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Habeas Case Quietly Heads to Supreme Court

Image has not been found. URL: /wp-content/uploads/2008/09/scotus6.jpgFrom Top Left, US Supreme Court Justices: John Roberts, John Paul Stevens, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsberg, Stephen Breyer and Samuel Alito (Official US Supreme Court Photos)

This week, the solicitor general will file an appeal in the U.S. Supreme Court on a little-watched case from Guantánamo. But this case demands attention because it presents in stark relief the two key questions of the government’s extraterritorial detentions: Has the government been lying when it claims to have detained a hard core of Al Qaeda and the Taliban at Guantánamo? Can the government suborn the judiciary into covering this up?

Until now, all eyes have been on a case called Boumedienne v. Bush, argued before the Supreme Court on Dec. 5, 2007. In Boumedienne, the court heard the Guantánamo detainees’ challenge to recent legislation that stripped them of the historical right of habeas corpus — which allows them to challenge their detention in federal court.

Image has not been found. URL: http://www.washingtonindependent.com/wp-content/uploads/2008/09/scales-150x150.jpgIllustration by: Matt Mahurin

Despite the fanfare, a majority of justices have already signaled that the “Great Writ” — as habeas is known — does, in fact, extend to Guantánamo. The real question is: what happens next.

Under longstanding doctrine, Congress is permitted to remove habeas jurisdiction as long as it provides an “adequate” substitute. In the December hearing, the court’s swing vote, Justice Anthony M. Kennedy, indicated his interest in probing whether there was an “adequate substitute.”

That there is any question of an “adequate substitute” is due to a statute passed by Congress in 2005. It provides an alternative path for Guantánamo detainees to challenge their designation as “enemy combatants” using “Combatant Status Review Tribunals” or CSRTs.

The tribunals are hastily assembled hearings, created in 2004 after the Supreme Court ruled that federal-court jurisdiction extended to Guantánamo. In tribunal, the detainee is hauled from the cage, where he has been held basically incommunicado for three-plus years, to a court. He is usually told that the government has evidence that he is an “enemy combatant” and that he must overcome this to gain his freedom. In 96 percent of cases, the government does not present any documentary evidence of witnesses. All this is classified, so the detainee cannot see it. He must disprove what he cannot even know.

The detainee has no lawyer. He is generally denied the ability to call witnesses. In more than four-fifth of cases, the tribunal reaches a decision the same day. If it rules for a detainee, the prisoner is not told, and often a second CSRT is convened.

The issue in the “sleeper” case, Bismullah v. Gates, is what sort of review of CSRT decisions the designated federal court, the D,C, Court of Appeals, can engage in. This arcane procedural question — about the scope of judicial review — is the hinge for determining whether the government can knowingly detain those who are innocent of any terrorist connection, and whether it can suborn the courts into helping it do so.

In October 2007, the D.C. circuit court issued a protective order laying out the conditions of its review of CSRTs. Critically, the court held that its review would require the government to produce “all reasonably available relevant information” (language from Pentagon regulations) — for example, not just the evidence the government gave to the CSRT, but all the evidence gathered about a detainee.

Writing for the majority, Chief Judge Douglas Ginsburg stressed the need for the full record. “There is simply no other way,” he wrote, “for the counsel to present an argument that the [government] withheld exculpatory evidence from the Tribunal in violation of the specified procedures.” He rejected the government’s position that judicial review be limited to the evidence before the CSRT.

A noted conservative jurist, Ginsberg may have taken note of the affidavit of Lt. Col. Stephen Abraham, an army reservist who worked at Guantanamo. Abraham collected the evidence for the CSRTs. His testimony is worth a careful read. Abraham explains that he was never given exculpatory information; that there was no effort to gauge the accuracy of evidence, and that when a decision favorable to the detainee was reached, a panel would have another hearing to address “what went wrong.”

The government must have been expecting Ginsburg and his follow conservative, Judge Karen LeCraft Henderson, to defer to it. So, when the ruling came down, the government seems to have wigged out.

First it sought a rehearing from the court—which was denied. Then it sought review from the D.C. circuit. Last week that was denied.

Now they are seeking a stay and an expedited appeal to the Supreme Court on what judicial review of the tribunals comprises— the question the “adequacy” issue hinges on.

Yet, just as the government argues to the Supreme Court that judicial review of the CSRTs in the D.C. Circuit is an “adequate” substitute for habeas corpus, it must now argue that this review is also limited, so that the court can use only the information that the CSRT ruled on.

There are many reasons why the government might be resisting fuller review. It could be that the government, as a matter of principle, believes it should have the power to lock-up indefinitely anyone it deems is a terrorist-combatant. It could be that it has tortured the detainees to get information. It could be that it would rather let a man die of cancer in Guantánamo than follow its own leads to prove his actual innocence — that he had, in fact, fought against the Taliban.

As troubling as these possibilities are, however, is the reason the government is now giving for resisting judicial review: It does not want judicial review of the record on which it based detention decisions because no record exits. In a Feb. 4 motion to the circuit court, the government said it does “not possess the historical records of materials reviewed by the CSRT.” Hence it explains, in the absence of an expedited hearing by the Supreme Court, the government would be faced what it calls “a highly undesirable choice:” commit a massive military, intelligence, and law enforcement recourses to a burdensome search and gathering process aimed at creating a broad record that would necessarily encompass the material … examined in each … case, in the midst of an armed conflict, commit massive resources to redoing some 275 CSRTs.

This is remarkable. Just consider that the government says it has seized hundreds of the “worst of the worst;” brought them to Guantánamo; subjected them to “enhanced” interrogation methods that may violate international and federal laws against torture and coercion, then denied them a day in court to challenge the facts the detention was based on. It has repeatedly claimed that the Cuban base’s operations yield “valuable intelligence information.” And it has attacked journalists who question its blunt assertion.

Yet has it assembled in one place all information about a detainee? No. The government is holding hundreds of men without any adequate record on why they are being held. This despite the fact that the government asserts that it holds annual reviews of each detention. Yet, the government continues to hold hundreds of men, the majority not as “fighters,” but because they have “some association” with an alleged terrorist organization. And the government insists that it would take “massive resources” to gather appropriate files.

Stated baldly, this means the government is not keeping complete files about the core group of terrorism detainees—presumably some of the most valuable intelligence sources available.

Having detained, perhaps tortured and constructed elaborate sham trials to justify its decisions and hide its mistakes, the government seems now to look to the federal courts to serve as accomplices after the fact. It asks the court to blink when it comes to the testimony of Abraham. It asks the court to set aside the government’s own admissions (revealed in an embarrassed letter after the Bismillah argument) that is has not followed procedures — for example, it did not appoint officers of sufficient rank to the CSRTs, and instead named junior soldiers who received “approximately two weeks training.”

And it asks the appeals court to participate in what Chief Judge Ginsberg called a “charade”—a calculated effort to get a free-ride on the federal courts’ legitimacy to cover its own error, callousness, and stupidity.

The Guantanamo cases are about far more than the liberty of a group of detainees. In its efforts to avoid accountability for its detention decisions, the government has hedged and equivocated. It has rammed through Congress dramatic restriction on the core Constitutional right of habeas corpus. And now it asks the courts to serve as a rubber stamp for its flawed decisions.

On Feb. 14, the solicitor general will file his petition for review in the Supreme Court. Then the high court will have to decide whether the role of the courts is to bless the errors and abuses of the executive — or whether it is the role of the courts, as a co-equal branch, to check error and reject lies.

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