The War on Terrorism Stalled?

From yesterday`s NYT

THE DETAINEES
Administration Changing Review at Guantánamo Bay
By NEIL A. LEWIS and DAVID E. SANGER

Published: July 1, 2004


WASHINGTON, June 30 — Bush administration officials said Wednesday that they were trying to comply with the Supreme Court`s decision limiting their ability to imprison people indefinitely at Guantánamo Bay, by making some changes to a recently enacted program to review each detainee`s situation every year.

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But some lawyers in the administration as well as some outside it said the annual reviews, even in modified form, could not satisfy the court`s requirements for providing a fair hearing to the detainees. The administration, they said, is still struggling to come to grips with the new legal situation the court created at Guantánamo, which was chosen to house the detainees explicitly with the expectation that it was outside the reach of United States law.

Some administration officials, speaking to reporters on the condition that their names not be used, said they believed Mr. Bush and his aides were unprepared for how broadly and decisively the court struck down the practice of indefinite detention without hearings in almost all cases of the enemy combatants.

As of Wednesday, administration officials were still portraying the court`s rulings as a victory for President Bush that incidentally raised ``some concerns`` that needed to be addressed. In Mr. Bush`s first full day back in Washington since the court`s decision, his spokesman, Scott McClellan, suggested that the administration might seek to comply with the court`s mandates by adjusting the plan for annual reviews.

``We want to make sure that we put a process in place that respects the concerns that the Supreme Court raised and does so in a way that is consistent with the authority of the president to exercise his constitutional responsibility during a time of war,`` Mr. McClellan said. He emphasized the court`s recognition of Mr. Bush`s authority rather than the limits on it imposed by the ruling.

``We are a nation at war and the president does have the right to detain enemy combatants during this time of conflict and hold them during that conflict,`` he said. ``The court recognized that, but at the same time they expressed some concerns.``

But it was clear that the initiative for deciding what will happen to the Guantánamo detainees has, to some degree, passed out of the administration`s hands to the federal courts, which will have to deal with the flood of petitions that defense lawyers have now been given permission to file. Kristine Huskey, a lawyer with Shearman & Sterling, the Washington firm that successfully represented 12 Kuwaitis imprisoned at Guantánamo in the Supreme Court ruling, said she and her colleagues were working to file motions in United States District Court in Washington to demand early hearings on whether her clients are lawfully detained.

``At the very least, we want them to have immediate access to lawyers and family and also to independent medical personnel,`` she said.

In its rulings on Monday, the Supreme Court invited more legal action by two American citizens held as unlawful enemy combatants. The case of Yaser Esam Hamdi, a Louisiana-born Saudi-American who was seized in Afghanistan, was returned to a lower court. In the case of the second detainee, Jose Padilla, who is accused of plotting to detonate a radioactive device, the court told his lawyers to refile their challenge in a different federal court.

The annual review program, which was to start within weeks, was supposed to serve as the Pentagon`s answer to critics who complained that the 590 or so prisoners held at Guantánamo had no opportunity to challenge their detentions. But the program was based on the premise that the military had complete control over the prisoners, who would never have access to federal court.

``The rules the Pentagon announced were drafted with the assumption that there would be no civilian court oversight,`` said Prof. Neal Katyal of the Georgetown University Law School, who has been involved in the issue. ``They were stacked against a basic notion of fairness.``

The annual review process did not, for example, allow for the detainees to have lawyers to represent them before three military officers, nor would the proceedings be public. But the greatest problem was that the judgments could be arbitrary; the three officers were to evaluate the detainees` attitudes and determine if they would be a threat to the United States if released even if they had committed no offense. The panel would not have to specify its reasons for its decisions, which were not reviewable. All these factors would appear to make the process inadequate to the requirements of due process the court has mandated.

Bryan Whitman, a Pentagon spokesman, said Wednesday that officials were still discussing what steps to take in response to the court ruling. He said it was ``premature to speculate on what courses of action to take with regard to the detainees,`` including the option of moving them to the United States, a possibility first reported Wednesday by The Los Angeles Times.

Some officials said the ruling made it unlikely that any new prisoners would be sent to Guantánamo. One official said that if Guantánamo no longer had the feature for which it was chosen, to be outside the reach of United States law, it no longer made sense to put new prisoners there.

Professor Katyal said that another result of the Supreme Court ruling was that the government might move quickly to release many of the detainees to reduce the pool of people who could file petitions in federal court. He said he expected the government would try to persuade federal courts not to entertain any habeas corpus petitions to review the detainees` status until they had gone through the review process. ``It gives the government a strong incentive to create a fair system so they can ask the courts to defer to this process,`` he said.

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From yesterday`s LA Times.


WASHINGTON — Senior Bush administration officials are considering moving hundreds of detainees from a facility in Cuba to prisons within the United States in response to Supreme Court rulings this week that granted military prisoners access to U.S. courts, officials said Tuesday.

As attorneys for detainees at the U.S. naval base at Guantanamo Bay, Cuba, began preparing the first of hundreds of expected lawsuits demanding that the government justify the detentions, administration officials acknowledged that they were unprepared for a rebuke in two landmark Supreme Court decisions that rejected the military`s treatment of prisoners in the war on terrorism.
Now, after being handed the losses, the administration has been left to scramble to develop a strategy for granting hearings to detainees without having to cope with an unwieldy series of lawsuits throughout the nation.
``They didn`t really have a specific plan for what to do, case by case, if we lost,`` a senior Department of Defense (news - web sites) official said on condition of anonymity. ``The Justice Department (news - web sites) didn`t have a plan. State didn`t have a plan. This wasn`t a unilateral mistake on Department of Defense`s part. It`s astounding to me that these cases have been pending for so long and nobody came up with a contingency plan.``
To avoid ferrying prisoners and government lawyers to federal courts across the country, as might be required, Pentagon (news - web sites) and Justice Department officials said they had discussed moving all detainees to a military prison in a conservative judicial district within the United States to enable the consolidation of all the proceedings in one court. They said possible locations could be Ft. Leavenworth, Kan., where there is an Army base with a military prison, or Charleston, S.C., home of the Charleston Naval Weapons Station, which houses the Navy brig.
Another option would be to allow prisoners to file for writs of habeas corpus — a demand for legal justification for their imprisonment — at a makeshift court at the base in Cuba. The Supreme Court left open the possibility of such an option.
Under a third proposal offered Justice Department officials and discussed at a high-level interagency meeting Tuesday, a senior administration official said, the administration would ask Congress to designate one federal court district to try the cases — most likely Washington, D.C. (news - web sites), or the Eastern District of Virginia, whose jurisdiction includes the Pentagon.
The changes could occur as part of a general reorganization of Guantanamo currently under consideration in which the prison facility would be revamped, with detainees segregated by the level of threat they are thought to pose, the senior administration official said.
The administration has faced months of criticism over its prisoner detention program. Critics say the issue, combined with the prison abuse scandal in Iraq (news - web sites) and this week`s rulings, have undermined the administration`s contention that it could be trusted to offer detainees ``full and fair`` justice.
``The `trust us` era is over,`` said Joshua Dratel, a New York attorney who is representing Australian detainee David Hicks, one of three detainees who was referred Tuesday to the first military commission proceedings to be held since World War II.
Justice Department spokesman Mark Corallo challenged the view that legal and military planners had failed to adequately consider major setbacks by the high court.
``We obviously were prepared for any outcomes,`` Corallo said. ``The Defense Department was already providing some amount of process to Guantanamo prisoners. The court said that is not enough. So now we have to figure exactly what type of process will satisfy their rulings.``
But administration officials apparently guessed wrong on how the high court would rule.
An internal Justice Department memo reviewed Tuesday by the Los Angeles Times outlining communications plans in response to high court rulings on the issue listed two pages of talking points to be used ``in case of win,`` and a page of talking points to be used ``in case of win if some sort of process is required`` — a partial victory. Yet, there was no category for action in the event of a broad defeat in the memo, titled ``Supreme Court Decision Communications Plan.``
Few lawyers inside or outside the government doubted that the high court would allow the government the right to detain combatants during wartime, as has been allowed in every major war for two centuries. That option was upheld.
But the memo wrongly predicted an outright win in the case Hamdi vs. Rumsfeld, involving Yaser Esam Hamdi, a Louisiana-born man of Saudi descent captured in Afghanistan (news - web sites).
``The DOD/DOJ position on the detention of Hamdi will be decided in our favor as a clear-cut POW case,`` the memo said, although Hamdi was not held as a prisoner of war.

The memo predicted a 5-4 vote in favor of the government in Rasul vs. Bush and Al Odah vs. United States. Justices in that case, involving 16 Guantanamo detainees seized in Afghanistan and Pakistan, found in the reverse, voting 6 to 3 that military prisoners who are not U.S. citizens cannot be held without access to American courts.
The Justice Department memo assumed that the case of Rumsfeld vs. Padilla, involving Jose Padilla, a U.S. citizen arrested in Chicago on suspicion of plotting to explode a radioactive device, would prove the hardest to win.
``The DOD/DOJ position on Padilla is the most tenuous and the one the court is most likely to take issue with, given that he has strong ties to the U.S.,`` the agency wrote.
The detainee`s claims in that case were rejected on technical grounds because justices said it was filed in the wrong court.
Defense attorneys and government officials predicted that lawyers and human rights activists would rush to obtain the identities of detainees so they could file a flurry of so-called next friend petitions on behalf of friends and families of detainees.
Because Guantanamo Bay is not within any federal court jurisdiction, prisoners held there would be allowed to seek redress from any U.S. district court, officials said. ``We do expect that people will file in every district in the country. The question is: Is that within the parameters of the Supreme Court`s ruling?`` said Corallo of the Justice Department. ``That`s what we`ve got to figure out — would we then be forced to respond in 94 different district courts?``
A series of court cases on other matters may determine related issues in the next few years, such as whether Guantanamo prisoners can be exempted from international law and whether military commissions satisfy constitutional and international law, as the Bush administration contends.
The Pentagon on Tuesday named officers who will constitute the first commission, which will review the cases of three Guantanamo prisoners. Retired Army Col. Peter Brownback III was named presiding officer for the commission, and four other officers were assigned as commissioners. The defendants will be Hicks of Australia, Ali Hamza Ahamad Sulayman al Bahlul of Yemen and Ibrahim Ahmed Mahmoud al Qosi of Sudan. No trial dates were set.

And this is Yahoo news.



Pentagon Might Release Some Detainees

1 hour, 46 minutes ago Add Top Stories - AP to My Yahoo!


By ROBERT BURNS, AP Military Writer

WASHINGTON - The Pentagon (news - web sites) might release some Guantanamo Bay detainees deemed not to pose a security threat without first giving them access to civilian courts, a spokesman said Thursday.



Larry Di Rita, chief spokesman for Defense Secretary Donald H. Rumsfeld, told a news conference that no final decisions have been made about how the government will respond to Supreme Court decisions this week requiring that detainees be given a way to challenge their incarceration.


But he said it was possible that if it could be determined some people need not be held then they also ``need not necessarily be part of a judicial process.``


Di Rita referred to the Pentagon`s newly adopted system for annually reviewing each of the nearly 600 detention cases at Guantanamo Bay. Under that system, a panel of three military officers would assess each case, but the detainees would not be represented by lawyers.


``If there are people who can be released after some due process of review that we`ve established, it`s worth considering whether that`s the right next thing to do,`` Di Rita said.


Separately, a group of human rights lawyers sent Rumsfeld a letter asking for access to 53 prisoners at Guantanamo Bay.


Jeffrey Fogel, legal director for the New York-based Center for Constitutional Rights, said in the letter, ``I write to insist that we be permitted unfettered access to our clients.``


He also said it is ``incumbent`` on the U.S. government to allow all detainees to be informed of the Supreme Court decisions and their rights under the rulings.


Asked by a reporter how the Pentagon planned to notify the detainees of the court rulings, Di Rita said he did not know when or how it would be done, but he promised to find out.


The Center for Constitutional Rights, a nonprofit legal organization, represented two Australian detainees in the legal challenge that led to Monday`s Supreme Court ruling.


``The Supreme Court made clear that our clients have a right to have the legality of their detention determined by a federal court,`` Fogel said in a statement sent to news organizations. ``We must have immediate access to our clients in order to prepare their defense.``


The Pentagon`s annual reviews are to be overseen by Navy Secretary Gordon England, who said last week before the Supreme Court rulings that he expected the first review panel to meet within two weeks.


Most of the 595 detainees at Guantanamo were captured in the U.S. war in Afghanistan (news - web sites) in 2001 and most have been held without access to lawyers for more than two years. Human rights groups have complained the prisoners are in a legal limbo with little chance to gain their release.


The annual review program was supposed to serve as the Pentagon`s answer to those critics.


On Monday, the Supreme Court ruled federal courts can hear the detainees` cases. The Bush administration believed the Guantanamo detention facility was outside the reach of American law.


The court also ruled that the government has the right to seize and hold what it calls enemy combatants, but cannot indefinitely detain them with no meaningful way for them to challenge their captivity.


However, the ruling left it to other courts, the Bush administration and outside lawyers to sort out what happens next.





Also this week, the Pentagon announced that a five-member tribunal will try three suspects at Guantanamo. The military trial would be the first U.S. war crimes tribunal since World War II.

My comment on Yahoo news item posted earlier.

All released detainees must know that since the court has asserted its jurisdiction over them, they have the right to sue the US Government, in US courts, for keeping them detained without any formal charges. Even if the US Government flies you straight from Guantanamo to Afghanistan, talk to Human Rights advocates in this country. They are waiting for your call--would love to sue the Government on your behalf.

C.

Bloody Kangaroo courts. Look at Taliban, they used to execuute people in the football stadium. Similarly all Guantanamo detainees should be executed during Super Bowl halftime. WOW!! What ab great show that would be...sponsors would line up...so much better then JJ`s nipple. :0)

I`ll be posting media coverage relevant to court`s ruling.

First, see “Justices to Hear Case of Detainees at Guantánamo” by Linda Greenhouse, November 11, 2003, the New York Times.

The following is from Tuesday`s NY Times.

Following are excerpts from opinions in the case of Yaser Esam Hamdi, an American held as an enemy combatant. Justice Sandra Day O`Connor wrote the majority opinion in which she was joined by Chief Justice William H. Rehnquist, and Justices Anthony M. Kennedy and Stephen G. Breyer. Justice David H. Souter concurred but filed an opinion that dissented in part, in which he was joined by Justice Ruth Bader Ginsburg. Justices Antonin Scalia and John Paul Stevens filed an opinion saying Mr. Hamdi should have a habeas corpus hearing but dissenting on part of the majority`s findings. Justice Clarence Thomas filed a dissenting opinion. The full text of the Court`s opinions can be found here: Hamdi | Padilla | Guantanamo
Though they reach radically different conclusions on the process that ought to attend the present proceeding, the parties begin on common ground. All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. Only in the rarest of circumstances has Congress seen fit to suspend the writ. At all other times, it has remained a critical check on the executive, ensuring that it does not detain individuals except in accordance with law. All agree suspension of the writ has not occurred here. Thus, it is undisputed that Hamdi was properly before an Article III court to challenge his detention under 28 U. S. C. §2241. Further, all agree that §2241 and its companion provisions provide at least a skeletal outline of the procedures to be afforded a petitioner in federal habeas review. Most notably, §2243 provides that ``the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts,`` and §2246 allows the taking of evidence in habeas proceedings by deposition, affidavit, or interrogatories.
The simple outline of §2241 makes clear both that Congress envisioned that habeas petitioners would have some opportunity to present and rebut facts and that courts in cases like this retain some ability to vary the ways in which they do so as mandated by due process. The government recognizes the basic procedural protections required by the habeas statute, but asks us to hold that, given both the flexibility of the habeas mechanism and the circumstances presented in this case, the presentation of the Mobbs Declaration to the habeas court completed the required factual development. It suggests two separate reasons for its position that no further process is due.
First, the government urges the adoption of the Fourth Circuit`s holding below - that because it is ``undisputed`` that Hamdi`s seizure took place in a combat zone, the habeas determination can be made purely as a matter of law, with no further hearing or fact-finding necessary. This argument is easily rejected. As the dissenters from the denial of rehearing en banc noted, the circumstances surrounding Hamdi`s seizure cannot in any way be characterized as ``undisputed,`` as ``those circumstances are neither conceded in fact, nor susceptible to concession in law, because Hamdi has not been permitted to speak for himself or even through counsel as to those circumstances.`` Further, the ``facts`` that constitute the alleged concession are insufficient to support Hamdi`s detention. Under the definition of enemy combatant that we accept today as falling within the scope of Congress` authorization, Hamdi would need to be ``part of or supporting forces hostile to the United States or coalition partners`` and ``engaged in an armed conflict against the United States`` to justify his detention in the United States for the duration of the relevant conflict. The habeas petition states only that ``[w]hen seized by the United States government, Mr. Hamdi resided in Afghanistan.`` An assertion that one resided in a country in which combat operations are taking place is not a concession that one was ``captured in a zone of active combat operations in a foreign theater of war,`` [emphasis added] and certainly is not a concession that one was ``part of or supporting forces hostile to the United States or coalition partners`` and ``engaged in an armed conflict against the United States.`` Accordingly, we reject any argument that Hamdi has made concessions that eliminate any right to further process.
The government`s second argument requires closer consideration. This is the argument that further factual exploration is unwarranted and inappropriate in light of the extraordinary constitutional interests at stake. Under the government`s most extreme rendition of this argument, ``respect for separation of powers and the limited institutional capabilities of courts in matters of military decision-making in connection with an ongoing conflict`` ought to eliminate entirely any individual process, restricting the courts to investigating only whether legal authorization exists for the broader detention scheme. At most, the government argues, courts should review its determination that a citizen is an enemy combatant under a very deferential ``some evidence`` standard. Under this review, a court would assume the accuracy of the government`s articulated basis for Hamdi`s detention, as set forth in the Mobbs Declaration, and assess only whether that articulated basis was a legitimate one. Brief for respondents declining to address whether the ``some evidence`` standard should govern the adjudication of such claims, but noting that ``[t]he factual averments in the [Mobbs] affidavit, if accurate, are sufficient to confirm`` the legality of Hamdi`s detention.

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I think Marbury vs Madison (1803) has to do something with the Judicature Act of 1789. It laid down the basis that anything that is in conflict with the constitution `may` be declared ultra vires by the Supreme Court. J. Marshall declared that congress cant enlarge the original jurisdiction of the SC which has been precribed by constitution itself. This laid down foudnation for doctrine of checks and balances on legislature if it does something void to constitutional practices NOT something to do with jurisdiction of courts.

Later Scot vs. Sanford (1857) & Marryland vs. McCulloch (1898) also served as milestones for judicial review.

Justice Marshall should be thanked for his decision in Marbury v. Madison, which established the principle of constitutional review, by which the Supreme Court took upon itself to judge all acts of the US government as a constitutional or not.

Ciao

I dont know when will the ``other`s nose`` start !

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I do not trust the kangroo courts; unless they abide by the Geneva Convention this is all just hogwash.

Thank you for the sharing the recent developments w.r.t the war on terrorism. This was a very succinct and well put together write-up! Regards.