By Ann W. Parks

In early December, for the third time in its history, the U.S. Supreme Court heard matters relating to the legality of detentions at Guantánamo Bay, Cuba — and a panel of experts convened at Georgetown Law to discuss what it all means.

Professor David Vladeck; Vincent Warren and Shayana Kadidal of the Center for Constitutional Rights; and Richard Samp of the Washington Legal Foundation shared their thoughts on Boumediene v. Bush and Al Odah v. United States — a pair of consolidated cases involving the habeas corpus petitions of Guantánamo Bay detainees.

The cases examine, first, whether the Military Commissions Act of 2006 can prevent the federal courts from hearing habeas corpus petitions filed by foreign citizens at Guantanamo. In a petition for habeas corpus, a prisoner demands to be brought before a court, so that a judge may determine the legality of the detention.

Yet the Military Commissions Act provides that “no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant” or who is awaiting such a determination.

“This really presents a separation of powers issue — can political branches take away from courts the right to review the legality of these detentions?” said Kadidal. “And does the constitution guarantee some role for an independent judiciary in reviewing these detentions?”

According to the Boumediene brief, the petitioners in that case, six Algerian natives, were arrested by Bosnian police a month after the attacks of September 11, 2001, for allegedly planning to bomb the U.S. embassy in Sarajevo. They were ultimately handed over to U.S. military personnel, although a Bosnian court had ordered their release in January 2002. Al-Odah was brought by citizens of Kuwait and Yemen who were also seized after 9/11 and taken to Guantánamo Bay.

The Court of Appeals of the District of Columbia Circuit, considering the two cases together in February 2007, concluded that the Military Commissions Act of 2006 acted to relieve federal courts of jurisdiction over the habeas corpus petitions and dismissed the cases. The petitioners sought review of that decision in the Supreme Court, alleging that the Suspension Clause of the U.S. Constitution acted to protect their claims.

In the Georgetown Law panel, Kadidal explored the historic right to habeas corpus that, he said, was preserved by the Suspension Clause and now extends to Guantánamo Bay detainees. (That clause states generally that “habeas corpus rights shall not be suspended.”)

But Samp, who argued the government’s case before the Georgetown Law panel, said that the detainees are not entitled to the same broad rights that are required for U.S. citizens. “I have looked throughout the legal authorities, going back centuries, and have not found a single case in a single country where there has ever been that kind of right that was recognized,” he said.

Kangaroo courts?

Also at issue in the case is whether a review proceeding set up under the Detainee Treatment Act of 2005 is an adequate substitute for habeas corpus. Although that statute allows the Court of Appeals for the D.C. Circuit to review the military’s determination that a person has been properly detained as an enemy combatant, the court’s review is limited to evidence in the government’s possession — and the court is given no express authority to order a prisoner’s release, as it may with a habeas corpus petition.

In the panel, Warren blasted the military’s Combatant Status Review Tribunal (CSRT) proceedings, in which a detainee’s status as an enemy combatant is determined. These proceedings, among other things, prevent detainees from seeing all the evidence against them and look at evidence obtained by torture, he said. “They are kangaroo courts,” he said. “I like kangaroos, I respect the courts, but you can’t put them together.”

But Samp defended the process, contending that the executive branch and Congress have tried to strike a fair balance.

“To the extent that there have been individual tribunals that were unfair, that is not something that is certainly apparent on the face of the rules that have been established,” he said, noting that if a CSRT case is unfair, it can be overturned by an appeal to the D.C. Circuit. “They certainly have the right to give their statements and in fact a number of people have been released as a result of these proceedings.”

Three Georgetown Law professors — Vladeck, James Oldham and Neal Katyal — are counsel of record for amici in the case, supporting the detainees. “No other law school has been as engaged in this litigation as Georgetown,” Vladeck said after the panel.

The panel also discussed the previous Guantánamo detainee cases before the Supreme Court, Rasul v. Bush (2004) and Hamdan v. Rumsfeld (2006). The event was sponsored by the Georgetown Law Supreme Court Institute and the Center for Constitutional Rights.

A Web cast is available at http://www.law.georgetown.edu/webcast/eventDetail.cfm?eventID=468.

 

December 14, 2007 (AWP)