politics, history and the war on terror
Friday, May 21, 2004
The Gordian Lawsuit 

On April 20 of this year, the United States Supreme Court heard arguments regarding the condition of several hundred men being held by the U.S. military in Guantanamo Bay, Cuba. According to CNN, the appeal asks a “basic legal question: Can non-U.S.-born prisoners picked up overseas and held outside U.S. borders use American courts to try to win their freedom?” To hear the plaintiffs, it sounds like the U.S. Government is trying to deny innocent people their rights. The CNN article, for instance, quotes a spectator, Justin Briggs, who said “It’s not acceptable to detain people without recourse. I think they should have at least a fair hearing to prove their innocence.” The advocates for the detainees have brought up everything they can think of to imply the detainees are being denied rights, from the Constitution, to the Geneva Convention, to the image of U.S. fair play in the world. However, examination of the facts reveals a much different reality. The detainees do not have any legal standing before the courts of the United States. The need to address the threat of terrorism is a real and direct threat, which must be effectively and realistically addressed. And the courts of the United States, even the Supreme Court, do not have oversight of military actions.

It must be understood, that the detainees are not US citizens. In a February 4 article examining the detainees’ condition, UPI noted that the detainees come from 38 countries, and those who so desired could and had communicated with their home governments via the Red Cross. None of the detainees is an American citizen. The UPI article notes that “there is a rough correlation between nations subjected to terrorism and the number of their citizens incarcerated in Guantanamo” , a tacit admission that the detainees are not innocent bystanders, but apprehended in the act or support of terrorist offenses.

The Constitution of the United States does not grant rights to non-citizens. Indeed, it is the province of each nation to solely provide for the rights and protections of its citizens. In 1950, the Supreme Court rejected the idea that non-citizens detained by the U.S. military outside the United States, could use the writ of habeas corpus to challenge their detention. The decision flatly stated, “Nothing in the text of the Constitution extends such a right, nor does anything in our statutes” (Johnson v. Eisentrager, (1950)). In 1942, eight German saboteurs were landed by submarine on US shores, but caught by the FBI soon afterwards. They protested their trial by a military commission, but the Supreme Court handed down a brief per curiam opinion denying habeas corpus, even though the consequence of that decision was the death sentence for all eight men (Ex parte Quirin, 317 US 1, 35 (1942)). Further, as unpopular as the relocation of US citizens of Japanese ancestry is regarded, it was upheld by the Supreme Court as constitutional (Korematsu v. United States (1944)). The decision which ended the confinement, Ex parte Endo (1944), was based not on the argument that the evacuations were unconstitutional, but that the original actions were justified by a necessity, which ceased to exist by 1944. If citizens could be confined by the necessities of wartime, then non-citizens captured in acts against the United States certainly do not enjoy protection from detention.

The U.S. Government has explained its policy for the detainees , transferred foreign nationals to their home government’s jurisdiction (noted here, here, here, and here), reviewed its own procedures, announced changes in detainees’ legal status (here and here), and granted some detainees their outright release . The government early on established the need to differentiate between individuals charged with a crime, and those whose actions are “combatant”; the petitioners failed to note the nature and threat of the detainees’ actions. The petitioners own brief acknowledges that many of the detainees were in the US in violation of INS rules (page 70a), but fails to acknowledge that this demonstrates the detainees so apprehended were not only non-citizens, but had no legal right to be in the US at all; they enjoy no legal standing whatsoever. In the initial ruling, the District Court concluded that the disclosure of information, beyond the names of the detainees and their counsel, “could be of use to terrorists and thus was not required under Exemption 7(A) of FOIA”. The Court of Appeals went further, ruling that Exemption 7(A) even justified nondisclosure of the names of the detainees and their counsel, because of possible interference with investigations like ones looking into the September 11 attacks. Further, both courts ruled that the First Amendment did not address a responsibility of the Government to provide this information publicly; the decisions both noted Richmond Newspapers, inc. v. Virginia, 448 U.S. 555 (1980), which affirmed that access is required only in judicial proceedings or transcripts of such proceedings, and thus “there is no constitutional basis” for the request. The petitioners, for all their arguments, never addressed that crucial flaw in their contention.

When the government began to plan its response to the September 11 attacks, one early discovery about Al Qaeda was how the group used US policy against itself. Lessons learned from the trials of the 1993 WTC Bombing conspirators included security to prevent the enemy from adjusting its tactics. Respondents in this case warned the court that “revealing the names [of the detainees] could yield the names of individuals associated with them, other investigative sources, and potential witnesses”, that “revealing the names could deter detainees from cooperating after their release and impair their ability to infiltrate into terrorist organizations”, and that revealing the names could “allow terrorist organizations and others to interfere with the pending proceedings by creating false or misleading evidence” (Respondent’s declaration, pp 111a-113a). The plaintiffs never effectively responded to these points, much less refute them.

Moreover, the type of enemy combatants detained at Guantanamo are not only men who were captured in the course of hostilities, who took pains to appear as ordinary people in order to get close to their targets, but who have been linked to major Al Qaeda attacks, who worked at Al Qaeda training camps, and people who continue to express their commitment to kill Americans if released .

The petitioners in the case are neither the detainees, nor their families, but activist parties, known to pursue political and partisan objectives. The respondent is not the White House or the Department of Defense or the State Department, who established the camp and their procedures, but the Justice Department, who has no Constitutional or statutory oversight over the Guantanamo base or the detainees. The petitioners are attempting to expand the court’s role beyond anything established by law or precedent.

While the detainees do not enjoy the rights of citizens, they are accorded review and protection through specific procedures. In each detainee’s case, the detainee is afforded the opportunity to appear before the review panel in person, to have all relevant information considered, and his condition, potential threat, and the balance of his actions considered, in similar fashion to many previous review panels, such as those convened for the detainees following World War 2 . When a foreign government wishes, it is allowed to present information on the detainee’s behalf, and as noted above, in several cases, detainees have been transferred to the custody of their native government.

In the arguments heard April 20, Chief Justice William Rehnquist noted that the detainees are not on American soil, and asked how a judge in Washington has authority to deal with a case from Cuba. Solicitor General Theodore Olson observed that the government routinely asserts control over non-U.S. territory, such as military bases. He further observed that 2 million persons were in U.S. custody on foreign soil at the end of World War 2, and military judges were deemed adequate to handle the disposition of their cases, even those involving indefinite incarceration, up to and including the death penalty. In comparison, the detainment of a few hundred men, captured in the commission of plots against Americans and the U.S. government, is not excessive.

The plaintiffs like to argue as if the detainees enjoy no protection at all, and the government may act as it likes without responsibility. But while the Geneva Convention itself does not address the position of those who choose to fight without their government’s sponsorship or in the organized organization of a regular army, “the procedural rules for the Guantanamo war crimes trials were debated for 18 months in the light of the Geneva principles”, and included the participation and advice of Lloyd Cutler, Bernard Meltzer, and William Webster. The rules are openly presented here by a Department of Defense military commission.

Oliver Wendell Holmes was perhaps the best defender of judicial restraint. And his quote from Burke’s Reflections on the revolution in France sums up the matter well: >“Laws are commanded to hold their tongues amongst arms”.

Posted by DJ Drummond @ 8:48 AM