Due process at Guantánamo

There was an important development on Tuesday at Guantánamo. A ruling by the judge in Salim Hamdan’s military commission appears to require entirely new hearings for any prisoners who claim to be POWs. Hamdan had appealed for a POW status hearing under Article 5 of the Third Geneva Convention. The ruling by Navy Captain Keith Allred went strongly in his favor.

Allred rejects the Congressional view that Combatant Status Review Tribunals had been adequate to determine POW status. That view was asserted forcefully by Sen. Lindsay Graham in 2006 during hearings for the Military Commissions Act. Allred, however, concludes that CSRTs concerned themselves with whether the prisoners were “enemy combatants” and therefore weren’t competent to determine whether the men were prisoners of war.

The military commissions are defective by design and should not be permitted to stand in for civil trials, but at least one prisoner has been assigned a judge who is willing to face up to the plain flaws in the legal “system” that the Bush administration slapped together.

The decision reaffirms that the Geneva Conventions apply to the men at Guantánamo. Article 5 of the Third Geneva Convention states that if there is any doubt whether someone held by a government is a prisoner of war, they should be presumed to be a prisoner of war, and therefore entitled to the protections the Conventions provide for prisoners of war, until their status is determined by a “competent tribunal.” The decision then goes on to state that the Combatant Status Review Tribunals (CSRT’s) are not competent tribunals for the purpose of determining whether a detainee qualifies for all prisoner of war protections. (In Hamdan’s case, the military commission judge will now make that determination.)…

The opinion holds that the men at Guantánamo are entitled to the protections guaranteed to prisoners of war, at least until they have hearings before a competent tribunal. Those protections include prohibitions on torture and coercive interrogations.

In other words, as Lyle Denniston points out, the ruling implies that none of the prisoners at Gitmo are necessarily subject to the Military Commissions Act until a competent tribunal finds that they are.

Although the Military Commission Act provides that those covered by it cannot rely upon the Geneva Convention “as a source of rights,” Judge Allred said that Hamdan has not yet been determined to be an “unlawful enemy combatant” — the status he must be assigned in order to bring him under the MCA.

Of course “the CSRT process was an irremediable sham”, as the declaration by Lt. Col. Stephen Abraham documented for the case of Al Odah. The CSRTs existed to give the appearance of due process without granting prisoners any actual ability to gain their freedom, prove their innocence, or even confront their accusers. The new system of military commissions was built upon a foundation of sand, the ridiculous claims that CSRTs (i) constituted an adequate substitute for habeas review, and (ii) cut off any appeal to rights under the Geneva Conventions.

Now that foundation is crumbling badly. If Allred’s ruling is upheld, it could greatly complicate the question of the Guantanamo prisoners’ rights—while at the same time forcing the US to grant Geneva protections to many or perhaps all prisoners for the time being.

“For almost six years the Bush administration has treated those imprisoned at Guantanamo as bereft of any rights under the Geneva Convention and as without the protections of POWs,” said Center for Constitutional Rights president Michael Ratner.

“This was never the law, and now the Bush administration may finally be forced to do what it should have done from the very beginning: comply with the Geneva Conventions.”

The CSRTs loom large in the background of the consolidated Boumediene/Al Odah cases heard by the Supreme Court on Dec. 5. The main issue before SCOTUS was whether the MCA may strip Gitmo prisoners of access to civil courts. The government argued that the MCA’s jurisdiction-stripping provision is reasonable because the CSRTs had already substituted for habeas review. But as the Allred ruling highlights, the CSRTs were ad hoc tribunals and extremely narrowly focused. Even if the CSRT were not the kangaroo court that Stephen Abraham documents, they still shouldn’t be treated as substitutes for anything—certainly nothing as fundamental as habeas review.

The quality of the oral arguments in Boumediene two weeks ago was abysmal on the central issue of due process. It was especially disappointing to find Justice Ginsburg joining Roberts in trying to identify an excuse to send the cases back for District court review in determining whether CSRTs are an adequate substitute for habeas.

Roberts appears to reject the plaintiffs’ argument that they’ve been waiting too damned long already for habeas review. He wonders why the Court should care that for six long years they’ve been given the run around.

Your argument wouldn’t be any different with respect to the availability of habeas if these people were held for one day, would it? We don’t look at the length of detention in deciding whether habeas is available, do we? …

Your argument is that somebody held one day in Guantanamo has the right to habeas. So the extent of detention is irrelevant to your assertion.

Justice Kennedy later chimed in as if the six-year wait were merely a footnote to the larger questions.

Such arrogance. Or could Roberts, Kennedy, and Ginsburg possibly be that ignorant of the facts of existence at Gitmo?

The central point is one that I’m astonished anybody could fail to see: Prolonged confinement at Guantánamo is torture. The military carefully created conditions of confinement in order to crush the prisoners’ mental resilience. Amnesty International has found that 80% of prisoners were held in solitary confinement. Most of the prison buildings at Gitmo are designed specifically to further that goal. What do these fools on the Supreme Court suppose happens to the human mind after prolonged solitary confinement?

It’s absolutely sickening that, six years into a series of delaying tactics engineered by the Bush administration, there’s any need to discuss whether the habeas review needs to be expedited.

Here, SCOTUS, take a good look. This is what occurs after years of such confinement:

A British resident being held in Guantanamo Bay may be close to suicide after five years of captivity and torture at the hands of the Americans, the Foreign Secretary David Miliband has been warned in a medical report sent to the Government this week.

The report concludes that Binyam Mohamed, from Kensington, west London, is at the end of his “psychological tether” after guards at the US naval base in Cuba switched off the water supply to his cell when he began spreading his own faeces over the walls…

A preliminary medical opinion, commissioned by Reprieve, has found Mr Mohamed to be suffering from severe depression and post-traumatic stress disorder.

Dr Daniel Creson, a respected psychiatrist from Texas who has extensive experience in the treatment of the victims of torture, warns that the deterioration in Mr Mohamed’s health suggests that he “is reaching the end of his psychological tether”.

Binyam Mohamed, like all the other prisoners at Guantánamo, continues to wait in vain for a habeas review. As far as several Supreme Court justices are concerned, his five years of mental torture is just another footnote to more important issues.

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