Anyone dropping in on the US Senate from outer space would be confused to discover that, on Wednesday, an amendment to the Defense Authorization Bill, aimed at restoring habeas corpus rights to the detainees in Guantánamo –- rights which were granted by the Supreme Court in 2004, but which were taken away last fall in the scandalously under-scrutinized Military Commissions Act –- failed to be passed, even though a majority of senators (56 to 43) voted in favor of it.
Under the arcane rules of US Congress, two-thirds of the senators (60 in total), rather than a simple majority, were required to approve the amendment, which existed, it transpired, not in the world of common sense, but in the parallel universe of “filibusters” and “cloture” (see here for some sort of explanation). Most news outlets reported these facts without embellishment. As the New York Times described it, “Senators voted 56 to 43 to cut off debate on the proposal, 4 votes short of the 60 needed to overcome a filibuster.” The Times added, “The result put an end for now to the legislative effort to reverse a provision in a 2006 anti-terror law,” but also noted that “the matter is also before the Supreme Court.”
The clearest demonstration of well-articulated shock at the Senate’s inability to find a sufficient majority to return the most basic rights to the Guantánamo detainees came in the Nation, where Ari Melber fulminated that the Senate had failed to restore “the fundamental constitutional right of individuals to challenge government detention.” On a slightly more upbeat note, Melber also noted that the vote “suggest[ed] a new Senate majority for Habeas Corpus,” pointing out that, “Last Congress, a similar amendment did not even break 50 votes,” but adding that it was “a sad sign that we are reduced to counting votes for which members of Congress are upholding their oath to support the Constitution.”
Elsewhere, in comments that lacerated the Republican opposition for their indifference to the importance of habeas corpus, several of the senators who had backed the amendment spoke eloquently about the significance of the missed opportunity. “Habeas corpus was conceived to prevent someone from being locked up illegally, with no chance to contest his/her imprisonment. It is not a get out of jail free card. And it will not result in the release of dangerous terrorists,” Sen. Joseph Biden (D-DE) explained. “As I’ve said before, the terrorists win when we abandon our civil liberties. The way we win is to show them that we can fight this war without changing our character as a nation. I hope the Senate reconsiders this issue once again. The position urged by the Administration, that we must choose between Constitutional rights and fighting terrorism effectively, is simply wrong. Our strength as a nation, and our status as a world leader, is based in part on the fact that Americans do not choose between national security and liberty; we demand both.”
Criticism also came from Sen. Chris Dodd (D-CT), who said, “Each of us in the Senate faced a decision either to cast a vote in favor of helping to restore America’s reputation in the world, or to help dig deeper the hole of utter disrespect for the rule of law that the Bush Administration has created. Unfortunately, too many of my colleagues chose the latter.”
Senators Arlen Specter (left) and Patrick Leahy.
The amendment’s co-sponsors, Sen. Patrick Leahy (D-VT) and rogue Republican Sen. Arlen Specter (R-PA), also spoke out. Leahy said, ”We will continue to work for what is right and what is just. Like the internment of Japanese Americans during World War II, the elimination of habeas rights was an action driven by fear, and it was a stain on America’s reputation in the world … We have brought this to the Senate Floor not because it is politically easy or popular, but because it is the right thing to do. This is an issue that lends itself to politically provocative distortions. Constitutional principles need our defense not so much when it is popular to do so, as when it may not be popular or easy to do.”
Sen. Specter added that they might push for a similar bill in the future, explaining, “The truth is that casting aside the time-honored protection of habeas corpus makes us more vulnerable as a nation because it leads us away from our core American values and calls into question our historic role as the defender of human rights around the world.” Specter also made a significant speech to the Senate the day before the vote, which I reproduce in full, as it efficiently runs through the long history of the Guantánamo detainees’ attempts to be granted habeas corpus rights, and demonstrates clearly why, yet again, dozens of senators should be ashamed of the votes they cast on Wednesday.
Senator Specter’s speech
“Mr. President, I have sought recognition to comment on the amendment to restore the constitutional right of habeas corpus –- an amendment that is pending before the Senate and will be voted on tomorrow morning at 10:30 on a motion to invoke cloture.
The issue of the availability of habeas corpus for the detainees at Guantánamo is a matter of enormous importance. It is a matter of a fundamental constitutional right that people should not be held in detention unless there is an evidentiary reason to do so, or at least some showing that the person ought to be in detention. It is a constitutional right that has existed since the Magna Carta in 1215, and it has been upheld in a series of cases in the Supreme Court of the United States.
In the decision of Hamdi v. Rumsfeld, Justice O’Connor, speaking for a plurality, said that they ‘all agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States.’ What Justice O’Connor was referring to was the express constitutional provision in Article I, Section 9, Clause 2, that habeas corpus may not be suspended except in time of invasion or rebellion. Obviously, if there cannot be a suspension of the writ of habeas corpus, there is a provision in that clause recognizing the existence of the constitutional right of habeas corpus. You cannot suspend a right that doesn’t exist.
As amplified by Justice Stevens, in the case of Rasul v. Bush, the statutory right to habeas corpus applies to those held at the United States Naval Base at Guantánamo Bay, Cuba. Although Guantánamo Bay is not within the territory of the United States, it is under the complete jurisdiction and control of the United States.
In that case, Justice Stevens noted that ‘application of the [writ of] habeas corpus to persons detained at the base is consistent with the historical reach of the writ of habeas corpus. At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm, as well as the claims of persons detained in the so-called “exempt jurisdiction,” where ordinary writs did not run, and all other dominions under the sovereign’s control.’ That is obviously a conclusive statement of the Supreme Court that in Guantánamo, under the control of the United States, the writ of habeas corpus would apply in accordance with the historic reach of habeas corpus under the common law. Although Justice Stevens wrote as to statutory habeas, his historic analysis implicates the right to habeas under the common law and the Constitution.
Justice Stevens went on to point out: Habeas corpus is, however [citing from Williams v. Kaiser] ‘a writ antecedent to statute, … throwing its root deep into the genius of our common law.’ And continuing, he said that the writ had ‘received explicit recognition in the Constitution, which forbids suspension of “[t]he Privilege of the Writ of Habeas Corpus … unless when in Cases of Rebellion or Invasion the public Safety may require it.”’ Obviously, the exceptions –- Rebellion or Invasion –- do not apply in the Guantánamo situation. Justice Stevens went on to say: [A]t its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest. Justice Stevens then went on to note this –- referring to the opinion of Justice Jackson, concurring in the result in the case of Brown v. Allen: The historic purpose of the writ has been to relieve detention by executive authorities without judicial trial. And he goes on to say: Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint. Going on, Justice Stevens pointed out: Consistent with the historic purpose of the writ, this Court has recognized the federal court’s power to review applications for habeas corpus in a wide variety of cases involving Executive detention, in wartime as well as in times of peace.
In a very curious decision, in Boumediene v. Bush, the Court of Appeals for the District of Columbia ignored the historic common law analysis of the Rasul case in concluding that the Supreme Court’s decision was based solely upon the statutory provision for habeas corpus. The Boumediene court reasoned that Rasul could be changed by an act of Congress, the Military Commissions Act, which was passed in 2006. In that case, instead of looking to Rasul, as noted in the New York Times article by Adam Liptak on March 5 of this year, the Boumediene court looked to case law decided before Rasul. Liptak points out: Instead of looking to Rasul, which was recent and concerned Guantánamo, the appeals court, reverting to the Court of Appeals for the District of Columbia, justified its decision by citing a 1950 Supreme Court decision, Johnson v. Eisentrager. That case involved German citizens convicted of war crimes in China and held at a prison in Germany. The court ruled that they had no right to habeas corpus.
Liptak points out the inapplicability of the Eisentrager case, stating: The Court’s reliance on Eisentrager was curious. Both Antonin Scalia, dissenting in Rasul, and John Yoo, an architect of the Bush administration’s post-9/11 legal strategy, have written that they understood Rasul to have overruled Eisentrager. The Boumediene decision seemed to ignore the finding in Rasul that the Naval Base at Guantánamo Bay fell within the jurisdiction and control of the United States. If detainees at Guantánamo Bay fall within United States jurisdiction, as Rasul found, the aliens held at Guantánamo have a greater claim to habeas corpus rights. For example, Courts have held that aliens within the United States cannot be denied habeas corpus without violating the Suspension Clause.
Following its discussion of Rasul and Eisentrager, the Boumediene decision relied upon the proceedings in the Combatant Status Review Tribunals which, realistically viewed, are totally insufficient. The procedures of the Combatant Status Review Tribunals were taken up by the US District Court for the District of Columbia in a case captioned: In re Guantánamo Detainees Cases, 355 F.Supp.2d 443 (2005). Beginning on page 468 of the opinion, the district court noted a proceeding in the Combatant Status Review Tribunal where an individual was accused of associating with al-Qaeda personnel. The court noted: ‘[T]he Recorder of the [Combatant Status Review Tribunal] asserted, “While living in Bosnia, the Detainee associated with a known al-Qaeda operative.” The detainee then said: “Give me his name.” The Tribunal President said: “I do not know.” The detainee then said: “How can I respond to this?” The detainee went on to say: “I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person, but not if this person is a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team. But I do not know if this person is Bosnian, Indian or whatever. If you tell me the name, then I can respond and defend myself against this accusation.”’
Later in the court’s opinion, the detainee is quoted to the following effect: ‘That is it, but I was hoping you had evidence that you can give me. If I was in your place –- and I apologize in advance for these words –- but if a supervisor came to me and showed me accusations like these, I would take these accusations and I would hit him in the face with them.’ And at that, everyone in the tribunal room burst into laughter. This is illustrative of what goes on in the Combatant Status Review Tribunals. They charge someone with being an associate of al-Qaeda, but they cannot even give the person a name.
There was a very informative declaration filed by Stephen Abraham about what goes on in a Combatant Status Review Tribunal. I ask unanimous consent to have printed in the Record at the conclusion of my remarks this declaration. Colonel Abraham identified himself as a lieutenant colonel in the US Army Reserves who served as a member of a Combatant Status Review Tribunal and had an opportunity to observe and participate in the CSRT process. Among other things, Colonel Abraham points out: On one occasion, I was assigned to a CSRT panel with two other officers … We reviewed evidence presented to us regarding the recommended status of a detainee. All of us found the information presented to lack substance. What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence. Statements allegedly made by percipient witnesses lacked detail. Reports presented generalized statements in indirect and passive forms without stating any source of the information or providing a basis for establishing the reliability or the credibility of the source. Statements of interrogators presented to the panel offered inferences from which we were expected to draw conclusions favoring a finding of ‘enemy combatant’ but that, upon even limited questioning from the panel, yielded the response from the Recorder, ‘We’ll have to get back to you.’ The personal representative did not participate in any meaningful way. On the basis of the paucity and weakness of the information provided both during and after the CSRT hearing, we determined that there was no factual basis for concluding that the individual should be classified as an enemy combatant.
The details of Colonel Abraham’s statement are very much in line with the opinion of the US District Court for the District of Columbia in the matter captioned: In re Guantánamo Detainee Cases. They had charges but presented absolutely no information. Consequently, there can be no contention that Combatant Status Review Tribunals are an adequate and effective alternative approach to Federal court habeas corpus. There must be a type of review which presents a fair opportunity for determination as to whether there was any basis to hold a detainee. For such a purpose, Combatant Status Review Tribunals are totally inadequate.
It is for that reason that I urge my colleagues to legislate in the pending Department of Defense authorization bill to reinstate the statutory right of habeas corpus. It is my judgment that the Supreme Court of the United States will act on the case now pending there to uphold the constitutional right, disagreeing with the decision of the Court of Appeals for the District of Columbia in Boumediene v. Bush.
Initially, the US Supreme Court had denied to take certiorari in the case, and it was curious because Justice Stevens did not vote for cert. where three other Justices had. But then after the declaration by Colonel Abraham was filed on a petition for rehearing, which required five affirmative votes by Supreme Court Justices, the petition for rehearing was granted, and the Supreme Court of the United States now has that case.
I have filed a brief as amicus curiae in the case, urging the Supreme Court to overrule the District of Columbia case and to uphold the decision in Rasul v. Bush, which holds that there is a statutory right to habeas corpus and that is rooted in historic common law that predates the Constitution, tracing its roots to the Magna Carta with John at Runnymede in 1215. But pending any action by the Supreme Court of the United States, which is not by any means certain, notwithstanding my own view that the Supreme Court will reaffirm Rasul and reverse the Court of Appeals for the District of Columbia’s ruling in Boumediene, the Congress should now alter the statutory provision in 2006 and make it clear that the statutory right to habeas corpus applies to Guantánamo because of the total inadequacy of the fairness of the procedures under the Combatant Status Review Tribunal.”
Note: For more on the legal history of the Guantánamo detainees, see my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed.
For more on Lt. Col. Stephen Abraham, see here.
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Writer, campaigner, investigative journalist and commentator. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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