Guantánamo: judges deliver two more body blows to an embattled administration

On Friday, in two separate decisions, judges in the United States delivered stinging rebukes to the administration regarding its policies of holding around 300 prisoners in Guantánamo without charge or trial, and its plans to try around 80 other prisoners before Military Commissions, the widely-reviled trial system for terror suspects, which permit the use of secret evidence obtained through bribery, coercion and torture.

In a brief order released on Friday morning, the Supreme Court agreed to hear claims by two Guantánamo prisoners –- the Kuwaiti Fawzi al-Odah and the Bosnian Lakhdar Boumediene –- that they had a right to challenge their detention in American courts. It follows a previous Supreme Court ruling that the prisoners had the right to challenge their detention –- in June 2004 –- which was swept away in October 2006, when a barely sentient Congress passed the draconian Military Commissions Act, removing the prisoners’ right to file habeas petitions challenging the basis of their detention, and also reinstating the system of trial by Military Commission that was dismissed by the Supreme Court in June 2006 as illegal under US law and the Geneva Conventions.

Friday’s decision, by five of the nine Justices, reversed a decision made in response to an appeal by the prisoners in April. On that occasion, the Supreme Court turned down their request to be heard, although they failed to rule out further intervention: Justices John Paul Stevens and Anthony M. Kennedy pointed to the “obvious importance” of the cases, but said it would be premature to intervene, while three other members of the court –- Justices Stephen G. Breyer, Ruth Bader Ginsburg, and David H. Souter –- said that they wanted to act immediately.

The move is so unusual that court observers have struggled to recall the last occasion that the Supreme Court reversed an opinion, taking on a case that had previously been denied a hearing, and have concluded that it was 60 years ago. Although the Justices offered no explanation, lawyers for the prisoners have suggested that they may have been swayed by the affidavit submitted with one of the cases last week by Lt. Col. Stephen Abraham, an army intelligence officer with 26 years’ experience, and the first ex-member of the tribunals to criticize the process in public, who testified that the gathering of materials for use in the tribunals was severely flawed, and that the whole system was geared towards rubber-stamping the detainees’ prior designation as “enemy combatants.”

The Supreme Court will not begin hearing the cases until autumn, but in the meantime, although the vote tally for the decision was not released, legal observers have been scrutinizing the Justices’ profiles, speculating that the opinion of Justice Anthony M. Kennedy was pivotal. Lawyers cited by the New York Times said it was “not possible to predict how he might eventually vote in what could be a divisive issue on the court,” but it’s noticeable that, in June 2006, he was unremittingly harsh in his verdict on the illegality of the Military Commissions, warning the administration that “violations of Common Article 3 [of the Geneva Conventions, which forbids ‘cruel treatment and torture’ and ‘outrages upon personal dignity, in particular humiliating and degrading treatment’] are considered ‘war crimes,’ punishable as federal offences, when committed by or against United States nationals and military personnel.”

On Friday afternoon, a second blow to the administration was delivered by Army Colonel Peter Brownback, the military judge presiding over the Military Commission of Omar Khadr, a Canadian who was just 15 years old when he was captured in Afghanistan in July 2002. Brownback –- and his colleague, Navy Captain Keith Allred, who was presiding over the Military Commission of Salim Hamdan, a Yemeni accused of being one of Osama bin Laden’s drivers –- surprised everyone four weeks ago by ruling that the Commissions could not proceed because, under the terms of the Military Commissions Act, those facing trial had to have been designated “unlawful enemy combatants” in the tribunals that qualified them for trial by Military Commission, whereas Khadr and Hamdan –- and, in fact, every other prisoner in Guantánamo –- had only been deemed to be “enemy combatants.”

Delivering a second opinion, in response to a renewed legal argument by the Pentagon, Col. Brownback refused to back down, ruling that the government had not resolved a lack of jurisdiction in Khadr’s case. Capt. Allred has yet to deliver a second opinion in Hamdan’s case, but in the meantime Navy Cmdr. Jeffrey Gordon, a spokesman for the Pentagon, declared that the administration was preparing to file a challenge to the Court of Military Commissions Review, an appeals court that was hastily set up after the Commissions were derailed on 4 June, and added, tellingly, “We’re disappointed with the judge’s decision in this matter.”

On the same day that these momentous decisions took place, 145 members of the House of Representatives –- 144 Democrats, led by James Moran of Virginia, and a lone Republican, Walter Jones of North Carolina –- sent a letter to President Bush urging him to close Guantánamo and move the prisoners to military prisons on the US mainland. “The closure of the detention facilities at Guantánamo Bay would represent a positive first step toward restoring our international reputation as the leader of democracy and individual rights,” the Representatives stated in their letter, in which, like the lawyers for Fawzi al-Odah and Lakhdar Boumediene, they also called for the restoration of the prisoners’ habeas rights, explaining, “This will allow for the implementation of fair and transparent trials to bring enemies of our country to justice.” Quite how swiftly the administration will respond, however, is another matter. Wheeled out to provide a stop-gap reply, White House spokeswoman Emily Lawrimore said that the letter had been received and pointed out that the President had already declared that he wanted to close Guantánamo, adding, “A number of steps need to take place before that can happen, and we’re continuing to work on those.” Despite the escalating criticism, I wonder whether, privately, the obstinate cabal led by the President and Vice President Cheney has decided that one of those steps is the requirement that hell will first have to freeze over.

For more on Guantánamo and the Military Commissions, 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.