a global embarrassment for the U.S. that a group of 10 distinguished conservatives recently wrote to the administration appealing for the Uighurs’ release, saying their continued detention without cause “undermines our standing in the world.”
None of this seems to matter. As the administration faces its last days in power, officials, citing strategic reasons, are using even their weakest cases against detainees in the war on terror to hold onto what power they can exert.
In a series of interviews with more than 10 legal experts and law professors, as well as many litigators involved with detainee lawsuits, most said that the administration is intent on leaving a strong legal legacy that will fortify its efforts to strengthen executive power. If it succeeds, Congress will be even more hard-pressed to reclaim the power that the administration has concentrated in the executive branch.
Success could also present the Obama administration with some difficult challenges — both to its ability to dismantle the Bush detainee policy and to its resolve to resist exercising the greatly enhanced executive powers it will inherit.
“I think it’s a matter of principle for the Bush administration,” said David Remes, executive director of Appeal for Justice and a lawyer who represents more than a dozen Yemeni detainees at Guantanamo Bay. “They can’t control what happens after they leave office. But at least they’ll have the satisfaction of knowing that the principle wasn’t compromised on their watch.”
The reputations of administration officials are also at stake.
“I think they’re trying to make their record less damning in terms of not having produced much in the way of convictions or sentences,” said Madeline Morris, a law professor at Duke University and former chief counsel to the Office of the Chief Defense Counsel for Military Commissions in the Defense Dept. “They want some high-profile signs that something’s happening — for example, that the 9/11 defendants are being brought to justice. The more that they can get [these cases] even into the pretrial phase … the more the commission process would seem efficacious, at least in its public impression.”
In the case of the 17 detained Uighurs, it is a matter of principle: Who gets to decide whether they are released — a judge or the president?
The answer to the legal question isn’t completely clear, said Fordham law professor and criminal defense expert James Cohen. “It presents difficult issues of separation of powers,” he said.
But as a political matter, what makes this case worth fighting?
“I think [the administration] would like to establish and preserve favorable precedents, so that a president in the future would be free to pursue the same course,” said Remes. “So much of what the White House has been doing in the past seven years has been creating precedents for unilateral exercises of presidential power. I think it sees no reason to capitulate before it has to.”
That White House strategy may have long-term consequences.
“This is very similar to the efforts we see in the regulatory arena — where the outgoing administration is trying to lock in some of its policies and rules,” said Sharon Bradford Franklin, senior counsel at the Constitution Project, a bipartisan nonprofit organization that seeks consensus on constitutional issues. “It’s trying to get judicial determinations to lock in its views on broad detention authority and broad executive power that it has been claiming in U.S. policy all along.”
The new administration could reverse some of those policies. But as George Fletcher, a Columbia University law professor, points out, “people don’t give up power very easily.”
Many of President-elect Barack Obama’s supporters were angry when he supported recent amendments to the Foreign Intelligence Surveillance Act, or FISA, that gave immunity to telecommunications companies that helped the administration conduct warrantless wiretapping of Americans. “Will Obama give up the imperial presidency?” Fletcher asked.
Other detainee cases present a similar conundrum.
Last week, the D.C. District Court ruled that the administration had insufficient evidence to keep holding five Algerians who were picked up in Bosnia in 2001 and have been detained at Guantanamo Bay ever since. The Justice Dept. said it was disappointed by the decision and may appeal.
And in a case that the Supreme Court may decide to review, the administration contends that it has the right to hold indefinitely and without charge a lawful resident of Peoria, Ill., who it deems, based on evidence it won’t disclose, an “enemy combatant.” Ali Saleh Kahlah Al-Marri isn’t at Guantanamo Bay, however; he’s being held in a U.S. Navy brig in South Carolina.
The Justice Dept. has also been working hard to keep a group of habeas corpus cases, filed by more than 100 detainees, from moving forward, though the Supreme Court ruled in June that they’re entitled to challenge their detention.
On Nov. 18, Justice Dept. lawyers opposed a federal judge’s order to turn over the legal and factual basis for holding the men, as well as all exculpatory evidence. The government argued it would “take months to fulfill” the obligations and protested what it called “dramatic” new disclosures of government secrets.
“They think the president is the supreme leader, and no one can question anything,” said Candace Gorman, a lawyer representing two Guantanamo detainees who’ve been imprisoned there without charge for almost seven years.
The government also urged the judge to submit the dispute immediately to the court of appeals, where it hopes to win a favorable ruling that would expand the government’s right to withhold evidence.
“The administration is still trying to get some favorable decisions out of the D.C. circuit that it hopes will not reviewed by the Supreme Court,” said Remes of Appeal for Justice.
In addition to its legal legacy, the administration is likely considering its political legacy as well. Fighting these cases is a matter of saving face.
Over the past four years, the administration has endured repeated losses at the Supreme Court in the Guantanamo cases. The high court slapped down the first set of military commissions created by the president and affirmed that Guantanamo detainees have a right to challenge their detention through habeas corpus proceedings in federal court.
With respect to the next set of military commissions authorized by Congress in 2006, the administration’s record has been dismal. Of roughly 24 cases in which charges were made, only three detainees have been convicted, and only one of those convictions followed a contested trial.
David Hicks, captured by the Northern Alliance in Afghanistan and turned over to U.S. authorities for a bounty, pleaded guilty to supporting terrorism and was returned to Australia last year to complete his 7-year sentence. He spent five years at Guantanamo Bay.
Ali Hamza al Bahlul, allegedly Osama bin Laden’s media specialist, boycotted his trial, refusing to put on a defense. He was sentenced to life in prison.
And Salim Hamdan, Osama bin Laden’s driver, originally portrayed as a militant Al-Qaeda warrior who conspired to arm his fellow terrorists around the world, was convicted only of assisting terrorism. He was sentenced to just a few months more than time already served. (The government had pressed for 30 years in prison.) Last week, he was returned to Yemen for the last months of his sentence.
Meantime, the “convening authority” of the military commissions — the official who decides which cases to refer for trial — has dismissed cases against at least five detainees without explanation. And the authority’s former legal adviser, Brig. Gen. Thomas Hartmann, had to be excluded from participating in several cases because he tried to exercise undue influence over the prosecution. At least four prosecutors have resigned in protest of the commissions.
Then there’s the case of Mohammed Jawad, a 16-year-old Afghan arrested five years ago for allegedly throwing a hand grenade into a vehicle carrying two U.S. Army officers and their interpreter. The judge recently excluded his confession to the crime, however, because it was extracted through torture.
“What you’re seeing in the military-commissions context is that although the administration got Congress to create a system rigged against defendants, the military lawyers involved in these cases refused to allow themselves to be used in this fashion,” said Remes. “The whole system is in disarray. The administration counted on the panic and alarm in the immediate aftermath of 9/11 to carry them through. But, in time, a sense of proportion and justice returned.”
The administration isn’t giving up, though. In the Jawad case, for example, it has appealed the judge’s suppression order.
“Right now, the government is engaging in extraordinary tactics to fight that case, including a lot of shifting of decision on exactly what the crime is, and most recently filing an appeal with the court of military commissions review,” said Morris of Duke Law School.
Some of those actions are likely to be futile, however. Obama has pledged that his administration will disband the military commissions when he takes over Jan. 20. Lawyers practicing before the military commissions could still be struggling with pre-trial motions then.
Still, the Bush administration seems eager to shield itself from blame for any bad outcomes later on.
“I think the Defense Dept. in particular is rudderless,” said Vijay Padmanabhan, the former chief counsel at the State Dept. for detainee litigation, who is now a visiting professor at Benjamin N. Cardozo School of Law. “It has never thought, ‘What happens if we lose many of these court cases? What are the long-term strategic consequences?’ It just keeps fighting them. And then, if they’re [the detainees are] released and something bad happens, it can blame the court.”
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