Restore Habeas Review for Guantanamo Prisoners

Judicature, July/August 2007 | Go to article overview

Restore Habeas Review for Guantanamo Prisoners


The sorry history of confinement of foreign nationals at Guantanamo Bay for more than five years has had serious adverse consequences for our country.

The American Judicature Society believes that it is well past time for Congress to enact legislation restoring the right of prisoners held at Guantanamo to seek writs of habeas corpus from the federal courts. There may be legitimate questions about what would happen to prisoners if Guantanamo were to be closed. In our view, however, there is no excuse for further delay in opening our courts.

The controversy regarding the legality and wisdom of our government's incarceration of citizens of other countries at Guantanamo Bay continues unabated. The federal courts and Congress have shuttled this subject back and forth in a series of rulings and legislative enactments that defy explanation to most lawyers, much less those who lack an understanding of the intricacies of our judicial and legislative processes. At the risk of over-simplification, we will try to put the matter into perspective.

Shortly after our troops invaded Afghanistan in the fall of 2001, United States military personnel apprehended hundreds of Muslim citizens of various countries, many of Arab descent, and transported them to Guantanamo Bay, Cuba, where they have been incarcerated, many for more than five years.

All of the so-called detainees were determined by presidential order to be "enemy combatants," through a procedure that has not been disclosed, but that did not include notice to the prisoners or an opportunity for them to appear or be heard. They were, and from time to time still are, described by government officials as "killers," "terrorists," and the "worst of the worst." Given these accusations so confidently voiced, it is curious that, without explanation, apology or compensation, more than 400 have been returned to their native countries, most after years of confinement.

Indeed, contrary to what we have been led to believe, we now know from studies of government records conducted by Seton Hall Law School Professor Mark P. Denbeaux and his students that 92 percent of those incarcerated at Guantánamo were not captured by Americans. Sixty-six percent of them were not even picked up in Afghanistan, much less on the battlefield; rather, they were turned in to U.S. troops by Pakistan, and another 20 percent were delivered by the Northern Alliance, most for cash bounties.

We have no doubt that some of those incarcerated, whatever label is applied to them, not only pose a threat to the United States but have taken action against us. We are equally sure that our government's overreaching encourages people elsewhere to doubt even that.

Approximately 350 men remain jailed at Guantanamo, most held there for the past four or five years in small, individual cells. They are isolated from contacts with the outside world except through occasional visits by lawyers. They are allowed extremely limited contact with fellow prisoners, few opportunities for exercise, and little reading material except the Koran. Mail to and from their families is censored, heavily redacted, and agonizingly slow.

At every turn, the government has attempted to stymie the determined efforts of hundreds of pro bono lawyers to obtain meaningful judicial hearings for the prisoners. In 2004 the Supreme Court held that the prisoners were entitled to challenge the basis for their detentions though petitions for writs of habeas corpus in the District of Columbia District Court. Less than two weeks later, the administration sought to evade this ruling by establishing Combatant Status Review Tribunals, or CSRTs, whose function was to decide whether the President was justified in determining that the prisoners were enemy combatants. The prisoners (almost none of whom spoke English) were provided with interpreters, but were denied lawyers. Most were not informed of the reasons for their detention because the government considered that information classified. …

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