Gee, opening a can of worms brings out worms.
In mid-June, a group of U.S. soldiers entered the cells of Abdullah al-Hajji and Lofti Lagha at Guantanamo Bay, Cuba, where they had been held without charge for five years. The Americans cuffed the detainees’ hands, shackled their ankles, muffed their ears and blindfolded them before loading them onto a military plane for the flight home.
For most of the 360 detainees still at the U.S. military prison, that would have been a joyous journey. But Hajji and Lagha are from Tunisia, a country that State Department reports say uses sleep deprivation, electric shocks, waterboarding, cigarette burns, beatings and prolonged suspension by the wrists to extract confessions and stifle opposition.
Eight weeks later, the two men are being held in a Tunisian prison, telling visitors that things are so bad they would rather be back at Guantanamo Bay.
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…the Bush administration has claimed that it can negotiate away the risk of torture by getting promises of humane treatment from the receiving country. The Tunisian government gave such assurances before Hajji and Lagha were transferred. And State Department officials are reportedly in the final stage of negotiating such deals with Algeria. But what protection can “diplomatic assurances” provide from countries that have done little to clean up their acts after years of U.S. protests?
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I asked Robert F. Godec, the U.S. ambassador to Tunisia, what the Bush administration is doing to track the two men’s cases. He said that he had “specific and credible” assurances from the Tunisian government that they would not be abused, adding that “we follow up on these assurances.” But he would not say whether the treatment of Hajji and Lagha had lived up to Tunisia’s pledges; nor would he say whether any U.S. official had met with the two since their return home. This is disturbing: All we have are promises from a notoriously abusive regime, yet U.S. officials will not even say whether they are following up on those assurances by talking to the detainees themselves. Article
Last bastion of liberty.
…Now, as the parties prepare for their next Supreme Court confrontation later this fall, the arguments have come full circle to where they began: over the role of the federal courts.
The Military Commissions Act of 2006, which Congress passed in its final weeks under Republican control in order to negate the Supreme Court’s most recent ruling on behalf of a Guantánamo detainee, stripped all courts of jurisdiction “to hear or consider” challenges to any alien detainee’s continued detention. In a surprising about-face the day after it concluded its term in June, the Supreme Court accepted renewed appeals on behalf of two groups of detainees and agreed to decide whether the measure is constitutional.
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Further, the new case, Boumediene v. Bush, No. 06-1195, presents only one of the numerous legal issues raised by the administration’s approach. A challenge to the military commissions, before which detainees who have been formally charged with crimes are due to be placed on trial, is proceeding on a separate track and is not at issue in this case.
Nonetheless, it is clear from the briefs filed so far that this case, for the coming months at least, provides the lens through which the interested world will view Guantánamo Bay.
A brief filed by 383 European parliamentarians tells the justices that the case “boils down to the simple, but crucial, question of whether the system of legal norms that purports to restrain the conduct of states vis-à-vis individuals within their power will survive the terrorist threat.” A brief filed on behalf of bar associations in the 53 countries of the British Commonwealth asserts that if Guantánamo Bay were under British rather than American control, there is no doubt that “it would be the English courts and not the executive which would be responsible for determining any issue relating to any ‘enemy’ status alleged against the detained persons.” That view of the ancient writ of habeas corpus had gelled in the English legal system by the mid-18th century.
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…The administration chose the Navy’s base in Cuba in the first place because it assumed that the federal courts would not view their jurisdiction as extending to a foreign country.
But the Supreme Court ruled otherwise in Rasul v. Bush in 2004, finding that the terms of the lease on the naval base gave the United States a degree of control that made the property the functional equivalent of United States territory and thus gave federal courts the jurisdiction to rule on habeas corpus petitions filed by those detained there.
The Rasul decision, a major setback for the administration, has led by incremental steps, three years later, back to the Supreme Court’s door.…
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In July 2004, nine days after the Rasul decision, the Pentagon set up a procedure, known as a combatant status review tribunal, for determining whether a detainee had been properly classified as an enemy combatant. Detainees, who are not represented by lawyers before these tribunals, may file an appeal of the determination at the federal appeals court here. The administration has argued in earlier phases of the case that this process is an adequate substitute.
The recently filed briefs argue strenuously that the tribunals and their review process fall far short by, among other shortcomings, failing to give detainees access to the evidence needed to rebut the government’s charges. A brief filed by retired senior military officers calls the process “little more than a facade” that violates basic principles of military law. Article
