In re Guantanamo Detainee Cases

http://news.findlaw.com/hdocs/docs/gitmo/inregitmo13105opn.pdf

In re Guantanamo Detainee Cases

January 31, 2005




In a 75 page (redacted opinion), the federal District Court for the District of Columbia ruled in favor of Gitmo detainees.

Paraphrased summary of the opinion:

In response to the terrorist attacks of September 11, 2001, Congress passed a joint resolution authorizing the President to use military force against those nations, organizations, or persons determined to have planned, authorized, committed, or aided the terrorist attacks or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the U.S. by such nations, organizations or persons. See Authorization for Use of Military Force (AUMF).

Military operations were commenced in Afghanistan against al Qaeda and the Taliban regime. During the course of the military campaign, U.S. forces took custody of numerous individuals who were actively fighting against allied forces on Afghan soil. Many of these individuals were designated as "enemy combatants" and were transferred to Gitmo where there continue to be detained by U.S. authorities.

In addition to those captured on Afghan soil, U.S. authorities are detaining numerous others who were captured in places other than the battle zone. Detainees at Gitmo include those who were taken from Gambia, Zambia, Bosnia, and Thailand. Some have been detained as long as three years.

Although many of these individuals may have never come close to the battlefield and may have never raised arms against the U.S., the military has designated them as "enemy combatants" based on conclusions that they have ties to al Qaeda or other terrorist organizations. (Presumed Guilt by alleged Association?)

The government argues that once an individual has been properly designated as an "enemy combatant," that individual may be held indefinitely until the end of America's war on terrorism or until the military determines on a case by case basis that the particular detainee no longer poses a threat to the U.S. or its allies.

Within the general set of "enemy combatants" is a subset of individuals whom the government has decided to prosecute for WAR CRIMES before a military commission established pursuant to a Military Order issued by President Bush on November 13, 2001.

See President's Military Order:

http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html


Although detainees at Guantanamo Bay NOT subject to prosecution for war crimes could suffer life in prison--depending on how long America's war on terrorism lasts--they were not given any significant procedural rights to challenge their status as alleged "enemy combatants."

At least through June 2004, the substantial majority of detainees not charged with war crimes were not informed of the bases upon which they were detained, were not permitted access to counsel, were not given a formal opportunity to challenge their "enemy combatant" status, and were held virtually incommunicato from the outside world.

In Rasul v. Bush, 124 S.Ct. 2686 (2004), the United States Supreme Court ruled that federal courts have jurisdiction to hear the detainees' habeas claims.

On July 7, 2004--nine days after the issuance of the Rasul decision--Deputy Secretary of Defense Paul Wolfowitz issued an Order creating a military tribunal called the "Combatant Status Review Tribunal" (CSRT) to review the status of each detainee at Guantanamo Bay as an "enemy combatant."

The Deputy Secretary's Order defines "enemy combatant" as follows:

"The term 'enemy combatant' shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerant act or has directly supported hostilities in aid of enemy armed forces."

http://www.defenselink.mil/news/Jul2004/d20040707review.pdf

The detainees do not have a right to information deemed classified concerning their detention, they do not have a right to counsel, the rules of evidence do not apply, and there is a presumption in favor of the government's conclusion that a detainee is in fact an "enemy combatant."

According to the government, it is legal to hold an "enemy combatant" in custody until the war on terrorism has been declared by the President to have concluded or until the President or his designees have determined that the detainee is no longer a threat to national security.

There is nothing impracticable or anomalous in recognizing that the detainees at Guantanamo Bay have the fundamental right to due process of law under the Fifth Amendment. The U.S. has exclusive control over Guantanamo Bay. Even though the Cuban government has alleged that the U.S. military is violating the human rights of the detainees and has demanded more humane treatment, the U.S. government has not conceded the Cuban government's sovereignty over these matters.

Of course, it would be far easier for the government to prosecute the war on terrorism if it could imprison all suspected "enemy combatants" at Guantanamo Bay without having to acknowledge or respect any rights of detainees--but that is not the relevant legal test. Constitutional limitations often, if not always, burden the abilities of government officials. The necessity of protecting ourselves against threats cannot negate the existence of the most basic fundamental rights for which the people of this country have fought and died for well over two hundred years ago.

It would indeed be ironic if, in the name of national defense, we would sanction the subversion of those liberties which make the defense of the Nation worthwhile.


The right not to be deprived of liberty without due process of law is one of the most fundamental rights recognized by the U.S. Constitution. In light of the Supreme Court's decision in Rasul, it is clear that Guantanamo Bay must be considered the equivalent of a U.S. territory in which fundamental rights apply. The government's contention that the Guantanamo detainees have no constitutional rights is rejected and the Court recognizes that the detainees' have rights under the Due Process Clause of the Fifth Amendment.

A due process challenge requires consideration and weighing of three factors set forth in the Mathews v. Eldridge balancing test:

1) the private interest involved;

2) the risk of erroneous deprivation of that private interest through the use of existing procedures and the probable value of additional or substitute procedural safeguards; and

3) the competing interests of the government.


The most elemental of liberty interests is to be free from physical detention and from being held virtually incommunicado from the outside world. The potential length of the incarceration is highly relevant to the weighing of the individual interests at stake. The government asserts a right to detain an "enemy combatant" until the war on terrorism has concluded or until the Executive, in its sole discretion, has determined that the individual no longer poses a threat to national security.

The government is unable to estimate how long the war on terrorism will last. The government cannot even articulate how it will determine when the war on terrorism has ended. At a minimum, the government concedes that the war could last SEVERAL GENERATIONS making it likely that "enemy combatants" will be subjected to terms of life imprisonment at Guantanamo Bay.

Short of the death penalty, life imprisonment is the ultimate deprivation of liberty, and the uncertainty of whether the war on terror--and thus the period of incarceration--will last a lifetime may be even worse than if the detainees had been tried, convicted, and definitely sentenced to a fixed term.


The detainees' liberty interests cannot be minimized by the government's allegations that they are in fact terrorists or affiliated with terrorist organizations. The purpose of imposing a due process requirement is to prevent mistaken characterizations and erroneous detentions. The government may not short circuit this inquiry by claiming ab initio that the individuals are alleged to have committed bad acts.

On the other side of the analysis, the government has a significant interest in safeguarding national security. The government has an interest in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United Stated. The Supreme Court affirmed the Executive's authority to detain Taliban fighters as long as the conflict in Afghanistan continues, regardless of how indefinite the length of that war may be.

According to the plurality in Hamdi, an individual detained as an "enemy combatant" must receive notice of the factual basis for his classification and a fair opportunity to rebut the government's factual assertions before a neutral decisionmaker.

The procedures provided in the CSRT regulations fail to satisfy constitutional due process requirements in several respects. Those deficiencies are the CSRT's failure to provide detainees with access to material evidence upon which the tribunal affirmed their "enemy combatant" status and failure to permit assistance of counsel. Simply, the detainees lack any reasonable opportunity to confront the government's evidence against them. Other defects concern the manner in which the CSRT handled accusations of torture and the overbroad definition of "enemy combatant" in the CSRT regulations.

Classified information (redacted from the public opinion) supports the petitioners' allegation that the CSRTs do no involve an impartial decisionmaker and the detainees are not provided with a fair opportunity to rebut or contest the material allegations against them. (Because the material allegations are allegedly supported by classified evidence that is not made available to the detainees.)

The Court appreciates the strong governmental interest in not disclosing classified evidence to individuals believed to be terrorists, but the evidence may not be withheld from defense counsel with a security clearance. CSRT regulations do not properly balance the detainee's need for access to material evidence considered by the tribunal against the government's interest in protecting classified information. A detainee is entitled to effective counsel--an effective surrogate--to compensate for the detainee's inability to personally review and contest classified evidence against him. The CSRT uses untrained personal representatives to assist detainees, but personal representatives are obligated to disclose to the tribunal any relevant inculpatory information he obtains from the detainee.

In sum, the CSRT's extensive reliance on classified information in its resolution of "enemy combatant" status, the detainees' inability to review that information, and the prohibition of assistance of counsel jointly deprive the detainees of sufficient notice of the factual bases for their detention and deny them a fair opportunity to challenge their incarceration. These grounds alone are sufficient to find a violation of due process rights and to require the denial of the government's motion to dismiss these cases.


Additional defects in the CSRT procedures support denial of the government's motion to dismiss. First involves the CSRT's reliance on statements allegedly obtained through torture or coercion.

The Supreme Court has long held that due process prohibits the government's use of involuntary statements obtained through torture or other mistreatment. At a minimum, due process requires a thorough inquiry into the accuracy and reliability of statements alleged to have been obtained through torture.

(Evidence concerning torture is redacted from opinion.) Examined in the light most favorable to the detainee, CSRT reliance (on statements obtained through torture) cannot be viewed to have satisfied the requirements of due process.

Mr. Habib is not the only detainee before this Court to have alleged making confessions to interrogators as the result of torture (redacted). Notwithstanding the inability of counsel for petitioners (detainees) to take formal discovery beyond interviewing their clients at Guantanamo Bay, they have introduced evidence into the public record indicating that abuse of detainees occurred during interrogations not only in foreign countries but at Guantanamo Bay itself.

Although the government has been detaining individuals as "enemy combatants" since the issuance of the AUMF in 2001, it apparently did not formally define the term until the July 7, 2004 ORDER creating the CSRT.

Indefinite detention for the purpose of interrogation is not authorized. The definition of "enemy combatant" contained in the ORDER creating the CSRT is significantly broader than the definition considered in Hamdi. The government interprets the AUMF to permit the indefinite detention of individuals who never committed a belligerant act or who never directly supported hostilities against the U.S. or its allies.

According to the government, the President has the authority to detain for the entire duration of the "war on terror" the following persons:

a little old lady in Switzerland who writes a check to what she thinks is a charity that helps orphans in Afghanistan but what is really a front to finance al-Qaeda activities;

a person who teaches English to the son of an al Qaeda member;

a journalist who knows the location of Osama Bin Laden but refuses to disclose her source.

The expansive definition of "enemy combatant" currently in use in CSRT proceedings violates long standing principles of due process by permitting the detention of individuals based solely on their membership in anti-American organizations rather than on actual activities supporting the use of violence or harm against the United States.

It would appear that the government is indefinitely holding the detainee--possibly for life--solely because of his associations and NOT because of any terrorist activities that the detainee aided, abetted, or undertook himself. Such a detention, even if authorized by the AUMF, would be a violation of due process. Accordingly, the detainee is entitled to fully litigate the factual basis for his detention in these habeas proceedings and to have a fair opportunity to prove that he is being detained on improper grounds.


Petitioners have asserted claims based on the Geneva Conventions which regulate the treatment of prisoners of war and civilians.

The Constitution provides that all Treaties made under the authority of the United States shall be the Supreme Law of the Land. U.S. Const. Art. VI, cl. 2. Because the Geneva Conventions were written to protect individuals . . . the Third Geneva Convention is a self-executing treaty.

The Court rejects the President's determination that no Taliban fighter is a prisoner of war defined by the Convention. The Third Geneva Convention does not permit the determination of prisoner of war status in such a conclusory fashion.

If there is any doubt as to whether individuals satisfy the Article 4 (POW) prerequisites, Article 5 entitles them to be treated as prisoners of war "until such time as their status has been determined by a competent tribunal."

Nothing in the Convention authorizes the President of the United States to rule by fiat that an entire group of fighters covered by the Third Geneva Convention falls outside of the Article 4 definitions of "prisoners of war." The President's broad characterizations cannot substitute for an Article 5 tribunal's determination on an individualized basis of whether a particular fighter complied with the laws of war or otherwise falls within an exception denying him POW status.

Accordingly, the Court denies the government's motion to dismiss the Geneva Convention claims of those petitioners who were found to be Taliban fighters but who were not specifically determined to be excluded from POW status by a competent Article 5 tribunal.