The Washington Independent - U.S. news and politics - washingtonindependent.com: Stories by Aziz Huq

Padilla Case Finds a Justice System Failing to Adapt

Aziz Huq — Sun, 03 Feb 2008 01:30:36 GMT

Illustration by: Matt Mahurin

Six years after 9/11, the jury is still out on whether the American justice system is up to the challenge of dealing with terrorism.

The persistent debate about water-boarding -- which Atty. Gen. Michael B. Mukasey’s Senate testimony on Wednesday leaves no clearer -- and the continual problem that is Guantánamo both require far deeper examination. But even the modest examples of success claimed by both the civil-libertarian left and the security-first right reveal the fragility of the U.S. system.

One story both sides now cite as a success is the case of former enemy-combatant Jose Padilla, sentenced last week by a federal judge in Miami to 17 years on terrorism-related conspiracy charges. His conviction draws (almost) to a close a saga that began May 2002, when Padilla was seized at Chicago's O’Hare Airport. One month later, he was designated an “enemy combatant,” subject to indefinite detention without trial.

While government lawyers laud his conviction as the successful punishment of a terrorist; civil libertarians herald it as proof that the criminal justice system works to bring terrorists to justice. Neither side, however, should be popping champagne corks yet. Padilla’s is a journey that casts a worrying light on a justice system that works poorly to protect civil liberties and also fails to further anti-terrorist goals. It should be cold comfort to both sides.

Padilla's story, now relatively well known, needs only brief retelling. At the time of the arrest, Atty. Gen. John Ashcroft accused Padilla of planning a “dirty bomb” attack in the United States. He was held in military custody in South Carolina from June 2002 through January 2006. He was never given a hearing on whether Ashcroft’s claim -- or an evolving sequence of accusations -- held water.

As Padilla languished, his legal challenge to military detention ambled through the federal courts with the alacrity of a sea slug. In 2004, his first effort to secure Supreme Court review failed. Padilla, a five justice majority of the court ruled,, had sued in the “wrong” federal circuit court — so it ordered him back to "go" and don’t collect $200. This “technical” error, not apparent to most component lawyers and certainly not a necessary result, de facto sentenced Padilla to 18 more months of military custody while he filed the same papers in a different court.

Then, on the cusp of new Supreme Court review in late 2005, days before a government brief was due, Padilla was yanked from military custody. He was charged instead in an continuing criminal proceeding in Miami. The charges concerned a conspiracy to provide support to terrorism overseas -- unrelated to Ashcroft’s original allegations. As the conservative Judge Michael Luttig wrote in refusing the government’s request to void the (pro-government) judgment on Padilla’s military detention, it was not a little troubling that the government’s claim of military necessity to seize and detain indefinitely a citizen in the homeland could “yield to expediency with little or no cost.” Luttig warned that the impression of playing fast-and-loose with claims of necessity “may ultimately prove to be [at] substantial cost to the government's credibility before the courts.”

After last week’s sentence, the government can claim justice has been done. Meanwhile, civil libertarians can trumpet both the rule of law and the capacity of the federal courts to resolve complex terrorism cases.

Padilla’s story casts a pallid light on the system of national security adjudication in the United States, which looks singularly ill-adapted to deal with the challenges ahead.

But these are only slim facets of the a larger story. Padilla’s story casts a pallid light on the system of national security adjudication in the United States, which looks singularly ill-adapted to deal with the challenges ahead.

Consider the civil libertarian side of the ledger. It is not just that the government, by controlling the timing of Padilla’s criminal charges, secured a favorable judgment on the scope of its domestic detention authority—and then immunized this from Supreme Court review. It is also that Padilla’s story shows the judiciary's incapacity to address human rights violations. After all, more than three years after his seizure, Padilla’s challenge was still slogging through the federal courts. The incapacity is not a practical failing. Rather, it is the fruit of 30 years' assault on an "activist" judiciary that has created courts neutered of any ability to take on the government over divisive issues.

Delay here seems to have cashed out as practical discretion to abuse. Padilla has credibly alleged that during his detention he was denied medical care, threatened with death and subjected to sensory deprivation and temperature manipulation tactics that likely rank as torture. This did not happen on the night shift of an outlying foreign military base, but in a Southern naval brig. This means torture transpired yards from the Sabal palms, collard greens, and grits of coastal South Carolina. Yet there is little prospect that these accusations will ever be examined in open court. The U.S. government seems to have gotten away with the indefinite detention and torture of a U.S. citizen in the continental United States.

Nor is there much comfort on the national security side. Counting time off for time served and good behavior, Padilla can expect to serve about 13 years in ADX Florence, a maximum security facility near Colorado Springs, known as the “Alcatraz of the Rockies.” [] While no cakewalk, consider this: The mandatory minimum sentence for possession of five grams of crack cocaine is five years. Sentences for larger quantities escalate dramatically, spiraling well above Padilla’s term.

Even compared to other terrorism sentences, Padilla’s has an arbitrary flavor. Terrorism defendants who merely attended Pakistan training camps have received sentences almost twice as long. (Criminal offenses pertaining to terrorism generally carry high sentences imposed pursuant to minimal evidence of wrongdoing). Looking at the Justice Dept.’s track record, one gleans little confidence that charging strategies are much more than arbitrary. If Ashcroft’s allegations against Padilla are true, his sentence is grossly low, while lesser offenders continue to be slammed in cases with a political point-scoring stench.

The result is a justice system that has yet to deliver even one conviction of a person implicated in the 9/11 conspiracy or tethered to a major follow-up effort. That is, not one person has been brought to justice for 9/11.

True, many terrorists have alleged been interdicted (often by dubious means). But this is not the same as justice or the appearance of justice. It provides no accounting of what happened, what crimes were committed, or why "bin Ladenism" is wrong. It establishes no benchmarks for the other nations, no restoration of the damage wrought by 9/11 to our idea of an orderly world. Most critically, it fails to provide any sense of the U.S. commitment to an alternative to lawless violence. There have been nothing like the Nuremberg War Crimes tribunals after World War II, which restored the equilibrium of moral life by arguing that what the Axis powers had done was beyond the pale.

This is not about rhetoric. Poll after poll attests to the resonance that Osama bin Laden’s message continues to have for many peoples around the globe. By not seeking justice, the U.S. government cannot respond persuasively by showing its commitment to the rule of law, let alone narrating the wretched and psychopathic villainy of al Qaeda itself.

The Justice Department has already indicated its intent to appeal Padilla’s sentence to the relatively conservative Court of Appeals for the 11th Circuit.

Even with a friendly appellate panel, though, prosecutors face an uphill battle: Late last year, the Supreme Court made it harder to challenge criminal sentences on the basis of trial court error. So one of the conservative Supreme Court most important criminal procedure changes may result in immunizing Padilla’s sentence from challenge.

Whatever the facts of his case -- whatever he did or did not do, -- Padilla is not the satisfying symbol of justice triumphant that both sides of the current debate claim. Rather, he is a symbol of the unfinished business of national security reform more than six years after 9/11 -- business that should be weighing heavily as the possibility of a new president again opens the door to reform.

Aziz Huq directs the liberty and national security project at the Brennan Center for Justice at New York University School of Law. He is the co-author, with Fritz Schwartz, of "Unchecked and Unbalanced:Presidential Power in a Time of Terror." He has written for New York Law Journal, The Washington Post, The Huffington Post, The New Republic, The American Prospect and Democracy Journal.

Habeas Case Quietly Heads to Supreme Court

Aziz Huq — Mon, 11 Feb 2008 01:00:47 GMT

Illustration by: Matt Mahurin

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.

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.

Can Canada Sway SCOTUS?

Aziz Huq — Tue, 27 May 2008 21:47:46 GMT

At the end of June, the Supreme Court is due to issue a ruling on the challenge filed by Guantánamo detainees to their detention and the denial of habeas corpus. All the current presidential candidates, Sen. John McCain, Sen. Barack Obama and Sen. Hillary Rodham Clinton, have discussed their intention to close the offshore detention facility Guantanamo's continuing damage to America’s global reputation figures prominently in their calculations.

Last week brought new confirmation of that damage with a Canadian Supreme Court judgment in the case of Omar Khadr, a Canadian citizen detained at the Cuban base (pdf).

This decision raises intriguing questions. Coming just weeks before the U.S. Supreme Court is to rule, will it influence the high court’s decision? Should it?

The Canadian judgment is indeed relevant, though it does not speak directly to questions the U.S. court must address: the detainees’ access to habeas corpus review and the constitutionality of their detention. Nonetheless, the Canadian decision illuminates the policy and moral stakes of the coming US decision.

At first glance, the Canadian decision appears to be reasoned carelessly. On close examination, however, it proves a powerful commentary on Guantánamo. It provides a subtle and telling gloss on the U.S. decisions -- and the administration's responses to those decisions. By highlighting the human rights implications of earlier U.S. court decisions, the Canadian court has indicated how one might frame a response to the continuing international problems created by the base. Taking a lead from the Canadian court, the U.S. courts and the administration could well decide that sunlight, and a full factual accounting, is the best way to resolve the reputational deficit recognized by the presidential candidates.

Some brief background about the Canadian decision first.

Omar Khadr, the Canadian detainee, was seized in Afghanistan when only 15, and then moved to Guantánamo. Held at the Cuban base since 2002, Khadr, now 21, is one of the handful of detainees charged in the military commission proceedings.

Khadr’s case has provoked sharp international censure because of his youth at the time of capture. In the view of many countries, child soldiers should not be tried. The United States is an outlier when it comes to juvenile rights: It has the dubious honor of standing alone with Somalia in refusing to join the 192 countries that have ratified the International Covenant on the Rights of Child, which helps impose minimal standards of treatment for those under age 18. Trying child soldiers is widely regarded as incompaitble with the vision of children's rights crafted by the convention. Somalia at least has the plausible excuse of not having a government that can ratify.

In the Canadian case, the issue was not Khadr’s youth, which under international law should have precluded either detention or trial. In fact, Khadr filed suit not to stop his trial. Rather, he wanted evidence to help in that trial.

In 2003, Canadian intelligence, or CSIS, interviewed Khadr numerous times at Guantánamo. Yet the U.S. military denied him the material from those interviews. So Khadr sued under Canada’s Charter of Rights to obtain records of the CSIS interviews, which may contain exculpatory evidence.

Beyond its immediate use to Khadr, the suit framed the larger question of Canada's involvement in the Guantánamo detentions. The involvement of Canadian agents in U.S. counterterrorism operations that violate international law is already an issue due to the case of Mahar Arar, a Canadian citizen who had been "rendered" from the United States to Syria, where he was tortured. An official Canadian inquiry led to a government apology and compensation. The United States, by contrast, is fighting tooth and nail against Arar even having a day in court.

In Khadr's case, two conflicting principles of Canadian law seemed to apply.

First, Canada’s courts have said that its charter requires disclosure of government evidence whenever a person’s liberty is at stake—a broader version of what in the United States is called the Brady obligation.

While this principle seems to entitle Khadr to relief, a second case seemed to cut against him. In June last year, the Canadian Supreme Court held that a provision in its Charter of Rights limiting searches and seizures–the analog to the U.S. Fourth Amendment—does not generally extend overseas. The court held that respect for other countries’ law meant that Canadian law did not apply beyond national borders.

The Canadian Supreme Court resolved these two principles neatly by holding that the obligation to disclose did apply even when the Canadian government acted overseas--and that the right to disclose trumped respect for U.S. law.

The critical finding in the Canadian court's opinion was that the CSIS agents had failed to act “in conformity with the principles of fundamental justice” and “Canada’s international human rights obligations” when they cooperated with the U.S. military authorities running Guantánamo. “Deference to the foreign law ends,” the Canadian court signaled in 2007, “where clear violations of international law and fundamental human rights begin.”

The Canadian court could easily have based this key finding on human rights findings or media reports about Guantánamo, which document the damaging human rights consequences of the prolonged detentions. But it didn't. Instead, it used U.S. court opinions to make a point that the American courts have not yet made.

The Canadian court relied on opinions from the U.S. Supreme Court about Guantánamo--opinions that go out of their way not to make sweeping claims about “principles of fundamental justice” or “international human rights obligations” -- to characterize the “process in place at the time Canadian officials interviewed Mr. Khadr.” Using narrow U.S. opinions as a springboard, the Canadian court reached larger conclusions about the fundamental logic of Guantanamo.

Specifically, the Canadian court relied on two rulings from the U.S. Supreme Court in 2004 and 2006 that respectively held that the detainees could invoke the “habeas corpus” statute to challenge their detentions, and that the use of special military commissions to try detainees was impermissible.

But neither of these opinions reaches any conclusion about human rights or fundamental justice. On the contrary, both were narrowly drafted to avoid any broad-gauge judgment about U.S. detention policy. The U.S. court looked at the statutes and concluded that the detainees won as a matter of the statutes, and without regard to the Constitution or international human rights law.

Moreover, both rulings were, in effect, rolled back by the 2006 Military Commissions Act, or MCA, under which the new commissions are proceeding.

So was the Canadian court just being careless?

In fact, the Canadian court’s decision was both accurate and canny. It picked up on aspects of the U.S. decisions and then leveraged them in ways both relevant to Canadian law and salient to the moral and policy questions implicated by the coming U.S. decisions.

The Canadian court carefully read the U.S. decisions to pick out two salient legal facts. First, Khadr had been denied access to habeas corpus at the time he was interrogated, despite a statute that then made it available. Second, one reason why the U.S. Supreme Court invalided the military commission system in 2006 was its deviation from the Geneva Conventions, which, the court held, applied.

The Canadian court could invoke these conclusions because Khadr’s challenge concerned interrogations from 2003 — long before the military commissions statute was enacted.

Moreover, the Canadian court didn’t need to find that the U.S. court had found a violation of international human rights law. The Canadian court elegantly held that based on the legal situation as the U.S. Supreme Court found it, international human rights law and fundamental principles had been violated.

That conclusion takes on special resonance now with the coming Supreme Court decision. For Congress has tried to reverse both the 2004 and the 2006 judgments via the Military Commissions Act. Pending before the U.S. Supreme Court right now is the question whether the remedy of habeas corpus ought to be available.

The Canadian Supreme Court’s judgment signals what many fair-minded people around the world agree on: The detention without fair process at Guantánamo is regarded as a flagrant breach of “fundamental” rights because of the commingling of combatants and civilians and because of the brutality of their treatment . Quite literally, these detentions corrode the respect of peer countries— a respect usually embodied in deference to U.S. law — for the United States.

By picking up on the U.S. court’s own conclusions and then elaborating on their significance for the rest of the world, the Canadian court has left no doubt how U.S. allies would regard further denial of fair process at Guantánamo—including a fresh denial of habeas corpus right now. The Canadian court's ruling suggests that Washington will continue to lose support and cooperation from other democratic nations as long as it persists in the folly of Guantánamo. And its conclusion -- that a fair accounting of the facts is the optimal way forward -- should light the path for the U.S. Supreme Court.

Whether our own high court hears this message, or understands its significance for U.S. national security, will only be clear at the end of June.

Aziz Huq directs the liberty and national security project at the Brennan Center for Justice at New York University School of Law. He is the co-author, with Fritz Schwartz, of "Unchecked and Unbalanced:Presidential Power in a Time of Terror." He has written for New York Law Journal, The Washington Post and The Huffington Post.

Guantanamo Trial Unraveling

Aziz Huq — Mon, 02 Jun 2008 23:05:00 GMT

The war crimes trial of the alleged child soldier Omar Khadr at Guantánamo has new problems.

I wrote last week about the Canadian Supreme Court's astute judgment about the case. Now the U.S. proceedings themselves seem to be unraveling.

Last week, the chief judge for the military commissions announced that Army Col. Peter Brownback had been removed from the case. According to defense attorneys, Brownback had recently threatened to suspend the case against Khadr unless the prosecution ponied up exculpatory evidence. His dismissal deepens the impression that these military commissions are being run with an eye to political goals, and the November 2008 election -- which both have little to do with just process.

This offers further evidence why creating of a new procedural system for terrorism-related detentions is flawed. A new system will, by definition, lack a reservoir of experienced practitioners. Any new system has glitches. While established systems, like the federal courts and the military courts-martial system, for example, have had decades to identify glitches and figure out work-arounds, a new system lacks that depth.

A bigger problem is that the new system may be vulnerable to manipulation by those who drafted the rules or have the power to tinker with them.

This is not Khadr’s first military commission trial. He was first charged on Nov. 7, 2005, under President George W. Bush’s unilateral executive order creating commissions. Proceedings began in January 2006. On the first day, two issues emerged for which the executive-order-based military commission rules had no response: whether Khadr could reject the military lawyer assigned; and whether he could have the help of Canadian counsel -- Khadr is a Canadian citizen.

These commissions never had to respond. In 2006, the Supreme Court invalidated them.

But Congress quickly passed a new military commission scheme. Turning a bad idea without statutory authorization into a bad idea with a statutory footing, however, proved less than efficient. The new commissions have been equally troubled -- these recent developments being about par for the course.

In addition, the former prosecutor, Morris Davis, has made serious accusations that the commissions have a political bias. He has also talked about alleged military retaliation for his whistle-blowing. Two other military commission prosecutors have seconded Davis’s concerns about politicization.

Meanwhile, even simple questions about how detainees can and should be represented remain unsettled. These might have been anticipated, based on the problems in the first Khadr proceeding. But Congress, in its hurry to pass the Military Commissions Act in time for the 2006 election, failed to address them.

The result is a system of rules riddled with ambiguities and lacking an experienced core of professionals fully versed in them. At this stage, it might be hard to prevent any one – defendant or prosecutor — from gaming or abusing the system.

Yet politicization and the distortion of justice for partisan ends do not begin to get at the problems created by the commissions. For their rules seem to allow the admission of evidence gathered through certain kinds of torture. New examples of what is called "enhanced interrogation techniques" at Guantánamo continue to emerge.

Testimony from one former detainee suggests that electric torture and a form of simulated drowning apparently close to water-boarding have been used. Before, these tactics had only been linked to CIA-related black sites.

As long as the suspicion lingers that convictions are based on evidence obtained through such techniques, the commissions will remain implausible forums for justice.

The complex task of trying terrorism suspects requires a robust system. As a recent Human Rights First report shows the U.S. federal courts in fact provide a tried and tested solution.

Yet this lesson has not been learned. This week, the Senate Judiciary Committee will hear testimony on terrorism detention and the U.S. justice system. It is likely that at least one witness, or perhaps the minority members of the committee, will push for a new scheme of preventive detention or national security courts.

These innovations — aside from the shameful echo of the Japanese internment — are unnecessary and hazardous. The experience of the military commissions shows that trying to fashion a new solution from whole cloth can be a recipe for creating yet more problems.

Aziz Huq directs the liberty and national security project at the Brennan Center for Justice at New York University School of Law. He is the co-author, with Fritz Schwartz, of "Unchecked and Unbalanced:Presidential Power in a Time of Terror." He has written for New York Law Journal, The Washington Post and The Huffington Post.

Boumediene: Victory of Law

Aziz Huq — Fri, 13 Jun 2008 20:46:54 GMT

The Supreme Court’s decision in Boumediene v. Bush – available with supporting material here is a curious blend of exasperation at executive branch hypocrisy and judicial hesitation to push too hard at the bar of justice. The result is a certain victory for the rule of law -- but a new and unfortunate sort of uncertainty for the 270 detainees in the Cuban island prison.

Critically, the Boumediene decision leaves open many questions about how the Guantanamo detention facility can be wound down. But because the opinion imposes few practical constraints on the Bush administration’s ability to filibuster habeas cases, there is a risk that the White House and Dept, of Justice will continue to delay fair resolution of the detainees’ claims until after the November election, when it all becomes someone else’s problem.

Yet, at the threshold, the victory on Thursday for the rule of law should not be underplayed.

Since January 2002, the Justice Dept. and the White House have taken the position that courts have no power to review detention operations housed at Guantanamo.

Applied to battlefield captures in wartime, this claim may have seemed unremarkable. But the Guantanamo detentions broke new ground in two important ways. First, the administration declined to use battlefield screening hearings to sift actual combatants from innocent bystanders. In the diffuse and wide-ranging Afghan conflict, this inevitably led to erroneous detentions.

Second, Guantanamo was not limited to battlefield detentions. Some, like the petitioner Boumediene himself, were snatched from the peaceful streets of countries like Bosnia and Gambia, where there was no active war.

These two innovations meant that it was far from clear that all those at the base could be properly detained under international law. Compounding the illegality of detention at the base was the constellation of harsh interrogation practices and brutal treatment to which detainees have reportedly been routinely subjected.

All told, foolish mistakes and criminal brutality racked up to a heavy toll on the international reputation of the United States.

But the Supreme Court ruled in 2004 that the detainees did have a right, under federal statutes, to challenge their detention in habeas corpus. Then the administration went twice to limit the detainees’ right to invoke habeas corpus — protected in the original 1789 text of the U.S. Constitution — to challenge their detention. Thursday’s decision invalidates entirely the jurisdiction-stripping provision of the 2006 law, the Military Commissions Act, or MCA.

The core of the Thursday decision is twofold.

First, the court held that the Constitution guarantees the availability of habeas corpus to the Guantanamo detainees. As Justice David Souter noted in his concurrence, this outcome was clearly prefigured in the 2004 decision and ought to have come as no surprise to the administration. Only by deliberately blinking this clear signal could the administration and its allies continue to disregard the rule of law. And they should not be expressing any surprise at the court's decision.

Second, the court rejected the argument that Congress had created an adequate alternative to habeas review in what is known as the Detainee Treatment Act, or DTA. While the court enumerated several core differences, most critical was the fact that in habeas, prisoners have the right to make factual challenges -- whereas in the administration’s proposed outcome, factual challenges would be constrained.

Indeed, under the DTA, a detainee would only go to the court of Appeals, a tribunal with no power to make factual findings. In habeas, by contrast, the detainee will have a hearing in a district court, which routinely settles questions of fact through the examination of evidence.

This shift of forums is crucial, because it means the administration’s factual claims will be subjected to independent scrutiny. Since some of its claims are likely grounded on evidence gathered through coercion or torture, it seems likely they could founder.

Justice Anthony Kennedy’s majority opinion is remarkable for its note of genuine exasperation at the administration, which is evident throughout.

Describing the availability of habeas corpus, Kennedy cautions that it “must not be subject to manipulation by those whose power it is designed to restrain.” Rejecting the government’s arguments about military necessity, he finds “no credible arguments that the military mission at Guantanamo would be compromised” by habeas. And rejecting the notion that the court should let the DTA review procedures be played out, he rightly underscores the “exceptional” nature of the situation of Guantanamo, with its years-long detention.

The net result is a decisive reputation of the administration's assertions of lawless zones, of detentions based on facts conjured at the whim of an interrogator and of absolute executive discretion.

However, there is much that the court did not address—and its silences may end up being as important as what it did say.

First, the court did not take up the detainees’ invitation to define the bounds of the government’s detention power. Critically, though, the court did say this power rests on federal statutes -- rejecting, by implication, the administration’s fiercely argued contention that it has an inherent, and open-ended, constitutional power to detain people for national-security reasons.

This silence means that the district courts must now grapple in individual cases with thorny questions of the bounds of detention power. Each district court determination will be subject to appeal, first to the D.C. Circuit Court of Appeals. And second to the Supreme Court. It’s not hard to see that this is unlikely to be a brief process.

Second, as Chief Justice Roberts noted in his dissenting opinion, the habeas process on remand is “unsettled.” This means there will be plenty of opportunities for government lawyers to filibuster on threshold questions. While the court indicated its impatience with the long detentions, it did not signal clearly that additional delaying tactics ought not to be tolerated.

The result is that while the principle of legality—the idea that the law always applies—is affirmed, its exercise may be delayed. While we can celebrate the rejection of the extreme positions that the administration has cultivated since January 2002, the risk remains that this promise will remain abstract for too many of the detainees.

But principle can and should become facts on the ground. The Washington district courts have already indicated their intent to move forward, and have convened a conference of the lawyers. These courts should recognize the Supreme Court’s intolerance of executive hypocrisy and shilly-shallying. They should move swiftly to vindicate in practice the rights and ideals that the Supreme Court affirmed in its Thursday ruling -- deciding they could not be withdrawn under the rule of law.