The U.S. Supreme Court is due Wednesday to hear arguments on the rights of detainees at Guantanamo Bay, Cuba, marking the third time it has taken up the matter.
In each of the previous cases, the Bush administration lost. But in those cases, President Bush acted unilaterally, without Congress.
Since then, though, Congress has passed laws allowing the president to do pretty much what he'd been doing all along.
The Guantanamo prisoners challenging their detention come from all over the world. Most were arrested in Afghanistan. The lead group was not. They are Bosnian citizens arrested in Bosnia shortly after Sept. 11, 2001, after U.S. officials said the men were involved in a plot to blow up the U.S. Embassy.
Bosnian authorities then joined with Interpol and the U.S. to conduct a three-month investigation, at the end of which the Bosnian Supreme Court — with the concurrence of the Bosnian prosecutor — ruled that the charge was not supported by the evidence. The court ordered the men released, but they were quickly rearrested and taken to Guantanamo where they have remained for six years, despite repeated statements from the Bosnian government that it is willing to take them back.
The detainees claim that they have the right to challenge their imprisonment in the U.S. courts, using the constitutionally guaranteed procedure called a writ of habeas corpus. Historically, the writ has been an important mechanism in safeguarding individuals from arbitrary imprisonment by the state. It guarantees the prisoner a chance to rebut charges against him in front of a neutral judge. But Guantanamo detainees contend no neutral judge is at Guantanamo, and no chance to know and rebut the evidence against them.
The Bush administration counters that detainees have no Constitutional rights because they are not being held in the United States and that even if they do have some basic rights, the congressionally approved system of hearings for each prisoner at Guantanamo, plus review by a court of appeals here in Washington, is sufficient.
"It is literally unprecedented in the history of the world that an alien enemy fighter gets habeas corpus rights when they've been captured and held abroad," said Brad Berenson, a former associate White House counsel in the Bush administration.
But lawyers for the detainees say that their clients are not enemy fighters, that in fact they were erroneously scooped up, whether in Bosnia or Afghanistan, where many were turned over by warlords for bounty.
"All we want is a process to determine whether they're terrorists or not. If they're terrorists, or enemy fighters, hold them," said Tom Wilner, a lawyer for the detainees.
But, Wilner adds, the process for evaluating the detainees was rushed into existence in 2004, nine days after a Supreme Court ruling, and, he says, the combat status review tribunals (CSRTs) are a sham with the deck stacked from the get-go.
That view is backed by a variety of lawyers, including top-ranking retired military officers who have filed briefs in this case. They contend that the officers on the tribunals are not neutral as a military judge would be; that instead they are routinely pressured by higher-ups to ratify the detentions, and that the detainees have no realistic chance to prove their innocence since they are denied access to most of the evidence against them.
"I've been down to Guantanamo 12 times. I've seen this evidence. This evidence is the flimsiest stuff you have ever seen. It's a joke," Wilner said.
With less colorful language, that is the same thing that two officers have now said in affidavits.
One, Lt. Col. Stephen Abraham, was for six months in charge of seeing to it that exculpatory evidence was transmitted to the tribunals from intelligence and defense agencies. He says in his affidavit that the evidence seen by the tribunals was incomplete, dated and inaccurate, and that the officers serving on the panels were not able to question or test it.
"It's not that truth was never a goal. But it was the first victim," Abraham said.
Abraham, an experienced intelligence officer, says that most detainees have names that are extremely common in their part of the world. And, that the U.S. has little or no knowledge as to whether to use a typical name. For example, do we have the right Mohammad Assam in custody?
"The odds are nil that they will have information about him. They may have lots of material on the other 57 Mohammad Assams from his region and the other 3,000 worldwide. So what you're going to get is every single report dealing with Mohhman Assam, Achmed Assam, Muhammad Asahma," said Abraham. "You get literally a dozen name variants. God help the person who had the same name as a famous person because all that information would be ascribed to him and presumed to be valid."
The lawyers representing the detainees all have stories to tell.
In the case of the Bosnians, the Supreme Court brief recounts a CSRT hearing where a detainee is charged with associating with an unnamed al-Qaida operative. The transcript of the hearing shows the detainee asking who he was supposed to have associated with. But the tribunal chairman says he can't tell him because the name is classified.
After much back and forth the frustrated detainee says, "Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe he was on my team. If you tell me the name, then I can respond and defend myself. Otherwise," he says, "all I can tell you is that I am not al-Qaida."
Another of the Bosnians sought to defend himself by asking the tribunal to look at the decision of the Bosnian Supreme Court ordering his release. But the CSRT panel concluded the decision was "not readily accessible," even though it had been filed in federal court and given to the government.
Abraham said that even when a detainee does manage to win at a hearing, the tribunal is ordered to conduct a new hearing — as many as three or four times — until the detainee loses.
David Rivkin, who served in the administration of President George Herbert Walker Bush, said that if you nudge the system to provide a higher level of scrutiny "we wouldn't be able to hold most of these people; not because they're innocent, not because they're the wrong Abduls, but because in war you rarely have this kind of information."
Moreover, he notes, if something is really wrong at a CSRT hearing, the detainee can appeal to the Washington, D.C., Court of Appeals under the new law passed by Congress.
"They do have meaningful opportunity for judicial review, and that frankly is more than any prisoner of war or any unlawful combatant ever had in any war in human history," Rivkin said.
The lawyers for the detainees counter that the new law only gives the detainee a severely restricted appeal.
What's more, says Cornell University law professor Trevor Morrison, the law does not provide a key element of habeas corpus.
"The main flaw is that the D.C. Circuit does not have the authority to do the thing that habeas courts would do in this circumstance, and that is to order the detainee's release," Morrison said.
All of these details are important because the Constitution does allow the suspension of habeas corpus rights, but only in times of invasion or rebellion — something that the detainees' lawyers say has not happened here. Indeed, even when suspension is legitimate, the Supreme Court has required an alternative mechanism that is adequate and effective.
Former Bush administration lawyer Brad Berenson says that the new law does provide a sufficient alternative to habeas corpus.
"The executive and the legislative branches have come together, have arrived at some sensible policy choices and compromises that provide a reasonable regime for governing these relationships going forward, and it's time for the court to step aside and let the process and the system work for a while."
The lawyers for the detainees contend that the process at Guantanamo may look good on paper, but in reality it is a Kafkaesque farce.
"What the government says is wrong. It's not true. It's a lie," Wilner said.
What's more, he says, Guantanamo is no different than Iowa. The U.S. has leased the land from Cuba in perpetuity, U.S. law applies there totally, and so the prisoners there cannot be exempt from the Constitution as the government claims.
But what about prisoners in other areas controlled by the United States — at Bagram Air Base in Afghanistan, for instance. If Guantanamo prisoners have a right to habeas corpus, would prisoners at Bagram too?
That is one of the many thorny questions facing the Supreme Court.